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SPEC  SAL  BOOKS 

FOB 

COUNTY  OFFICIALS 

Supervisors,  Town  Clerks  and  Village  Clerks  of  the 
State  of  New  York 

BENDER’S  MANUAL,  9tli  Edition  $10.00 

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GILBERT’S  ANNOTATED  CODE  OF  CIVIL  PROCEDURE,  2nd  Ed.  10.00 
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paper,  4.50 

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For  sale  by  all  Law  Booksellers,  or  the  Publishers, 

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BENDER’S  MANUAL 


SUPERVISORS’,  COUNTY  AND 

TOWN  OFFICERS’  MANUAL 


THE  COUNTY,  TOWN,  HIGHWAY,  GENERAL  MUNICIPAL, TAX  AND  POOR 
LAWS  IN  FULL  AND  ALL  OTHER  STATUTES  OF  THE  STATE  OF  NEW 
YORK,  RELATING  TO  BOARDS  OF  SUPERVISORS,  TOWN  BOARDS, 
COUNTY  AND  TOWN  OFFICERS,  AND  THE  AFFAIRS  AND 
BUSINESS  OF  COUNTIES  AND  TOWNS,  AS  AMENDED  TO 
THE  CLOSE  OF  THE  LEGISLATURE  OF  1918 


DECISIONS,  ANNOTATIONS,  EXPLANATORY  NOTES,  CROSS  REFERENCES, 
FORMS,  A DIGEST  OF  FEES  OF  COUNTY  AND  TOWN  OFFICERS, 
AND  A TIME  TABLE  SHOWING  TIMES  WHEN  THE  DUTIES 
OF  SUCH  OFFICERS  ARE  TO  BE  PERFORMED 


CONTAINING 


WITH 


BY 


FRANK  B.  GILBERT 


CO-EDITOR  OF  THE  CONSOLIDATED  LAWS  OF  NEW  YORK,  ANNOTATED 


NINTH  EDITION 


MATTHEW 


INCORPORATED, 


ALBANY,  N.  Y. 


BENDER  & COM 


2638? 


Copyright,  1899, 

By  MATTHEW  BENDER 


Copyright,  1903, 

By  MATTHEW  BENDER. 


Copyright,  1900, 

By  MATTHEW  BENDER  & CO 


Copyright,  1908, 

By  MATTHEW  BENDER  & CO. 

Copyright,  1910, 

By  MATTHEW  BENDER  & CO 


Copyright,  1912, 

By  MATTHEW  BENDER  & COMPANY. 


Copyright,  1914, 

By  MATTHEW  BENDER  & COMPANY. 


Copyright,  1916. 

By  MATTHEW  BENDER  & COMPANY, 
Incorporated. 


Copyright,  1918, 

By  MATTHEW  BENDER  & COMPANY, 
Incorporated. 


5T50 
. A3X 
111* 

NOTE  TO  NINTH  EDITION. 


Constant  and  numerous  changes  in  statutes  relative  to  the  powers,  u- 
ties  and  liabilities  of  boards  of  supervisors,  county  and  town  officers,  and 
concerning  the  affairs  of  counties  and  towns  and  the  districts  therein, 
make  it  absolutely  essential  that  this  manual  should  be  revised  at  least  once 
in  each  period  of  two  years.  The  modification  of  existing  laws  and  the 
enactment  of  new  provisions  are  so  numerous,  extensive  and  important 
that  county  and  town  officers  and  others  interested  in  county  and  town 
matters  may  not  safely  rely  for  guidance  on  the  former  edition  of  this 

manual.  . 

The  legislatures  of  1917  and  1918  were  confronted  with  many  new 
problems,  arising  from  existing  abnormal  political  and  economic  condi- 
tions due  to  the  war,  and  have  enacted  laws  materially  affecting  the  transac- 
tion of  county  and  town  business.  These  laws  have  to  do  with  the  legis- 
lative and  administrative  powers  of  boards  of  supervisors,  the  construction 
of  public  improvements,  the  financing  of  all  public  enterprises,  the  grant- 
ing of  public  aid  to  the  poor  and  defectives  and  the  raising  of  money  for 
state,  county  and  town  purposes.  These  laws  have  naturally  been  made 
as  amendments  of  the  county,  town  and  general  municipal  laws,  the  poor, 
insanity  and  state  charities  laws,  the  tax  law,  the  highway  law,  and  all 
other  general  laws  relating  to  counties  and  towns.  The  subjects,  scopes 
and  purposes  of  these  laws  are  so  numerous  and  varied  that  it.  would  be 
impracticable  to  enumerate  them.  It  is  enough  to  assert  that  they  are  of 
such  vital  importance  and  of  such  wide  effect  as  to  make  a new  edition 
of  this  manual  indispensable  at  this  time. 

FRANK  B.  GILBERT. 

Albany,  N.  Y.,  September  2,  1918. 


Digitized  by  the  Internet  Archive 
in  2016 


https://archive.org/details/bendersmanualsupOOgilb 


NOTE  TO  EIGHTH  EDITION. 


Since  the  last  edition  of  this  manual  was  published  in  1914  many 
important  changes  in  the  laws  relating  to  the  powers  and  duties  of  county 
and  town  officers  and  boards  of  supervisors  have  been  made  by  amend- 
ment of  existing  laws  and  the  enactment  of  new  laws.  The  Tax  Law  and- 
the  Highway  Law  have  been  materially  amended;  modifying  the  pro- 
cedure and  changing  or  increasing  the  duties  of  county  and  town  officers 
in  respect  to  tax  assessments  and  highway  construction  and  maintenance. 
There  has  been  a substantial  modification  of  the  laws  relating  to  public 
health,  conduct  of  elections  and  town  meetings,  support  of  the  poor  and 
relief  of  dependent  children  and  widowed  mothers,  and  many  other 
subjects. 

These  changes  are  of  sufficient  importance  and  extent  to  render  it 
unsafe  for  public  officers  and  others  interested  in  county  and  town  affairs 
to  depend  upon  the  former  edition  of  this  manual  as  a guide.  It  has 
been  the  policy  of  the  publishers,  justified  by  an  experience  extending 
over  a period  of  nearly  twenty  years,  to  revise  the  manual  as  often  as 
once  in  two  years,  so  that  there  may  be  available  for  the  practical  use  of 
those  engaged  actively  in  municipal  transactions  a complete  and  reason- 
ably up-to-date  collection  of  statutes,  with  references,  decisions  and 
explanatory  notes,  pertaining  to  the  administration  of  county  and  town 
governments. 

This  edition  is  published  in  accordance  with  this  establshed  policy.  It 
is  entirely  new  in  some  respects,  retaining  the,  arrangement  and  method 
of  treatment  of  former  editions.  It  is  anticipated  with  confidence  that 
it  will  be  received  with  favor  by  those  entrusted  with  official  duties  in 
our  towns  and  counties  and  others  interested  in  municipal  matters. 

F.  B.  G. 


Albany,  N.  Y.,  October  10,  1916. 


NOTE  TO  FIFTH  EDITION. 


Since  the  last  edition  of  this  manual  the  legislature  has  enacted  a com- 
plete consolidation  of  the  general  laws  of  the  state,  known  as  the  Consoli- 
dated Laws  of  New  York.  The  effect  of  this  consolidation  was  to  change 
the  numerical  order  of  all  sections  of  the  chapters  of  the  General  Laws, 
and  to  add  thereto  all  general  statutes  pertaining  to  the  same  subject 
matter.  The  result  is  that  the  Town  Law,  County  Law,  Highway  Law, 
Tax  Law,  Poor  Law,  and  other  laws  relating  to  town  and  county  business 
and  affairs  are  entirely  different  in  form  from  those  laws  as  they  existed 
when  the  former  edition  of  this  manual  was  published.  This  is  in  itself 
sufficient  to  justify  the  publication  of  a new  edition.  But  since  the  last 
revised  edition  was  published  in  1908  many  important  changes  in  these 
laws  have  been  made.  New  methods  of  county  and  town  administration 
have  been  adopted.  Many  duties  and  powers  have  been  added  to  those 
already  possessed  by  county  and  town  officers.  On  this  account  the  publi- 
cation of  a new  edition  has  become  an  absolute  necessity. 

We  have  inserted  in  this  edition  a great  many  laws  which  were  not  in 
eluded  in  the  former  editions.  We  have  referred  to  all  the  recent  decisions 
of  the  court  in  their  proper  places.  Many  new  forms  have  been  adopted. 
We  have  endeavored  by  many  cross  references  to  aid  the  officer  in  his  search 
for  all  the  law  on  the  subject  which  interests  him. 

The  explanatory  notes  at  the  beginning  of  all  the  important  chapters 
will  indicate  concisely  the  important  duties  of  county  and  town  officers. 
They  are  for  the  purpose  of  explaining  in  simple  language  the  scope  and 
extent  of  the  powers  and  duties  of  town  and  county  officers.  This  is  a 
new  feature,  which  it  is  hoped  will  prove  valuable. 

P.  B.  G. 

Albany,  N.  Y.,  November  1,  1910. 


, 


. 


NOTE  TO  THIRD  EDITION. 


The  second  edition  of  this  manual  was  published  in  the  summer  of 
1903.  Since  that  time  many  important  amendments  to  the  laws  relating 
to  the  rights,  powers,  duties  and  liabilities  of  town  and  county  officers 
have  been  enacted,  and  a number  of  controlling  judicial  decisions  have 
been  rendered  bearing  upon  those  laws.  A glance  at  the  table  of  the 
laws  of  1904,  1905  and  1906  which  have  been  included  in  this  edition  will 
indicate  the  constant  changes  affecting  the  administrative  laws  of  towns 
and  counties.  This  new  edition  is  published  in  pursuance  of  the  purpose 
to  prepare  and  publish  a revised  edition  of  this  manual  at  least  once  in 
three  years. 

It  is  believed  that  town  and  county  officers  will  find  this  revised  edition 
of  the  manual  useful  if  not  absolutely  essential. 

F.  B.  G. 

Albany,  September  1,  1906. 


PREFACE. 


The  purpose  of  this  manual  is  to  present  in  a logical  manner  all  the  laws 
of  the  state  pertaining  to  the  transactions  of  county  and  town  business, 
and  the  rights,  powers,  duties  and  liabilities  of  boards  of  supervisors  and . 
county  and  town  officers.  As  is  indicated  by  the  table  of  contents,  the 
manual  is  divided  into  parts,  and  each  part  again  subdivided  into  chapters. 
This  arrangement  permits  of  a careful  and  scientific  classification  of  the 
laws  relating  to  the  topics  under  consideration. 

In  the  chapters  devoted  to  the  exclusive  powers  and  duties  of  the  several 
county  and  town  officers,  cross  references  are  made  in  their  proper  con- 
nection to  other  parts  of  the  manual,  where  other  duties  are  prescribed  in 
connection  with  those  of  other  officers.  These  references  join  together  the 
several  laws,  and  parts  of  laws,  so  that  all  the  powers  and  duties  of  the 
several  officers  may  be  readily  ascertained. 

The  editorial  notes  and  citations  of  authorities,  containing  frequent 
extracts  from  judicial  opinions,  are  included  in  foot  notes,  so  that  the  law 
as  enacted  by  the  state  legislature  may  be  clearly  distinguished.  The 
manual  is  based  upon  statute  law,  for  the  reason  that  county  and  town 
rights  and  obligations,  and  the  powers  and  duties  of  county  and  town 
officers,  are  of  statutory  origin.  The  notes  are  to  aid  in  the  interpretation 
and  application  of  these  statutes  and  are,  therefore,  properly  subordinated 
to  them. 

A large  number  of  appropriate  forms  are  appended,  with  references  to 
them  by  number  in  connection  with  the  statutes  under  which  they  are  to 
be  used. 

A schedule  of  the  general  laws  and  other  statutes  contained  in  the  manual 
is  inserted  immediately  after  the  table  of  contents,  for  the  purpose  of 
showing  readily  the  pages  where  the  several  sections  of  such  laws  and 
statutes  can  be  found. 

This  manual  contains  all  the  general  laws  and  statutes  pertaining  to 
counties  and  towns,  the  administration  of  their  affairs  and  the  powers  and 
duties  of  their  officers.  Statutes  relating  to  any  one  county  or  town  officer 
cannot  be  considered  without  reference  to  other  officers,  because  their 
powers  and  duties  are  interlaced  and  dependent,  the  one  upon  the  other. 
For  instance,  a county  board  of  supervisors  cannot  act  intelligently  upon  a 


PREFACE. 


matter  pertaining  to  the  highway  system  without  a knowledge  of  the 
duties  of  highway  commissioners.  It  may  safely  be  said  that  a county  or 
town  officer  who  is  familiar  with  the  requirements  of  his  office,  must  also 
know,  to  a certain  extent,  the  rights  and  duties  of  other  officers.  It  fol- 
lows that  a complete  guide  for  the  use  of  any  one  or  more  county  or  town 
officers  must  contain  all  the  statute  law  of  the  state  generally  applicable  to 
all  of  such  officers. 

The  chief  aim  has  been  to  make  this  manual  easy  for  use  by  county 
and  town  officers,  who  may  be  business  men  but  not  lawyers,  and,  there- 
fore, not  learned  in  the  law.  In  accomplishing  this  purpose  it  would  be 
strange  if  its  value  to  lawyers  has  been  lessened.  The  statute  law  is 
included  as  it  is;  the  explanatory  notes  and  comments  may  be  taken  at 
their  actual  worth ; they  are  the  result  of  the  careful  and  conscientious 
labor  of  the  editor,  who  has  had  a somewhat  extended  experience  in  the 
consideration  of  the  state  statutes. 

Albany,  N.  Y.,  September  1,  1903. 


FRANK  B.  GILBERT. 


CONTENTS. 


PART  I. 

COUNTIES;  BOARDS  OF  SUPERVISORS. 

Chapter.  page. 

I.  Counties  as  corporations 1 

II.  Organization,  meetings  and  proceedings  of  board  of  super- 
visors   8 

III.  Audit  by  board  of  supervisors;  county  charges 24 

IV.  General  powers  of  boards  of  supervisors;  publication  of  session 

laws;  removal  of  county  buildings;  other  powers 51 

V.  Boards  of  supervisors  as  boards  of  county  canvassers 83 

VI.  Clerks  of  boards  of  supervisors 94 


PAliT  II. 

COUNTY  OFFICERS;  JAILS  AND  PRISONERS;  LOAN  COMMISSIONERS; 

COUNTY  HOSPITALS. 

Chapter.  page. 

VII.  County  treasurer  99 

VIII.  County  comptroller;  county  auditors 118 

IX.  County  clerk  125 

X.  District  attorneys,  county  attorneys,  county  judges  and  surro- 
gates   136 

XI.  Sheriff  and  coroners;  powers  and  duties 152 

XII.  County  jails  174 

XIII.  Civil  prisoners;  jail  liberties 189 

XIV.  Coroner's  inquest  199 

XV.  United  States  deposit  fund;  loan  commissioners 205 

XVT.  County  hospital  for  tuberculosis 216 

XVI-A.  Local  boards  of  child  welfare 223a 

XVII.  Provisions  generally  applicable  to  county  officers 224 


v 


VI 


CONTENTS. 


PART  III. 

TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Chapter  page. 

XVIII.  Towns;  erection  and  alteration 232 

XIX.  Town  meetings  242 

XX.  Town  officers;  election  and  terms  280 

XXI.  Town  officers;  eligibility,  oaths  of  office,  undertakings,  vacancies, 

resignations  297 

XXII.  Supervisor  as  town  officer;  general  duties 320 

XXIII.  Duties  of  town  clerk  generally  335 

XXIV.  Justices  of  the  peace;  general  duties  as  town  officers;  police  jus- 
tices in  certain  towns 346 

XXV.  Compensation  of  town  officers;  miscellaneous  provisions  as  to  town 

officers  352 

XXV-A.  Transactions  of  town  business  in  certain  towns  adopting  pro- 
visions of  Article  VI-A  of  Town  Law 358b 

XXVI.  Town  houses;  lock-ups;  town  cemeteries;  pounds 359 

XXVII.  Local  improvements  369 

PART  IV. 

TOWN  BOARD. 

Chapter.  page. 

XXVIII.  Auditing  of  town  accounts;  town  charges;  town  finances 371 

XXIX.  Licenses  by  town  boards 400 

XXX.  Fire  protection;  water,  light  and  sewer  systems;  sidewalks 410 

XXXI.  Other  powers  and  duties  of  town  boards;  garbage 436 

XXXII.  Town  board  as  local  board  of  health  439 

XXXII-A.  Duties  of  town  officers  in  respect  to  vital  statistics 462a 

XXXII-B.  Parks  and  playgrounds  in  certain  towns 462q 

PART  V. 

Chapter.  page. 

XXXIII.  Taxable  property  and  place  of  taxation  463 

XXXIV.  Mode  of  assessment  508 

XXXV.  Assessment  of  special  franchises 547 

XXXVI.  Duties  of  boards  of  supervisors  as  to  assessments  and  taxation; 

equalization  of  assessments  556 

XXXVII  State  tax  department;  equalization  by  state  board;  appeals  from 

supervisors  572 

XXXVIII.  Collection  of  taxes 579 

XXXIX.  Sales  by  county  treasurer  for  unpaid  taxes  and  redemption  of  lands 

sold 613 

XL.  Mortgages  of  real  property  within  this  state  621 


CONTENTS.  vli 

FART  VI 

DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

Chapter.  page. 

XLI.  Division  fences;  duties  of  fence  viewers 635 

XLII.  Strayed  animals  doing  damage;  duties  of  fence  viewers 644 

XLIII.  Dogs,  duties  of  town  and  county  officers  relative  to 651 


PART  VII. 

RELIEF  OF  POOR. 

Chapter.  page. 

XLIV.  Superintendent  of  the  poor;  alms-houses 666 

XLV.  Alms-houses;  powers  of  state  board  of  charities 684 

XLVI.  Support  of  the  insane,  idiots  and  epileptics 689 

XLVII.  Education  and  support  of  the  blind  and  the  deaf  and  dumb 705 

XLVIII.  General  powers  and  duties  of  overseer  of  the  poor  in  respect 

to  relief  of  poor 712 

XLIX.  Settlement  and  place  of  relief  of  poor  persons 727 

L.  Support  of  bastards 743 

LI.  Support  of  poor  persons  by  relatives;  absconding  parents  or 

husband  754 

LI I.  Relief  of  veteran  soldiers,  sailors  and  marines 767 

LIII.  The  state  poor 772 

LIV.  Distinction  between  town  and  county  poor  and  other  miscel- 
laneous provisions  relating  to  the  poor 779 

PART  VIII. 

HIGHWAYS  AND  BRIDGES. 

Chapter.  page. 

LV.  Definitions  and  classification  786 

LVI.  Department  of  highways 791 

LVII.  District  or  county  superintendents 801 

LVIII.  Town  superintendent;  general  powers  and  duties 808 

LIX.  Highway  moneys;  state  aid 850 

LX.  State  and  county  highways 875 

LX-A.  Improvement  of  highways  with  federal  aid 

LXI.  Maintenance  of  state  and  county  highways 900 

LXII.  Laying  out,  altering  and  discontinuing  highways;  private  roads.  . 906 

LXIII.  Bridges  943 

LXIV.  Ferries  958 

LXV.  Miscellaneous  provisions  961 

LXV1.  Saving  clauses;  laws  repealed;  when  to  take  effect 974 

LXVII.  Duties  of  boards  of  supervisors  as  to  highways  and  bridges 970 

LXVIII.  Railroads  crossing  highways  991 


Vlll 


CONTENTS. 


PART  IX. 

SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Chapter.  page. 

LXIX.  Schools  and  school  moneys,  duties  of  town  and  county  officers  in 

respect  thereto 1001 

LXIX-A.  Farm  schools  in  counties 1025a 

LXX.  Gospel  and  school  lots 1026 

PART  X. 

JURORS. 

Chapter.  page. 

LXXI.  Grand  and  trial  jurors;  commissioners  of  jurors 1029 

PART  XI. 

PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 

Chapter.  page. 

LXXII.  Actions  by  and  against  town  and  county  officers 1043 

LXXIII.  Town  and  county  finances  and  property 1057 

LXXIV.  Penal  provisions  applicable  to  towns  and  county  officers 1082 

LXXV.  Miscellaneous  provisions;  weights  and  measures 1087 

LXXV.-A.  Forests ; prevention  of  fire 1090e 

LXXVI.  Fees  of  county  and  town  officers 1091 

PART  XII. 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


TABLE  OF  LAWS 


SHOWING  PAGES  OF  THIS  MANUAL  WHERE  SECTIONS  OF  LAWS  MAY 

BE  FOUND. 


Law.  Page. 

L.  1876,  ch.  331,  § 2 710 

L.  1884,  ch.  275,  §§  1,  2 711 

L.  1894,  ch.  93,  § 1 711 

L.  1897,  ch.  269,  §§  1-3 953 

4,  5 954 

L.  1899,  ch.  441,  § 1 1036 

2,  3 1037 

4-7 1038 

8-10 1039 

11-13 1040 

14-17 1041 

L.  1911,  ch.  634,  §§  2,  3 211 

Code  Civil  Procedure, 

§§  100,  101 164 

102,  103 165 

108 168 

109 169 

110,  111 189 

118 192 

127 193 

131,  132 186 

133,  134 192 

138,  139 187 

140-142 188 

149  194 

150  195 

151-155 196 

156,  157 198 

158 197 

934 345 

1925 1048 

1926,  1927 1056 

1928-1930 1056a 

1931 1056b 

3144-3147 348 

3313 1041 

3314,  3315 1042 

Code  Criminal  Procedure, 

§ 25 182 

132 347 

xi 


Law. 

Page. 

Code  Criminal  Procedure, 

§ 222-d.  . . . 

182 

229-a 

1029 

229-b-229-d . . . . 

1030 

229-f . . . . 

1031 

229-g.  . . . 

1031 

229-r 

1031 

773. . . . 

199 

774. .. . 

203 

775-777. . . . 

200 

778-781. . . . 

201 

782-787. . . . 

202 

788. .. . 

203 

789-a.  . . . 

203 

790.... 

203 

838,  839 

745 

899 

759 

900,  901.  ..  . 

760 

914 

755 

915,  916 

756 

917. . . . 

757 

918,  919 

758 

920 

759 

921 

760 

922 

761 

923-925 

762 

926 

763 

Agricultural  Law , 

§ 90. . . . 

461 

131. .. . 

652 

132. . . . 

652 

133,  134... 

653 

135,  136.... 

654 

138 

655 

139. .. . 

139-a-139-l . . . . 

. . . 657-664 

Civil  Rights  Law, 

§ 22.... 

192 

Conservation  Law, 

§ 52. . . . 

1090h 

53 

1090i 

54. . . . 

1090j 

55 

10901 

56 

1090m 

60. . . . 

1090c 

62. . . . 

1090h 

62-a . . . 

1090f 

193. .. . 

665 

XIV 


TABLE  OF  LAWS. 


Law.  Page.  Law. 

Constitution,  County  Law, 

Art.  3,  §§  26,  27 10 

Art.  6,  § 17  346 

Art,  8,  § 10  1066 

County  Law , 

§ 3 1 

4  2 

5  4 

6  7 

10 11 

10-a 15 

10-b 16 

11 17 

12... 26,  53,  349 

13  1065 

14  1069 

16 66 

16  563 

17  21 

18,  19 21b 

20  66a 

21  68 

22  69 

23  18 

23-a 20b 

24  27 

25  35 

26  21d 

27  22 

28-30 23 

31  69 

32  70 

33,  34 7J 

35 235 

35-a 236a 

35-b 236b 

36,  37 237 

38 74 

39,  40 80 

41,  43,  44 81 

45  216 

46  219 

47  219a 

48  219c 

49,  49a 220 

49-b,  49-c 221 

49-d 222 

49-e 222 

50  94 

51  96 

53  97 

54  98 

61  979 

62  981 

63  983 

64  982 

65-67 984 

68 985 


Page. 


§ 70 986 

71,  72 988 

73-76 989 

77-80 990 

90 175 

91,  92 178 

93 180 

94,  95 181 

96,  97 182 

98,  99 183 

100,  101 184 

110  651 

111  652 

112,  113 , 653 

114 654 

115-118 655 

119-122 656 

123,  124 657 

125 658 

126,  127 659 

128 660 

129 661 

130-132 662 

132a,  133 663 

134 664 

135,  136 665 

140  100 

141  103 

142  104 

143,  144 108 

145,146 109 

147,  148 110 

149,  151 Ill 

152  112 

153  113 

160 126 

161  127 

162  129 

163  130 

163-a 130 

164  131 

165  132 

166.  167 133 

168  134 

169  131 

180  154 

181  156 

182  157 

183  174 

184  15ft 


TABLE  OF  LAWS. 


XV 


Law.  Page. 

County  Law, 

§ 185 160 

186,  187 161 

188,  189 162 

190,  191 163 

192 163,  203 

193,  194 164 

195 169 

200  137 

201  139 

202,  203 140 

204,  205 143 

210 82,  144 

215,  216 124 

220 668 

221 671 

230 145 

281 146 

232  147 

233  151 

234  118 

235  119 

236  121 

237,  238 122 

239,  239a 123 

240 37,  191 

241a 21 

242  50 

243  224 

244  144,  225 

245  225 

246  226 

247  227 

248  144 

Domestic  Relations  Law, 

§§  13,  14 

15 
16,  19 

20 


Education  Law, 

§§  123,  124 1015 

138,  139 1016 

140 1015 

340  1021 

341  1022 

360  1013,  1026 

361,  362 1027 

363  1008 

364  1009 

365  1010,  1013 

380,  381 1017 

382,  383 1019 


Law.  Page. 

Education  Law, 

§ 388  1020 

389,  390  1021 

414  1016 

427-429  591 

430,  431  592 

433  1022. 

434,  435  1023 

436-438  1024 

490,  491  1002 

492  1003 

403  1004 

494,  495  1006 

496-498  1007 

499-501  1008 

520  1010 

521-523  1011 

524,  525  1027 

526-528  1028 

610,  611  1025a 

612,  613  1025ib 

614,  615  1025c 

616-618  1025d 

619,619a  1025e 

619b  1025f 

850  1011 

851-853  1012 

855-857  1025 

971,  972  705 

975  706 

977,  978  709 

979,  980  710 

991-993  707 

1004-1006  708 

1007  709 

Election  Law, 

§ 127  273 

128  274 

302  293 

311  294 

312  295 

316,  318 271 

319  272 

332  275 

340  276 

341  277 

342  278 

393-395  278 

396,  419  279 

430  84 

431,  432  85 


342 

343 
345 

135 


XVI 


TABLE  OF  LAWS. 


Law. 

Page. 

Law. 

Page. 

Election  Law , 

General  Municipal  Law, 

§ 433  

86 

§ 86b  

1081d 

437  

88 

87  

782 

438  

90 

88  

1081c 

439  

92 

90  

1081(1 

120  

438a 

General  Business  Law, 

120a- 120b  . . . 

438b 

§ 11  

1088 

148,  149  

223a 

12  

1089 

150-152  

223b 

13  

1090 

153  

223d 

15,  16,  16a  

1090a 

154,  155  

16b,  17 

1090b 

17a-17c  

1090o 

Highway  Law , 

18,  18a  

1090(1 

§8  1,  2 

788 

32  

402 

3 

789 

60,  61  

407 

10,  11 

792 

62-64  

408 

12,  13 

793 

14  

794 

General  Municipal  Law, 

15  

795 

§ 3 

1065 

16  

797 

4 

1043 

17  

798 

5 

1058 

18  

793 

6 

1059 

19-21  

799 

7 

1060 

22  

800 

8 

1061 

23-25  

9 

1062 

30-32  

802 

10  

1063 

33  

803 

11  

1064 

40  

. . . 289,  810 

12  

1065 

41  

....289,  811 

13  

592 

42  

....289,  812 

14  

1072 

43  

. . . .290,  812 

15  

1073 

44  

....290,  813 

16  

1071 

45,  46  

814 

17,  18 

1074 

45a  

814 

19,  20 

1075 

47  

815 

21  

1081c 

48  

821 

22-29  

1081 

49  

822 

51  

1045 

50  

824 

52  

1069 

51  

824a 

53-55  

1070 

52  

824b 

70,  71  

1076 

53,  53a,  54  . . . 

827 

72  

436 

55  

828 

72a  

438j 

56,  57  

829 

74  

1078 

58,  59  

830 

77  

436 

59a,  60 

832 

77a  

437 

61  

833 

77b  

437 

62,  63  

835 

78  

1079 

64,  65  

836 

80  

408 

66,  67  

837 

81  

403 

68  

838 

85  

405 

69-71  

839 

85a  

405 

72,  73  

840 

TABLE  OF  LAWS. 


XVII 


Law. 

Page. 

Law. 

Page. 

Highicay  Law, 

Highway  Lata, 

§ 74  

842 

§§  173,  174  

904 

75  

843 

175,  176  

905 

76,  77  

844 

177-179  . . 

905a 

78,  79  

845 

180  

905b 

80  

846 

190  

907 

81,  82  

847 

191  

908 

90  

853 

192  

911 

91  

855 

193  

912 

92  

856 

194  

915 

93  

857 

195,  196  

917 

94  

861 

197-199  

919 

95,  96 

862 

200  

921 

97  

863 

201,  202  

924 

97a  

865 

203,  204  

925 

98  

865 

205  

927 

99,  100  . . 

866 

206  

928 

101  

867 

207,  208  

929 

102,  103  

868 

209,  210  

930 

104,  105  

869 

211  

931 

106,  107  

871 

212-215  

932 

108-110  

873 

216-219  

933 

Ill  

874 

220-224  

934 

120-122  

877 

225,  226  

935 

123,  124  

878 

227-229  

936 

125  

879 

230,  231  

937 

126,  127  

880 

232-234  

938 

128,  129  

881 

235,  236  

940 

130  

882 

237-239  

941 

131  

885 

240  

942 

132  

887 

250  

945 

133,  134  

888 

251-253  

947 

135  

889 

254  

948 

136,  137  

890 

255  

949 

137a  

892 

256  

950 

138  

892 

257,  258  

951 

138a  

894 

259-262  

952 

139,  140  

894a 

262a  

953 

141  

894b 

263  

954 

141a  

894d 

264,  265  

955 

142  

894f 

266  

9o6 

142a  

894i 

267,  268  

957 

143  

894g 

269  

957 

144,  145  

894h 

269a— 269j  

957a 

146  

894i 

270  

958 

147  

894j 

271-274  

959 

148, 149  

894k 

320  

961 

149a,  150  

8941 

320a  

963 

151,  152  

895 

321-324  

963d 

153  

896 

325-327  

964 

154,  155  

897 

328,  329  

1 Kfi-1 SO 

898 

329a,  330  

966 

160  

899 

331,  332  

967 

161-168  

899 

333  

969 

170  

900 

334-336  

970 

170a  

901 

337-340  

971 

170b,  170c  . . . . 

901 

341,  342  

972 

171  

902 

343,  344  

973 

172,  172a 

903 

XVlll 


TABLE  OF  LAWS. 


Law.  Page. 

Highway  Law, 

§ 343  973 

350,  351  974 

352-354  975 

355  976 

356,  357  977 

Insanity  Law, 

§ 82  689 

84  690 

85  691 

86  692 

87  603 

88  ’ 697 

94  698 

Judiciary  Law , 

§§  400,  401  166 

402-405  167 

406-409  168 

500-502  1032 

503  1033 

505  1035 

506  1036 

509-512  1035 

546  1033 


Legislative  Law, 

§ 48  66d 

Lien  Law, 

§§  232,  233  339 

234  341 

238  340 

TAquor  Tax  Law, 

§ 10  114 

11  116 

Membership  Corporations  Law, 

§ 77  1087 

171  487 

197  409 


167 

185 

1082 

1082 

1083 

1083 

1084 
1084 


Military  Law, 

§ 115  

Penal  Law, 

§ 1791 
1820-1822 
1820a  . . . 
1823-1826 

1829  

1830  .... 
1832-1834 


Law. 

Penal  Law, 

§§  1835-1836 

1838  .... 

1839  172. 

1840  

1841  

1848  

1852,  1853 
1854-1856 

1859  

1860-1862 
1863,  1864 


1865 

1866 

1867 

1868 

1869 

1870 
1872 
2321 


Page. 

1085 

172 
198 

173 
1085 

167 

348 

349 
1087 

135 

36 

1085 

1086 
114 

1086 

135 

612 

37 
546 


Poor  Law, 

§ 3 671 

4 675 

5,  6 676 

7,  8 677 

9,  10 678 

11,  12 67^ 

13  680 

14  681 

- 20  714 

21,  22  716 

23  717 

24  718 

25  719 

26  720 

27  722 

28  724 

30  725 

* 40  729 

41  731 

42  732 

43,  44  734 

45  735 

46,  47  736 

48,  49  737 

50.  51  738 

52  740 

53  741 

54,  55  742 

56  682 

57  781 


TABLE  OF  LAWS. 


XIX 


Law.  Page. 

Poor  Law, 

§ 60  744 

61  745 

62,  63  746 

64-67  747 

68  748 

69  749 

70,  71  759 

72,  73  751 

74  752 

80  767 

81  768 

• 83,  84  771 

85  771a 

86,  87  771c 

90  772 

91,  92  773 

93-95  774 

96-98  775 

99,  100,  101 776 

102,  103  777 

104  778 

115,  116 685 

117,  118 686 

119-121  687 

130  763 

131,  132  764 

133-135  765 

136,  137  766 

138  779 

139  780 

140  781 

141  724 

142  680 

143  716 

146  782 

Prison  Law, 

§§  340-344  191 

347  178 

348,  349  185 

351  186 

352,  353  187 

354  186 

355  192 

356  187 

357,  358  193 

359  194 

360  193 

Public  Health  Laic, 

§ 20  442 

20a  443d 

21  443d 


Law. 

Public  Health  Law, 

§ 21a  

21b  

21c  

25  

26  

27,  28  

29,  30  

31  

32  

34  

35  

36  

36a  

37  

340,  341,  342  

370-394  

Public  Officers  Law, 

§ 3 

5 

11  

12  

15  

30  

33,  34  

35  

35a  

, 36  

Railroad  Laic, 

§ 89  

90  

91  

92  

93,  94  

95  

96,  97  

State  Charities  Law, 

§ 17  703. 

68  

69,  70  

94,  109  

110  

Ill  

387  

450,  451  

452  

• 

State  Finance  Law, 

§ 81  

82  

83  


Page. 

447 

448 
450 
450 

453 

457 

458 

454 
456 

459 
459 
461 
452 
461 
725 

462a 


301 

284 

312 

313 

314 
316 

229 

230 

231 

315 

991 

992 
994 

996a 

996b 

1000 

1000a 

784 
700 

700a 

701 

702d 

703 

785 

783 

784 

208 

206 

207 


XX 


TABLE  OF  LAWS. 


Law. 

§§  84..  85  . . . 

86  

87,  88,  89. 
90,  91  . . . 
92  

Tax  Law , 

§ 2 

3 

4 

5,  6 

7 

8 

9 

10  

11  

12  

13  

14  

15  

16  

17  

20  

21  

21b  

22  

23  

24  

24a  

24b-24d  . 

24  e 

24f,  24g  . 
25,  26  . . . 

27  

28  

29  

30-33  . . . 

34  

35,  36 
36a  

37  

38  

39  

40  

41  

42  

44  

45  

45a-45c  . 

45d  

45e,  45f  . 

46  


Law.  Page. 

Tax  Law, 

§§  47,  48  554b 

49  555 

50  558 

50a,  51  559 

52,  53  560 

54,  55  561 

55a  566 

56  561 

56a  563 

57  566 

58  567 

59  568 

60,  61  570 

62  571 

69  583 

69a,  70  584 

70a  585 

70b  611 

71  585 

72  589 

73  590 

74  594 

75  595 

76,  77  596 

78,  79  600 

8(4-82  601 

83  602 

84  603 

85  605 

86,  87  606 

88  807 

88a,  89  608 

90-91  609 

92  610 

93,  94  611 

100  613 

150  614 

151  615 

151a  616 

152  616 

153-154  617 

155-157  618 

158,  159  619 

170  572 

170a-170c,  171 573 

171a,  171b 575 

172,  173  576 

173a  577 

174  578 

175  578a 


Page. 

207 

208 

209 

210 

211 

465 

471 

472 

488d 

489 

492 

496 

497 

499 

500 

503 

505 

506 

488 

488b 

512 

513 

520 

521 

522 

522a 

522b 

522c 

522d 

523 

525 

525 

526 

527 

528 

533 

535 

537 

537 

541 

543 

544 

545 

546 

549 

552 

553 

554 

554a 

554a 


TABLE  OF  LAWS. 


XXI 


Law.  Page. 

Tax  Law, 

§ 176  578b 

176a  578c 

177  578d 

177a,  178  578e 

222  116 

237  116 

240  116 

250  621 

251  622 

252,  253  623 

254  624 

255  625 

256  626 

257,  258  627 

259  628 

260  629 

261  633 

262  633 

263  634a 

264  634c 

297  541 

298  597 

299  598 

301,  302  599 

303-305  604 

306  595 

307  589 


Town  Law, 

§ 2 ... 
10  . . 
11  . . 
12  . . 

13  .. 

14  . . 

15  .. 

30  . . 

31  . . 
32,  33 
34  .. 

40  . . . 

41  .. 
42,  43 

44  . . , 

45 

46  . . 

47  . . 

48  . . 

49  . . 


233 

395 
393 

396 
311 
318 
306 

238 

239 

240 

241 
244 

246 

247 
282 

252 

253 

254 

255 
258 


Law.  Page. 

Town  Law, 

§§  50,  51  260 

52-54  261 


55  262 

56  287 

57,  58  262 

59,  60  263 

61  264 

62-64  265 

65  266 

66  268 

67  269 

68  270 

69  261 

80  281 

81  299 

82  282 

83  301 

84  315 

85  352 

86,  87,  87a 354 

88  303 

90  355 

91  356 

92  336 


92a  

338 

93  

339 

94  

288 

96,  97  338 

98  320 

99  326 

100  304 

101  305 

102  284 

103  286 

104,  105  288 

105a  289 

106  305 

107  384 


107a  

107b  

108  

110  

111  

112  

113,  114 

115  

116  

117  

118  

121  356, 


122  349, 

123  


384 

384a 

355 
368 
307 
290 

307 

308 
310 

292 

293 
637 

356 
350 


XX 11 


TABLE  OF  LAWS. 


Law.  Page. 

Tenon  Law, 

§ 124  351 

125  358 

127  358a 

129  431 

130  318 

131  374 

132  376 

133  377 

133a  382 

135  437 

136  397 

136a  399a 

137  399 

138  396 

138a  397 

139  399a 

140  438j 

141  398 

142  358b 

142a  358a 

143  358b 

144,  145  358c 

146  358d 

147  358e 

148,  149,  149a 358f 

149b,  149c 358g 

149d  358h 

149e  358i 

150,  151  391 

152,  153  392 

154  393 

155  390 

156,  157  393 

170  388 

171  384b 

175  386 

176  390 

177  382 

190-195  1080 

210  401 

211  402 

212-214  404 

215  405 

216-218  406 

219  407 

230  425f 

230a  426a 

231  426b 

323-235  427 


Law.  Page. 

Town  Law, 

§§  236,  237  428 

238-241  429 

242,  243  430 

244  431 

250  432 

251,  252  432 

253  433 

254  434 

255  435a 

260  425b 

261,  261a 426c 

262,  262a,  263 425d 

264  425e 

270,  271  415 

272-276  416 

277-280  417 

281  414c 

282-285  418 

286,  287,  287a,  288. . . 419 

288a-290  420 

291-296  421 

297,  298  422 

299  423 

300-305  424 

310  411 

311-313  412 

313a,  313b 413 

314  413 

314a  414 

314b,  314c,  315 414a 

316,  317 414b 

320-322  438a 

330  362 

331,  332  363 

334  364 

335-337  365 

340  359 

341,  350  361 

342-348  462q 

351,  352  362 

360  637 

361  638 

362,  363  639 

364,  365  640 

366,  367  641 

368  642 

369  643 

380  644 


TABLE  OF  LAWS. 


Law. 

Town 


XXI 11 


Law , 


Page.  Law. 

Page. 

Transportation  Corporations  Law , 

381  

645 

§ 81  

. 414d 

382-384  

646 

141  

486 

385-388  

647 

389,  390  

391-393  

649 

§§  2,  3 

. 331 

394,  396  

650 

4-6  

. 332 

410  

..296,  367 

7-9  

333 

411  

..296,  367 

23  

, 334 

412  

367 

420-422  

369 

423,  424,  430.  . 

370 

PART  1. 

COUNTIES;  BOARDS  OF  SUPERVISORS. 


CHAPTER  I 

COUNTIES  AS  CORPORATIONS. 

EXPLANATORY  NOTE. 

Powers  of  Counties  as  Corporations. 

A county  is  a corporation.  It  is  described  as  a municipal  corpora- 
tion (Gen.  Munic.  L.  § 2),  but  its  liabilities  for  the  negligent  acts  of  its 
officers  are  not  thereby  extended.  The  main  object  of  declaring  a 
county  to  be  a municipal  corporation  was  to  permit  it  to  sue  and  be 
sued  as  a county,  rather  than  as  formerly  in  the  name  of  the  board  of 
supervisors.  Section  4 of  the  county  law  expressly  requires  actions  and 
special  proceedings  by  and  against  a county  to  be  in  the  name  of  the 
county,  and  further  provides  that  all  contracts  by  or  in  behalf  of  the 
county,  shall  be  deemed  to  be  in  the  name  of  the  county.  This  section 
does  not  do  away  with  the  necessity  of  presenting  claims  against  the 
county,  to  the  board  of  supervisors  for  audit,  although  this  question  may 
not  be  considered  as  settled,  in  view  of  some  of  the  authorities  to  the 
contrary.  Prior  to  the  enactment  of  the  section  referred  to  it  was 
settled  law  that  there  must  be  a presentation  of  the  claim  to  the  board 
of  supervisors  for  audit  before  an  action  would  lie  against  the  county. 
This  section  was  evidently  not  intended  to  change  the  rule. 

Section  1.  County  a municipal  corporation. 

2.  Actions  and  contracts  in  corporate  name. 

3.  Disposition  of  property,  apportionment  of  debts  and  collection  of  judg- 

ments on  alteration  of  boundary. 

4.  County  liable  for  injuries  caused  by  defective  highways  and  bridges. 

§ 1.  COUNTY  A MUNICIPAL  CORPORATION. 

A county  is  a municipal  corporation,1  comprising  the  inhabitants  within 
its  boundaries,  and  formed  for  the  purpose  of  exercising  the  powers  and 
discharging  the  duties  of  local  government,  and  the  administration  of 
public  affairs  conferred  upon  it  by  law.  [County  Law,  § 3;  B.  C.  & G. 
Cons.  L.  p.  G9G.] 

1.  A municipal  corporation  is  defined  in  the  General  Municipal  Law,  sec.  2, 
as  including  a county,  town,  city  and  village,  and  in  sec.  3 of  the  General 
Corporation  Law  it  is  provided  that  “ a municipal  corporation  includes  a county,. 


o 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


1 


County  Law,  § 4. 

§ 2.  ACTIONS  AND  CONTRACTS  IN  CORPORATE  NAME. 

An  action  or  special  proceeding  for  or  against  a county,  or  for  its 
benefit,  and  upon  a contract  lawfully  made  with  it,  or  with  any  of  its 
officers  or  agents  authorized  to  contract  in  its  behalf,  or  to  enforce  any 
liability  created,  or  duty  enjoined  upon  it,  or  upon  any  of  its  officers  or 

town,  school  district,  village,  city  and  any  other  territorial  division  of  the  state 
established  by  law  with  powers  of  local  government.” 

Effect  of  declaring  county  a municipal  corporation.  The  above  section 
of  the  County  Law,  making  a county  a municipal  corporation,  has  not  changed 
the  rule  as  to  the  liability  of  counties  for  the  neglect  of  county  officers  to  per- 
form their  official  duties.  Albrecht  v.  County  of  Queens,  84  Hun,  399;  32  N.  Y. 
Supp.  473.  In  this  case  it  was  held  that  the  county  was  not  liable  for  the  negli- 
gent construction  of  a bridge,  because  of  which  an  injury  was  occasioned  to  the 
plaintiff.  The  court  said:  “ The  theory  on  which  cities  and  villages  are  held  to 

a liability  different  from  that  of  a town  or  county  is  not  merely  that  they  are 
corporations,  but  that  they  obtain  upon  the  request  of  their  citizens  valuable 
franchises,  and  that  in  consideration  therefor  they  undertake  to  perform  with  fi- 
delity their  charter  obligations.  This  may  be  a fiction,  as  the  legislature  can  in- 
corporate a city  without  the  consent  of  the  inhabitants,  but  nevertheless,  the 
principle  is  too  well  settled  in  the  law  to  be  ignored.  This  principle  is  not  ap- 
plicable to  counties,  which,  while  the  statute  may  make  them  municipal  corpora- 
tions, are  something  more  than  such.  They  are  political  divisions  of  the  state  so 
recognized  in  the  constitution,  and  beyond  the  power  of  the  legislature  to  abro- 
gate. The  state  doubtless  can  impose  upon  counties  liability  for  the  neglect  of 
county  officers  to  perform  local  duties.  But  we  think  no  such  intent  should  be  in- 
ferred from  the  mere  fact  that  in  the  general  revision  of  the  law  relating  to 
counties  they  are  declared  to  be  municipal  corporations.”  See,  also,  Godfrey  ▼. 
County  of  Queens,  89  Hun,  18;  34  N.  Y.  Supp.  1052;  Ahern  v.  County  of  Kings, 
89  Hun,  148;  34  N.  Y.  Supp.  1023;  New  York  Catholic  Protectory  v.  Rockland 
County,  159  App.  Div.  455,  144  N.  Y.  Supp.  552,  aff’d  212  N.  Y.  311. 

The  Court  of  Appeals,  in  the  case  of  Markey  v.  County  of  Queens,  154  N.  Y. 
675,  686;  49  N.  E.  71,  holds  a similar  view  as  to  the  effect  of  the  above  section. 
Judge  Gray,  in  writing  the  opinion  of  the  court,  says:  “ I think  that  the 
principle  of  our  decision  must  necessarily  be  this;  that  as  the  counties  of  this 
state  were  bodies  corporate  for  certain  specific  purposes,  before  the  enactment 
of  the  County  Law  of  1892,  now  that  they  are  declared  thereby  to  be  municipal 
corporations,  their  liability  for  corporate  acts  is  no  further  enlarged  than  what 
may  be  clearly  read  in  or  implied  from  the  statute.  Their  becoming  municipal 
corporations  in  name  imports  no  greater  liability,  because,  by  the  third  section 
of  the  law,  their  liability  for  injuries  is  confined  by  the  language  to  that  which 
was  existing.  The  liability  remains  as  it  was,  neither  greater  nor  less.  No 
new  duty  or  burden  has  been  imposed  upon  counties,  in  respect  to  the  main- 
tenance of  bridges  over  navigable  boundary  streams;  the  duty,  which  always 
existed  for  public  purposes  and  for  the  public  benefit,  is  continued.  The  work 
of  maintaining  the  bridge  in  question  was  properly  charged  upon  the  county; 
because  it  could  be  more  advantageously  performed  by  them  than  by  the  towns. 
Towns  themselves  were  not  liable  for  damages  arising  from  defective  highways 
and  bridges  until  by  an  act  of  the  legislature  in  1881,  the  liability  which  formerly 
rested  upon  the  commissioners  of  highways  was  transferred  to  them.  If  it 
was  necessary,  in  order  that  towns  might  be  made  liable  in  private  actions, 
that  there  should  be  such  legislation,  it  is  necessary,  1 think,  that  there 


COUNTIES  AS  CORPORATIONS. 


3 


County  Law,  § 4. 

agents  for  which  it  is  liable,  or  to  recover  damages  for  any  injury  to 
an}r  property  or  rights  for  which  it  is  liable,  shall  be  in  the  name  of  the 
county.* 2  All  contracts  or  conveyances,  by  or  in  behalf  of,  or  to  a county, 
shall  be  deemed  to  be  in  the  name  of  the  county,  whether  so  stated  or  not 
in  the  contract  or  conveyance.  [County  Law,  § 4;  B.  C.  & G.  Cons.  L.. 
p.  897.] 

should  be  some  express  legislation,  in  order  to  impose  the  liability  upon  a 
county  which  did  not  previously  exist.  The  object  of  the  County  Law  of 
1892,  in  my  judgment,  in  declaring  the  county  a municipal  corporation,  was 
in  order  that  it  might  be  sued  as  a legal  entity  in  such  cases  where,  previously, 
actions  were  maintainable  only  in  the  name  of  the  board  of  supervisors.” 

In  the  case  of  Hughes  v.  County  of  Monroe,  147  N.  Y.  49;  41  N.  E.  407,  it  was 
held  that  the  doctrine  that  where  power  is  granted  to  a municipal  corporation 
as  one  of  the  political  divisions  of  the  state,  not  for  the  immediate  benefit  of 
the  municipality,  but  as  a means  to  the  exercise  of  the  sovereign  power  for 
the  benefit  of  all  citizens,  the  corporation  is  not  liable  for  non-user,  nor  for 
mis-user,  by  the  public  agents,  is  applicable  to  counties,  which  prior  to  the 
County  Law  were  not  municipal  corporations,  but  were  political  divisions  of 
the  state,  and  at  most  only  quasi  corporations.  It  will  be  seen  by  an  examina- 
tion of  the  case  of  Markey  v.  County  of  Queens  above  cited,  that  this  doctrine 
has  not  been  changed  by  the  enactment  of  the  above  section  declaring  a county 
to  be  a municipal  corporation. 

Municipal  corporations  engaged  in  a public  duty  as  instrumentalities  of  the 
state  are  not  liable  for  neglect  or  misfeasance;  the  one  exception  is  where  it 
is  doing  the  act  for  its  own  benefit;  hence  county  is  not  liable  for  acts  of  officers 
of  penitentiary.  Alamango  v.  Supervisors  of  Albany  Co.,  25  Hun,  551.  For 
same  rule  applied  to  cities,  see  Smith  v.  City  of  Brooklyn,  76  N.  Y.  506,  city 
not  liable  for  acts  of  firemen;  Ham  v.  Mayor,  70  N.  Y.  459,  city  not  liable 
for  acts  of  officers  of  department  of  public  instruction. 

Liability  for  defects  in  bridges. — A county  is  not  liable  for  damages  sus- 
tained by  reason  of  defects  in  a bridge  required  to  be  maintained  by  the  county; 
distinction  between  liability  of  municipal  corporation  vested  with  power  for 
own  benefit  and  that  of  counties  and  towns  as  political  divisions  organized  for 
exercise  of  power  of  state  considered.  Ensign  v.  Supervisors  of  Livingston  Co., 
25  Hun,  20. 

Damages  caused  by  mob. — An  action  does  not  lie  at  common  law  against  a 
municipal  corporation  for  damages  caused  by  a mob;  but  the  legislature  may 
impose  such  liability.  Davidson  v.  Mayor,  27  How.  Pr.  342,  25  Super  Ct.  230. 

2.  Action  by  and  against  a county.  The  object  of  the  above  section  is 
to  permit  actions  to  be  brought  by  or  against  a county  as  a legal  entity  in  such 
cases  where,  previously,  actions  were  maintainable  only  in  the  name  of  the 
board  of  supervisors.  Markey  ▼.  County  of  Queens,  154  N.  Y.  675;  49  N.  E.  71; 
New  York  Catholic  Protectory  v.  Rockland  County,  159  App.  Div.  455,  144  N.  Y. 
Supp.  552,  aff’d  212  N.  Y.  311. 

Corporate  capacity  is  conferred  upon  each  county  in  the  state  to  sue  and  be 
sued,  to  purchase  and  hold  lands  within  its  limits  for  the  use  of  its  inhabitants; 
to  make  contracts  and  possess  personal  property,  and  to  dispose  of  and  regulate 
the  use  of  its  corporate  property;  and  all  suits  and  proceedings  by  and  against 
a county  in  its  corporate  capacity  are  directed  by  the  above  section  to  be  in 
the  name  of  the  county.  In  the  case  of  People  v.  Ingersoll,  58  N.  Y.  1,  the  right 
of  counties  to  protect  their  property  and  to  enforce  their  rights  has  been  ex- 
haustively discussed.  In  view  of  the  importance  of  this  case  it  may  be  well  to 


4 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 5. 

§ 3.  DISPOSITION  OF  PROPERTY,  APPOINTMENT  OF  DEBTS  AND 
COLLECTION  OF  JUDGMENTS  ON  ALTERATION  OF  BOUND- 
ARY. 

When  a county  is  divided  or  its  boundary  changed,  its  real  prop- 
erty shall  become  the  property  of  the  county,  within  whose  limits  it  lies 
after  the  change.  The  personal  property  and  debts  of  such  county,  shall 


quote  the  following  language  from  the  opinion  of  Judge  Allen  (p.  28):  “ Coun- 

ties are  public,  as  distinguished  from  private  corporations,  and  they  are  political 
as  auxiliaries  to  the  government  of  the  state,  and  they  are  trustees  of  the 
people,  the  inhabitants  within  their  boundaries.  . . . They  are  trustees 

inly  of  the  property  held  for  public  use.  They  are  not  the  guardians  and  pro- 
tectors of  private  and  individual  interests  or  property  of  the  citizen.  They 
may  not  intervene  by  action  to  protect  or  redress  the  individual  citizen  in 
respect  to  wrongs  or  injury  to  his  person  or  property.  Their  power  as  well 
is  duty  is  restricted  to  the  protection  and  preservation  of  property  possessed 
by  them  in  their  corporate  capacity.  This  trusteeship  and  corporate  power  has 
jt  pecuniary  and  fiduciary  relation,  extends  to  and  embraces  not  only  the 
tangible  property  of  the  corporation,  but  the  franchises  and  powers  conferred 
for  raising  moneys  and  other  means  for  the  support  of  the  local  government 
And  the  use  of  the  inhabitants  of  the  county,  and  the  means  realized  from  the 
franchises  and  powers  conferred.  ...  In  political  and  governmental  mat- 
ters the  municipalities  are  the  representatives  of  the  sovereignty  of  the  state 
and  auxiliary  to  it;  in  other  matters  relating  to  property  rights  and  pecuniary 
obligations,  they  have  the  attributes  and  the  distinctive  legal  rights  of  private 
corporations  and  may  acquire  property,  create  debts,  and  sue  and  be  sued, 
as  other  corporations;  and  in  borrowing  money  and  incurring  pecuniary  obli- 
gations in  any  form,  as  well  as  in  the  buying  and  selling  of  property  within 
the  limits  of  the  corporate  powers  conferred,  they  neither  represent  nor  bird 
the  state.”  In  this  case  it  was  attempted  to  maintain  an  action  brought  by 
the  people  of  the  state  for  the  recovery  of  money  realized  from  the  sale  of 
county  bonds  in  excess  of  the  amount  authorized  by  statute,  and  fraudulently 
diverted  from  the  county  treasury.  It  was  held  that  the  legislature  has  the 
power  to  direct  by  what  agency  claims  against  a county  shall  be  ascertained 
and  adjusted,  and  by  what  officials  the  bonds  of  a county  authorized  to  be 
issued  to  provide  means  of  payment  therefor,  shall  be  attested  and  issued;  but 
the  bonds,  when  issued,  are  the  bonds  of  the  county  for  which  its  credit  and 
revenue  are  pledged.  The  debt  is  a debt  of  the  county  and  not  of  the  state,  and  the 
moneys  realized  upon  the  bonds  are  the  moneys  of  the  county  and  not  of  the 
state;  and  when  stolen  or  procured  by  fraud  from  the  county  treasury  the 
county  alone  can  maintain  an  action  to  recover  the  same,  subject,  however,  like 
other  municipal  rights,  to  the  control  of  the  legislature. 

Where  no  discretion  is  vested  in  the  supervisors,  but  they  refuse  to  perform 
a clear  duty,  mandamus  not  an  action  will  lie;  the  latter  may  be  maintained 
only  where  the  duty  is  that  of  the  county,  not  of  the  board.  Boyce  v.  Super- 
visors, 20  Barb.  294.  See  also  People  v.  Supervisors,  3 How.  Pr.  (N.  S.)  241. 
When  the  county  treasurer  misapplies  taxes  collected  from  a town  for  a special 
purpose,  an  action  for  money  had  and  received  is  maintainable  by  the  town 
against  the  county.  Pierson  v.  Supervisors,  155  N.  Y.  105.  See  also  Hill  v. 
Supervisors,  12  N.  Y.  52;  Strough  v.  Supervisors  119  N.  Y.  212;  Crowninshield  v. 


COUNTIES  AS  CORPORATIONS. 


5 


County  Law,  § 5. 

be  apportioned  between  the  counties  interested,  by  the  supervisors  thereof, 
or  by  the  committees  of  their  respective  boards  appointed  for  that  purpose, 
subject  to  the  approval  of  such  boards;  and  the  debts  shall  be  charged 
on  each  county,  according  to  such  apportionment. 

Any  judgment  recovered  previous  to  such  division,  or  after  such  division 
in  proceedings  instituted  previous  thereto,  in  the  County  Court  or  before 


Supervisors,  124  N.  Y.  583;  People  v.  Supervisors,  136  N.  Y.  281;  Woods  v. 
Supervisors,  136  N.  Y.  403;  Kilbourne  v.  Supervisors,  137  N.  Y.  170. 

Maintenance  of  a farm  in  connection  with  an  almshouse  held  to  be  for  the 
use  and  benefit  of  county;  and  an  action  will  lie  against  the  county  for  pollution 
of  a stream  caused  by  fertilization  of  lands  of  such  farm.  Lefrois  v.  County  of 
Monroe,  24  App.  Div.  421,  48  N.  Y.  Supp.  519. 

Where  an  illegal  tax  is  collected  an  action  for  money  had  and  received  will 
lie  against  the  county;  no  demand  is  necessary  when  it  is  done  with  knowledge 
of  its  officers;  nor  need  the  claim  be  submitted  for  audit.  Newman  v.  Super- 
visors, 45  N.  Y.  676. 

Where  a claim  against  a county  is  based  upon  a wrong  committed  by  or 
attributable  to  it,  the  claimant  is  not  bound  to  submit  it  to  the  board  of  super- 
visors for  audit,  but  he  may  bring  an  action  thereon  direct  against  the  county. 
Kilbourne  v.  Supervisors,  137  N.  Y.  170. 

It  is  intended  to  provide  a remedy  against  the  county  for  such  cause  of  action, 
and  no  other,  as  could  not  be  presented  to  and  allowed  by  board  of  supervisors 
as  a county  charge.  Brady  v.  Supervisors,  10  N.  Y.  260. 

Supervisors  may  maintain  action  for  moneys  fraudulently  drawn  from  county 
treasury  by  a public  officer.  Supervisors  of  New  York  v.  Tweed,  13  Abb.  (N. 
S.)  152.  But  they  cannot  audit  accounts  not  legally  chargeable  to  their  county; 
the  payment  of  an  account  so  audited  is  not  a voluntary  payment  and  county 
may  maintain  an  action  for  the  recovery  of  the  moneys  paid.  Supervisors  v. 
Ellis,  59  N.  Y.  620. 

Where  money  was  deposited  by  the  decedent  with  a county  treasurer  in  lieu 
of  bail  unlawfully  required  by  a justice  of  the  peace,  an  action  will  lie  in  behalf 
of  the  decedent’s  administrator  against  the  county  to  recover  such  amount. 
This  is  so  although  the  justice  of  the  peace  who  fixed  the  bail  was  without 
authority  to  bind  the  county,  upon  the  theory  that  the  money  can  be  traced 
to  the  county  and  the  county  has  appropriated  and  received  it  for  its  benefit, 
thereby  creating  a liability  to  respond  to  the  true  owner.  Sutherland  v.  St. 
Lawrence  County,  42  Misc.  38,  85  N.  Y.  Supp.  696,  revd.  on  other  grounds,  101 
App.  Div.  299,  91  N.  Y.  Supp.  962. 

Property  of  county. — The  board  of  supervisors  possess  no  corporate  powers 
and  therefore  the  property  of  the  county  is  vested  in  the  county  and  not  in 
the  board.  People  v.  Bennett,  37  N.  Y.  117.  See  also  Newman  v.  Supervisors,  45 
N.  Y.  676. 

Effect  of  section  upon  audit. — It  has  been  held  that  this  section  is  not 
intended  to  do  away  with  the  necessity  of  submitting  claims  for  audit  to  the 
board  of  supervisors,  and  is  only  intended  to  change  the  law  in  respect  to  ac- 
tions for  or  against  the  county  which  were  formerly  commenced  in  the  name 
of  the  board  of  supervisors.  Erhard  v.  Kings  County,  36  N.  Y.  Supp.  656.  But 
this  case  seems  to  have  been  overruled  by  the  case  of  Kennedy  v.  County  of 
Queens,  47  App.  Div.  250;  62  N.  Y.  Supp.  276,  in  which  the  court  holds  in  effect, 


6 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 5. 


any  justice  of  the  peace  may  be  collected  by  execution  to  be  issued  to  the 
sheriff  of  the  county  where  such  judgment  shall  have  been  rendered,  or 
to  a constable  thereof,  as  the  case  may  require,  who  shall  execute  the  same 
as  if  such  division  had  not  been  made;  and  such  judgments  may  be 
revived  and  the  like  proceedings  had  thereon,  as  if  such  county  had  not 
been  divided.  [County  Law,  § 5 ; B.  C.  & G.  Cons.  L.,  p.  699.] 

§ 4.  COUNTY  LIABLE  TOR  INJURIES  CAUSED  BY  DEFECTIVE 
HIGHWAYS  AND  BRIDGES. 

When,  by  law,  a county  has  charge  of  the  repair  or  maintenance  of  a 
road,  highway,  bridge  or  culvert,  the  county  shall  be  liable  for  injuries 
to  person  or  property  sustained  in  consequence  of  such  road,  highway, 
bridge  or  culvert  being  defective,  out  of  repair,  unsafe,  dangerous  or 
obstructed  existing  because  of  the  negligence  of  the  county,  its  officers, 

that  the  failure  of  the  legislature  to  re-enact  in  the  County  Law,  sec.  4 of  tit.  4, 
ch.  12,  pt.  1 of  the  Revised  Statutes,  which  provided  that  “ accounts  for  county 
charges  of  every  description  shall  be  presented  to  the  board  of  supervisors  of  the 
county  to  be  audited  by  them,”  and  declaring  counties  to  be  municipal  corporations, 
and  authorizing  actions  to  be  brought  by  and  against  them  in  the  names  of  such 
counties,  was  for  the  express  purpose  of  permitting  the  maintenance  of  an  action 
against  a county  without  first  presenting  the  claim  upon  which  the  action  is  based 
to  the  board  of  supervisors  for  audit.  The  court  said : “ While  it  is  true  that 

sections  12  and  24  of  the  County  Law,  together  with  the  other  provisions  thereof 
relating  to  the  audit  of  accounts  by  the  board  of  supervisors  are  not  free  from 
confusion,  and  a consistent  system  has  not  clearly  been  worked  out,  nevertheless 
it  is  reasonably  clear  that  the  revisers  and  the  legislature  intended  to  abolish  the 
absolute  requirement  that  accounts  for  county  charges  of  every  description  must 
be  presented  to  the  board  of  supervisors  to  be  audited  by  it,  and  to  leave  it  optional 
with  claimants  on  such  accounts  either  to  present  them  for  audit  to  the  board  of 
supervisors  and  obtain  voluntary  payment  by  the  county  of  the  amounts  allowed 
on  such  audit,  or,  without  such  preliminary  presentation  for  audit  to  bring  an 
action  against  the  county  in  the  name  of  the  county  ‘ in  like  cases  as  natural  per- 
sons.’ By  this  construction  of  all  the  provisions  of  the  County  Law  relating  to  the 
subject  before  us,  an  orderly  system  for  the  judicial  determination  and  enforce- 
ment of  claims  by  and  against  counties  is  established.  The  claimant  may  present 
his  account  for  audit  and  voluntary  payment,  and  may  still  compel  audit  by 
mandamus  or  have  the  proceedings  reviewed  by  certiorari,  or,  at  his  option,  he 
may  at  once  bring  action  and  have  the  amount  of  his  claim  originally  determined  by 
the  courts,  and,  if  successful,  have  payment  thereof  enforced  by  judgment  and  the 
remedies  thereon.”  The  court  in  this  case  deemed  the  case  of  Freel  v.  County  of 
Queens,  9 App.  Div.  186;  41  N.  Y.  Supp.  68,  modified  and  affirmed  in  154  N.  Y.  661, 
as  a conclusive  authority  on  the  question.  In  this  case  a judgment  was  rendered  in 
favor  of  the  plaintiff  upon  a contract  made  by  him  with  the  supervisors  for  the 
improvement  of  highways.  The  Appellate  Division  on  appeal  reversed  the  judgment. 
The  Court  of  Appeals  modified  the  judgment  of  the  trial  term  as  to  the  amount  and 
affirmed  the  judgment  as  modified.  The  question  as  to  the  right  to  maintain  the 
action  against  the  county  was  not  raised  by  the  defendant,  but  it  is  difficult  to 
believe  that  the  case  is  not  impliedly,  at  least,  an  authority  in  favor  of  the  right 
of  the  claimant  to  sue  the  county  as  a corporation. 

The  question  whether  a claim  must  be  presented  to  the  board  of  supervisors  for 
audit  before  an  action  will  lie  thereon  against  the  county,  seems  to  have  been 
settled  by  the  Court  of  Appeals  in  the  case  of  New  York  Catholic  Protectory  v. 
Rockland  County,  212  N.  Y.  311,  affg.  159  App.  Div.  455.  In  this  case  the  Court 
of  Appeals  held  that  a person  having  a claim  against  a county  may  either  sue 
directly  upon  it  or  present  it  to  the  board  of  supervisors  for  audit.  If  the  latter 
course  is  pursued  and  the  board  of  supervisors  refuse  to  audit  it,  two  courses  are 
still  open,  one  to  compel  an  audit  by  mandamus,  the  other  to  bring  an  action 
directly  against  the  county.  But  if  the  board  of  supervisors  pass  upon  a claim 
and  disallow  it,  either  in  whole  or  in  part,  the  sole  remedy  is  to  review  the  determi- 
nation, if  erroneous,  by  certiorari. 

In  the  case  of  Albrecht  v.  County  of  Queens,  84  Hun  399:  32  N.  Y.  Supp.  473, 
which  arose  subsequent  to  the  enactment  of  the  County  Law,  the  court  said: 


COUNTIES  AS  CORPORATIONS. 


7 


County  Law,  § 6. 

agents  or  servants.  A civil  action  may  be  maintained  against  the  county 
to  recover  damages  for  any  such  injury;  but  the  county  shall  not  be 
liable  in  such  action  unless  a written  claim  for  such  damages,  verified 
by  the  oath  of  the  claimant,  containing  a statement  of  the  place  of  resi- 
dence with  reasonable  certainty,  and  describing  the  time  when,  the 
particular  place  where  and  the  circumstances  under  which  the  injuries 
were  sustained,  the  cause  thereof  and,  so  far  as  then  practicable,  the 
nature  and  extent  thereof,  shall  within  three  months  after  the  happen- 
ing of  the  accident  or  injury  or  the  occurrence  of  the  act,  omission, 
fault  or  neglect  out  of  which  or  on  account  of  which  the  claim  arose, 
be  served  upon  the  county  clerk  or  chairman  of  the  board  of  supervisors. 
No  action  shall  be  commenced  upon  such  claim  until  the  expiration  of 
three  months  after  the  service  of  such  notice.  [County  Law,  § 6,  as 
added  by  L.  1917,  ch.  578.] 

4*  From  the  earliest  period  in  the  history  of  the  state  to  the  present  it  has  been 
necessary  to  present  claims  against  the  county  to  the  board  of  supervisors  for  audit. 
With  some  unimportant  exceptions  dependent  on  special  statutes,  or  where  the 
claim  was  liquidated  by  the  existence  of  a county  obligation  for  a specific  sum, 
suits  could  not  be  maintained  against  the  county  for  claim  or  county  charges. 
The  remedy  was  by  mandamus  to  the  board  of  supervisors.  If  the  claim  was  fixed 
by  law  so  as  to  involve  no  discretion,  a mandamus  would  lie  to  audit  it  at  a 
specific  amount.  If  the  claim  required  the  exercise  of  discretion  or  judgment, 
the  audit  was  conclusive  unless  reversed  on  review,  and  could  be  attached  col- 
laterally. By  sec.  12,  sub.  2,  of  the  County  Law,  the  same  power  is  vested  in 
the  board  of  supervisors  to  annually  audit  all  accounts  against  the  county.  If 
the  plaintiff  has  a claim  against  the  county  it  must  be  submitted  to  the  board  of 
supervisors.”  But  in  the  case  of  New  York  Catholic  Protectory  v.  Rockland 
County,  159  App.  Div.  455,  affd.  212  N.  Y.  311,  it  was  held  that  there  is  no  per- 
emptory statute  requiring  a contract  obligation  of  a county  to  be  submitted  to  the 
board  of  supervisors  for  audit.  A claimant  has  an  option  either  to  submit  his 
claim  to  the  board,  or  to  sue  directly.  If  he  once  exercises  his  option  and  presents 
his  claim  for  audit,  he  may  not  thereafter  sue  direct,  but  his  remedy  is  by 
mandamus  or  certiorari. 

In  Taylor  v.  Mayor,  etc.,  82  N.  Y.  10,  it  seems  to  be  held  that  a presentation 
of  the  claim  to  the  board  of  supervisors  is  a condition  precedent  to  any  proceedings 
against  the  county. 

Former  cases  were  unanimously  to  the  effect  that  where  the  claim  is  one  that 
should  be  presented  to  the  board  of  supervisors  for  audit,  no  action  will  lie 
against  the  county  thereon.  Taylor  v.  Mayor,  etc.,  of  New  York,  82  N.  Y.  10; 

Huff  v.  Knapp,  5 N.  Y.  65;  People  ex  rel.  Sutliff  v.  Supervisors,  74  Hun  251, 

26  N.  Y.  Supp.  610;  People  ex  rel.  Bevins  v.  Supervisors.  82  Hun  298,  31  N.  Y. 
Supp.  248;  Adams  v.  Supervisors  of  Oswego  Co.,  66  Barb.  368;  McClure  v. 
Supervisors  of  Niagara  Co.,  50  Barb.  594;  People  v.  Barnes,  114  N.  Y.  317;  People 
v.  Supervisors,  2 Abb.  (Is.  S.)  78;  People  v.  Supervisors  of  Delaware,  45  N.  Y.  196. 

A complaint,  in  an  action  against  a county,  which  alleges  that  the  plaintiff 
presented  its  claim  to  the  board  of  supervisors  of  the  defendant,  and  that  the 

latter  “did  as  plaintiff  is  informed  and  believes  . . . wholly  disallow  said 

claim,”  states  no  cause  of  action,  for  the  reason  that  the  determination  of  the 
board  of  supervisors  is  conclusive  in  the  action.  New  York  Catholic  Protectory 
v.  Rockland  County  (1914),  212  N.  Y.  311,  distinguishing  Kennedy  v.  County  of 
Queens,  47  App.  Div.  250. 

Compromise  and  settlement  of  claims,  People  ex  rel.  Benedict  v.  Supervisors,  24 
•Hun  413.  The  board  of  supervisors  having  power  to  settle  and  allow  a claim,  can, 
incidentally  to  such  powers,  waive  the  statute  of  limitations.  Woods  v.  Super- 
visors, 136  N.  Y.  403.  Board  of  supervisors  may  compromise  and  settle  a judgment 
recovered  by  them  as  incidental  to  their  power  to  sue.  Supervisors  v.  Bowen,  4 
Lans.  24. 

Borrow  money,  the  power  to.  is  not  inherent  in  a board  of  supervisors.  Parker  v. 
Supervisors,  106  N.  Y.  392. 


8 


COUNTIES;  BOARDS  OF  SUPERVISORS. 
Explanatory  note. 


CHAPTER  II. 

ORGANIZATION,  MEETINGS  AND  PROCEEDINGS  OF  BOARDS  OF 

SUPERVISORS. 

Board  a Constitutional  Body. 

The  county  board  of  supervisors  is  created  by  the  constitution.  It 
cannot  therefore  be  abolished  by  act  of  the  legislature.  The  legislature 
may  determine  by  law  as  to  the  election  and  terms  of  members  of  the 
board  and  may  confer  powers  upon  it. 

Board,  how  Constituted. 

The  board  of  supervisors  is  composed  of  the  supervisors  of  the 
several  towns  and  wards  of  cities  in  the  county.  Each  supervisor  must 
be  elected,  except  where  in  the  case  of  a vacancy  the  office  may  be  filled 
by  appointment ; in  towns  by  the  town  board  and  in  cities  as  provided  by 
charter.  Although  elected  by  towns  and  cities,  supervisors  are  for 
some  purposes  deemed  county  officers. 

Meetings  of  Board. 

Each  board  is  required  to  hold  at  least  one  meeting  each  year.  It 
may  hold  special  meetings  from  time  to  time,  on  the  call  of  the  clerk, 
when  requested  by  a majority  of  its  members.  All  meetings  are  to  be 
public.  Meetings  may  be  adjourned  to  specified  times  in  the  same 
manner  as  meetings  of  other  parliamentary  bodies.  A majority  of  all 
the  members  of  the  board  constitutes  a quorum.  This  is  a statutory 
requirement  and  cannot  be  changed  by  a rule  of  the  board.  The 
number  required  to  constitute  a quorum  is  not  changed  because  of 
vacancies  in  the  board. 

Organization  of  Board. 

The  board  should  organize  at  its  annual  meeting,  although  there  is 
nothing  in  the  law  which  prevents  the  organization  holding  over  for 
the  terms  of  the  members  of  the  board.  The  law  requires  the  election 
of  a clerk,  but  says  nothing  about  a chairman.  The  organization  of  the 
board  consists  of  the  election  of  a chairman,  a clerk,  and  the  adoption 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS.  9 

Explanatory  note. 

of  necessary  rules  regulating  the  conduct  of  the  business  of  the  board. 
The  duties  of  the  chairman  should  be  prescribed  by  the  rules.  The 
board  may  provide  for  the  appointment  and  fix  the  compensation  of 
such  officers  and  employes  as  may  be  necessary. 

The  rules  usually  determine  the  number  and  membership  of  stand- 
ing committees.  Special  committees  may  be  created  as  necessity  re- 
quires. It  is  usual  to  provide  that  committees  shall  be  appointed  by  the 
chairman. 

Compensation  and  Mileage. 

Supervisors  are  entitled  to  compensation  at  the  rate  of  four  dollars 
for  each  calendar  day’s  attendance  at  the  sessions  of  the  board,  except 
in  those  counties  where  special  acts  have  been  passed  fixing  a different 
rate.  They  may  receive  the  same  compensation  for  services  on  com- 
mittees or  other  business,  performed  at  a time  when  the  board  is  not 
in  session.  Such  services  must  be  performed  under  some  lawful 
direction  of  the  board.  Voluntary  services  or  unauthorized  services 
should  not  be  paid  for.  Mileage  at  the  rate  of  eight  cents  per  mile  for 
once  going  and  coming  from  each  session  will  be  paid.  If  the  services 
are  special  and/ performed  while  the  board  is  not  in  session,  at  a distance 
of  five  miles  or  more  from  his  residence,  the  supervisor  must  be  paid 
his  actual  expenses. 

Acts  and  Resolutions. 

The  law  is  specific  as  to  the  form  of  acts  and  resolutions  of  the 
board.  Each  act  or  resolution  should  have  a title  expressing  briefly 
the  contents  thereof,  followed  by  a reference  to  the  statute  giving  au- 
thority to  pass  such  act  or  resolution.  A failure  to  correctly  specify  the 
statute  will  not  nullify  the  act  or  resolution,  but  care  should  be  taken 
to  conform  with  the  requiremenets  of  the  law.  Each  act  or  resolution, 
which  is  legislative  in  its  nature,  should  be  published  “ within  six  weeks 
after  the  close  of  the  session.”  See  County  Law,  § 17,  post.  This  does 
not  mean  that  every  resolution  must  be  certified  and  published;  it  does 
not  apply  to  ordinary  proceedings  of  the  board. 


Section  1.  Constitutional  provisions  respecting  supervisors. 

2.  Boards  of  supervisors;  meetings  and  organization. 

3.  Penalty  for  failure  of  supervisor  to  perform  official  duties. 


10 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


Constitution,  Art.  3,  §§  26,  27. 

Section  4.  Compensation  of  supervisors  as  members  of  the  board  of  supervisors; 

copying  assessment-roll. 

4a.  Compensation  of  supervisors  in  certain  counties. 

4b.  Compensation  of  supervisors  and  assessors  in  attending  tax  meetings. 

5.  Acts  and  resolutions  of  boards  of  supervisors;  form  and  contents; 

adoption;  publication. 

6.  Publication  of  acts  of  board. 

7.  Proceedings  of  board  of  supervisors  to  be  printed  and  distributed; 

contents. 

8.  County  records,  boards  of  supervisors  to  have  general  charge  of ; copies 

may  be  made  for  public  use;  cost  of  copies. 

9.  Witnesses  and  county  and  town  officers  may  be  examined  by  board; 

books  and  papers  may  be  inspected. 

10.  Powers  of  committee  of  board  of  supervisors  as  to  hearings  and 

examinations. 

11.  Adjournment  of  hearing  or  examination  by  board  or  committee;  dis- 

charge of  persons  arrested  for  failure  to  appear. 

12.  Filing  and  enforcement  of  undertaking  given  under  preceding  section. 
§ 1.  CONSTITUTIONAL  PROVISIONS  RESPECTING  SUPERVISORS. 

Section  26  of  article  3 of  the  Constitution  provides  that:  “ There  shall 
be  in  each  county,  except  in  a county  wholly  included  in  a city,  a board 
of  supervisors,  to  be  composed  of  such  members  and  elected  in  such 
manner  and  for  such  period  as  is  or  may  be  provided  by  law.  In  a city 
which  includes  an  entire  county,  or  two  or  more  entire  counties,  the 
powers  and  duties  of  a board  of  supervisors  may  be  devolved  upon  the 
municipal  assembly,  common  council,  board  of  aldermen  or  other  legis- 
lative body  of  the  city.”  1 

Section  27  of  article  3 of  the  Constitution  provides  that : “ The  legis- 

lature shall,  by  general  laws,  confer  upon  the  boards  of  supervisors  of  the 
several  counties  of  the  state  such  further  powers  of  local  legislation  and 
administration  as  the  legislature  may,  from  time  to  time,  deem  expedient.”  2 

1.  Special  act  relating  to  Nassau  county.  The  provisions  of  sec.  5 of 
L.  1898,  eh.  588,  that  “ the  supervisors  of  the  said  towns  of  Oyster  Bay,  North 
Hempstead  and  Hempstead,  elected  at  the  annual  town  meetings  held  in  1898. 
shall  constitute  and  are  hereby  declared  to  constitute  the  board  of  supervisors 
of  the  said  county  of  Nassau,”  is  not  in  contravention  of  the  above  section  of  the 
constitution,  in  that  it  undertakes  to  appoint  a board  which  the  constitution 
says  must  be  elected.  It  merely  prescribes  what  town  supervisors  shall  con- 
stitute the  county  board  of  supervisors,  all  of  them  being  officers  elected  in  their 
respective  towns  to  act,  not  only  in  town  affairs,  but  as  members  of  the  board 
of  supervisors  of  the  county  to  which  the  town  belongs.  Matter  of  Noble,  34  App. 
Div.  55 ; 54  N.  Y.  Supp.  42. 

2.  Powers  conferred  upon  supervisors  by  legislature.  The  legislature 

may  in  its  discretion  interpose  any  cheek  or  limitation  upon  the  powers  of  super- 
visors which  it  may  deem  reasonable,  and  where  under  their  delegated  powers  a 
board  of  supervisors  adopts  a resolution  removing  a county  seat  from  one  town 
to  another  a tax  payer’s  action  will  not  lie  to  restrain  such  removal.  Stanton 
v.  Board  of  Supervisors,  48  Misc.  415,  96  N.  Y.  Supp.  840. 

The  board  of  supervisors  of  a county  is  vested  with  such  powers  of  local  legis- 
lation and  administration  as  are  conferred  upon  it  by  the  legislature.  Its  power 
is  co-extensive  with  the  power  expressly  granted  to  it  or  which  is  necessarily  or 
reasonably  implied  from  the  powers  so  expressly  conferred.  Wadsworth  v.  Board 
of  Supervisors  (1916),  217  N.  Y.  484. 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS. 


11 


County  Law,  § 10. 

§ 2.  BOARDS  OF  SUPERVISORS;  MEETINGS  AND  ORGANIZATION, 

The  supervisors  of  the  cities  and  towns  in  each  county,  when  lawfully 
convened,  shall  be  the  board  of  supervisors  of  the  county.3  They  shall 


An  act  authorizing  boards  of  supervisors  to  make  local  laws  for  the  protection 
of  shell  fish  is  constitutional,  Smith  v.  Levinus,  8 N.  Y.  472;  Hallock  v.  Dominy, 
7 Hun,  52;  as  is  an  act  authorizing  a board  of  supervisors  to  fix  the  salary  of 
a county  treasurer.  Board  of  Supervisors  of  Seneca  County  v.  Allen,  99  N.  Y. 
532;  2 N.  E.  459. 

Limitation  of  powers.  Supervisors  derive  their  powers  from  the  State 
legislature,  and  the  exercise  of  such  powers  must  in  all  things  be  confined  to 
those  which  are  conferred  by  law  and  enumerated  in  the  statute  conferring 
them.  Thus,  a board  of  supervisors,  cannot  create  the  office  of  county  attorney 
for  a prescribed  term.  Vincent  v.  County  of  Nassau,  45  Misc.,  247,  92  N.  Y. 
Supp.  32. 

The  legislature  may,  by  special  act  deprive  a board  of  supervisors  of  the  right 
to  build  a court  house.  People  ex  rel.  Commissioners  v.  Supervisors,  170  N.  Y. 
105,  affid.  68  App.  Div.  650. 

Statutes,  conferring  powers  of  local  legislation  upon  boards  of  supervisors, 
do  not  authorize  the  supervisors  of  Cattaraugus  County  to  alter  the  salary  of 
the  surrogate  of  that  county.  Spring  v.  Wait,  22  Hun,  441. 

Power  to  lay  out  highways.  While  the  legislature  is  prohibited  from  passing 
a local  bill  laying  out,  opening,  etc.,  highways,  it  may  confer  such  power  on 
boards  of  supervisors,  Town  of  Kirkwood  v.  Newbury,  122  N.  Y.  571,  576;  26 
N.  E.  10;  People  ex  rel.  Morrill  v.  Supervisors,  112  N.  Y.  585;  20  N.  E.  549.  Leg- 
islature may  authorize  boards  of  supervisors  to  lay  out  highways.  Matter  of 
Church,  92  N.  Y.  1;  see  Roberts  v.  Supervisors  of  Kings,  3 App.  Div.  366,  affd. 
158  N.  Y.  673;  Hubbard  v.  Saddler,  104  N.  Y.  223.  And  build  bridges.  Town  of 
Kinderhook  v.  Newbury,  122  N.  Y.  571,  affg.  45  Hun,  323.  And  borrow  money  to 
erect  such  bridges.  Barker  v.  Town  of  Oswegatchie,  41  St.  Rep.  821. 

Certiorari  will  not  lie  to  review  acts  of  boards  of  supervisors  under  power 
conferred  by  the  legislature  for  such  acts  are  legislative  in  their  character. 
People  ex  rel.  O’Connor  v.  Supervisors,  153  N.  Y.  370;  People  ex  rel.  Trustees 
v.  Supervisors  of  Queens,  131  N.  Y.  468;  People  ex  rel.  Morrill  v.  Supervisors  of 
Queens,  112  N.  Y.  585,  affg.  48  Hun,  324;  People  ex  rel.  Wakely  v.  McIntyre, 
154  N.  Y.  628. 

3.  Office  of  supervisor  is  elective  and  legislature  cannot  appoint.  Williams  v. 
Boynton,  147  N.  Y.  426,  affg.  71  Hun  309,  25  N.  Y.  Supp.  60.  Provision  of  Con- 
stitution, Article  3,  § 18,  prohibiting  legislature  from  passing  local  bill  pro- 
viding for  election  of  supervisors,  does  not  apply  to  city  supervisors.  People 
ex  rel.  Clancy  v.  Supervisors,  139  N.  Y.  524. 

Supervisors  though  elected  by  the  towns  are  for  some  purposes  deemed  county 
officers.  Godfrey  v.  County  of  Queens,  89  Hun,  18,  34  N.  Y.  Supp.  1052. 

Supervisors  of  new  county. — It  is  proper  for  the  legislature  to  provide  that 
the  board  of  supervisors  of  a new  county  be  composed  of  the  duly  elected 
supervisors  of  the  towns  that  make  up  such  county;  though  the  board  is  a 
county  organization,  its  members  are  chosen  by  the  several  towns  respectively, 
and  individually  they  are  classed  as  town  officers.  Matter  of  Noble,  34  App. 
Div.  55,  54  N.  Y.  Supp.  42  (1898). 

3.  Power  of  board  as  to  qualification  of  its  members.  When  the  question 
which  settles  the  right  of  the  claimant  to  the  office  of  supervisor  of  a town 


12  COUNTIES;  BOARDS  OF  SUPERVISORS. 

County  Law,  § 10. 

meet  annually,  at  such  time  and  place  as  they  may  fix,  and  may  hold  special 
meetings  at  the  call  of  the  clerk,  on  the  written  request  of  a majority  of 
the  board,  and  whenever  required  by  law.* * * 4  A majority  of  the  board  shall 
constitute  a quorum.5  They  may  adjourn  from  time  to  time,  and  their 
meetings  shall  be  public.  At  the  annual  meeting  they  shall  choose  one 
of  their  number  chairman  for  the  ensuing  year.  In  the  event  of  a vacancy 
occurring  in  the  office  of  chairman  by  reason  of  death  or  expiration  of  term 
of  a supervisor,  they  may  at  a special  meeting  of  the  board  called  for  such 
purpose,  choose  one  of  their  number  chairman  to  serve  until  the  next 
annual  meeting.  In  a county  in  which  the  biennial  town  meet- 


has  been  substantially  passed  upon  in  his  favor  by  the  Court  of  Appeals,  and  he 
has  received  the  certificate  of  election  and  has  qualified,  and  has  been  awarded 
by  the  court,  as  acting  supervisor,  the  custody  of  the  books  in  the  possession 
of  his  predecessor,  the  county  board  of  supervisors  has  no  power  to  determine 
a contest  as  to  his  seat  and  exclude  him  therefrom,  and  its  illegal  action  in 
so  doing  will  be  set  aside.  People  ex  rel.  Bradley  v.  Board  of  Supervisors, 

69  Hun,  406;  23  N.  Y.  Supp.  654. 

Where,  after  a supervisor  had  been  declared  elected  and  a certificate  was 
given  to  him,  a right  of  mandamus  was  granted  directing  the  board  of  can- 
vassers to  make  a re-canvass  and  count  certain  paster  ballots  for  Its  opponent, 
which  was  done,  and  the  latter  declared  elected,  it  was  held  that  the  board 
of  supervisors  had  no  authority  to  determine  that  the  former  was  entitled  to 
his  seat  in  the  board.  Williams  v.  Boynton,  71  Hun,  309;  25  N.  Y.  Supp.  60; 
affd.,  147  N.  Y.  426,  in  which  case  the  Court  of  Appeals  held  that  the  supervisor 
who  was  seated  by  the  board  had  no  authority  whatever  to  act  as  a member 
thereof.  He  had  no  right  to  vote,  and  a resolution  which  required  his  vote  for 
its  passage  was  never  legally  passed. 

4.  Meetings  of  board.  The  supervisors  are  required  to  meet  annually,  and 
may  hold  special  meetings  from  time  to  time;  their  neglect  to  perform  a duty 
required  to  be  performed  at  the  annual  meeting,  cannot  nullify  the  statute; 
they  or  their  successors  are  bound  to  do  what  was  required,  and  may  be  com- 
pelled to  do  so  by  mandamus.  People  v.  Supervisors  of  Chenango,  8 N.  Y.  317, 
330.  Supervisors  are  required  to  meet  annually,  but  they  may  hold  special 
meetings,  and  adjourn  from  time  to  time  People  v.  Stocking,  50  Barb.  573. 

Resolutions.  The  board  acts  for  the  county  by  resolution,  as  an  organized 
body,  and  the  action  of  the  individual  supervisors,  although  unanimous,  would 
not  bind  the  county.  Hill  v.  Supervisors  of  Livingston  Co.,  12  N.  Y.  52,  63. 

5.  Quorum  of  board.  Whenever  three  or  more  public  officers  are  given 
any  power  or  authority,  or  three  or  more  persons  are  charged  with  any  public 
duty  to  be  performed  or  exercised  by  them  jointly  or  as  a board  or  similar 
body,  a majority  of  all  such  persons  or  officers  at  a meeting  duly  held  at  a 
time  fixed  by  law,  or  by  any  by-law  duly  adopted  by  such  board  or  body, 
or  at  any  duly  adjourned  meeting  of  such  meeting,  or  at  any  meeting  duly 
held  upon  reasonable  notice  to  all  of  them,  may  perform  and  exercise  such 
power,  authority  or  duty,  and  if  one  or  more  of  such  persons  or  officers  shall 
have  died  or  have  become  mentally  incapable  of  acting,  or  shall  refuse  or 
neglect  to  attend  any  such  meeting,  a majority  of  the  whole  number  of  such 
persons  or  officers  shall  be  a quorum  of  such  board  or  body,  and  a majority 
of  the  quorum,  if  not  less  than  a majority  of  the  whole  number  of  such  persons 
or  officers  may  perform  and  exercise  any  such  power,  authority  or  duty. 
Any  such  meeting  may  be  adjourned  by  a less  number  than  a quorum.  A recital 
in  any  order,  resolution  or  other  record  of  any  proceeding  of  such  a meeting 
that  such  meeting  had  been  so  held  or  adjourned,  or  that  it  had  been  held 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS. 


13 


County  Law,  § 10. 

ings  are  held  at  a time  other  than  the  general  election  they  may  choose 
one  of  their  number  chairman  at  a special  meeting  of  the  board  called 
for  such  purpose.  In  the  absence  of  the  chairman  at  any  meeting  they 
shall  choose  a temporary  chairman  to  serve  during  such  absence.  They 
shall  appoint  a clerk  to  serve  during  their  pleasure,  and  until  his  suc- 
cessor is  appointed ; and  shall  fix  his  compensation.* * * * * 6 7  They  may  compel 
the  attendance  of  absent  members  at  their  meetings,  make  rules  for  the 

upon  such  notice  to  the  members,  shall  be  presumptive  evidence  thereof. 
General  Construction  Law,  sec.  41. 

All  questions  may  be  determined  by  a majority  of  those  present.  People 

ex  rel.  Hawes  v.  Walker,  23  Barb.  304.  The  provision  of  the  statute  declaring 
that  a majority  of  the  supervisors  of  any  county  shall  constitute  a quorum  for 
the  transaction  of  business  cannot  be  altered  by  a rule  of  the  board.  People 

ex  rel.  Burrows  v.  Brinkerhoff,  68  N.  Y.  259. 

The  number  necessary  to  constitute  a quorum  remains  the  same  even  though 
there  be  vacancies  in  the  board.  Erie  R.  Co.  v.  City  of  Buffalo,  180  N.  Y.  192, 197. 

6.  Clerk  of  board.  The  powers  and  duties  of  the  clerk  of  the  board  of  super- 
visors are  prescribed  by  art.  3 of  the  County  Law.  See  post,  p.  94.  it  is  cus- 
tomary for  the  clerk  of  the  previous  board  of  supervisors  to  call  the  board 
to  order  for  the  purpose  of  organization,  and  to  hold  office  until  his  successor 
is  elected. 

7.  The  rules  of  board.  By  the  above  section  a board  of  supervisors  is 
authorized  to  pass  rules  regulating  the  business  of  the  board.  When  it  adopts  a 
rule  by  which  it  intends  to  reserve  the  right  to  review  and  reconsider  its  action 
at  any  time  before  final  adjournment,  a reconsideration  of  its  action  upon  the 
Sheriff’s  claim,  before  issue  of  a certificate  allowing  it,  is  valid;  and  when,  upon 
such  reconsideration,  the  board  indicates  the  specific  items  which  it  has  dis- 
allowed or  reduced,  the  error,  if  any,  resulting  from  the  fact  that  the  previous 
audit  indicated  no  such  items  but  only  the  whole  amount  at  which  the  bill 
was  audited,  is  cured.  People  ex  rel.  Caldwell  v.  Supervisors,  45  App.  Div.  42; 
60  N.  Y.  Supp.  1122. 

Appointment  of  committees.  It  is  customary  for  boards  of  supervisors, 
and  bodies  of  like  character,  to  divide  their  membership  into  committees,  to 
whom  is  given  the  special  charge  of  the  various  matters  brought  before  them 
for  examination,  and  to  report  to  the  full  board.  These  committees  are  the 
hands  and  eyes  of  the  board  itself.  It  would  be  utterly  impossible  for  each  and 
every  member  to  make  a special  examination  for  himself  of  all  the  matters 
that  are  brought  before  the  board,  and  of  each  item  in  bills  presented  to  it. 
It  is  not  only  the  customary  way,  but  it  is  a legal  way  of  discharging  their 
duties.  See  People  ex  rel.  Caldwell  v.  Supervisors,  45  App.  Div.  42;  60  N.  Y. 
Supp.  1122. 

Each  board  of  supervisors  should  appoint  its  committees  for  the  transaction 
of  its  own  business.  A committee  has  no  authority  to  act  after  the  expiration 
of  the  term  of  office  of  its  members.  Rept.  of  Atty.-Genl.,  Feb.  14,  1912.  One 
who  continues  to  act  as  chairman  of  the  board  of  supervisors  after  his  suc- 
cessor has  qualified  and  entered  upon  the  discharge  of  his  duties  is  not  entitled 
to  the  per  diem  compensation  provided  to  supervisors  by  statute  for  attend- 
ance upon  sessions  of  the  board  or  for  committee  work.  Rept.  of  Atty.-Genl. 
(1911),  Vol.  2,  p.  693. 

Rules  and  order  of  business.  The  rules  as  adopted  in  the  several  counties 
vary  somewhat  in  their  form  and  in  the  language  used.  The  following  rules 
are  in  force  by  adoption  of  the  board  of  supervisors  of  the  county  of  Chemung, 
and  will  be  found  complete  and  effective: 

1.  The  annual  meeting  of  the  board  of  supervisors  shall  be  held  on  the 
Monday  after  general  election,  at  10  a.  m. 

2.  The  clerk  of  the  last  board  shall  call  the  members  to  order,  and  they 
by  a majority  of  their  number,  shall  select  a chairman,  who  shall  preside 
at  such  meeting,  and  at  all  other  meetings  during  the  year.  In  case  of  the 
absence  of  the  chairman  at  any  meeting,  or  in  case  of  a special  meeting  of 
such  board  before  the  annual  meeting,  the  members  present  shall  choose  one 


14 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 10. 

conduct  of  their  proceedings,7  and  impose  and  enforce  penalties  for  the 
violation  thereof,  not  exceeding  fifty  dollars  for  each  offense.  [County 
Law,  § 10,  as  amended  by  L.  1910,  ch.  279;  L.  1911,  ch.  250,  and  L. 
1912,  ch.  193;  B.  C.  & G.  Cons  L.,  p.  701.] 

of  their  members  as  a temporary  chairman;  and  in  all  cases  of  the  absence  of  a 
quorum,  the  members  present  shall  take  such  measures  as  shall  be  necessary  to 
procure  the  attendance  of  absent  members. 

The  following  standing  committees  shall  be  appointed  by  the  chairman  at  the 
commencement  of  each  annual  session. 

First. — On  Equalization. — Eleven  members  whose  duty  it  shall  be  to  report  on 
equalization  of  assessments. 

Second. — On  Poor  House  and  Superintendent’s  Report. — Five  members  who  shall 
consider  all  claims  arising  from  the  support  of  the  poor  house  or  the  poor  of  the 
county. 

Third. — On  County  Officers’  Accounts. — Three  members  who  shall  consider  and 
examine  the  accounts  of  the  county  judge,  surrogate  and  sheriff. 

Fourth. — On  County  Clerk  and  District  Attorney’s  Accounts. — Three  members 
who  shall  consider  and  examine  the  accounts  of  the  county  clerk  and  district 
attorney. 

Fifth. — On  County  Treasurer  and  Coroners’  Accounts. — Three  members  who  shall 
consider  and  examine  the  accounts  of  the  county  treasurer  and  coroners.  Also  the 
condition  of  the  U.  S.  deposit  fund  and  the  accounts  of  the  commissioners. 

Sixth. — On  Coroners’  Jury  Script  and  Physicians’  Accounts. — Three  members  who 
shall  examine  and  consider  the  accounts  of  the  psysicians’  and  coroners’  jury  script. 

Seventh. — On  County  Claims. — Three  members  who  shall  examine  and  report  on 
all  claims  against  the  county,  from  any  source,  not  properly  brought  before  either 
of  the  preceding  committees. 

Eighth. — On  Town  Accounts. — Three  members  who  shall  examine  all  town  ac- 
counts, and  recommend  the  appropriations  required  for  highway  purposes,  poor 
accounts  and  town  audits. 

Ninth. — On  Justices’  and  Constables’  Accounts. — Three  members  who  shall 
examine  and  report  all  claims  of  justices  and  constables  against  the  county. 

Tenth. — On  Special  Legislation  and  Erroneous  Assessments. — Three  members  to 
whom  shall  be  referred  all  matters  relating  to  erroneous  assessments  and  taxation. 

Eleventh. — On  Miscellaneous  Accounts. — Five  members  who  shall  consider  and 
recommend  the  appropriations  required  for  the  payment  of  the  state  tax,  and  other 
town  and  county  charges.  They  shall  also  make  a report  of  the  assessments  of 
corporations  as  found  in  the  several  assessment  rolls. 

Twelfth. — Grand  Jury. — Three  members  to  whom  shall  be  referred  all  matters 
relating  to  grand  jury. 

Thirteenth. — On  Military  Affairs. — Three  members  to  whom  shall  be  referred  all 
claims  against  the  county,  arising  under  the  military  code  of  the  State  of  New 
York. 

Fourteenth. — Assessment  Rolls  and  Footings. — • Three  members  who  shall  verify 
the  footings  of  assessment  rolls. 

Fifteenth. — Supervisors’  Accounts. — Three  members  to  whom  shall  be  referred  the 
accounts  of  the  supervisors. 

Sixteenth. — On  County  Officer’s  Bonds. — Three  members  to  whom  shall  be  referred 
all  matters  pertaining  to  the  bonds  of  county  officers. 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS. 


15 


County  Law,  § 10-a. 

Quarterly  meetings.  The  hoard  of  supervisors  in  any  county  mayr 
hy  resolution,  determine  to  hold,  in  addition  to  the  annual  meeting, 
four  regular  quarterly  meetings  on  the  second  Monday  of  the  months 
of  February,  May,  August  and  November.  If  such  resolution  be 
adopted  the  board  of  supervisors  may  transact  at  any  such  meeting  all 

3.  Such  special  committees  may  be  appointed  as  the  board  may  consider  neces- 
sary, all  of  which  shall  be  appointed  by  the  chairman,  and  consist  of  three  mem- 
bers, unless  otherwise  specially  ordered  by  the  board. 

4.  Upon  the  members  being  called  to  order,  the  minutes  of  the  preceding  day  shall 
be  read,  to  the  end  that  any  mistake  shall  be  corrected,  unless  such  reading  shall 
be  waived  by  the  board. 

5.  At  each  session  the  order  of  business  shall  be: 

1.  Reading  of  the  minutes. 

2.  Presentation  of  petitions  and  communications. 

3.  Resolutions,  motions  and  notices. 

4.  Report  of  select  committees. 

5.  Report  of  standing  committees. 

6.  Unfinished  business. 

7.  Special  order  of  the  day. 

6.  The  chairman  shall  preserve  order  and  decorum,  and  shall  decide  all  questions 
of  order,  subject  to  an  appeal  by  the  board.  He  shall  have  the  right  to  name  any 
member  to  perform  the  duties  of  the  chair,  but  such  substitution  shall  not  extend 
beyond  the  next  adjournment. 

7.  The  chairman  shall,  in  all  cases,  have  the  right  to  vote,  and  when  the  vote  is 
equally  divided,  including  his  vote,  the  question  shall  be  lost. 

8.  Every  member,  previous  to  his  speaking,  shall  arise  from  his  seat  and  address 
himself  to  the  chair. 

9.  When  two  or  more  members  arise  at  once,  the  chairman  shall  name  the  mem- 
ber who  is  first  to  speak. 

10.  No  member  shall  speak  more  than  once  on  any  question,  or  in  any  case,  until 
every  member  choosing  to  speak  shall  have  spoken;  nor  more  than  twice  without 
the  leave  of  the  board. 

11.  A member  called  to  order  shall  immediately  sit  down,  unless  permitted  to 
explain.  If  an  appeal  is  taken  from  the  decision  of  the  chair,  the  board  shall  decide 
the  case  without  debate,  and  the  question  shall  be  stated  by  the  chair  to  be:  “ Shall 
the  decision  of  the  chair  stand  as  the  judgment  of  the  board  ? ” 

12.  Persons  not  members  of  the  board  may,  by  consent,  be  permitted  to  speak 
in  regard  to  matters  pending  before  the  board. 

13.  Every  person  present  when  a vote  is  stated  from  the  chair  shall  vote  thereon, 
unless  excused  by  the  board,  or  unless  he  is  directly  interested  in  the  question,  in 
which  case,  if  he  choose,  he  shall  be  excused  from  voting. 

14.  No  motion  shall  be  stated,  debated  or  put  unless  it  is  seconded.  When  a 
motion  is  seconded  it  shall  be  stated  by  the  chairman  before  debate,  and  any  motion 
shall  be  reduced  to  writing  if  the  chairman  or  any  member  desire  it. 

15.  After  a motion  is  stated  it  shall  be  in  possession  of  the  board,  but  may  be 
withdrawn  at  any  time  before  the  decision  or  amendment. 

16.  If  the  question  in  debate  contains  several  distinct  propositions,  any  member 
may  have  the  same  divided. 


16 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 11. 

business  that  may  come  before  it,  including  the  audit  of  accounts  and 
charges  against  the  county  which  have  been  presented  to  the  board 
and  which  shall  have  then  accrued.  Whenever  a board  of  supervisors  of 
any  county  shall  have  audited  any  account,  claim  or  demand  against 
the  county  at  a meeting  other  than  the  annual  meeting  of  the  board,  it 
shall  certify  the  aggregate  of  all  sums  so  audited  and  allowed  to  the 
county  treasurer  of  the  county.  Any  such  board  of  supervisors  may, 
concurrently  with  such  certification  or  any  time  thereafter,  authorize 
the  county  treasurer  to  borrow  upon  the  faith  and  credit  of  the  county 
a sum  of  money  sufficient  to  pay  the  aggregate  amount  of  the  accounts 
so  audited  and  allowed  at  any  one  or  more  of  the  meetings  so  held. 
Xo  such  loan  shall  be  negotiated  for  a longer  period  than  twelve 
months.  [County  Law,  § 10-a,  as  added  by  L.  1917,  ch.  119.] 

Regular  meetings ; Ontario  county.  The  board  of  supervisors  of  the 
county  of  Ontario  may  by  resolution  determine  to  hold  in  addition  to  the 

17.  When  a question  is  under  debate  no  motion  shall  be  received  unless  on  the 
previous  question,  to  postpone  it  indefinitely,  to  adjourn  it  to  a certain  day,  to  lay 
it  on  the  table,  to  commit  it  or  to  adjourn  the  board. 

18.  A motion  for  the  previous  question,  to  lay  the  question  on  the  table,  to  com- 
mit it  until  it  is  decided,  shall  preclude  all  amendments  and  debate  of  the  main 
question,  and  the  motion  to  postpone  a question  indefinitely,  to  adjourn  to  a certain 
day,  until  it  is  decided,  precludes  all  amendments  to  the  main  question. 

19.  The  previous  question  shall  be  as  follows:  “Shall  the  main  question  be 

put  ? ” 

20.  A motion  to  adjourn  the  board  shall  always  be  in  order,  and  be  decided  without 
debate. 

21.  The  name  of  the  member  offering  resolutions  shall  be  entered  on  the  minutes. 

22.  The  ayes  and  nayes  upon  the  question  shall  be  taken  and  entered  upon  the 
minutes,  if  required  by  any  member. 

23.  Select  committees,  to  whom  references  are  made,  shall,  in  all  cases,  report  a 
state  of  facts,  with  their  opinion  thereon,  if  required  by  the  board. 

24.  No  motion  for  reconsideration  shall  be  in  order,  unless  on  the  same  day  or 
the  day  following  that  on  which  the  decision  proposed  to  be  reconsidered  took  place, 
nor  unless  one  of  the  majority  shall  move  such  reconsideration.  A motion  to  recon- 
sider being  put  and  lost,  shall  not  be  renewed,  ncr  shall  any  subject  be  a second 
time  reconsidered  without  unanimous  consent. 

25.  No  standing  rule  or  order  shall  be  rescinded,  suspended  or  changed,  or  any 
additional  rule  or  order  added  thereto,  unless  by  unanimous  consent  without  one 
day’s  notice  being  given  of  the  motion  thereof,  and  no  motion  to  that  effect  shall 
be  in  order  without  such  notice. 

26.  The  board  shall  hold  two  regular  sessions  daily  — the  morning  session  and 
the  afternoon  session — and  all  of  the  general  business  of  the  board  shall  be 
transacted  at  these  sessions  when  first  convened,  and  all  the  members  shall  be 
present  unless  excused.  When  the  general  business  before  the  board  of  that  session 
shall  be  disposed  of  the  chairman  shall  announce  the  board  adjourned  for  committee 
labor,  and  no  further  business  shall  thereafter  be  done  until  next  session. 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS.  17 

County  Law,  § 11 

annual  meeting  such  regular  meetings  not  exceeding  one  in  each  month 
as  they  may  determine.  If  such  resolution  be  adopted  such  board  of 
supervisors  may  transact  at  any  such  meeting  all  business  that  may 
come  before  it,  including  the  audit  of  accounts  and  charges  against  the 
county  which  have  been  presented  to  the  board,  and  which  shall  have 
then  accrued,  and  whenever  such  board  shall  have  audited  any  account, 
claim  or  demand  against  the  county  at  any  such  regular  meeting,  it  may 
direct  payment  thereof  by  order  drawn  by  the  clerk  of  said  board  upon 
the  county  treasurer  of  the  county,  and  may  authorize  the  county 
treasurer  to  borrow  upon  the  faith  and  credit  of  the  county  a sum  of 
money  sufficient  to  pay  the  aggregate  amount  of  the  accounts  so 
audited  and  allowed  at  any  one  or  more  of  the  meetings  so  held.  No 
such  loan  shall  be  negotiated  for  a longer  period  than  twelve  months. 
[County  Law,  § 10-b,  as  added  by  L.  1918,  ch.  389.] 

§ 3.  PENALTY  FOR  FAILURE  OF  SUPERVISOR  TO  PERFORM  OF- 
FICIAL DUTIES. 

If  any  supervisor  shall  refuse  or  neglect  to  perform  any  of  the  duties 
which  are  or  shall  be  required  of  him  by  law,  as  a member  of  the  board  of 
supervisors,  he  shall  for  every  such  offense  forfeit  the  sum  of  two 
hundred  and  fifty  dollars  to  the  county.  For  a refusal  or  neglect  to 
perform  any  other  duty  required  of  him  by  law,  he  shall  for  every  such 
offense  forfeit  a like  sum  to  the  town.* * * * * * * 8  [County  Law,  § 11 ; B.  C.  & G. 
Cons.  L .,  p.  703.] 


27.  Every  motion  or  resolution  before  the  board  shall  lie  over  until  the  next  day, 

if  so  demanded  by  any  member,  and  any  member  necessarily  absent  may,  at  the 

first  session  after  he  shall  learn  of  the  adoption  of  any  motion  or  resolution,  have 
a right  to  move  a reconsideration  of  the  same. 

28.  At  each  annual  session  the  chairman  of  the  board  shall,  before  the  close  of  the 

said  session  appoint  four  members  of  the  board  who,  together  with  himself  as 

chairman,  shall  constitute  a committee  on  all  buildings  and  grounds  belonging  to 

the  county.  Said  committee  shall  have  charge  and  supervision  of  all  the  county 
buildings  for  the  ensuing  year,  with  power  to  make  repairs  which  may  become 
necessary  during  the  adjournment  of  the  board. 

8.  Penal  provision.  Section  1841  of  the  Penal  Law  provides  that,  “A  public 
officer,  or  person  holding  a public  trust  or  employment,  upon  whom  any  duty 
is  enjoined  by  law,  who  wilfully  neglects  to  perform  the  duty,  is  guilty  of  a 
misdemeanor.  This  and  the  preceding  section  do  not  apply  to  cases  of  official 
acts  or  omissions,  the  prevention  of  punishment  of  which  is  otherwise  specially 
provided  for  by  statute.”  The  penalty  imposed  by  the  above  section  may,  therefore, 
be  exclusive  of  any  punishment  for  a misdemeanor  under  this  section  of  the  Penal 
Law. 

Liability  for  Neglect.  The  supervisor,  by  voting  against  allowing  a claim  which 


18 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 23. 

§ 4.  COMPENSATION  OF  SUPERVIORS  AS  MEMBERS  OF  THE 
BOARD  OF  SUPERVISORS;  COPYING  ASSESSMENT-ROLL. 

1.  For  services  of  supervisors,  except  in  the  counties  of  Albany, 
Allegany,  Broome,  Cattaraugus,  Cayuga,  Clinton,  Columbia,  Dutchess, 
Orange,  Erie,  Essex,  Franklin,  Hamilton,  Herkimer,  Montgomery, 
Niagara,  Oneida,  Onondaga,  Otsego,  Rensselaer,  Rockland,  Saratoga, 
Schenectady,  Steuben,  Suffolk,  Ulster,  Warren,  Wyoming  and  West- 
chester, each  supervisor  shall  receive  from  the  county  compensation  at 
the  rate  of  four  dollars  per  day,  in  Broome  county  at  the  rate  of  five 
dollars  per  day,  in  Essex  county  at  the  rate  of  eight  dollars  per  day, 
in  Cayuga  county  at  the  rate  of  six  dollars  per  day  and  in  Warren 
county  at  the  rate  of  six  dollars  per  day,  for  each  calendar  day’s  actual 
attendance  at  the  sessions  of  their  respective  boards,  and  mileage  at  the 
rate  of  eight  cents  per  mile  for  once  going  and  returning  from  his  resi- 
dence to  the  place  where  the  sessions  of  the  board  shall  be  held,  by  the 
most  usual  route,  for  each  regular  and  special  session.  [Subd.  1 
amended  by  L.  1918,  ch.  285.] 

the  statute  imperatively  requires  the  board  to  allow,  subjects  himself  to  the  above 
penalty;  so  any  supervisor  who  shall  neglect  or  refuse  to  perform  any  duties  which 
are  or  shall  be  required  of  him  by  law,  as  a member  of  the  board,  whatever  may 
have  been  the  motive  which  influenced  him,  is  liable  to  the  penalty.  Morris  v. 
People,  3 Denio,  381.  And  where  a board  neglected  to  raise  money  for  the  erection 
of  public  buildings,  which  money  they  were  required  by  law  to  raise,  the  super- 
visors were  held  liable,  although  previous  boards  had  been  guilty  of  the  same 
neglect.  Caswell  v.  Allen,  7 Johns.  63. 

Where  a supervisor  is  charged  by  statute  with  an  absolute  and  certain  duty, 
in  the  performance  of  which  an  individual  has  a special  interest,  he  is  liable  to  an 
action  if  he  refuses  to  perform  it,  and  he  is  not  relieved  from  the  consequences 
of  his  disobedience  because  it  is  prompted  by  an  honest  belief  upon  his  part  that 
the  statute  is  unconstitutional.  Clark  v.  Miller,  54  N.  Y.  528;  Hoover  v.  Burkhoof, 
44  N.  Y.  113. 

Removal  from  office  for  wilful  misconduct  or  neglect  of  duty.  See  Matter  of  Hoag, 
145  App.  Div.  889,  129  N.  Y.  Supp.  775. 

9.  Compensation  of  supervisors  as  town  officers.  See  Town  Law,  sec.  85. 

The  constitution  provides  that  the  board  of  supervisors  shall  not  grant  any  extra 
compensation  to  any  public  officer,  servant,  agent  or  contractor.  See  Constitution, 
art.  3,  sec.  28. 

Compensation  for  services  on  committees.  A custom  of  the  board  to  allow  its 
members  five  dollars  per  diem  for  services  of  its  members  on  committees  cannot  be 
shown ; nor  can  it  be  proved  that  the  services  were  worth  that  much ; the  statute 
is  conclusive  and  does  not  allow  supervisors  to  pay  themselves  out  of  the  county 
funds  as  upon  a quantum  meruit.  Supervisors  of  Richmond  v.  Van  Clief,  1 Ilun  454. 

Mileage. — Supervisors  are  not  entitled  to  mileage  for  each  day’s  actual  attend- 
ance at  regular  or  special  meetings,  but  only  for  once  going  and  returning.  Wallace  v. 
Jones,  122  App.  Div.  497,  500,  107  N.  Y.  Supp.  288. 

A supervisor  is  not  entitled  to  charge  for  services  or  mileage  while  serving  upon  a 
committee  of  the  board  of  supervisors  during  the  session  of  the  board,  because  the 
statute  provides  that  unless  the  compensation  is  specially  provided  he  is  pro- 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS. 


19 


County  Law,  § 23. 

2.  In  the  county  of  Allegany  each  supervisor  shall  receive  from  the 
county  compensation  at  the  rate  of  five  dollars  per  day  for  each  calen- 
dar day’s  actual  attendance  at  the  sessions  of  the  board  of  supervisors 
and  mileage  at  the  rate  of  eight  cents  per  mile  for  once  going  and  return- 
ing every  week  during  any  regular  or  special  session  of  such  board 
from  his  place  of  residence  to  the  place  where  any  such  session  of  the 
board  is  held. 

2- a.  In  the  counties  of  Cattaraugus,  Wyoming  and  Otsego  each 
supervisor  shall  receive  from  the  county  compensation  at  the  rate  of  six 
dollars  per  day  for  each  calendar  day’s  actual  attendance  at  the  sessions 
of  the  board  of  supervisors  and  mileage  at  the  rate  of  eight  cents  per 
mile  for  once  going  and  returning  every  week  during  any  regular  or 
special  session  of  such  board  from  his  place  of  residence  to  the  place 
where  any  such  session  of  the  board  is  held.  [Subd.  2-a,  added  by  L. 
1918,  ch.  285.] 

3.  In  the  county  of  Franklin  each  supervisor  shall  receive  the  mile- 
age above  provided  and  a per  diem  compensation  for  attending  sessions 
of  the  board,  and  for  committee  work  when  the  board  is  not  in  session, 
to  be  fixed  by  the  board  of  supervisors  at  not  to  exceed  eight  dollars  per 
day.  [Subd.  3,  added  by  L.  1917,  ch.  527.] 

3- a.  In  the  county  of  St.  Lawrence  each  supervisor  shall  receive  from 
the  county  the  mileage  above  provided,  an  annual  salary  of  three  hun- 
dred and  fifty  dollars,  six  dollars  per  day  while  actually  engaged  in  any 
investigation  or  other  duty  which  may  be  lawfully  committed  to  him  by 
the  board  except  for  services  rendered  while  the  board  is  in  session,  and, 

hibited  from  receiving  other  compensation  than  his  per  diem  allowance  and  mileage 
for  his  attendance  during  the  sessions  of  the  board.  Board  of  Supervisors  v.  Ellis, 
59  N.  Y.  620;  Van  Sicklen  v.  Supervisors,  32  Hun  62. 

Special  acts  relating  to  salaries  of  supervisors. 

In  Albany  county,  see  L.  1871,  ch.  887,  as  amended  by  L.  1875,  ch.  497,  and  L. 
1908,  ch.  445;  L.  1884,  ch.  368,  § 11,  as  amended  by  L.  1906,  ch.  5. 

In  Columbia  county,  see  L.  1889,  ch.  488,  as  amended  by  L.  1909,  ch.  89. 

In  Dutchess  county,  see  L.  1898,  ch.  134. 

In  Erie  county,  see  L.  1876,  ch.  231,  as  amended  by  L.  1879,  ch.  195,  L.  1888,  ch. 
364,  L.  1892,  ch.  485,  L.  1893,  ch.  620,  L.  1895,  ch.  174,  L.  1898,  ch.  487,  L.  1907,  ch. 
407,  and  L.  1909  chs.  129,  543. 

In  Montgomery  county  see  L.  1900,  ch.  194,  as  amended  by  L.  1906,  ch.  76. 

In  Oneida  county,  see  L.  1876,  ch.  250,  which  was  superseded  in  effect  by  L.  1901, 
ch.  34. 

In  Onondaga  county,  see  L.  1906,  ch.  10,  as  amended  by  L.  1916,  ch.  180. 

In  Oswego  county,  see  L.  1897,  ch.  290,  as  amended  by  L.  1915,  ch.  92. 

In  Rensselaer  county,  see  L.  1857,  ch.  331,  § 1,  as  amended  by  L.  1875,  ch.  560. 

In  Schenectady  county,  see  L.  1887,  ch.  722,  as  amended  by  L.  1904,  ch.  64. 

In  Westchester  county,  see  L.  1902,  ch.  342,  as  amended  by  L.  1905,  ch.  42,  and 
L.  1910,  ch.  91,  in  effect  superseding  L.  1894,  ch.  563. 


20 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 23. 

if  such  investigation  or  duty  require  his  attendance  at  a place  away 
from  his  residence,  his  actual  expenses  incurred  therein.  Such  per 
diem  compensation  and  expense  allowance  shall  he  in  lieu  of  the  per 
diem  compensation  and  expense  allowance  provided  for  by  subdivision 
eight.  [Subd.  3-a,  added  by  L.  1918,  ch.  285.] 

4.  In  the  counties  of  Hamilton,  Herkimer,  Niagara,  Rockland, 
Saratoga,  Schenectady  and  Steuben  each  supervisor  shall  receive  an 
annual  salary,  in  the  county  of  Herkimer  of  two  hundred  and  twenty 
dollars  and  the  mileage  hereinbefore  prescribed,  in  the  county  of 
Hamilton  of  one  hundred  and  twenty  dollars  and  his  reasonable  travel- 
ing expenses  actually  and  necessarily  incurred  in  once  going  and  return- 
ing from  his  residence  to  the  place  where  the  sessions  of  the  board  shall 
be  held,  by  the  most  usual  route,  for  each  regular  and  special  session,  in 
the  county  of  Niagara  of  four  hundred  dollars,  in  the  county  of  Rock- 
land of  four  hundred  dollars,  in  the  county  of  Saratoga  of  five  hundred 
dollars,  in  the  county  of  Schenectady  of  five  hundred  dollars  and  in  the 
county  of  Steuben  of  one  hundred  and  fifty  dollars,  in  lieu  of  any  per 
diem  compensation.  [Subd.  4,  amended  by  L.  1918,  ch.  285.] 

5.  In  the  counties  of  Dutchess  and  Orange  each  supervisor  shall 
receive  an  annual  salary  from  the  county  of  one  hundred  and  fifty  dol- 
lars and  also  mileage  at  the  rate  of  ten  cents  per  mile  for  going  and 
returning,  once  in  each  week  during  the  annual  session  of  the  board 
of  supervisors  and  when  the  board  is  sitting  as  a board  of  county  can- 
vassers, by  the  most  usually  traveled  route,  from  his  residence  to  the 
place  where  the  sessions  of  the  board  shall  be  held,  and  in  addition 
thereto  compensation  at  the  rate  of  four  dollars  per  day  and  mileage  as 
hereinabove  provided  for  each  special  session  of  the  board  which  he 
attends ; such  compensation  and  mileage  to  be  paid  by  the  county 
treasurer  on  the  last  day  of  the  annual  session  in  each  year. 

6.  In  the  county  of  Suffolk  each  supervisor  shall  receive  an  annual 
salary  of  one  thousand  dollars  for  all  services  to  the  county  for  board 
meetings  and  committee  work,  in  lieu  of  any  per  diem  compensation. 
He  shall  be  reimbursed  by  the  county  for  actual  expenses  to  and  from 
board  and  committee  meetings. 

7.  In  the  county  of  Ulster  each  supervisor  shall  receive  an  annual 
salary  from  the  county  of  three  hundred  and  fifty  dollars,  and  also 
mileage  at  the  rate  of  eight  cents  per  mile  for  going  and  returning  once 
in  each  week  during  the  annual  session  of  the  board  of  supervisors, 
and  when  the  board  is  sitting  as  a board  of  county  canvassers,  and  once 
in  going  and  returning  to  and  from  each  special  session  by  the  most 
usually  traveled  route  from  his  residence  to  the  place  where  the  session 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS.  20a 

County  Law,  § 23. 

of  the  board  shall  be  held,  and  in  addition  thereto  he  shall  receive  from 
the  county  while  actually  engaged  in  any  investigation  or  other  duty 
which  may  legally  be  committed  to  him  his  actual  expenses,  and  such 
salary,  mileage  and  expenses  shall  be  audited  and  paid  as  other  county 
charges ; and  such  compensation  shall  be  for  any  and  all  services  which 
such  supervisor  shall  render  to  the  county  and  in  lieu  of  all  per  diem 
compensation,  except  that  each  supervisor  may  he  allowed  for  his  ser- 
vices in  making  a copy  of  the  assessment-roll  and  extending  taxes  as 
hereinafter  provided. 

8.  Each  supervisor,  except  in  the  counties  of  Albany,  Allegany, 
Broome,  Clinton,  Columbia,  Dutchess,  Orange,  Erie,  Franklin,  Mont- 
gomery, Xiagara,  Oneida,  Onondaga,  Rensselaer,  Saratoga,  Schenectady, 
Suffolk,  Ulster,  Warren,  Wyoming  and  Westchester  may  also  receive 
compensation  from  the  county  at  the  rate  of  four  dollars  per  day,  and 
in  Broome  county  at  the  rate  of  five  dollars  per  day,  and  in  the  county 
of  Franklin  at  a rate  not  exceeding  eight  dollars  per  day  to  be  fixed 
by  the  board  of  supervisors,  and  in  Clinton  county  at  the  rate  of  six 
dollars  per  day,  and  in  Warren  county  at  the  rate  of  six  dollars  per 
day,  and  in  Wyoming  county  at  the  rate  of  six  dollars  per  day,  while 
actually  engaged  in  any  investigation  or  other  duty  which  may  be  law- 
fully committed  to  him  by  the  board,  except  for  services  rendered  when 
the  board  is  in  session  and,  if  such  investigation  or  duty  requires  his 
attendance  at  a place  away  from  his  residence,  and  five  miles  or  more 
distant  from  the  place  where  the  board  shall  hold  its  sessions,  his  actual 
expenses  incurred  therein.  [Subd.  amended  by  L.  1918,  chs.  49,  285.] 

9.  Each  supervisor  in  the  counties  of  Dutchess,  Orange  and  Alle- 
gany shall  also  be  entitled  to  receive  in  addition  to  the  compensation 
hereinabove  provided,  to  be  paid  in  the  same  time  and  manner,  com- 
pensation at  the  rate  of  four  dollars  per  day  while  actually  engaged  in 
any  investigation  or  other  duty  which  may  be  lawfully  committed  to 
him  by  the  board  of  supervisors  of  his  county,  together  with  his  actual 
expenses  incurred  therein. 

10.  Ho  other  compensation  or  allowance  shall  be  made  to  any  super- 
visor for  his  services,  except  such  as  shall  be  by  law  a town  charge, 
except  that  in  the  counties  of  Xiagara,  Hamilton,  Ilerkimer,  Saint 
Lawrence,  Schenectady  and  Saratoga  each  supervisor,  while  hereto- 
fore or  hereafter  actually  engaged  in  any  investigation,  or  in  the  per- 
formance of  any  other  duty,  which  shall  have  been  legally  delegated  to 
him  by  the  board  of  supervisors,  except  when  the  board  is  in  session, 
shall  be  entitled  to  receive  in  addition  to  the  compensation  herein- 
before provided,  his  actual  expenses  incurred  therein. 


20b 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 23. 

11.  The  board  of  supervisors  of  any  county,  except  Saratoga  and 
Suffolk  counties,  may  also  allow  to  each  member  of  the  board  for  his 
services  in  making  a copy  of  the  assessment-roll,  three  cents  for  each 
written  line  for  the  first  one  hundred  lines,  two  cents  per  line  for  the 
second  hundred  written  lines,  and  one  cent  per  line  for  all  written  lines 
in  excess  of  two  hundred,  and  one  cent  for  each  tax  actually  extended 
by  him  on  the  tax-roll,  and,  if  there  be  more  than  one  item  of  tax  on  a 
line  of  the  tax-roll,  one  cent  for  computing  and  extending  the  total  of 
such  items. 

12.  The  board  of  supervisors  of  any  county  may  also  allow  to  each 
member  of  the  board  for  his  services  in  making  a copy  of  the  tax-roll 
for  delivery  to  the  collector  compensation  at  the  rate  of  one-half  the 
compensation  authorized  for  making  a copy  of  the  assessment  and  tax- 
rolls.10 

13.  In  the  county  of  Suffolk  the  extension  and  copying  of  the  tax- 
rolls  shall  be  performed  by  clerks  and  be  a town  charge. 

14.  In  the  county  of  Ontario  each  supervisor  shall  receive  from  the 
county  compensation  at  the  rate  of  five  dollars  per  day  for  each  calendar 
day’s  actual  attendance  at  the  sessions  of  the  board  of  supervisors,  and 
mileage  at  the  rate  of  eight  cents  per  mile  for  once  going  and  return- 
ing every  week  during  any  regular  or  special  session  of  such  board, 
from  his  place  of  residence  to  the  place  where  any  such  session  of  the 
board  is  held,  by  the  most  usual  route.  [Subd.  14,  added  by  L.  1918, 
ch.  307.]  [County  Law,  § 23,  as  amended  by  L.  1910,  ch.  279,  L. 
1911,  ch.  554,  and  L.  1912,  ch.  34,  L.  1913,  chs.  254,  355,  L.  1914, 
ch.  357,  L.  195,  ch.  332,  L.  1916,  ch.  426,  L.  1917,  ch.  527,  and  L. 
1918,  chs.  49,  285,  and  307 ; B.  C.  & G.  Cons.  L.,  p.  724.] 

§ 4a.  COMPENSATION  OF  SUPERVISORS  IN  CERTAIN  COUNTIES. 

In  any  county  of  the  state  having  not  more  than  four  towns  each 
supervisor,  including  any  now  in  office  or  hereafter  elected,  shall  receive 
from  the  county  for  all  services  in  any  official  capacity,  except  services 

10.  Extending  assessment  rolls. — The  process  of  ascertaining  the  amount  of  the 
tax  by  multiplying  the  assessed  value  by  the  rate  and  setting  it  down  in  the  column 
as  provided  by  section  58  of  the  Tax  Law,  is  the  extending  of  the  line.  Where  a 
supervisor  extends  special  taxes  on  the  same  line  with  the  general  tax,  each  exten- 
sion of  a special  tax  constitutes  a new  line  for  the  purpose  of  ascertaining  his  com- 
pensation. Pearsall  v.  Brower,  120  App.  Div.  584,  105  N.  Y.  Supp.  207. 

A line  on  an  assessment-roll  is  one  straight  row  of  words  and  figures  between  the 
margins  of  the  page,  necessarily  and  properly  a part  of  the  roll.  Smith  v.  Hedges 
(1918),  223  N.  Y.  176. 

A taxpayer’s  action  to  recover,  on  behalf  of  a county,  money  allowed  by  its 
board  of  supervisors  under  this  section  to  a supervisor  for  copying  written  lines 
of  the  assessment  roll  of  his  town,  and  extending  certain  lines  of  the  tax  rolls,  based 
on  the  claim  that  defendant  was  allowed  and  paid  for  more  lines  than  he  had  in  fact 
copied  and  extended,  is  maintainable,  and  the  audit  of  the  board  of  supervisors  is 
not  conclusive.  Smith  v.  Hedges  (1914),  87  Misc.  439.  150  N.  Y.  Supp.  899,  affd.  169 
App.  Div.  115;  rev’d  on  other  grounds  (1918),  223  N.  Y.  176. 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS.  21 

County  Law,  §§  241a,  17. 

exclusively  for  the  town  in  which  he  is  elected  or  a district  or  subdivi- 
sion thereof,  an  annual  salary  of  three  thousand  dollars,  and  his  actual 
and  necessary  expenses  while  performing  services  for  the  county,  in  lieu 
of  all  per  diem  or  other  compensation,  fees,  allowances,  percentages  and 
mileage.  Any  such  supervisor  shall  receive  from  the  town  in  which  he 
shall  have  been  elected,  for  all  services  performed  for  the  town  or  any 
district  or  subdivision  thereof,  an  annual  salary  of  two  thousand  dollars, 
and  his  actual  and  necessary  expenses  while  performing  services  for  the 
town,  in  lieu  of  all  other  per  diem  or  other  compensation,  fees,  allow- 
ances, percentages  and  mileage.  In  any  such  county,  the  foregoing  pro- 
visions shall  be  controlling,  notwithstanding  section  twenty-three  or  any 
other  provision  of  this  chapter  or  any  provision  of  the  town  law  or  any 
other  statute.  Percentages  and  fees  payable  by  law  to  such  supervisor 
on  account  of  duties  relating  to  the  affairs  of  the  county  shall  belong  to 
the  county.  Percentages  and  fees  payable  by  law  to  such  supervisor 
on  account  of  duties  relating  to  the  affairs  of  the  town  or  of  any  district 
or  subdivision  thereof  shall  belong  to  the  town.  [County  Law,  § 23a, 
as  added  by  L.  1917,  ch.  586.] 

§ 4b.  COMPENSATION  OF  SUPERVISORS  AND  ASSESSORS  IN  AT- 
TENDING TAX  MEETINGS. 

Supervisors,  in  addition  to  the  compensation  provided  by  section 
twenty-three  of  this  chapter,  and  town  assessors,  shall  be  entitled  to 
receive  compensation  at  the  rate  of  four  dollars  per  day  for  each  calendar 
day  actually  and  necessarily  spent  in  attending  a meeting  within  the 
county  held  for  the  purpose  of  conference  with  the  state  board  of  tax- 
commissioners  or  a member  of  such  board,  and  mileage  at  the  rate  of 
eight  cents  per  mile  by  the  most  direct  route  from  his  residence,  in  going 
and  returning  from  the  place  within  the  county  where  such  meeting  is 
held.  Such  compensation  and  mileage  shall  be  a county  charge. 
[County  Law,  § 241a,  as  added  by  L.  1911,  ch.  51.] 

§ 5.  ACTS  AND  RESOLUTIONS  OF  BOARDS  OF  SUPERVISORS; 
FORM  AND  CONTENTS;  ADOPTION;  PUBLICATION. 

Every  act  or  resolution  of  the  board  shall  require  for  its  passage  the 
assent  of  a majority  of  the  supervisors  elected,  unless  otherwise  required 
by  law.11  Every  act  or  resolution  of  such  board  in  the  exercise  of  its 

ii.  As  to  power  of  majority.  See  Note,  ante  p.  12. 

In  a county  in  which  there  were  eighteen  supervisors  the  hoard,  by  a vote  of 
those  present  at  a meeting,  passed  a resolution  for  the  removal  of  the  county  seat, 
ten  voting  in  favor  of  the  resolution  and  eight  against  it.  One  of  the  ten  had 
no  authority  to  act  as  supervisor,  not  even  de  facto;  it  was  held  that  there  was 
not  a majority  of  those  elected  voting  in  favor  of  the  resolution  and  that  it  wee 
not  carried,  and  further,  that  the  purpose  of  such  resolution  co'ld  not  be  effected 
notwithstanding  an  attempted  ratification  by  the  legislature.  Williams  v.  Boynton. 
71  Hun  309;  25  N.  Y.  Supp.  60. 


21a 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 17. 

legislative  powers  shall  have  a title  prefixed,  concisely  expressing  its 
contents,  followed  by  a reference  to  the  law  or  laws  conferring  the 
authority  to  pass  the  act  or  resolution,  the  number  of  votes,  both  for 
and  against  its  passage,  and  when  the  assent  of  any  supervisor  is  re- 
quired that  such  assent  was  given ; 12  and  all  acts  or  resolutions  so  passed 
shall  be  numbered  in  the  order  of  their  passage  and  certified  by  the 
chairman  and  clerk,  and  within  six  weeks  after  the  close  of  each  session, 
such  resolution  shall  be  published  in  the  newspapers  in  the  county 

12.  For  form  of  resolutions  adopted  by  boards  of  supervisors,  see  Forms,  Nos. 
1 and  2,  post. 

Resolution  authorizing  the  issue  of  county  and  town  bonds,  see  County  Law, 
sec.  14,  post.  Form  of  resolution  to  acquire  bridge  pursuant  to  statute,  see 
Matter  of  Saratoga  Lake  Bridge  Co.  v.  Walbridge,  140  App.  Div.  817,  124  N.  Y. 
Supp.  468. 

Resolution  changing  location  of  county  buildings  in  corformity  with  the 
vote  of  the  electors  of  the  county  is  not  within  the  meaning  of  this  section. 
This  section  applies  only  to  resolutions  which  become  final  and  complete  solely 
by  the  action  of  the  board.  Stanton  v.  Supervisors  of  Essex  County,  112  App. 
Div.  877,  98  N.  Y.  Supp.  159  (1906). 

Validity  of  resolution.  A board  of  supervisors  has  no  power  except  such 
as  is  vested  in  it  by  legislative  enactment.  Whenever  power  is  so  vested  in  a 
board  and  the  legislature  prescribes  the  manner  in  which  such  power  shall  be 
exercised,  every  substantial  requirement  or  condition  in  regard  to  such  exercise, 
beneficial  to  any  citizen,  must  be  observed  and  -carefully  complied  with,  or 
the  action  of  the  board  cannot  be  sustained.  Barker  v.  Town  of  Oswegatchie, 
10  N.  Y.  Supp.  834.  If  the  board  of  supervisors  has  full  power  to  do  an  act, 
its  performance  of  such  act  is  not  rendered  illegal  by  a mistake  in  a recital  in 
its  resolution  as  to  the  source  of  its  power  even  if  the  alleged  source  of  its  power 
to  do  such  an  act  is  a repealed  statute.  Matter  of  Rockaway  Park  Improvement 
Co.,  83  Hun  263;  31  N.  Y.  Supp.  386.  The  resolution  in  question  in  this  case 
was  for  the  purpose  of  creating  a fire  district  outside  of  an  incorporated  village 
under  sec.  38  of  the  County  Law,  post,  p.  74.  The  resolution  referred  to  an  act 
authorizing  the  board  to  create  such  a district  which  was  repealed  by  the  County 
Law  and  its  provisions  re-enacted  with  modification  in  such  sec.  38  of  the  County 
Law.  As  to  effect  of  failure  to  elect  a commissioner  of  elections  by  a majority 
vote,  see  People  ex  rel.  Woods  v.  Flynn,  81  Misc.  279. 

If  the  board  of  supervisors  has  no  seal,  the  lack  of  a seal  which  the  statute 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS. 


21b 


County  Law,  §§  18,  19. 

appointed  to  publish  the  session  laws  of  the  legislature.13  [County 
Law,  § 17,  B.  C.  & G.  Cons.  L.,  p.  720.] 

§ 6.  PUBLICATION  OF  ACTS  OF  BOARD. 

All  acts  passed  by  the  boards  of  supervisors  of  the  several  counties  of 
this  state,  shall  be  published  in  two  newspapers  representing  respectively 
the  two  principal  political  parties  into  which  the  people  of  the  counties 
are  divided,  after  such  manner,  and  at  such  compensation  as  the  several 
boards  of  supervisors  may  provide,  the  same  to  be  a county  charge, 
payable  in  the  manner  provided  in  section  forty-eight  of  the  legislative 
law  for  the  publication  of  local  laws  enacted  by  the  legislature,  provided 
that  the  rate  of  compensation  shall  not  be  less  than  the  rate  fixed  by  said 
section  for  the  publication  of  laws  of  a local  nature,  enacted  by  the  legis- 
lature. [County  Law,  § 18;  B.  C.  & G.  Cons.  L.,  p.  721.] 

§ 7.  PROCEEDINGS  OF  BOARD  OF  SUPERVISORS  TO  BE  PRINTED 
AND  DISTRIBUTED;  CONTENTS. 

Each  board  of  supervisors  shall  cause  as  many  copies  of  the  proceed- 
ings of  its  sessions  as  it  may  deem  necessary,  certified  by  its  chairman 
and  clerk,  to  be  printed  as  a county  charge,  in  a pamphlet  volume,  as 
soon  as  may  be  after  each  session,  for  exchange  with  other  boards,  for 
the  members  of  the  board  and  other  town  and  county  officers  and  for 
public  distribution.  At  least  three  copies  of  such  printed  volume  shall 
be  forwarded  to  and  filed  in  each  town  clerk’s  office  and  in  the  county 
clerk’s  office.  In  counties  containing  cities  of  the  first  class,  and  in 

may  direct  to  be  affixed  to  the  certificate  to  the  resolution,  does  not  impair  its 
validity.  People  ex  rel.  Masterson  v.  Gallup,  12  Abb.  N.  C.  64;  65  How.  Pr.  108; 
affd.,  96  N.  Y.  628. 

Even  though  a resolution  ter  acquire  a bridge  pursuant  to  a special  act  should 
have  complied  with  this  section,  requiring  a title  and  enacting  clause  and  a 
publication,  the  county,  after  having  become  seized  of  the  bridge  property,  must 
pay  the  purchase  price.  Matter  of  Saratoga  Lake  Bridge  Co.  v.  Walbridge,  140 
App.  Div.  817,  126  N.  Y.  Supp.  468. 

13.  Publication  of  resolutions. — The  provision  of  this  section,  which  directs 
all  acts  as  resolutions  passed  by  the  board  of  supervisors  to  be  published,  has 


21c 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 19. 

counties  containing  three  cities  of  the  third  class,  the  publication  of  the 
proceedings  of  the  board  of  supervisors  may  be  ordered  to  be  made  in  a 
daily  newspaper,  the  work  to  be  done  by  contract,  let  to  the  lowest. bidder, 
after  an  opportunity  to  bid  therefor  has  been  given  to  the  proprietors  of 
all  the  daily  newspapers  printed  in  the  English  language  in  said  county ; 
such  bid  may  include  the  printing  and  binding  in  pamphlet  volumes  of 
such  number  of  copies  of  the  proceedings  of  such  board  as  may  be  re- 
quired, and  also  the  printing  of  pamphlet  copies  thereof  for  the  use  of  the 
members  of  said  board  at  its  sessions.  Such  printed  proceedings  shall 
contain  a summary  statement  of  all  bills  against  the  county,  presented  to 
the  board  and  audited  and  allowed  or  disallowed,  indicating  the  amount 
allowed  or  disallowed.  The  board  of  supervisors  may  as  often  as  it 
shall  deem  necessary,  cause  to  be  printed  and  distributed  in  like  manner, 
in  the  same  volume  or  otherwise,  its  county  laws,  combined  with  suit- 
able forms  and  instructions  thereunder,  and  reports  of  committees  and 
county  officers  filed  with  it.14 

no  reference  to  the  ordinary  proceedings  of  the  board,  but  only  to  such  as  are 
legislative  in  their  character,  and  within  the  scope  and  authority  of  section  27  of 
article  3 of  the  State  Constitution.  Kingsley  v.  Bowman,  33  App.  Div.  1,  53 
FT.  Y.  Supp.  426.  The  words,  “ such  resolution  shall  be,”  in  the  last  sentence 
were  added  by  the  consolidation  of  1909. 

Resolution  as  evidence.  Section  941  of  the  Code  of  Civil  Procedure  pro- 
vides that:  “An  act,  ordinance,  resolution,  by-law,  rule  or  proceeding  of  the 

common  council  of  a city,  or  the  board  of  trustees  of  an  incorporated  village, 
or  of  a local  board  of  health  of  a city,  town  or  incorporated  village,  or  of  a 
board  of  supervisors,  within  the  state,  may  be  read  in  evidence,  either  from  a 
copy  thereof,  certified  by  the  city  clerk,  village  clerk,  clerk  of  the  common  council, 
clerk  or  secretary  of  the  local  board  of  health,  or  a clerk  of  the  board  of  super- 
visors; or  from  a volume  printed  by  authority*  of  the  common  council  of  the  city, 
or  the  board  of  trustees  of  the  village,  or  the  local  board  of  health  of  the  city, 
town  or  village,  or  the  board  of  supervisors.” 

14.  Daily  publications  not  authorized  prior  to  amendment  of  former  law  by 
act  of  1899,  Kingsley  v.  Bowman,  33  App.  Div.  1,  53  N.  Y.  Supp.  426. 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS. 


2 Id 


County  Law,  § 26. 


Whenever  the  proceedings  of  the  board  of  supervisors  of  any  county 
are  printed  in  a volume  by  authority  of  the  board  of  supervisors,  the 
volume  so  printed,  and  duly  certified  by  the  chairman  and  clerk  of  the 
said  board  of  supervisors  to  be  a true  record  of  such  proceedings,  shall 
be  and  constitute  the  book  of  records  of  the  said  board.  [County  Law, 
§ 19,  as  amended  by  L.  1913,  ch.  256,  and  L.  1916,  ch.  606 ; B.  C.  & G. 
Cons.  L.,  p.  721.] 


§ 8.  COUNTY  RECORDS,  BOARDS  OF  SUPERVISORS  TO  HAVE  GEN- 
ERAL CHARGE  OF;  COPIES  MAY  BE  MADE  FOR  PUBLIC 
USE;  COST  OF  COPIES. 

Such  boards  shall  have  the  general  charge  of  the  books  and  records  of 
the  county,  subject  to  the  legal  rights  of  the  officers  using  or  having  cus- 
tody of  the  same,  and  shall  provide  for  their  safe-keeping.15  They  may 
authorize  county  officers  having  the  official  custody  or  control  of  any  such 
books  and  records,  or  of  maps  and  papers,  to  cause  copies  thereof  to  be 


Use  of  union  label. — The  requirement  by  a board  of  supervisors  advertising 
for  bids  for  the  printing  of  its  journal  that  a union  label  be  used  by  the  printer 
is  unlawful  and  against  public  policy  as  tending  to  create  a monopoly  by  restrict- 
ing competition  to  a special  class  of  printers.  People  ex  rel.  Single  Paper  Co. 
Co.  Limited  v.  Edgecomb,  112  App.  Div.  604,  98  N.  Y.  Supp.  965. 

15.  Manual  custody  unnecessary. — The  officer  charged  with  the  care  of 
books  and  records  need  not  have  manual  custody  of  the  same,  and  the  court  will 
take  judicial  notice  that  he  acts  through  subordinates.  People  ex  rel.  McGinnis  v. 
Palmer,  6 App.  Div.  19,  39  N.  Y.  Supp.  631. 

Indexing  county  records;  compensation. — The  board  of  supervisors  has  no  authority 
in  the  absence  of  a special  statute  authorizing  them  to  do  so,  to  authorize  the 
county  clerk  to  make  new  indexes  of  the  county  records  for  additional  compensation, 
or  to  compromise  a claim  for  payment  under  a contract  to  make  such  indxes. 
Wadsworth  v.  Board  of  Supervisors,  217  N.  Y.  484,  rev’g  139  App.  Div.  832,  124  N. 
Y.  Supp.  334. 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


<22 


County  Law,  §§  27,  28. 

made  and  certified  for  the  public  use;  and  it  shall  be  their  duty  to  cause 
the  same  to  be  made  and  certified  whenever  by  reason  of  age  or  exposure, 
or  any  casualty,  the  same  shall  be  necessary.  Any  officers  making  such 
transcripts  or  copies  shall  be  paid  such  sum  therefor  as  may  be  just;  but 
such  payment  shall  not  exceed  a sum  to  be  certified  by  the  county  judge, 
or  a justice  of  the  supreme  court  of  the  judicial  district,  as  reasonable 
therefor.  Such  board  of  supervisors  shall  not  accept  and  pay  for  any 
such  services,  until  the  work  shall  be  examined  and  approved  as  to  its 
manner  and  form  of  execution,  by  such  judge  or  justice;  nor  shall  any 
board  of  supervisors  order  any  such  work  to  be  done  until  such  judge  or 
justice,  after  an  examination,  shall  certify  that  such  work  is  necessary 
for  the  security  and  safety  of  the  public  records.15  [County  Law,  § 26; 
B.  C.  & G.  Cons.  L.,  p.  727.] 

§ 9.  WITNESSES  AND  COUNTY  OFFICERS  MAY  RE  EXAMINED  BY 
BOARD;  BOOKS  AND  PAPERS  MAY  BE  INSPECTED. 

Any  such  board  may  require  the  attendance  of  witnesses  and  may 
examine  any  person  as  a witness  upon  any  subject  or  matter  within  its 
jurisdiction,  or  examine  any  officer  of  the  county,  or  a town  therein,  in 
relation  to  the  discharge  of  his  official  duties,  or  to  the  receipt  or  disburse- 
ment by  him  of  any  moneys,  or  concerning  the  possession  or  disposition 
by  him  of  any  property  belonging  to  the  county,  or  to  use,  inspect  or 
examine,  any  book,  account,  voucher  or  document  in  his  possession  or 
under  his  control  relating  to  the  affairs  or  interest  of  such  county  or 
town.16  [County  Law,  § 27 ; B.  C.  & G.  Cons.  L.,  p.  728.] 

16.  Subpoena  and  examination  of  witnesses.  For  form  of  subpoena,  see 
Form  No.  3,  post . By  the  above  section  and  section  28  of  the  County  Law 
immediately  following  power  is  conferred  upon  the  board  of  supervisors  or 
a committee  thereof  to  require  the  attendance  of  witnesses  upon  subjects 
within  the  jurisdiction  of  the  board  and  to  send  for  persons  and  papers. 
In  the  case  of  Matter  of  Superintendent  of  the  Poor,  6 App.  Div.  144;  39 
N.  Y.  Supp.  878,  it  was  held  that  neither  the  Supreme  Court  nor  a judge 
of  that  court  can  punish  as  for  a contempt  a disobedience  of  the  command 
of  the  subpoena.  The  court  said:  “A  person  'who  fails  to  obey  a sub- 

poena is  made  liable  for  the  damages  sustained  by  the  party  aggrieved,  and 
$50  in  addition  thereto,  which  may  be  recovered  by  action.  (Code  Civ.  Proc., 
secs.  853,  855.)  By  section  855  of  the  code  it  is  provided  that  in  case  a 
person  is  duly  subpoenaed  by  a board  of  committee,  and  fails  to  attend  in 
obedience  thereto,  any  judge  of  the  court,  upon  proof  by  affidavit  o*  the 
failure  to  attend,  must  issue  a wrarrant  to  the  sheriff  commanding  him  to 
apprehend  the  defaulting  witness  and  bring  him  before  the  body  before  whom 
his  attendance  was  required,  and  by  section  856,  if  the  person  subpoenaed 
by  such  a body  refuses,  without  reasonable  cause,  to  be  examined  or  to  answer 
any  legal  or  pertinent  question  or  to  producq  a paper  or  book  he  may  be 
committed  to  jail  by  a judge  upon  proof  of  such  facts,  there  to  remain  until 
he  submits  to  do  the  act  which  he  was  required  to  do,  or  is  discharged  accord- 
ing to  law.  But  no  provision  of  the  code  authorizes  the  punishment  of  such 


ORGANIZATION,  MEETINGS  AND  PROCEEDINGS.  23 

County  Law,  §§  28-30. 

§ 10.  POWERS  OF  COMMITTEE  OF  BOARD  OF  SUPERVISORS  AS 
TO  HEARINGS  AND  EXAMINATIONS. 

When  any  such  board  shall  have  appointed  any  member  or  members 
thereof,  a committee  upon  any  subject  or  matter  of  which  the  board  has 
jurisdiction,  and  shall  have  conferred  upon  such  committee  power  to 
send  for  persons  and  papers,  the  chairman  of  such  committee  shall  possess 
all  the  powers  herein  given  to,  and  imposed  upon  the  chairman  of  the 
board  of  supervisors. 

The  chairman  of  any  committee  appointed  by  a board  of  supervisors  is 
authorized  to  administer  an  oath  to  any  person  presenting  an  account 
or  claim  before  such  committee  to  be  audited,  as  to  services  rendered 
and  the  correctness  of  such  claim.  [County  Law,  § 28;  B.  C.  & G.  Cons. 
L.,  p.  728.] 

§ 11.  ADJOURNMENT  OF  HEARING  OR  EXAMINATION  BY  BOARD 
OR  COMMITTEE;  DISCHARGE  OF  PERSONS  ARRESTED 
FOR  FAILURE  TO  APPEAR. 

Such  board  or  committee  may  adjourn  from  time  to  time,  and  such 
committee  may  hold  meetings  in  pursuance  of  such  adjournments,  or  on 
call  of  the  chairman  thereof,  during  the  recess,  or  after  the  final  ad- 
journment of  the  board  of  supervisors;  but  where  a warrant  shall  have 
been  issued  as  provided  by  section  eight  hundred  and  fifty-five  of  the 
code  of  civil  procedure  and  not  returned  such  adjournment  of  the  board 
or  committee  at  whose  instance  it  was  issued,  shall  be  to  a time  and  place 
certain,  of  which  notice  shall  be  given  by  the  chairman,  to  the  judge 
before  whom  the  warrant  shall  be  returnable ; and  if  the  person  against 
whom  it  was  issued  shall  be  arrested,  he  may,  in  the  discretion  of  the 
judge  who  issued  the  warrant,  be  discharged  from  custody,  upon  entering 
into  an  undertaking  to  the  county,  with  two  sureties  to  be  approved  by 
such  judge,  to  the  effect  that  he  will  appear  and  submit  to  an  examina- 
tion before  such  board  or  committee,  as  required,  at  the  time  and  place 
to  which  it  shall  have  been  adjourned,  or  pay  to  the  county  treasurer  such 
sum  of  money  as  such  judge  may  direct.  [County  Law,  § 29;  B.  C.  & G. 
Cons.  L.,  p.  728.] 

§ 12.  FILING  AND  ENFORCEMENT  OF  UNDERTAKING  GIVEN 
UNDER  PRECEDING  SECTION. 

Such  undertaking  shall  be  filed  in  the  clerk’s  office  of  the  county,  and 
if  default  shall  be  made  in  the  condition  thereof,  the  district  attorney 
of  the  county  may  sue  and  collect  the  sum  therein  mentioned,  and  the 
money  when  received,  and  all  moneys  received  for  fines  and  penalties 
before  such  board  or  committees,  shall  be  paid  into  the  treasury  of  the 
county.  [County  Law,  § 30 ; B.  C.  & G.  Cons.  L.,  p.  729.] 

a witness  for  a contempt.  These  provisions  of  the  code  establish  the  present 
practice,  whereby  a person  may  be  compelled  to  attend  before  an  inferior 
legislative  body  and  give  his  testimony  upon  matters  within  its  jurisdiction.” 


24 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


Explanatory  note. 

CHAPTER  III. 

AUDIT  BY  BOARD  OF  SUPERVISORS  ; COUNTY  CHARGE8. 

EXPLANATORY  NOTE. 

Audit  by  Board. 

One  of  the  most  important  functions  of  the  board  of  supervisors  is  the 
audit  of  claims  against  the  county.  “ Audit  ” means  to  hear  and 
examine;  it  includes  both  the  allowance  and  rejection  of  a claim.  In 
auditing  a claim  the  hoard  exercises  a judicial  discretion.  In  making 
an  audit  the  board  must  ascertain  if  the  claim  is  properly  chargeable 
against  the  county,  settle  the  amount  of  the  claim,  and  allow  it  as  thus 
settled.  If  a claim  is  not  a county  charge  the  board  has  no  power  to 
pay  it.  The  audit  of  a claim  not  properly  chargeable  against  the 
county,  is  null  and  void,  and  its  payment  may  not  be  compelled. 

In  auditing  a claim  the  board  may,  either  itself,  or  by  a committee 
of  its  members,  take  evidence,  examine  witnesses  and  books  and  papers. 
The  board  should  act  fairly  and  should  allow  the  claim  if  there  is 
sufficient  evidence  to  justify  it.  If  the  claim  is  based  upon  a statute 
which  fixes  the  amount,  the  board  has  no  discretion.  If  no  price  is 
so  fixed,  or  such  price  is  not  based  upon  a contract,  the  board  may 
exercise  its  discretion  as  to  the  amount  to  be  paid. 

The  final  audit  must  be  made  by  the  full  board,  although  the  ex- 
amination of  accounts  may  be  referred  to  a committee. 

Where  possible  all  accounts  must  be  itemized.  In  such  cases  the 
various  items  must  be  either  allowed  or  disallowed.  The  courts  have 
held  that  a person  who  presents  a bill  for  audit  consisting  of  several 
items  is  entitled  to  the  judgment  of  the  board  on  each  item.  (83 
App.  Div.  51,  82  NT.  Y.  Supp.  504).  It  will  not  do  for  the  board  to 
merely  cut  down  the  gross  amount  of  an  itemized  claim,  without 
determining  the  particular  items  disallowed  or  reduced. 

The  rule  is  that  the  acts  of  a board  of  supervisors  in  auditing  bills 
which  are  proper  county  charges,  in  the  absence  of  fraud  and  collusion, 
are  final  and  conclusive.  There  may  be  no  review  by  the  courts,  if 
the  board  acts  within  its  jurisdiction  and  in  good  faith. 

Where  an  account  has  been  rejected  by  one  board  it  cannot  be 
allowed  by  a subsequent  board.  Where  a claim  has  been  reduced  and 


AUDIT  BY  BOARD;  COUNTY  CHARGES. 


25 


Explanatory  note. 

then  allowed  by  one  board,  a subsequent  board  has  no  power  to  audit 
the  claim  anew  at  the  full  amount.  The  acts  of  one  board  pertaining 
to  the  allowance,  reduction  or  rejection  of  claims  presented  to  it  are 
binding  upon  all  subsequent  boards. 

Forms  of  Accounts. 

Accounts  must  be  made  out  in  items  and  verified  by  the  claimant. 
The  statute  requires  this ; without  compliance  with  the  statute  the 
account  may  not  be  audited.  Form  No.  4 gives  the  proper  form 
of  an  itemized  and  verified  account  against  a county.  If  the  account 
is  not  in  proper  form  it  should  be  returned  by  the  clerk  to  the  claimant. 

Each  account  should  be  numbered  by  the  clerk  at  the  time  and  in 
the  order  of  its  presentation.  A memorandum,  showing  time  of  pres- 
entation, name  of  claimant,  and  if  assigned,  the  name  of  assignor  and 
assignee,  should  be  entered  in  the  proceedings  of  the  board. 

The  clerk  must  designate  upon  each  account  audited,  the  amount 
allowed,  the  item  or  amount  disallowed,  and  deliver  to  any  person  on 
demand  a certified  copy  of  any  account  filed  in  his  office. 

The  board  may  by  rule  make  additional  regulations  as  to  the  keep- 
ing and  rendering  of  accounts  of  county  and  town  officers,  and  the 
presentation  and  audit  of  bills  presented  to  the  board. 

County  Charges. 

The  statutes  prescribe  the  claims  which  are  chargeable  against  a 
county.  The  county  cannot  be  made  liable  for  any  claim  unless  the 
act  upon  which  the  claim  was  based  was  authorized  by  express  pro- 
vision of  statute. 

Any  expense  necessarily  incurred  by  the  board  in  protecting  the 
interests  of  the  county,  may  be.  chargeable  to  the  county;  but  the 
act  of  the  board  must  be  based  upon  statutory  authority. 

Services  rendered  by  an  officer  which  are  beneficial  to  the  county 
may  be  paid  for,  even  if  no  provision  be  made  by  statute  for  such  pay- 
ment ; but  probably  not,  if  such  services  were  gratuitous  and  without 
authority  of  law.  If  a county  is  required  to  provide  property  for  the 
use  of  its  officers,  the  expense  attached  to  the  furnishing  and  main- 
tenance of  such  property  is  a proper  county  charge. 

The  moneys  necessary  to  pay  county  charges  are  to  be  raised  by 
tax  levied  by  the  board  upon  the  taxable  property  in  the  several  towns 


26 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 12,  subd.  2. 

and  cities  in  the  county.  Taxes  are  levied  as  provided  in  § 58  of  the 
Tax  Law.  See  chapter  XXXI,  “ Duties  of  supervisors  as  to  taxation.” 
Where  necessary  the  board  may  authorize  the  borrowing  of  money  to 
meet  the  payment  of  county  charges.  See  County  Law,  § 12,  subd. 
6,  post,  p.  55. 


Section  1.  Power  of  board  of  supervisors  to  audit  accounts  and  charges  against 
the  county. 

2.  Accounts  to  be  itemized;  verification;  may  be  disallowed  in  part; 

accounts  to  be  numbered. 

3.  Board  may  make  additional  requirements  as  to  accounts. 

4.  Penal  provisions  respecting  the  unlawful  audit  and  presentation 

of  accounts  against  municipalities. 

5.  County  charges. 

6.  County  charges,  how  raised. 

§ 1.  POWER  OF  BOARD  OF  SUPERVISORS  TO  AUDIT  ACCOUNTS 
AND  CHARGES  AGAINST  THE  COUNTY. 

The  board  of  supervisors  shall  “ Audit  all  accounts  and  charges  against 
the  county,  and  direct  annually  the  raising  of  sums  necessary  to  defray 
them  in  full.”  1 [County  Law,  § 12,  sub.  2;  B.  C.  & G.  Cons.  L.,  p.  704.] 


1.  Audit  defined.  The  term  “ audit”  means  to  hear  and  examine;  it  includes 
both  the  adjustment  or  allowance,  and  the  disallowance  or  rejection  of  an 
account.  People  ex  rel.  Myers  v.  Barnes,  114  N.  Y.  317;  20  N.  E.  609;  Morris 
v.  People,  3 Den.  381,  391;  Matter  of  Murphy,  24  Hun,  592,  affd.,  86  N.  Y.  627; 
People  ex  rel.  Read  v.  Town  Auditors,  85  Hun,  114,  32  N.  Y.  Supp.  688.  The 
verb  “ audit  ” as  here  used,  means  simply  to  examine,  to  adjust,  and  it  clearly 
implies  the  exercise  of  judicial  discretion.  People  ex  rel.  Hamilton  v.  Super- 
visors, 35  App.  Div.  239,  54  N.  Y.  Supp.  782. 

The  term  includes  both  the  allowance  and  rejection  of  a claim,  and  also 
the  allowance  of  a claim  in  part  and  its  rejection  in  part.  People  ex  rel. 
Andrus  v.  Supervisors,  106  App.  Div.  381,  94  N.  Y.  Supp.  1012. 

What  constitutes  an  audit.  The  duty  of  a board  of  supervisors  in  auditing 
and  allowing  accounts  is:  (1)  To  examine  and  determine  whether  an  account 
is  properly  verified;  (2)  to  see  if  it  is  properly  chargeable  against  the  county; 
(3)  to  settle  or  fix  its  amount;  (4)  to  allow  it  as  thus  settled;  (5)  to  provide 
means  for  its  payment.  People  ex  rel.  Sherman  v.  Supervisors,  30  How.  Pr.  173. 

Jurisdiction  of  board.  Boards  of  supervisors,  in  auditing  and  allowing 
accounts,  are  limited  to  the  powers  conferred  upon  them  by  statute.  People 
ex  rel.  Merritt  v.  Lawrence,  6.  Hill,  244;  Chemung  Canal  Bank  v.  Supervisors, 
5 Denio,  517.  And  when  they  transgress  these  limitations,  their  acts  are  void. 
If,  for  example,  a board  should  audit  a claim  which  was  plainly  not  a county 
charge,  its  determination  would  be  void  for  the  reason  that  county  charges 
only  are  within  its  jurisdiction.  Osterhoudt  v.  Rigney,  98  N.  Y.  222,  233.  As 
was  said  in  the  case  of  Board  of  Supervisors  v.  Ellis,  59  N.  Y.  620,  624:  “A 
board  of  supervisors  has  no  power  to  audit  and  allow  accounts  not  legally 


AUDIT  BY  BOARD;  COUNTY  CHARGES. 


27 


County  Law,  § 24. 

§ 2.  ACCOUNTS  TO  BE  ITEMIZED;  VERIFICATION;  MAY  BE  DIS- 
ALLOWED IN  PART;  ACCOUNTS  TO  BE  NUMBERED. 

No  account  shall  be  audited  by  a board  of  supervisors  or  by  a committee 
thereof,  or  by  superintendents  of  the  poor,  unless  it  shall  be  made  out  in 


chargeable  to  their  county;  and  if  it  attempts  to  do  so,  it  is  an  act  in  excess 
of  jurisdiction,  done  without  power  to  make  it  valid,  and  is  null  and  void. 
It  may  be  disregarded  by  other  officers  of  the  county,  and  is  not  binding  and 
conclusive  upon  another  board.” 

Claims  which  need  not  be  audited. — A claim  for  money  illegally  collected 
as  taxes  and  paid  into  the  county  treasury  is  not  a county  charge  which  the 
statute  intended  should  be  audited.  Newman  v.  Supervisors  of  Livingston  Co., 
45  N.  Y.  676.  See  also  Ross  v.  Supervisors  of  Cayuga  Co.,  38  Hun,  20.  Claims 
which  have  their  origin  in  torts  need  not  be  presented  to  the  board  for  audit. 
McClure  v.  Supervisors  of  Niagara,  50  Barb.  594.  See  also  Howell  v.  City 
of  Buffalo,  15  N.  Y.  512.  The  bonds  and  notes  of  a county,  issued  for  loans 
authorized  by  law,  are  not  open  accounts  for  county  charges  which  must  be 
presented  for  audit.  Parker  v.  Supervisors  of  Saratoga  Co.,  106  N.  Y.  392. 

Effect  of  legislative  enactments. — Legislature  may  direct  the  board  to  assess 
the  costs  and  expenses  of  a suit  brought  by  direction  of  the  voters  of  a town 
by  the  highway  commissioners  on  the  town.  Town  of  Guilford  v.  Supervisors, 
13  N.  Y.  143.  See  also  People  ex  rel.  Morrill  v.  Supervisors,  112  N.  Y.  585; 
People  ex  rel.  Outvoter  v.  Green,  56  N.  Y.  466. 

Local  act  (1900,  ch.  277,  § 6)  providing  for  the  payment  of  the  proceeds 
of  bonds,  issued  for  the  acquisition  of  certain  property  within  a county,  upon 
the  order  of  the  board  of  supervisors,  is  entirely  in  accord  with  provisions 
of  this  subdivision.  People  v.  Neff,  191  N.  Y.  210,  affg.  122  App.  Div.  135,  106 
N.  Y.  Supp.  747. 

Rules  of  the  board  cannot  operate  to  change  the  provisions  of  the  statute 
as  to  auditing.  People  v.  Supervisors,  22  How.  Pr.  71,  affg.  21  How.  Pr.  322. 

Board  acts  judicially.  In  the  settlement  of  disputed  claims,  or  in  the  audit 
and  allowance  of  county  charges,  a board  of  supervisors  acts  judicially  where 
the  subject  of  the  claim  is  within  its  jurisdiction.  People  ex  rel.  Canajoharie 
Nat.  Bank  v.  Supervisors,  67  N.  Y.  109,  114.  In  this  case  the  court  said:  “ The 
acts  which  can  in  any  aspect  be  regarded  as  judicial,  and  therefore  final  and 
conclusive  until  reversed,  had  respect  solely  to  the  amounts  at  which  claims 
under  an  act  should  be  audited  and  allowed.  Had  they  been  left  to  determine 
also  whether  these  claims  were  or  were  not  county  charges,  their  decision  of 
that  question  might  have  been  claimed  to  be  judicial  and  in  the  nature  of  a 
judgment;  but  the  functions  of  the  supervisors,  judicial  in  their  character, 
being  limited  to  ascertaining  and  determining  the  amount  or  amounts,  which, 
when  ascertained  and  determined,  the  legislature  had  directed  to  be  raised 
by  tax  and  paid  as  other  county  charges  are  provided  for  and  paid,  a repeal 
of  the  acts  making  the  claims  a county  charge,  does  not  reverse  any  judgment 
or  judicial  determination  of  the  board  of  supervisors  in  respect  to  any  matter 
referred  to  them.”  In  other  words,  the  board  does  not  act  judicially  in 
determining  whether  or  not  a claim  which  is  clearly  declared  by  statute  to  be 
a county  charge  is  binding  upon  the  county.  See,  also,  People  v.  Supervisors  of 
Livingston,  26  Barb.  118;  Supervisors  of  Onondaga  v.  Briggs,  2 Denio,  26; 
Cupervisors  of  Chenango  v.  Birdsall,  4 Wend.  453;  Bank  of  Staten  Island  v. 
City  of  New  York,  68  App.  Div.  231,  74  N.  Y.  Supp.  284.  In  exercising  the  power 
to  audit,  the  board  acts  judicially  and  its  action  may  be  reviewed  by  certiorari. 
New  York  Catholic  Protectory  v.  Rockland  County,  159  App.  Div.  455. 


28  COUNTIES;  BOARDS  OF  SUPERVISORS. 

County  Law,  § 24. 

items  and  accompanied  with  an  affidavit  that  the  items  of  such  accounts 
are  correct,  and  that  the  disbursements  and  services  charged  therein  have 

Where  it  is  doubtful  and  rests  upon  disputed  evidence,  whether  a claim 
is  a proper  county  charge  the  determination  is  committed  to  the  discretion 
of  the  board.  Osterhoudt  v.  Rigney,  98  N.  Y.  222,  232. 

Power  to  audit  is  a judicial  act,  and  the  board  is  not  liable  for  an  erroneous 
determination.  Chase  v.  Saratoga  Co.,  33  Barb.  603;  Osterhoudt  v.  Rigney,  98 
N.  Y.  222;  People  v.  Stocking,  50  Barb.  573;  Weaver  v.  Davendorf,  3 Den.  117; 
People  ex  rel.  Brown  v.  Supervisors,  3 How.  Pr.  (N.  S.)  241;  People  ex  rel. 
Kelly  v.  Haws,  21  How.  Pr.  117;  Supervisors  of  Onondaga  v.  Briggs,  2 Denio  26. 

While  in  a very  largely  qualified  sense  the  action  of  the  board  is  quasi- 
judicial, it  is  not  so  in  the  sense  that  an  erroneous  and  improper  audit  is 
incapable  of  correction  by  the  board.  People  ex  rel.  Hotchkiss  v.  Supervisors, 
65  N.  Y.  222. 

Where  the  amount  of  services  is  undisputed  and  where  the  rate  of  compensa- 
tion is  established  by  law  or  undisputed  contract  so  that  an  unquestionable 
duty  exists  that  the  board  pay  the  claim,  then  the  board  cannot  evade  this 
duty  by  saying  that  the  board  is  a quasi-judicial  tribunal.  People  ex  rel. 
Morrison  v.  Supervisors,  56  Hun,  459,  10  N.  Y.  Supp.  88,  affd.  27  N.  Y.  654. 
See  also  Matter  of  Murphy,  24  Hun,  592,  affd.  86  N.  Y.  627;  People  v.  Supervisors 
of  Cortland,  58  Barb.  139. 

When  board  may  exercise  discretion.  Such  boards  have  no  discretion  where 
the  salary  of  an  officer  is  fixed  by  law  and  made  a county  charge.  The  amount 
as  so  fixed  concludes  the  board  in  its  action.  Morris  v.  People,  3 Denio,  381; 
People  v.  Stout,  23  Barb,  338;  People  v.  Supervisors  of  Cortland,  58  Barb,  139; 
40  How.  Pr.  53. 

In  passing  upon  claims  where  no  price  has  been  agreed  upon,  and  in  auditing 
claims  for  legal  and  other  services  where  no  price  is  fixed  by  statute, 
and  no  sum  has  been  fixed  upon  by  contract  as  compensation  for  such  services, 
the  board  may  exercise  its  discretion  in  fixing  the  amount;  and  where  it  acts 
in  good  faith  in  auditing  and  allowing  the  claim,  its  action  will  not  be  reviewed. 
People  ex  rel.  Johnson  v.  Supervisors  of  Delaware  Co.,  45  N.  Y.  196;  People  v. 
Supervisors  of  Albany  Co.,  12  Wend.  257;  People  v.  Supervisors  of  Otsego  Co., 
51  N.  Y.  407;  People  v.  Supervisors  of  Dutchess  Co.,  9 Wend.  508;  People  v. 
Supervisors  of  Cortland  Co.,  58  Barb.  139;  40  How.  Pr.  53. 

When  the  law  has  declared  that  certain  claims  shall  be  a debt  of  the  county, 
then  the  supervisors  cannot  reject  the  claims  upon  the  idea  that  they  are 
not  valid  and  legal  claims  against  the  county;  but  if  they  admit  all  the  facts 
upon  which  the  claims  are  legally  founded,  they  must  audit  and  allow  them. 
But  where  any  of  the  facts  material  to  the  existence  of  the  claim  are 
disputed,  then  the  point  arises  at  which  their  judicial  discretion  is  called  into 
exercise,  and  they  cannot  be  compelled  by  mandamus  to  decide  this  question 
in  any  particular  manner.  People  ex  rel.  Benedict  v.  Supervisors  of  Oneida, 

24  Hun,  413. 

Power  of  audit  cannot  be  delegated.  The  final  audit  should  be  by  the 
board  as  a whole.  The  examination  of  accounts  may  be  made  by  a committee 
of  the  board,  but  the  determination  as  to  the  allowance  or  disallowance  of 
any  part  thereof  rests  exclusively  with  the  board  itself.  People  v.  Supervisors, 

25  Hun,  131.  The  power  of  audit  is  judicial  and  cannot  be  delegated.  People 
v.  Hagadorn,  104  N.  Y.  516;  10  N.  E.  891;  Bellinger  v.  Gray,  51  N.  Y.  610; 
Town  of  Salamanca  v.  Cattaraugus  Co.,  81  Hun,  282,  30  N.  Y.  Supp.  790. 


AUDIT  BY  BOARD;  COUNTY  CHARGES. 


29 


County  Law,  § 24. 

been  in  fact  made  or  rendered,  or  are  necessary  to  be  made  or  rendered 

It  seems  that  where  the  board  exercises  governmental  functions,  the  whole 
body  must  act;  but,  when  it  acts  as  a mere  business  corporation,  it  may  delegate 
the  mechanical  and  physical  work  to  its  agents.  People  ex  rel.  Vaugh  v. 
Supervisors,  52  Hun,  446,  5 N.  Y.  Supp.  600. 

Manner  of  auditing.  A legal  and  proper  auditing  of  an  account  requires 
an  examination  of  the  items  of  which  it  is  composed,  and  the  allowance  or 
disallowance  of  them  accordingly  as  they  shall  be  found  correctly  or  incor- 
rectly, charged  both  in  law  and  in  fact.  The  board  must  examine  each  bill 
in  detail  and  allow  or  disallow  the  various  items.  It  would  be  no  proper  or 
just  audit  of  an  account  made  up  of  numerous  items  to  allow  a gross  sum 
instead  of  considering  and  passing  upon  the  items.  People  ex  rel.  Johnson 
v.  Supervisors  of  Delaware  Co.,  45  N.  Y.  196;  People  ex  rel.  Thurston  v.  Board 
of  Auditors,  20  Hun,  150,  affd.  82  N.  Y.  80;  People  ex  rel.  Drummond  v. 
Supervisors  of  Westchester  Co.,  82  N.  Y.  Supp.  504  (App.  Div.,  2d  Dept.,  May 
28,  1903).  A person  who  presents  a bill  for  audit  consisting  of  several  items 
is  entitled  to  the  judgment  of  the  board  on  each  item.  People  ex  rel.  Drum- 
mond v.  Supervisors,  83  App.  Div.  51,  82  N.  Y.  Supp.  504. 

For  instance,  where  a claim  is  presented  by  a county  officer  for  services 
performed  by  him  for  which  he  is  entitled  by  statute  to  a certain  per  diem 
compensation,  specifying  the  number  of  days  employed  by  date,  and  the 
particular  duty  or  service  performed  on  each  day,  and  charging  for  each  day 
so  employed  the  compensation  allowed  by  law,  the  board  would  not  be 
justified  in  allowing  a gross  sum  without  specifying  the  particular  items  in 
the  account  which  are  disallowed.  See  People  ex  rel,  Thurston  v.  Board  of 
Auditors,  82  N.  Y.  80,  in  which  case  the  Court  of  Appeals  says:  “ If  (in 
allowing  such  a claim  at  a gross  sum),  they  rejected  no  specific  day  or  days, 
but  allowed  them  all  to  stand,  then,  they  violated  the  statute  rate  of  com- 
pensation. But  if,  as  they  claim,  they  reduced  the  number  of  days  as  a 
whole  without  disallowing  any  specific  one,  they  did  not  audit  the  account 
at  all;  they  merely  guessed  at  the  result  and  offered  a compromise.  Within 
the  range  of  their  discretion  they  are  sufficiently  powerful.  The  courts  may 
not  dictate  their  conclusion,  but  may  justly  require  that  they  arrive  at  one 
in  a just  and  intelligent  way,  and  with  some  reasonable  respect  for  the 
possible  rights  of  the  creditors.  In  this  case  the  board  of  auditors,  instead 
of  passing  on  the  relator’s  bill,  and  allowing  or  disallowing  the  items  accord- 
ing to  the  facts  and  the  law,  assumed  the  right  to  allow  what  they  pleased, 
without  disputing  the  facts  on  the  one  hand  or  the  law  on  the  other.  In 
other  words,  acting  on  the  theory  that  the  commissioners  were  costing  the 
town  too  much,  the  auditors  cut  down  the  gross  amount  of  the  bill  to  their 
own  arbitrary  standard,  without  regard  to  the  right  or  wrong  of  a single 
item  presented  for  their  judgment.  It  is  well  to  regard  economy,  but  it  is 
better  to  do  fair  and  complete  justice.  . . . The  amount  to  be  allowed 

has  in  no  manner  been  dictated  by  the  courts.  That  is  the  duty  of  the 
auditors.  But  they  must  perform  that  duty  by  passing  specifically  upon  the 
separate  charges,  so  that  both  claimants  and  the  people  may  know  what 
has  been  done.  Their  conclusion  must  be,  not  an  arbitrary  guess  at  a gross 
sum,  but  an  actual  audit  of  the  several  charges  presented.” 

In  the  case  of  People  ex  rel.  Sutliff  v.  Supervisors  of  Fulton,  74  Hun,  251; 
26  N.  Y.  Supp.  610,  a sheriff’s  bill  contained  numerous  items  for  board  of 
prisoners  at  the  county  jail,  and  for  various  fees  for  services  performed  by 


30 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 24. 

at  that  session  of  the  board,  and  stating  that  no  part  of  the  amount 


the  sheriff  and  his  agents  in  respect  to  such  prisoners.  The  board  passed  a 
resolution  auditing  and  allowing  the  bill  at  a greatly  reduced  gross  sum 
without  specifying  the  items  rejected.  The  court  said:  “They  must  pass 

upon  the  items,  and  should  so  discharge  their  duties  in  that  regard  that  the 
relator  will  be  able  to  know  which  items  were  allowed  and  which  were  dis- 
allowed. It  may  not  be  necessary  for  the  board  in  their  decision  to  pass 
upon  each  item  of  relator’s  bill  separately.  For  instance,  if  they  should 
disallow  all  “ turnkey’s  ” fees  and  all  “ tub  ’’  fees,  it  would  be  sufficient  to 
so  declare  without  specifying  each  item.  If  they  should  allow  the  number 
of  weeks’  board  claimed,  but  should  reduce  the  price  it  would  be  sufficient 
to  merely  state  the  price  per  week  allowed.  But  in  some  way  the  board 
should  pass  on  and  allow  or  disallow  the  items  of  the  relator’s  bill,  and 
in  such  a way  that  it  may  be  known  what  the  determination  in  fact  was  as 
to  each  item.  This  may  cause  much  trouble,  but  it  seems  necessary  under 
the  statute  and  decisions.” 

Audit  of  claim  for  services. — In  reference  to  charges  for  services  for  which 
no  fixed  or  definite  sum  is  prescribed  as  a compensation  ihe  board  is  vested  with 
a discretion,  and  may  allow  such  sum  as  they  deem  just.  In  auditing  and 
allowing  this  class  of  accounts  they  act  judicially,  and  no  proceedings  can  be 
had  against  them,  or  against  the  county,  for  an  erroneous  determination  in 
relation  to  their  acts.  Chase  v.  County  of  Saratoga,  33  Barb.  603;  People  v. 
Stocking,  50  Barb.  573;  32  How.  Pr.  48;  People  ex  rel.  Sherman  v.  Supervisors 
of  St.  Lawrence  Co.,  30  How.  Pr.  173. 

A board  of  supervisors  in  passing  on  a claim  for  services  may  act  upon  In- 
formation acquired  apart  from  any  formal  hearing.  Thus,  they  may  consider 
letters  received  from  clerks  of  other  counties  stating  the  rates  paid  by  them  for 
similar  services.  People  ex  rel.  McHenry  v.  Board  of  Supervisors,  140  App.  Div. 
759,  126  N.  Y.  Supp.  153. 

Where  a board  of  supervisors  has  received  a claim  against  a county  based  on 
quantum  meruit  for  services  of  a physician  in  making  post-mortem  examinations, 
and  has  acted  upon  it  by  allowing  it  in  part  and  reducing  the  amount,  the  claim- 
ant cannot  disregard  the  audit  and  sue  the  county  eo  nomine  for  the  entire  amount 
of  his  claim.  Such  an  audit  is  final  and  reviewable  only  by  certiorari.  Foy  v. 
County  of  Westchester,  60  App.  Div.  412,  69  N.  Y.  Supp.  *887,  affd.  168  N.  Y.  180. 

The  audit  by  a board  of  supervisors,  having  jurisdiction  over  the  matter  of  a 
claim  for  services  rendered  the  county,  at  a reduced  amount,  is,  in  the  absence  of 
fraud  or  collusion,  final  and  conclusive,  and  cannot  be  attacked  collaterally  in  an 
action  brought  by  an  assignee  of  the  claimant,  even  though  the  board  of  supervisors 
erroneously  allowed  on  plausible  grounds  items  which  were  not  a proper  county 
charge.  The  rule  of  res  adjudicata  applies  to  such  an  audit.  Bank  of  Staten  Island 
v.  City  of  New  York,  68  App.  Div.  231,  74  N.  Y.  Supp.  284,  affd.  174  N.  Y.  519. 

Supervisors  must  audit  salary  of  an  officer  as  fixed  by  law.  People  v. 
Stout,  23  Barb.  388  (1856).  See  People  v.  Haws,  21  How.  Pr.  178.  But  see 
People  v.  Supervisors,  12  How.  Pr.  204. 

Attorney’s  services. — Claim  for  services  by  an  attorney  assigned  to  defend  a 
prisoner  is  not  a charge  on  the  county,  and  in  the  absence  of  statutory 
authority  the  board  is  powerless  to  audit  same.  People  v.  Supervisors  of 
Albany,  28  How.  Pr.  22.  A claim  for  attorney’s  services  rendered  to  the  board 
is  a county  charge  and  must  first  be  presented  for  audit.  Brady  v.  Super- 
visors of  N.  Y.,  10  N.  Y.  260. 

Charges  for  legal  services  to  county  excise  board  were  required  to  be 
presented  to  supervisors  for  audit;  and  mandamus  will  lie  if  board  refuse  to 


AUDIT  BY  BOARD;  COUNTY  CHARGES.  31 

County  Law,  § 24. 

audit  such  claim  if  legally  chargeable  to  county.  People  v.  Supervisors  of 
Delaware,  45  N.  Y.  196.  See  also  People  v.  Supervisors,  14  Barb.  52. 

A claim  by  an  attorney,  assigned  to  defend  a poor  person,  indicted  for  murder 
in  the  first  degree,  for  the  services  of  an  interpreter,  apparently  rendered 
prior  to  the  trial,  should  not  be  allowed  by  the  county,  where  it  appears  that 
a similar  item  has  been  paid  for  the  services  of  an  interpreter  at  the  trial  in 
the  interest  of  the  defense,  and  the  papers  do  not  show  that  the  additional  item 
claimed  was  necessary  and  proper.  Although  an  order  has  been  granted  in 
such  an  action  requiring  the  stenographer  to  furnish  from  day  to  day  a 
transcript  of  his  minutes  to  the  attorney  assigned  for  the  defense,  the  expense 
incurred  is  not  chargeable  to  the  county.  Matter  of  Kenney  v.  Prendergast 
(1912),  153  App.  Div.  325. 

Affidavit  as  to  value  of  services.  Where  a claim  for  services  rendered, 
presented  to  a board  of  supervisors  for  audit,  which  board  has  authority  to 
exercise  its  judgment  in  reference  to  the  amount  to  be  allowed,  is  sustained 
only  by  the  affidavit  of  the  claimant,  the  board  is  not  compelled  to  accept  his 
statement,  although  it  is  uncontradicted,  but  may  award  such  sum  as  in  its 
judgment  seems  proper  compensation  for  the  services.  Matter  of  Lanehart, 
32  App.  Div.  4;  52  N.  Y.  Supp.  671. 

Hearing  evidence  as  to  claims.  In  all  cases  where  auditing  officers  are 
vested  with  the  right  to  exercise  their  discretion  in  determining  the  amount  to 
be  paid,  it  is  a matter  of  fair  dealing  that  the  claimant  should  be  given  an 
opportunity  to  be  heard  in  his  own  behalf,  and  to  furnish  evidence  if  he  so 
desires.  People  v.  Supervisors  of  S't.  Lawrence  Co.,  30  How.  Pr.  173.  But  the 
board  cannot  be  compelled  to  receive  evidence  in  regard  to  an  account  where 
such  evidence  could  not  affect  its  decision.  People  ex  rel.  White  v.  Supervisors 
of  Clinton  Co.,  20  N.  Y.  Supp.  273;  48  N.  Y.  St.  Rep.  457.  And  the  hearing  of 
counsel  in  favor  of  a claim  presented  for  audit,  and  the  writing  out  of  the 
stenographer’s  minutes  taken  at  a hearing  before  a committee,  is  within  the 
discretion  of  the  board  and  cannot  be  compelled.  People  ex  rel.  Sutliff  v. 
Supervisors  of  Fulton  Co.,  74  Hun,  251;  26  N.  Y.  Supp.  610. 

Examination  of  claims.  In  investigation  of  a claim  the  board  of  supervisors 
are  not  the  protectors  of  the  county,  but  are  bound  to  stand  impartial  between 
claimant  and  county;  they  are  made  by  statute  the  judges  of  what  is  justly 
due.  The  claimant  may  claim  opportunity  to  be  heard,  to  produce  witnesses 
and  cross-examine  witnesses;  the  county  likewise  should  have  a right  to  be 
represented.  A record  of  all  evidence  should  be  kept  so  that  it  may  be  pre- 
pared to  return  its  proceedings  for  review  on  certiorari.  People  ex  rel.  Bliss 
v.  Supervisors,  39  S't.  Rep.  313,  15  N.  Y.  Supp.  748.  See  also  People  ex  rel. 
White  v.  Supervisors',  48  St.  Rep.  3,  20  N.  Y.  Supp.  273,  holding  that  board  has 
reasonable  discretion  as  to  reception  of  evidence. 

Where  the  claimant  has  failed  to  observe  the  statutory  requirement  as  to 
proof,  the  board  can  either  reject  the  bill  altogether  or  allow  what  they 
consider  fair  compensation.  People  v.  Webb,  21  N.  Y.  Supp.  298. 

The  board  cannot  audit  a claim  barred  by  the  statute  of  limitations.  Woods 
v.  Supervisors  of  Madison  Co.,  136  N.  Y.  403. 

Audit,  how  far  conclusive.  In  the  case  of  Martin  v.  Supervisors  of  Greene 
Co.,  29  N.  Y.  645,  it  was  held  that  after  a claim  against  a county  has  been 
presented  to  the  board  of  supervisors  for  allowance,  and  has  been  examined 
and  passed  upon  by  that  board,  the  amount  determined  to  be  actually  and 
justly  due  declared,  and  its  payment  provided  for  in  the  mode  prescribed 
by  law,  no  action  will  lie  against  the  county,  to  recover  the  same  claim,  upon 
the  ground  that  the  decision  of  the  board  was  erroneous  in  respect  to  the 
amount  actually  and  legally  due  to  the  plaintiff.  The  rule  is  that  the  acts  of 
a board  of  audit,  within  its  jurisdiction,  in  the  absence  of  fraud  and  collusion, 
are  final  and  conclusive,  and  cannot  be  questioned  in  a collateral  proceeding. 
Whether  a claim  is  a proper  county  charge,  in  a case  where  it  is  doubtful 
and  rests  upon  disputed  evidence,  and  what  amount  shall  be  allowed,  when  not 
fixed  by  statute,  are  questions  which  the  statute  commits  to  the  board,  and 
however  much  it  may  err  in  judgment  on  the  facts,  so  long  as  it  keeps  within 
its  jurisdiction  and  acts  in  good  faith,  its  audit  cannot  be  overhauled,  but  is 
final  both  to  the  claimant  and  all  taxpayers.  Osterhoudt  v.  Rigney,  98  N.  Y. 


COUNTIES;  BOARDS  OP  SUPERVISORS. 


County  Law,  § 24. 

222,  232.  And  see  People  v.  Supervisors  of  Livingston,  26  Barb.  118;  People  ex 
rel.  Vaughn  v.  Supervisors,  52  Hun,  446;  5 N.  Y.  Supp.  600.  The  audit  of  the 
board  is  in  the  nature  of  a judgment.  People  ex  rel.  McDonough  v.  Super- 
visors of  Queens,  33  Hun,  305,  307. 

When  the  question  whether  a charge  made  by  a county  clerk  is  a valid  county 
charge  is  dependent  upon  a question  of  fact  to  be  determined  by  the  board  of 
supervisors,  the  audit  and  allowance  of  the  claim  by  the  board,  in  the  absence 
of  fraud  or  collusion,  is  conclusive  in  the  claimant’s  favor.  Where  the  law- 
fulness of  a charge  made  by  a county  clerk  does  not  depend  upon  any  such 
question  of  fact,  but  the  charge  is  unlawful  on  its  face,  it  is  not  aided  in  any 
respect  by  the  audit  thereof;  and  the  association  of  such  illegal  claims  with 
claims  which  are  lawful  in  an  audited  bill  does  not  serve  to  protect  the  former 
from  attack  notwithstanding  the  audit.  People  v.  Sutherland  (1912),  207 
N.  Y.  22. 

Certificate  of  audit  is  conclusive  against  the  county.  People  ex  rel.  Central 
Nat.  Bank  v.  Fitzgerald,  54  How.  Pr.  1.  If  claimant  accepts  payment  of  claim 
as  audited,  he  is  estopped.  People  ex  rel.  O’Mara  v.  Supervisors,  40  N.  Y. 
St.  Rep.  238,  16  N.  Y.  Supp.  254.  The  audit  and  allowance  of  an  account  by 
the  board  is  conclusive  of  the  right  of  the  claimant  to  recover  it.  Brown  v. 
Green,  46  How.  Pr.  302,  affd.  56  N.  Y.  476.  See  also  People  ex  rel.  Kelly  v. 
Haws,  21  How.  Pr.  117.  The  prior  audit  by  the  town  board  of  an  account 
against  the  town  is  conclusive,  and  cannot  be  reversed  or  reviewed  by  the 
board  of  supervisors.  McCrea  v.  Chahoon,  8 N.  Y.  Supp.  88.  But  a claim 
against  a county  is  not  made  legal  by  its  audit  by  the  board  of  supervisors. 
People  ex  rel.  Tracy  v.  Green,  47  How.  Pr.  382. 

As  to  collusiveness  of  audit,  see,  also.  Supervisors  of  Onondaga  v.  Briggs, 
2 Denio  26;  People  v.  Stout,  23  Barb.  338. 

The  fact  that  a sheriff’s  account  has  been  illegally  audited  by  a board  of  super- 
visors does  not  prevent  the  recovery  of  the  amount  paid  in  an  action  against  the 
sheriff.  Franklin  County  v.  Henry,  148  N.  Y.  Supp.  627.  The  validity  of  the  claim, 
notwithstanding  audit  by  a board  of  supervisors  may  be  attacked  in  a taxpayer’s 
action  if  it  appears  that  the  board  exceeded  its  jurisdiction.  Smith  v.  Hedges,  169 
App.  Div.  115,  154  N.  Y.  Supp.  867.  In  this  case  it  was  held  that  the  fact  that  some 
part  of  the  claim  was  within  the  jurisdiction  of  the  board  did  not  make  conclusive 
the  audit  of  another  part  of  the  claim  which  was  without  the  jurisdiction  of  the 
board.  But  where  the  charges  audited  and  allowed  are  in  their  legal  nature  proper 
charges,  then  the  audit  and  allowance  is  conclusive  as  to  the  performance  and  extent 
of  the  work  on  which  the  charges  are  based.  This  case  was  reversed  on  appeal  by 
the  Court  of  Appeals,  223  N.  Y.  176,  on  the  ground  that  the  audit  was  illegal. 

The  reasonableness  of  the  amount  of  a bill  for  costs  and  expenses  in  a proceeding 
before  the  governor  for  the  removal  of  a sheriff  is  a question  purely  for  the  board  of 
supervisors  to  determine  when  they  make  their  audit.  Gavin  v.  Supervisors  of 
Rensselaer  (1916),  93  Misc.  264,  157  N.  Y.  Supp.  973. 

Reconsideration  of  audited  claims. — Where  a claim  has  been  considered,  audited 
and  allowed  by  a board  of  supervisors,  but  not  actually  paid,  said  board  may 
reconsider  its  action  and  reaudit  the  account.  The  fact  that  the  claim  as  audited 
was  assigned  prior  to  the  reconsideration  thereof  by  the  board  of  supervisors  does 
not  change  the  situation,  as  the  assignee  acquired  no  greater  right  than  the 
assignor  had  and  must  be  presumed  to  have  known  that  the  board  had  power  to 
reconsider  its  action  and  reaudit  the  claim.  Matter  of  Equitable  Trust  Co.  v. 
Hamilton  (1917),  177  App.  Div.  390. 

Audit  of  rejected  accounts.  An  account  rejected  by  a board  upon  its  merits 
cannot  be  audited  by  a subsequent  board.  Osterhoudt  v.  Rigney,  98  N.  Y.  222; 
Board  of  Supervisors  v.  Ellis,  59  N.  Y.  620.  If  a claim  is  disallowed  for  any  reason 
not  affecting  the  merits  thereo'f,  it  may  be  audited  by  a subsequent  board.  People 
ex  rel.  Mason  v.  Board  of  Supervisors,  45  Hun  62.  The  board  may  properly  re- 
ject a claim  which  has  been  audited  and  rejected  by  the  board  of  a previous  year. 
People  ex  rel.  Andrus  v.  Supervisors,  106  App.  Div.  381,  94  N.  Y.  Supp.  1012. 

After  alleged  erroneous  audit  by  board  of  supervisors,  an  action  will  not  lie 
for  the  recovery  of  a larger  sum.  Martin  v.  Supervisors,  29  N.  Y.  645.  See  also 
Chase  v.  County  of  Saratoga,  33  Barb.  603,  3 How.  Pr.  (N.  S.)  241. 

Review  by  certiorari.  Where  a claim  presented  to  the  board  is  of  such  a 
character  that  the  board  is  vested  with  authority  to  exercise  its  judgment  in 


AUDIT  BY  BOARD;  COUNTY  CHARGES. 


33 


County  Law,  § 24. 

respect  thereto,  and  requires  a determination  based  upon  conflicting  testimony 
and  inferences  arising  therefrom,  whatever  right  of  review  exists  must  be  by 
certiorari,  and  mandamus  is  improper.  Matter  of  Lanehart,  32  App.  Div.  4;  52 
N.  Y.  Supp.  671.  In  the  case  of  People  ex  rel.  Myers  v.  Barnes,  114  N.  Y.  317; 
20  N.  E.  609,  it  was  held  that  not  only  does  an  auditing  board  possess  discretionary 
and  judicial  power,  but  its  jurisdiction  over  claims  which  are  properly  submitted 
to  it  is  original,  and  its  decision  thereon  is  conclusive  until  modified  or  reversed 
by  another  court  in  the  manner  prescribed  by  law,  that  is,  in  proceedings  by 
certiorari.  See,  also,  People  ex  rel.  Hamilton  v.  Supervisors  of  Jefferson  Co.,  35 
App.  Div.  239 ; 54  N.  Y.  Supp.  782. 

Where  services  have  been  rendered  by  a physician  in  making  post-mortem 
examinations,  the  compensation  for  which  is  a county  charge,  and  the  claim  has 
been  presented  to  and  audited  by  the  board  of  supervisors,  the  audit  is  final;  and 
while  the  amount  of  the  audit  may  not  be  the  value  of  the  services,  and  may 
present  a case  for  review  by  certiorari,  no  cause  of  action  therefor  arises  against 
the  county.  Foy  v.  County  of  Westchester,  168  N.  Y.  180;  61  N.  E.  174,  affg. 
60  App.  Div.  412 ; 69  N.  Y.  Supp.  887. 

Certiorari  will  lie  to  review  an  erroneous  determination  of  the  board  of  super- 
visors as  to  a claim  declared  by  the  legislature  to  be  just;  after  such  review,  if 
board  still  refuse  to  allow  the  claim,  further  remedy  by  mandamus  will  be  given. 
People  v.  Supervisors,  51  N.  Y.  442. 

Mandamus  to  compel  audit.  If  audit  is  refused  or  amount  is  arbitrarily  reduced, 
remedy  is  by  mandamus.  Matter  of  Lanehart,  32  App.  Div.  4,  52  N.  Y.  Supp.  671; 
but  if  claim  requires  exercise  of  discretion  and  a determination  based  upon  con- 
flicting evidence,  remedy  is  by  certiorari.  Id.  And  see  also  People  ex  rel.  Hamil- 
ton v.  Supervisors  of  Jefferson,  35  App.  Div.  239,  54  N.  Y.  Supp.  782;  People  ex 
rel.  Plumb  v.  Supervisors  of  Cortland,  24  How.  Pr.  119;  People  ex  rel.  Martin  v. 
Earl,  47  How.  Pr.  458;  People  ex  rel.  McAleer  v.  French,  119  N.  Y.  502;  Vedder  v. 
Superintendent,  5 Den.  564;  Albrecht  v.  County  of  Queens,  84  Hun  399,  32  N.  Y. 
Supp.  473;  New  York  Catholic  Protectory  v.  Rockland  County,  159  App.  Div.  455. 

Where  a board  have  once  considered  a claim  and  audited  and  allowed  it  at  a 
certain  sum,  the  claim  being  one  where  they  have  the  right  to  exercise  a discre- 
tion in  determining  the  amount,  a mandamus  cannot  issue  to  compel  them  to  audit 
the  claim  anew  and  allow  it  at  a greater  amount.  People  ex  rel.  Johnson  v. 
Supervisors  of  Delaware  Co.,  45  N.  Y.  196. 

The  action  of  a board  of  supervisors  in  rejecting  or  alleging  a claim  presented 
to  it  is  judicial,  and  to  some  extent  discretionary;  it  cannot  be  reversed  for  any 
cause  by  a subsequent  board ; it  is  conclusive  as  to  the  proper  form  and  details 
of  the  claim  presented;  and  although  a peremptory  mandamus  may  issue,  com- 
pelling the  board  to  act,  it  cannot  direct  it  how  to  decide.  People  ex  rel.  Brown 

v.  Supervisors  of  Herkimer,  3 How.  Pr.,  N.  S.,  241. 

The  board  of  supervisors  being  vested  with  jurisdiction  to  audit  all  claims 
legally  chargeable  to  the  county,  the  law  imposes  upon  them  the  duty  of  acting 
on  all  such  claims  legally  presented  to  them;  and  if  they  refuse  to  act  upon  a 
valid  claim,  they  may  be  compelled  to  act  by  mandamus.  People  ex  rel.  Johnson 
v.  Supervisors  of  Delaware  Co.,  45  N.  Y.  196;  People  ex  rel.  Hall  v.  Supervisors 
of  New  York,  32  N.  Y.  473.  A claim  presented  to  a board  of  supervisors,  who 
permitted  their  session  to  expire  without  taking  any  action  upon  it,  is  to  be 
regarded  as  rejected,  for  the  purpose  of  mandamus  to  compel  the  board  to  act 
thereon.  People  ex  rel.  Aspinwall  v.  Supervisors  of  Richmond  Co.,  20  N.  Y.  252. 
Where  the  supervisors  of  a county  have  neglected  to  perform  any  duty  required 

of  them  at  their  annual  meeting  the,y  may  be  compelled  by  mandamus  to  meet  again 

and  perform  it.  They  cannot  by  their  neglect  nullify  a statute  imposing  duties 
upon  them.  People  ex  rel.  Scott  v.  Supervisors  of  Chenango  Co.,  8 N.  Y.  317. 
The  rejection  of  a claim  by  a board  of  supervisors  on  the  ground  that  the  county 
is  not  liable  therefor,  may  be  reviewed  by  mandamus  as  well  as  by  writ  of 
certiorari.  People  ex  rel.  Smart  v.  Supervisors,  66  App.  Div.  66,  72  N.  Y.  Supp. 
568. 

Where  a question  of  fact  is  to  be  determined  by  the  board  of  supervisors,  the 
board  has  the  right  to  decide,  and  mandamus  will  not  lie;  but  where  no  such 
question  exists  and  the  amount  of  the  claim  is  undisputed,  so  that  on  the  facts 
a clear,  unquestionable  duty  exists  that  the  board  pay  the  claim,  then  the  board 
may  be  compelled  by  mandamus  to  perform  its  duty.  People  ex  rel.  Morrison  v. 


34 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 24. 

claimed  lias  been  paid  or  satisfied.2  But  any  such  account  so  presented 
and  verified  may  be  disallowed  in  whole  or  in  part  and  the  board  or  such 
superintendents  may  require  any  other  or  further  evidence  of  the  truth 
or  propriety  thereof.3  Each  such  account  shall  be  numbered  from  one 


Supervisors,  56  Hun  459,  10  N.  Y.  Supp.  88,  affd.,  127  N.  Y.  654.  See  also  People 
v.  Supervisors  of  St.  Lawrence  Co.,  30  How.  Pr.  173. 

Where  the  supervisors  refuse  to  allow  a legal  charge,  the  court  may  instruct  and 
guide  them  in  the  execution  of  their  duty  by  mandamus  and  compel  them  to 

admit  the  claim  as  a county  charge  without  controlling  the  exercise  of  their 

judgment  and  discretion  as  to  the  amount  to  be  allowed.  Hull  v.  Supervisors 
of  Oneida,  19  Johns.  259.  See  also  People  ex  rel.  Bliss  v.  Supervisors  of  Cortland, 
39  N.  Y.  St.  Rep.  313,  15  N.  Y.  Supp.  748;  People  v.  Supervisors  of  Otsego  Co., 
51  IN.  Y.  401. 

If  a board  of  supervisors  refuses  to  act  upon  or  allow  or  disallow  a claim,  the 
remedy  of  the  claimant  is  by  writ  of  mandamus.  If  a valid  claim  against  a 
county  is  not  allowed  at  a proper  amount,  the  remedy  of  the  claimant  is  by  writ 
of  certiorari  to  review  the  audit.  Matte*  of  Equitable  Trust  Co.  v.  Hamilton 
(1917),  177  App.  Div.  390. 

When  the  board  refuses  to  examine  the  accounts,  for  some  cause  other  than 
errors  or  want  of  proof  as  to  the  items,  it  may  be  compelled  to  proceed  with  the 

examination  and  audit.  People  v.  “Supervisors  of  N.  Y.,  21  How.  Pr.  322. 

To  entitle  creditor  to  mandamus  to  compel  board  of  supervisors  to  assess  against 
a town  a judgment  recovered  against  its  highway  commissioners,  it  must  be 
established  that  the  judgment  is  one  the  town  is  precluded  from  disputing.  Peo- 
ple ex  rel.  Everett  v.  Supervisors,  93  N.  Y.  397,  affg.  26  Hun  185. 

If  the  board  has  acted  on  the  subject  matter  and  exercised  its  discretion  by 
allowing  but  part  of  an  account,  though  it  be  less  than  that  certified  by  a justice 
of  the  supreme  court,  mandamus  will  not  lie.  People  ex  rel.  Ayres  v.  Supervisors, 
14  Barb.  52. 

Where  the  board  has  passed  upon  the  whole  claim  on  its  merits  and  has  exer- 
cised its  judgment  in  good  faith,  mandamus  will  not  lie  to  compel  board  to  allow 
a greater  amount;  where  the  board  has  not  acted  upon  each  item  of  the  claim  and 
arrived  at  its  decision  in  a systematic  way  it  may  be  required  to  do  so  by  mandamus. 
People  ex  rel.  O’Mara  v.  Supervisors,  40  N.  Y.  St.  Rep.  238,  16  N.  Y.  Supp.  254. 

2.  For  form  of  accounts  against  county,  see  Form  No.  4,  post. 

The  form  and  verification  of  accounts  against  towns  and  counties  is  also  pre- 
scribed by  sec.  175  of  the  Town  Law,  post. 

3.  Presentation  of  accounts  in  other  counties.  In  Albany  County  the  presenta- 
tion and  audit  of  accounts  against  the  county  by  the  board  of  supervisors  would 
seem  to  be  controlled  by  L.  1881,  ch.  283. 

In  Rensselaer  county  it  is  provided  by  L.  1901,  ch.  124,  as  amended  by  L.  1904, 
ch.  217,  that  the  board  of  supervisors  shall  meet  annually  between  general  election 
day  and  the  fifteenth  day  of  December  following  for  the  purpose  of  examining  and 
auditing  accounts  against  the  county,  and  transacting  other  business.  This  act 
also  provides  for  the  presentation  of  claims  and  regulates  their  audit  by  the  board. 

Sufficiency  of  presentation.  The  board  of  supervisors  may  insist  upon  a com- 
pliance with  the  provisions  of  the  above  section.  It  is  not  the  duty  of  the  board 
to  audit  accounts  not  made  out  in  items  and  verified  as  required  by  the  statute. 
People  v.  Supervisors  of  Monroe  County,  18  Barb.  567.  And  the  refusal  of  the 
board  to  audit  a claim  which  was  not  presented  in  the  form  prescribed  by  statute 
will  not  be  reviewed  by  the  court.  People  ex  rel.  Johnson  v.  Supervisors  of  Dela- 
ware County,  9 Abb.  Pr.  N.  S.  416.  And  in  this  case  it  was  also  held  that  neither 
the  report  of  a committee  of  the  supervisors,  setting  forth  the  itemized  claim  nor 
a similar  report  made  by  the  claimant  as  a public  officer,  can  be  regarded  as  a 
presentation  of  the  claim  for  the  purpose  of  audit. 

If  an  account  is  not  properly  verified  it  should  be  returned  to  the  claimant  with 
notice,  so  that  he  may  appear  and  correct  it.  People  ex  rel.  Sherman  v.  Super- 
visors of  St.  Lawrence  County,  30  How.  Pr.  173.  An  affidavit  stating  that  the 
services  claimed  for  were  performed  (but  not  stating  that  they  were  rendered 
for  the  county),  and  that  no  part  of  the  claim  had  been  paid  by  the  board 


AUDIT  BY  BOARD;  COUNTY  CHARGES. 


35 


County  Law,  § 24. 

upwards  in  the  order  of  presentation,  and  a memorandum  of  the  time  of 
presentation  and  the  name  of  the  claimant,  and  if  assigned,  the  name 
of  each  assignor  or  assignee  shall  be  entered  in  the  proceedings  of  the 
board.  No  such  account,  after  being  so  presented,  shall  be  withdrawn 
without  the  unanimous  consent  of  the  board  except  to  be  used  as  evidence 
in  an  action  or  proceeding,  and  after  being  so  used  it  shall  be  forthwith 
returned.* * * 4  [County  Law,  § 24;  B.  C.  & G.  Cons.  L.,  p.  726.] 

§ 3.  BOARD  MAY  MAKE  ADDITIONAL  REQUIREMENTS  AS  TO  AC- 
COUNTS. 

Boards  of  supervisors  may  make  such  additional  regulations  and  re- 
quirements, not  in  conflict  with  law,  concerning  the  keeping  and 
rendering  of  official  accounts  and  reports  of  its  county  and  town  officers, 
and  the  presentation  and  auditing  of  bills  presented  to  their  board  or  to 
the  town  boards  of  their  county,  as  they  may  deem  necessary  for  the 
efficiency  of  the  service  and  the  protection  of  the  interests  of  the  public. 
[County  Law,  § 25 ; B.  C.  & G.  Cons.  L.,  p.  727.] 


or  any  one  on  their  behalf,  is  not  a sufficient  verification.  People  ex  rel.  Cagger  v. 
Supervisors  of  Schuyler  County,  2 Abb.  Pr.  N.  S.  78.  All  claims  against  the 
county  must  be  itemized  before  they  can  be  audited,  and  a charge  for  “ traveling 
expenses,”  and  “ incidentals,”  is  not  sufficiently  specific  to  comply  with  the 
requirements  of  the  statute.  Matter  of  Pinney,  17  Misc.  24;  40  N.  Y.  Supp.  716. 
And  where  a claim  is  presented  to  the  board  of  supervisors  for  expenses 
and  disbursements  by  the  board  of  health  of  a city,  but  the  accounts 
presented  are  in  gross  sums,  being  the  total  amounts  paid  to  various  persons, 
without  any  items  whatever,  it  was  held  that  the  accounts  are  not  sufficiently 
itemized  to  entitle  them  to  be  audited  by  the  board.  People  ex  rel.  Board  of 
Health  v.  Supervisors  of  Monroe  County,  18  Barb.  567. 

The  fact  that  the  claimant  has  presented  informal  bills  to  the  board  for 
audit  is  not  a reason  for  absolutely  rejecting  the  claim  and  thus  deprive 
him  of  that  which  may  be  honestly  and  fairly  due  him.  In  a disposition  to 
be  just  the  right  to  amend  will  readily  be  suggested.  By  permitting  an  amend- 
ment the  claimant  could  present  his  claim  in  the  form  and  manner  prescribed 
by  the  statute,  and  then  the  board  of  supervisors  could  examine  and  pass  upon 
the  various  items  embraced  therein,  doing  justice  to  all  parties.  People  ex  rel. 
Mason  v.  Board  of  Supervisors  of  Wayne  County,  45  Hun,  62. 

Account  must  state  that  the  services  were  necessarily  rendered.  People 
ex  rel.  Toohey  v.  Webb,  50  St.  Rep.  46,  21  N.  Y.  Supp.  298.  As  to  criminal 
offense  of  fraudulent  presentation  of  claim,  see  People  v.  Bragie,  88  N.  Y.  585, 
affg.  10  Abb.  N.  C.  300. 

4.  The  clerk  of  the  board  of  supervisors  is  required  to  designate  upon  each 
account  audited  the  amount  allowed,  and  the  items  or  amount  disallowed, 
and  to  deliver  to  any  person  on  demand  a certified  copy  of  any  account  on  file 
in  his  office.  County  Law,  § 50,  sub.  5,  post,  p.  96. 

The  withdrawal  of  an  account  is  not  necessary  for  the  purpose  of  correct- 
ing informalities  and  defects  contained  therein.  Notwithstanding  the  above 
provision  of  the  statute  a claimant  should  be  given  leave  to  amend  such  an 
account.  People  ex  rel.  Mason  v.  Board  of  Supervisors,  45  Hun,  62. 


36 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


Penal  Law,  §§  1863.  1864. 

§ 4.  PENAL  PROVISIONS  RESPECTING  THE  UNLAWFUL  AUDIT 
AND  PRESENTATION  OF  ACCOUNTS  AGAINST  MUNICIPAL- 
ITIES. 

Unlawfully  auditing  and  paying  claims.  A public  officer,  or  person 
holding  or  discharging  the  duties  of  any  office  or  place  of  trust  under 
the  state,  or  in  any  county,  town,  city  or  village,  a part  of  whose  duties 
it  is  to  audit,  allow  or  pay,  or  take  part  in  auditing,  allowing  or  paying 
claims  or  demands  upon  the  state,  or  such  county,  town,  city  or  village  who 
knowingly  audits,  allows  or  pays,  directly  or  indirectly  consents  to,  or 
in  any  way  connives  at  the  auditing,  allowance  or  payment  of  any  claim 
or  demand  against  the  state  or  such  county,  town,  city  or  village,  which 
is  false  or  fraudulent,  or  contains  charges,  items  or  claims,  which  are 
false  or  fraudulent,  is  guilty  of  felony,  punishable  by  imprisonment  for  a 
term  not  exceeding  five  years,  or  by  a fine  not  exceeding  five  thousand 
dollars,  or  by  both.5  [Penal  Law,  § 1863;  B.  C.  & G.  Cons.  L.,  p.  4050.] 

A person  who,  being  or  acting  as  a public  officer  or  otherwise,, 
by  wilfully  auditing  or  paying,  or  consenting  to,  or  conniving  at  the 
auditing  or  payment  of  a false  or  fraudulent  claim  or  demand,  or  by  any 
other  means,  wrongfully  obtains,  receives,  converts,  disposes  of  or  pays 
out  or  aids,  or  abets  another  in  obtaining,  receiving,  converting,  dis- 
posing of,  or  paying  out  any  money  or  property  held,  owned  or  in  the 
possession  of  the  state,  or  of  any  city,  county  or  village,  or  other  public 
corporation,  or  any  board,  department,  agency,  trustee,  agent  or  officer 
thereof,  is  guilty  of  a felony,  punishable  by  imprisonment  for  not  less  than 
three  nor  more  than  five  years,  or  by  a fine  not  exceeding  five  times  the 
amount  or  value  of  the  money  or  the  property  converted  paid  out,  lost  or 
disposed  of  by  means  of  the  act  done  or  abetted  by  such  person,  or  by 
both  such  imprisonment  and  fine.  The  amount  of  any  such  fine  when 
paid  or  collected,  shall  be  paid  to  the  treasury  of  the  corporation  or  body 
injured.  A conviction  under  this  section  forfeits  any  office  held  by  the 
offender,  and  renders  him  incapable  thereafter  of  holding  any  office  or  place 
of  trust. 

A transfer  in  whole  or  part  of  any  deposit  with  any  bank  or  other  de- 


5.  Fraud  cannot  be  based  upon  an  excessive  charge.  People  v.  King,  19  Misc., 
98,  100,  43  N.  Y.  Supp.  975. 

Indictment  charging  official  with  presenting  a fraudulent  claim  to  an  auditing 
board  for  allowance  and  also  with  corruptly  auditing  a claim  is  void  for 
duplicity.  People  v.  Stock,  21  Misc.  147,  47  N.  Y.  Supp.  94.  But  an  indictment 
of  one  count  describing  both  crimes  is  not  invalid.  People  v.  Klipfel,  160  N.  Y. 
371,  affg.  37  App.  Div.  224,  55  N.  Y.  Supp.  789.  Indictment  of  a deputy  com- 
missioner of  city  works  for  certifying  fraudulent  bills.  People  v.  Fielding, 
36  App.  Div.  401,  55  N.  Y.  Supp.  530,  revd.  158  N.  Y.  542.  As  to  sufficiency 
of  indictment,  see  People  v.  Coombs,  158  N.  Y.  532,  affg.  36  App.  Div.  284,  55 
N.  Y.  Supp.  276;  People  v.  Miles,  123  App.  Div.  862,  108  N.  Y.  Supp.  510. 


AUDIT  BY  BOARD;  COUNTY  CHARGES. 


Penal  Law,  §§  1864,  1872. 


pository,  or  of  any  credit,  claim  or  demand  npon  such  depositary,  whereby 
the  right,  title  or  possession  of  the  owner  or  holder  of  such  deposit,  or  of 
any  custodian  thereof,  is  impaired  or  affected,  is  a conversion  thereof 
under  this  section  [Penal  Law,  § 1864;  B.  C.  & G.  Cons.  L.,  p.  4050.] 
Fraudulently  presenting  bills  or  claims  top  ublic  officers  for  payment. 
A person  who,  knowingly,  with  intent  to  defraud,  presents,  for  audit, 
or  allowance,  or  for  payment,  to  any  officer  or  board  of  officers  of  the 
state,  or  of  any  county,  town,  city  or  village,  authorized  to  audit  or  allow, 
or  to  pay  bills,  claims  or  charges,  any  false  or  fraudulent  claim,  bill  ac- 
count, writing  or  voucher,  or  any  bill,  account  or  demand,  containing  false 
or  fraudulent  charges,  items  or  claims,  is  guilty  of  a felony.  [Penal  Law 
§ 1872;  B.  C.  & G.  Cons.  L.,  p.  4053.] 


§ 5.  COUNTY  CHARGES. 

The  following  are  county  charges: 

1.  Charges  incurred  against  the  county  by  the  provisions  of  this  chapter;6 

2.  All  expenses  necessarily  incurred  by  the  district  attorney  in  criminal 
actions  or  proceedings  arising  in  his  county;7 

6.  The  chapter  here  referred  to  is  the  County  Law,  and  the  intent  of  the 
above  subdivision  is  to  make  all  charges  incurred  pursuant  to  the  provisions  of 
the  County  Law  county  charges. 

County  charges  generally.  To  determine  what  are  county  charges  refer- 
ence must  be  made  in  each  case  to  the  statute  authorizing  the  incurring  of  the 
charge.  The  county  cannot  be  made  liable  for  any  claim  unless  the  act  upon 
which  the  claim  was  based  was  authorized  by  express  provision  of  statute. 
As  was  held  in  the  case  of  People  ex  rel.  Hadley  v.  Supervisors  of  Albany 
County,  28  How.  Pr.  22,  to  charge  a county  with  a claim  for  services  or  expenses 
incurred,  there  must  be  some  statutory  authority  authorizing  them  to  be 
rendered  or  incurred,  or  directing  their  payment.  Without  this  the  board  of 
supervisors  cannot  be  compelled  by  mandamus  to  audit  the  claim. 

As  to  audit  of  claims  against  the  county,  see  County  Law,  § 12,  subd.  2,  ante. 

7.  What  are  “ necessary  expenses 99  must  inevitably  depend  upon  circum- 
stances, and  it  is  a flexible  term.  The  district  attorney  is  invested  with  much 
latitude  and  discretion  in  determining  what  expenses  are  necessary.  In  the 
performance  of  the  responsibility  with  which  he  is  charged  in  the  prosecu- 
tions of  crimes  within  his  county,  he  is  required  to  exercise  his  judgment  as 
to  the  wisdom  of  employing  experts  and  as  to  other  expenses  to  be  incurred  in 
any  given  case.  The  expense  of  employing  a civil  engineer,  to  make  an  expert 
investigation  as  to  whether  a contractor  building  State  and  county  roads  was 
properly  performing  his  contract,  is  a proper  charge  against  the  county.  People 
ex  rel.  Koetteritz  v.  Board  of  Supervisors  (1911),  148  App.  Div.  392. 

" The  district  attorney  may  employ  private  detectives  to  aid  him  in  his  duties 
without  authority  of  the  board  of  supervisors,  and  the  expense  thereof  is  a proper 
charge  against  the  county.  People  ex  rel.  Watts  v.  Niagara  County,  170  App.  Div 
334.  156  N.  Y.  Supp.  148.  ^ 

Expenses  in  criminal  actions.  The  duty  of  prosecution  for  criminal  offenses 
conimitted  in  a county  devolves  upon  its  district  attorney,  and  as  incidental  thereto, 
he  has  the  power  to  do  that  which  is  essential  to  such  prosecution.  All  expenses 
necessarily  incurred  by  such  officer  in  the  performance  of  such  duty,  or  the  exer- 
cise of  the  power,  are  a county  charge.  The  duty  embraces  whatever  is  essential 
to  bring  a criminal  to  trial  as  well  as  the  proceedings  on  trial;  and  so,  if  he  is 
in  a foreign  jurisdiction,  it  includes  efforts  to  effect  his  arrest  and  custody  for 
the  purpose  of  extradition,  in  order  that  he  may  be  brought  within  the  jurisdiction 
of  the  court.  People  ex  rel.  Gardinier  v.  Supervisors  of  Columbia  County,  134 

Y.  1;  31  N.  C.  322;  see,  also,  Matter  of  Pinney,  17  Misc.  24;  40  N.  Y.  Supp.  716. 


38 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 240. 

3.  The  compensation  of  the  county  officers,  their  subordinates  and 
assistants,  which  are  payable  by  the  county ; s 


Accounts  of  district  attorney  for  expenses.  A district  attorney,  who 
incurs  expenses  in  connection  with  criminal  actions  or  proceeding's  arising 
in  his  county,  should,  when  presenting  his  bill  to  the  board,  of  supervisors, 
specifically  state  therein  the  nature  of  such  expenses  so  that  the  board  may 
determine  whether  they  were  expenses  necessarily  incurred  by  him  within  the 
meaning  of  the  above  subdivision.  A board  of  supervisors  may  properly  refuse 
to  allow  a bill  containing  items  for  “ expenses  ” to  and  at  different  places  within 
the  county  on  certain  dates,  where  none  of  the  items  states  the  nature  of  the 
expenses  and  only  a portion  of  them  specify  the  matter  in  connection  with  which 
the  expenses  were  incurred.  Matter  of  White,  51  App.  Div.  175;  64  N.  Y.  Supp. 
726. 

Expense  of  prosecution  for  illicit  traffic  in  intoxicating  liquors  by  the  district 
attorney,  under  the  metropolitan  police  act,  is  a county  charge.  People  v.  Super- 
visors of  New  York.  32  N.  Y.  473.  But  see  People  ex  rel.  Kelly  v.  Haws,  21  How. 
Pr.  117.  Expense  of  prosecutions  under  the  Liquor  Tax  Law.  Rept.  of  Atty.  Genl. 
(1902)  342. 

Expert  witnesses.  The  above  subdivision  has  been  held  to  embrace  within 
its  terms  the  expenses  necessarily  incurred  by  a district  attorney  in  procuring 
the  attendance  of  medical  experts  at  the  trial  of  an  indictment  for  murder. 
People  ex  rel.  Tripp  v.  Supervisors,  22  Misc.  616,  50  N.  Y.  Supp.  16.  Although 
a charge  for  the  employment  of  an  expert  in  making  tests  and  giving  evidence 
upon  the  trial  of  an  indictment  for  murder  is  authorized,  without  the  consent 
of  the  board  of  supervisors  first  obtained,  a claim  for  services  so  rendered  is 
subject  to  the  adjudication  of  such  board,  and  that  body  is  not  concluded  by 
a contract  entered  into  between  the  district  attorney  and  the  expert,  by  which 
the  compensation  of  the  latter  is  fixed.  People  ex  rel.  Hamilton  v.  Supervisors, 
of  Jefferson  County,  35  App.  Div.  239,  54  N.  Y.  Supp.  782.  See,  also,  People 
ex  rel.  Sherman  v.  Supervisors  of  St.  Lawrence  County,  31  How.  Pr.  173; 
People  ex  rel.  Bliss  v.  Supervisors,  39  St.  Rep.  313,  15  N.  Y.  Supp.  748.  The 
district  attorney  may  and  if  necessary  should  employ  expert  testimony  in  be- 
half of  the  people  before  a commissioner  appointed  by  the  governor  to  conduct 
a hearing  on  an  application  for  executive  clemency,  and  the  expense  of  same 
is  a county  charge.  Tompkins  v.  Mayor,  41  App.  Div.  536,  43  N.  Y.  Supp.  878. 
It  is  the  duty  of  the  district  attorney  to  procure  the  services  of  expert  witnesses 
where  necessary,  and  the  amount  paid  them  will  not  affect  the  regularity  of 
the  trial.  People  v.  Montgomery,  13  Abb.  (N.  S.)  207. 

A district  attorney  has  power  under  this  section  to  obligate  his  county  to 
pay  a reasonable  sum  for  the  services  of  an  expert  witness  in  a criminal  trial. 
Although  the  witness’  bill  is  subject  to  review  and  audit  by  the  board  of  super- 
visors and  although  the  board  is  not  bound  by  any  specific  sum  which  the  dis- 
trict attorney  had  agreed  to  pay,  it  must  audit  a reasonable  sum.  People  ex  rel. 
Manley  v.  Board  of  Supervisors  (1911),  148  App.  Div.  584,  132  N.  Y.  Supp.  868. 

The  costs  of  a commission  in  lunacy,  pursuant  to  the  provisions  of  the 
chapter  of  the  Code  of  Criminal  Procedure,  relating  to  an  inquiry  into  the 
insanity  of  the  defendant,  before  or  during  trial  or  after  conviction,  are  a 
charge  upon  the  county  in  which  the  commission  shall  have  been  executed. 
The  commissioners  are  entitled  to  such  compensation  for  their  services  as  the 
court  may  direct.  Code  Crim.  Proc.,  § 662a,  as  added  by  L.  1903,  ch.  129. 

8.  Compensation  of  county  officers.  Unless  otherwise  provided  by  statute  the 
compensation  of  county  treasurers,  district  attorneys  and  superintendents  of 
the  poor  is  fixed  by  the  board  of  supervisors,  and  the  board  also  fixes  the 
number,  grade  and  pay  of  the  clerks,  assistants  and  employees  in  such  offices. 
See  County  Law,  § 12,  sub.  5,  post,  p.  54. 

Board  of  supervisors  cannot  provide  compensation  for  a clerk  in  a county 
office.  People  v.  Gallup,  30  Hun,  501,  affd.  in  96  N.  Y.  628.  Salary  of  stenog- 
rapher in  surrogate’s  office  in  New  York  a county  charge.  Munson  v.  Mayor, 
etc.,  of  New  York,  57  How.  Pr.  497. 


AUDIT  BY  BOARD;  COUNTY  CHARGES. 
County  Law,  § 240. 


39 


4.  The  compensation  of  the  criers  of  the  courts  of  record  within  the 
county  for  attendance  thereat,  and  also  traveling  fees,  at  the  rate  of  five 
cents  per  mile,  for  going  to  and  returning  from  the  place  of  attendance  .9 
[Thus  amended  by  L.  1910,  ch.  34.] 

5.  The  compensation  of  the  sheriff  for  the  commitment  and  discharge 
of  his  prisoners  on  criminal  process  within  the  county,  and  for  summoning 
constables  to  attend  court  ;10 

Supervisors  may  employ  person  to  take  charge  of  county  offices,  and  the 
expense  incurred  thereby  is  a legal  county  charge.  Conway  v.  Mayor,  etc.,  of 
New  York,  6 Daly,  515.  Salaries  of  police  justices  of  city  of  New  York  are  county 
charges  and  payable  by  county  as  contingencies.  People  v.  Edmonds,  19  Barb. 
468. 

Where  no  provision  has  been  made  for  payment  of  a person  entitled  to 
monthly  payments  for  services  rendered  the  county,  discounts  by  a bank  on 
his  bills  issued  to  raise  the  money  cannot  be  made  a county  charge.  People 
ex  rel.  Johnston  v.  Supervisors,  43  Hun,  385. 

9.  Court  Criers.  The  crier  appointed  by  the  county  judge  of  each  county, 
except  Kings  and  Erie,  to  be  crier  for  the  courts  of  record  held  in  his  county 
is  entitled  to  a compensation  to  be  fixed  by  the  board  of  supervisors  and  to  be 
paid  as  prescribed  by  law,  except  in  the  county  of  Westchester  where  the  com- 
pensation of  such  crier  shall  be  fixed  by  the  county  judge,  not  to  exceed  the  sum 
of  one  thousand  two  hundred  dollars  a year  to  be  paid  in  equal  monthly  pay- 
ments by  the  treasurer  of  Westchester  county  in  full  compensation  for  all  ser- 
vices rendered  by  him,  and  except  in  the  county  of  Queens  where  the  compensa- 
tion of  such  crier  shall  be  the  sum  of  one  thousand  eight  hundred  dollars  a year, 
to  be  paid  in  equal  monthly  payments  and  to  be  a county  charge.  Judiciary 
Law,  § 365,  as  amended  by  L.  1910,  ch.  34,  and  L.  1911,  ch.  566. 

The  salary  of  the  criers  appointed  for  Erie  county  by  the  justices  of  the 
supreme  court  residing  in  Erie  county  together  with  the  county  judge,  of 
Erie  county,  in  pursuance  of  section  one  hundred  and  sixty-nine  of  this 
chapter,  shall  be  fixed  by  the  justices  of  the  supreme  court  residing  in  Erie 
county,  or  a majority  of  them;  and  when  so  fixed  shall  be  paid  in  equal  monthly 
payments  by  the  treasurer  of  Erie  County  in  full  compensation  for  all  services 
rendered  by  said  criers.  (Judiciary  Law,  § 366,  as  amended  by  L.  1910,  ch.  15. 

Except  as  provided  in  the  preceding  sections  of  the  Judiciary  Law,  the 
compensation  of  court  criers  is  fixed  by  the  above  subdivision. 

10.  Compensation  of  sheriff.  In  all  counties  except  those  where  by  statute 
the  office  of  sheriff  is  made  salaried,  the  fees  which  the  sheriff  is  authorized 
to  charge  for  his  services  belong  to  him.  For  list  of  statutes  making  office 
of  sheriff  salaried,  see  post,  p.  155.  For  list  of  fees  chargeable  by  sheriff 
for  services  performed  by  him,  see  ch.  71,  post. 

The  accounts  of  the  sheriff  for  receiving  prisoners  into  and  discharging 
them  from  jail,  and  for  their  board  while  confined  therein,  are  properly 
county  charges.  The  liability  of  the  county  extends  not  only  to  such  official 
services  in  cases  strictly  criminal,  but  includes  also  quasi  criminal  offenses, 
such  as  violations  of  city  ordinances,  the  only  distinction  being  that  in  the 
latter  case  instead  of  the  statutory  fee,  the  board  of  supervisors  have  power 
to  fix  the  compensation.  People  ex  rel.  Van  Tassel  v.  Supervisors  of  Columbia 
County,  67  N.  Y.  330;  Ross  v.  Supervisors  of  Cayuga  County,  38  Hun,  20. 


40  COUNTIES;  BOARDS  OF  SUPERVISORS. 

County  Law,  § 240. 

6.  Compensation  allowed  by  law  to  constables  for  attending  courts  of 
record,  and  the  compensation  allowed  by  law  to  constables  and  other 
officers,  for  executing  process  on  persons  charged  with  a felony;  for  ser- 
vices and  expenses  in  conveying  such  persons  to  jail;  and  for  the  service 
of  subpoenas  issued  by  the  district  attorney  and  for  other  services  in  re- 
lation to  criminal  proceedings  and  support  of  prisoners  in  transit,  for 
which  no  specific  compensation  is  prescribed  by  law,  and  which  are  not  a 
town  charge,  as  prescribed  by  article  eight  of  the  town  law ; but  no  charge 
for  issuing  or  serving  any  subpoena  in  any  criminal  action  or  proceedings 
issued  or  served  on  behalf  of  a defendant  shall  be  allowed,  unless  other- 
wise ordered  by  the  court  in  which  the  action  or  proceeding  was  pending  ;* 11 

Where  prisoners  are  confined  in  a county  jail,  under  authority  of  a village 
charter  providing  that  persons  arrested  in  the  village  by  the  local  police  may 
be  detained  therein  until  a police  justice  be  found,  not  exceeding  twenty-four 
hours,  the  expense  of  their  support  in  the  jail  is  a county  charge  which  should 
be  allowed  the  sheriff  at  a reasonable  rate.  People  ex  rel.  Gray  v.  Board  of 
Supervisors,  89  App.  Div.  152,  85  N.  Y.  Supp.  284. 

In  the  absence  of  a statute,  the  expense  for  stationery  furnished  to  a sheriff 
is  not  a county  charge.  People  ex  rel.  Brown  v.  Greene,  46  How.  Pr.  302; 
2 T.  & C.  23. 

Expenses  of  sheriffs  in  transporting  convicts  to  State  prison  in  compliance 
with  the  orders  of  the  court,  should  be  audited  by  the  board  of  supervisors. 
Rept.  of  Atty.-Genl.,  Dec,  16,  1910. 

11.  Compensation  of  constables  for  attending  courts,,  Section  3312  of 
the  Code  of  Civil  Procedure,  provides  as  follows:  “A  constable  or  a deputy  sheriff 
is  entitled,  for  attending  a sitting  of  a court  of  record',  pursuant  to  a notice  from 
the  sheriff,  to  a fee  for  each  day’s  actual  attendance,  in  any  county  in  the  state, 
to  be  fixed'  by  the  board  of  supervisors  thereof,  and  mileage  as  allowed  by  law 
to  trial  jurors  in  courts  of  record.  Such  fees  must  be  paid  by  the  county  treas- 
urer, upon  the  production  of  the  certificate  of  the  clerk,  stating  the  number  of 
days  that  the  constable  or  deputy  sheriff  attended.  If  a constable  or  deputy 
sheriff  attending  a sitting  of  a court  of  record  pursuant  to  a notice  from  the 
sheriff  is  unable  to  reach  his  home  upon  the  day  he  is  excused  from  attendance, 
he  shall  be  entitled  to  compensation  for  an  additional  day,  and  the  clerk  shall 
certify  accordingly  upon  satisfactory  proof  of  such  fact  by  affidavit.  But  the 
provisions  of  this  section  shall  not  be  applicable  to  the  counties  of  Kings,  New 
York  and  Erie.  All  other  acts  or  sections  of  acts  conflicting  herewith  are  hereby 
repealed.’* 

For  fees  of  constables  for  services  rendered  in  criminal  proceedings  as 
prescribed  by  Code  Crim.  Pro.,  § 740b,  see  post,  ch.  71. 

When  a town  charge.  The  fees  of  a constable  in  criminal  proceedings  or 
actions  tried  before  a magistrate  of  the  town  where  the  offence  is  charged  to  have 
been  committed  are  a charge  against  such  town.  See  Town  Law,  sec.  171,  post. 

Conveyance  of  prisoners.  The  provisions  of  the  above  subdivision  relating 
to  the  compensation  of  constables  for  services  and  expenses  in  conveying 
criminals  to  jail  and  for  other  services  in  relation  to  criminal  proceedings 
should  be  construed  in  connection  with  section  171  of  the  Town  Law,  post. 
In  the  case  of  People  ex  rel.  McGrath  v.  Supervisors  of  Weschester 
County,  53  Hun  167 ; 6 N.  Y.  Supp.  153,  it  was  held  that  the  account  of  a 
constable  for  fees  and  expenses  in  conveying  to  the  penitentiary  prison- 
ers convicted  and  sentenced  in  a court  of  special  sessions  in  his  town 
was  a town  and  not  a county  charge,  so  that  a refusal  of  the  board  of  super- 
visors of  the  county  to  audit  it  as  a county  charge  was  proper.  But  see  People 
ex  rel.  Bancroft  v.  Supervisors  of  Orange  County,  18  Hun  90.  Fees  of  con- 


AUDIT  BY  BOARD;  COUNTY  CHARGES.  41 

County  Law,  § 240. 

7.  The  expenses  necessarily  incurred  in  the  support  of  persons  charged 
with,  or  convicted  of  crimes,  and  committed  to  the  jails  of  the  county  ;12 

8.  The  sums  required  by  law  to*  be  paid  to  witnesses  in  criminal  actions 
and  proceedings;13 


stable  for  killing  dogs  a county  charge.  Matter  of  Town  of  Hempstead,  36 
App.  Div.  321,  335,  55  N.  Y.  Supp.  345.  The  fees  of  sheriffs  and  other  officers 
for  the  transportation  of  convicts  to  state  prisons  and  houses  of  refuge  are 
fixed  by  statute  and  are  to  be  paid  by  the  state.  Prison  Law,  §§  12,  322. 

Compensation  for  conveying  juvenile  delinquents.  It  is  provided  by 
the  County  Law,  § 12,  subd.  20,  that:  “The  board  of  supervisors  shall  annually 
fix  and  determine  the  compensation  to  be  allowed  and  paid  to  officers  for  the 
conveyance  of  juvenile  delinquents  to  the  houses  of  refuge  and  state  industrial 
schools,  and  no  other  or  greater  amount  than  that  so  fixed  and  determined 
shall  be  allowed  and  paid  for  such  service.” 

12.  Contracts  with  sheriffs.  The  board  of  supervisors  is  authorized  by  sec. 

12,  sub.  15,  post,  p.  59,  to  contract  with  the  sheriff  of  the  county  for  the  board, 
maintenance  and  care  and  custody  of  prisoners  committed  to  the  county  jail 
of  his  county.  Prior  to  the  insertion  of  this  subdivision  in  section  12  it  was 
held  that  the  board  of  supervisors  had  no  power  to  make  a contract  to  pay  to 
the  sheriff  a fixed  weekly  rate  for  the  board  of  each  prisoner,  determined  with- 
out regard  to  the  expense  incurred.  People  ex  rel.  Caldwell  v.  Supervisors  of 
Saratoga  County,  45  App.  Div.  42;  60  N.  Y.  Supp.  1122.  It  would  seem 
under  the  ruling  in  this  case  that  where  a contract  had  not  been  made 
with  the  sheriff  for  the  board  of  the  prisoner,  that  the  sheriff  would  only  be 
entitled  to  reimbursement  for  the  moneys ’actually  expended  by  him  in  boarding 
the  prisoners.  A civil  prisoner  confined  in  jail  under  an  execution  or  for  a 
contempt  is  to  be  supported  at  the  expense  of  the  county  if  he  makes  oath 
before  the  sheriff,  jailer  or  deputy  jailer  that  he  is  unable  to  support  himself 
during  his  imprisonment.  See  Code  Civ.  Proc.,  sec.  Ill,  and  County  Law  § 240, 
subd.  19,  post , p.  47.  People  ex  rel.  Tracey  v.  Green,  47  How.  Pr.  382. 

13.  Fees  of  witnesses  in  criminal  actions.  The  following  sections  of  the 

Code  of  Criminal  Procedure  relate  to  fees  of  witnesses  in  criminal  actions: 

§ 616.  A witness  in  behalf  of  the  people  in  a criminal  action  in  a court  of 
record  is  entitled  to  the  same  fees  and  mileage  as  a witness  in  a civil  action  in 
the  same  court,  payable  by  the  treasurer  of  the  county  upon  the  certificate  of  the 
clerk  of  the  court,  stating  the  number  of  days  the  witness  actually  attended 
and  the  number  of  miles  traveled  by  him  in  order  to  attend.  Such  certificate 
shall  only  be  issued  by  the  clerk  upon  the  production  of  the  affidavit  of  the 

witness,  stating  that  he  attended  as  such  either  on  subpoena  or  request  of  the 

district  attorney,  the  number  of  miles  necessarily  traveled  and  the  duration  of 
attendance.  An  officer  in  any  state  department  who  attends  as  a witness  under 
this  section  in  his  official  capacity,  or  in  consequence  of  an  official  action  taken 
by  him,  and  who  receives  a fixed  sum  in  lieu  of  expenses,  or  who  is  entitled 
to  receive  the  actual  expenses  incurred  by  him  in  the  discharge  of  his 
official  duties,  is  not  entitled  to  the  compensation  herein  provided. 

§ 617.  In  any  such  action,  the  court  may  also,  in  its  discretion,  by  order, 
direct  the  county  treasurer  to  pay  a reasonable  sum,  to  be  specified  in  the 
order,  to  any  witness  attending  in  behalf  of  the  defendant,  not  exceeding  the 
amount  payable  to  a witness  in  a civil  action  in  the  same  court.  Upon  the 


42  COUNTIES;  BOARDS  OF  SUPERVISORS. 

County  Law,  § 240. 

9.  The  moneys  necessarily  expended  by  any  county  officer  in  executing 
the  duties  of  his  office  in  cases  in  which  no  specific  compensation  for  such 
services  is  provided  by  law/4  including  the  expense  of  printing  the  copies 


production  of  the  order  or  a certified  copy  thereof,  the  county  treasurer  must 
pay  the  witness  the  sum  specified  therein,  out  of  the  county  treasury. 

14.  Moneys  necessarily  expended  by  county  officers.  By  this  subdivision 
the  necessary  expenditures  of  a county  officer  in  the  discharge  of  his  official 
duties,  not  otherwise  specifically  provided  for,  are  made  a legitimate  county 
charge.  In  the  case  of  People  ex  rel.  Hall  v.  Supervisors  of  New  York,  32  N.  Y. 
473,  475,  the  court  said:  “The  import  of  the  words  ‘necessarily  expended’  is 

sufficiently  evident,  when  we  consider  the  purpose  for  which  they  were  inserted, 
and  the  nature  of  the  subject  to  which  they  are  applied.  They  relate  not  to 
the  necessity  of  payment  as  between  the  officer  and  the  party  to  whom  it  is  made, 
— which  would  be  satisfied,  perhaps,  by  nothing  short  of  the  power  of  legal 
compulsion, — but  to  the  necessity  of  the  expenditures  having  reference  to  what 
is  due  to  the  public  and  the  law,  in  the  efficient  and  faithful  discharge  of  official 
duty.  . . . Expenditures  are  to  be  deemed  necessary  within  the  plain  intent 

of  the  statute,  when,  as  in  the  present  case,  they  are  not  only  needful  and  proper 
— as  contra  distinguished  from  such  as  are  needless  and  improvident — but  also 
reasonable,  appropriate  and  customary  in  the  discharge  of  the  particular  official 
duty.”  The  expenditures  which  are  made  by  the  statute  a charge  against  the 
county  are  not  limited  to  those  of  which  payment  can  be  recovered  by  civil 
action  against  the  officer.  This  proposition  is  the  result  of  the  reasoning  of  the 
court  in  the  above  case. 

But  the  expenditures  of  the  officer  must  have  been  made  by  the  officer  in  the 
performance  of  duties  which  are  for  the  benefit  of  the  county  alone.  People 
ex  rel.  Kelley  v.  Hawes,  12  Abb.  Pr.  192;  21  How.  Pr.  117. 

The  expense  incurred  by  a superintendent  of  the  poor  in  the  employment  of 
counsel  to  conduct  proceedings  in  bastardy,  the  direct  object  of  which  is  to 
indemnify  the  county  and  protect  it  from  loss,  may  be  allowed  to  the  super- 
intendent as  an  expense  necessarily  incurred  by  him  in  the  performance  of  his 
duties.  Neary  v.  Robinson,  98  N.  Y.  81,  85.  See  also  People  v.  Supervisors  of 
Delaware  Co.,  45  N.  Y.  196. 

The  County  Law  does  not  make  the  personal  expenses  of  a superintendent  of  the 
poor  a county  charge  and  they  are  not  a proper  charge  unless  the  board  of  super- 
visors has  expressly  so  provided  in  fixing  the  compensation  of  the  superintendent. 
Strong  v.  Williams  (1915),  167  App.  Div.  714.  153  N.  Y.  Supp.  175. 

Section  3 of  L.  1898,  ch.  588,  establishing  the  county  of  Nassau,  which  provides 
that  the  sheriff  of  the  county  shall  receive  an  annual  salary  of  not  more  than 
$2,500,  and  that  all  fees  for  his  services  shall  he  paid  into  the  county  treasury, 
does  not  prevent  the  sheriff  from  receiving,  under  the  above  subdivision,  traveling 
expenses  necessarily  incurred  in  the  execution  of  process  delivered  to  him.  People 
ex  rel.  Wood  v.  Denton.,  41  App.  Div.  386;  58  N.  Y.  Supp.  722.  And  an  expenditure 
by  the  county  clerk  of  Kings  county  in  arranging  papers  which  were  scattered  and 
mixed  by  reason  of  the  fall  of  a large  number  of  cases  in  his  office,  without  fault 
on  his  part,  was  held  to  be  a proper  county  charge.  Worth  v.  City  of  Brooklyn, 
34  App.  Div.  223;  54  N.  Y.  Supp.  484. 

Services.  In  the  discharge  by  a county  officer  of  the  duties  of  his  office, 
it  is  evident  that  he  will  often  be  compelled  to  expend  moneys  for  the  per- 
formance of  services  which  he  is  not  required  by  law  to  personally  perform. 
The  above  subdivision  refers  to  disbursements  necessarily  expended  for  such 
services,  and  not  money  paid  for  work  which  it  is  his  duty  to  himself  perform. 
Matter  of  Walsh  v.  Supervisors  of  Albany  Co.,  20  App.  Div.  489;  47  N.  Y.  Supp. 


AUDIT  BY  BOARD;  COUNTY  CHARGES.  43 

County  Law,  § 240. 

of  the  calendar  for  a term  of  the  supreme  court  held  within  the  county, 
or  of  the  county  court,  and  including  in  any  county  where  the  duties  of 
county  judge  and  surrogate  are  performed  by  the  same  officer,  except  in  the 
county  of  Herkimer,  the  actual  and  necessary  expenses  of  such  officer 
and  his  clerk,  incurred  in  holding  court,  by  authority  of  the  board  of  super- 
visors, at  a place  or  places  other  than  the  county  seat  or  place  of  residence 
of  such  office  or  clerk. 

10.  All  items  of  coroner’s  compensation  and  the  accounts  of  the  coroners 
of  the  county  for  such  services  as  are  not  chargeable  to  the  person  employ- 
ing them;15 

11.  The  accounts  of  the  county  clerks,  for  the  services  and  expenses 
incurred  under  the  law  respecting  elections,  other  than  for  militia  and 
town  officers;16 

12.  The  sums  required  to  pay  the  bounties  authorized  by  resolution  of 
the  board  of  supervisors  for  the  destruction  of  wild  animals  and  noxious 
weeds,  unless  the  supervisors,  by  resolution,  direct  that  any  such  bounties 
shall  be  town  charges. 

13.  The  compensation  of  the  members  of  the  board  of  supervisors;17 

14.  The  charges  and  accounts  for  services  rendered  by  justices  of  the 


35.  In  this  case  it  was  held  that  section  3280  of  the  Code  of  Civil  Procedure 
providing  that:  “Each  clerk  of  the  court  must  perform  all  duties  required  of 

him,  in  the  course  and  practice  of  the  court,  without  fee  or  reward  except  as 
expressly  prescribed  by  law,”  was  not  repealed  by  the  subsequent  enactment 
of  the  above  subdivision,  and  that  therefore  a county  clerk  is  not  entitled  to 
have  allowed  to  him  by  the  board  of  supervisors  as  a county  charge  moneys 
which  he  paid  to  his  assistants  for  assorting  and  arranging  jury  slips. 

Re-indexing  county  records. — Unless  authorized  by  special  statute,  boards  of 
supervisors  have  no  power  to  make  a contract  to  pay  a county  clerk  for  re -index- 
ing deeds  and  mortgages  recorded  in  the  office  of  such  clerk.  Wadsworth  v.  Super- 
visors of  Livingston  County,  217  N.  Y.  484,  112  N.  E.  16. 

15.  Fees  of  coroners,  generally.  As  to  recovery  of  value  of  services  from  county, 
see  People  ex  rel.  Cosford  v.  Supervisors  of  Niagara  Co.,  15  N.  Y.  Supp.  680;  38  N. 
Y.  St.  Rep.  964.  But  coroners  cannot  employ  an  expert  to  make  a chemical  analysis 
of  the  remains  of  a deceased  person,  or  of  other  substances  in  connection  with  the 
cause  of  his  death.  Doremus  v.  Mayor,  etc.,  6 Daly,  121.  The  expense  incurred  by 
the  district  attorney  for  such  a purpose  would  be  a proper  county  charge.  See 
sub.  2 of  the  above  section,  ante  p.  37.  A board  of  supervisors  cannot  audit  an 
account  unless  he  presents  a statement  of  property  and  money  found  on  the  body 
of  a deceased  person,  as  provided  by  Code  Crim.  Proc.,  sec.  788,  post,  p.  203. 

16.  Election  expenses.  The  expense  of  printing  and  delivering  official  ballots, 
sample  ballots  and  cards  of  instructions,  poll  books,  tally  sheets,  return  sheets  for 
inspectors  and  ballot  clerks,  and  distance  markers,  at  an  election  where  no  town 
meeting  or  village  election  is  held  at  the  same  time  is  a charge  upon  the  county. 
If  a town  meeting  or  village  election  is  held  at  the  same  time  as  a general  elec- 
tion the  expense  is  to  be  apportioned  by  the  county  clerk  upon  the  county,  town 
and  village.  See  Election  Law,  § 318,  as  amended  by  L.  1918,  ch.  323;  § 319,  as 
amended  by  L.  1915,  ch.  678,  and  L.  1918,  ch.  323;  Jewett’s  Election  Manual,  1918. 

Cost  of  printing  election  ballots. — A claim  presented  by  the  county  clerk  for  the 
printing  of  election  ballots  should  be  audited  by  the  board  of  supervisors;  but  said 
board  cannot  be  compelled  by  certiorari  to  audit  such  a bill  at  the  same  amount 
as  they  allowed  on  a prior  audit.  People  ex  rel.  Newburg  News  P.  & P.  Co.  v. 
Board  of  Supervisors,  140  App.  Div.  227,  125  N.  Y.  Supp.  105. 

17.  Compensation  of  members  of  boards  of  supervisors.  See  County  Law,  sec  23, 
ante,  p.  17. 


44 


COUNTIES;  BOARDS  OF  SUPERVISORS. 
County  Law,  § 240. 


peace  in  the  examination  of  felons,  and  in  other  criminal  proceedings  as 
mentioned  in  section  one  hundred  and  seventy-one  of  the  town  law,  when 
not  otherwise  provided  for;18 

15.  The  expenses  necessarily  incurred,  and  sums  authorized  by  law,  or 
by  the  board  of  supervisors,  pursuant  to  law,  to  be  raised  for  any  county 
purpose  ;19 


18.  As  to  fees  of  justices  in  criminal  actions  and  proceedings,  see  Town  Law, 
sec.  171,  post,  and  notes  thereunder. 

19.  Expenses  for  any  county  purpose.  This  subdivision  seems  to  authorize 
generally  the  charge  against  the  county  of  any  expense  necessarily  incurred  by 
the  board  of  supervisors  in  protecting  the  interests  of  the  county.  But  no  such 
charge  will  exist  unless  the  act,  in  connection  with  which  the  expense  was  in- 
curred, was  authorized  and  done  pursuant  to  statute.  People  ex  rel.  Hadley  v. 
Supervisors  of  Albany  Co.,  28  How.  Pr.  22.  See  also  People  v.  Supervisors  of 
Nisgara,  78  N.  Y.  622. 

Authorized  by  law.  The  legislature  has  power  to  fix  a maximum  amount  to 
be  paid  for  a county  improvement  as  it  has  to  fix  an  exact  amount.  People  ex 
rel.  McSpedon  v.  Haws,  21  How.  Pr.  178.  No  court  can  audit  a claim  against  a 
county,  or  order  it  paid,  unless  authorized  by  statute.  Matter  of  Tinsley,  90 
N.  Y.  231. 

Boards  of  supervisors  cannot  bind  their  counties  by  an  act  not  within  the 
limits  of  the  express  powers  conferred  upon  them  by  statute;  they  cannot  allow 
a claim  on  any  notions  of  their  own  as  to  its  equity.  Chemung  Canal  Bank  v. 
Supervisors  of  Chemung,  5 Den.  517. 

Audit  by  the  board  of  supervisors  of  a claim  does  not  have  the  legal  effect  of 
making  it  a county  charge;  what  are  county  charges  are  fixed  by  law,  and  when 
the  board  determines  the  amount  thereof,  their  fiat  is  conclusive  inasmuch  as 
they  act  judicially.  People  ex  rel.  Tracy  v.  Green,  47  How.  Pr.  382. 

Expenditures  for  a survey  of  railroads  and  corporate  property  are  not  a 
county  charge.  Rept.  of  Atty.  Genl.  (1902)  278. 

Highway  expenses.  The  common-law  rule  that  the  care  and  repairs  of  roads 
is  a charge  against  the  county  does  not  obtain  in  this  state.  Unless  authorized 
by  statute  highway  expenses  are  not  chargeable  against  the  county.  People  ex. 
rel.  Slosson  v.  Board  of  Supervisors,  116  App.  Div.  844,  102  N.  Y.  Supp.  402. 

Contingent  expenses.  Services  rendered  by  an  officer  specially  for  the 
benefit  of  the  county,  if  there  is  no  specific  provision  of  law  for  payment, 
constitute  a part  of  the  contingent  charges  of  the  county,  to  be  audited  by  the 
board.  Bright  v.  Supervisors  of  Chenango  Co.,  18  Johns  242;  Doubleday  v. 
Supervisors  of  Broome  Co.,  2 Cow.  533;  Brady  v.  Supervisors  of  New  York 
Co.,  2 Sandf.  (Super.  Ct.)  460;  affd.,  10  N.  Y.  260.  But  it  would  be  otherwise 
where  it  appears  to  have  been  the  intention  of  the  legislature  that  no  compen- 
sation should  be  made.  Mallory  v.  Supervisors  of  Cortland  Co,  2 Cow\  531. 

Discount  allowed  to  a bank  by  an  employee  of  a county  on  discounting 
a claim  for  services  is  not  a county  charge.  People  ex  rel.  Johnson  v.  Super- 
visors of  Ulster  County,  43  Hun,  385. 

Buildings  and  other  county  property.  The  expense  of  equipping  and  fur- 
nishing a county  jail  is  a county  charge.  Schenck  v.  Mayor,  etc.,  of  New  York, 
67  N.  Y.  44.  The  necessary  expenses  incurred  in  keeping  in  repair  and  in  a 
condition  for  use,  the  court  rooms  which  the  county  is  required  to  provide,  or 


AUDIT  BY  BOARD;  COUNTY  CHARGES. 


45 


County  Law,  § 240. 

16.  The  reasonable  costs  and  expenses  in  proceedings  before  the  gov- 
ernor for  the  removal  of  any  county  officer  upon  charges  preferred  against 
him,  including  the  taking  and  printing  of  the  testimony  therein  ;20 


any  other  property  of  the  county,  are  county  charges.  People  ex  rel.  McSpedon 
v.  Stout,  23  Barb.  349  ; 13  How.  Pr.  314. 

Court  rooms  and  furniture.  It  is  provided  by  section  42  of  the  County  Law, 
as  amended  by  L.  1913,  ch.  394,  and  L.  1915,  ch.  443,  that:  “Except  where  other 
provision  is  made  therefor  by  law,  the  board  of  supervisors  of  each  county  must 
provide  each  court  of  record,  appointed  to  be  held  therein,  with  proper  and  con- 
venient rooms  and  furniture,  together  with  attendants,  fuel,  lights,  telephone, 
postage  and  stationery  suitable  and  sufficient  for  the  transaction  of  its  business. 
If  the  supervisors  shall  neglect  so  to  do,  the  court  may  order  the  sheriff  to  make 
the  requisite  provision ; and  the  expense  incurred  by  him  in  carrying  the  order 
into  effect,  when  certified  by  the  court,  is  a county  charge.” 

In  the  case  of  people  ex  rel.  Westbrook  v.  Supervisors  of  Montgomery  County, 
34  Hun,  599,  it  appeared  that  the  board  of  supervisors  of  Montgomery  county 
had  provided  a proper  and  convenient  room  for  the  use  of  the  surrogate  in  the 
county  court  house  at  Fonda,  and  refused  to  provide  one  at  Amsterdam  when 
requested  so  to  do  by  the  surrogate.  Thereupon  the  surrogate  made  an  order 
for  his  office  at  Amsterdam,  and  directed  the  sheriff  to  furnish  a suitable 
office  and  furniture  therefor  at  that  place.  Upon  an  application  to  compel  the 
board  of  supervisors  to  pay  the  rent  and  expenses  thereby  incurred,  it  was  held 
that  as  the  board  had  provided  a proper  office  and  furniture,  it  could  not  be 
compelled  to  pay  for  any  other. 

Court  expenses.  As  there  are  contingent  expenses  necessarily  incurred  in 
the  holding  of  courts,  for  which  there  is  no  express  statutory  provision,  and 
as  the  board  of  supervisors  must  provide  a fund  to  be  placed  in  the  hands  of 
its  county  treasurer  “ to  pay  such  contingent  expenses  as  may  become  payable 
fromtime  to  time,”  it  necessarily  follows  that  a court  held  in  a county  must 
determine  what  is  a lawful  and  proper  charge  upon  such  fund.  People  ex  rel. 
Cole  v.  Supervisors  of  Greene  Co.,  15  Abb  N.  C.  447;  2 How.  Pr.  N.  S.  483;  affd., 
39  Hun,  299. 

20.  Removal  of  county  offices.  Section  1 of  art.  10  of  the  constitution  provides 
that  the  governor  may  remove  a sheriff,  county  clerk,  district  attorney  and 
register  within  the  terms  for  which  he  shall  have  been  elected,  giving  to  such 
officer  a copy  of  the  charges  against  him,  and  an  opportunity  of  being  heard  in  his 
defense.  Sections  33  and  34  of  the  Public  Officers’  Law,  provide  for  the  removal 
by  the  governor  of  a county  treasurer,  county  superintendent  of  the  poor,  coroner 
or  register  of  a county. 

The  costs  and  expenses  of  proceedings  for  the  removal  of  county  officers  by  the 
governor,  are  by  the  above  subdivision  made  a county  charge.  Such  costs  and 
expenses  include  counsel  fees  in  the  prosecution  of  the  charges.  People  ex  rel. 
B'-nner  v.  Supervisors  of  Queens  County,  39  Hun  442.  And  in  this  case  it  was  also 
held  that  the  attorney  general  may  employ  special  counsel  to  prosecute  the  charges, 
and  the  expense  of  such  employment  is  a county  charge  under  the  statute.  Such 
costs  are  a county  charge  although  the  proceedings  were  instituted  by  the  presi- 
dent of  a taxpayers’  association,  who  appeared  as  an  individual  complainant. 
People  ex  rel.  Smart  v.  Board  of  Supervisors,  66  App.  Div.  66,  72  N.  Y.  Supp.  568. 

In  auditing  and  allowing  the  costs  and  expenses  incurred  in  proceedings  for  the 
removal  of  a county  officer  the  board  of  supervisors  may,  when  a claim  is  pre- 
sented therefor,  examine  the  items  thereof  and  determine  whether  or  not  such 
costs  and  expenses  were  reasonable,  and  whether  or  not  they  were  necessarily 
incurred.  People  ex  rel.  Benedict  v.  Supervisors  of  Oneida  County,  24  Hun  413. 


46 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 240. 

17.  All  judgments  duly  recorded  against  a county; 21 

18.  All  damages  recovered  against,  or  costs  and  expenses  lawfully  in- 
curred by  a county  officer  in  prosecuting  or  defending  an  action  or  pro- 
ceeding brought  by  or  against  the  county,  or  such  officer,  for  an  official 
act  done,  when  such  act  was  done,  or  such  action  or  proceeding  was 
prosecuted  or  defended  pursuant  to  law,  or  by  authority  of  the  board  of 
supervisors;  and  any  such  damages  so  recovered,  or  costs  and  expenses 
incurred  by  any  such  officers,  for  any  act  done  in  good  faith  in  his 
official  capacity,  without  any  such  authority,  may  be  made  a county 
charge  by  a majority  vote  of  all  the  members  elected  thereto.22 

A district  attorney  who  has  successfully  met  the  charges  against  him  in  a pro- 
ceeding before  the  Governor  for  his  removal  from  office  is  entitled  to  charge  to  the 
county  his  expenses  for  counsel  fees  and  various  disbursements  incurred  in  the 
defense  and  the  supervisors  will  be  required  to  audit  the  claims.  Said  statute, 
being  purely  prospective  and  not  retroactive,  is  constitutional  and  does  not  involve 
a grant  of  the  public  moneys  of  a municipality  in  the  aid  of  a private  individual. 
People  ex  rel.  Gagan  v.  Purdy  (1916),  173  App.  Div.  350.  159  N.  Y.  Supp.  246. 

Expense  of  prosecution  resulting  in  removal  of  sheriff;  when  counsel  fees  are 
county  charge.  The  reasonable  expense  of  residents  of  a county  in  employing 
counsel  to  prosecute  before  the  Governor  a proceeding  voluntarily  brought  by  them, 
resulting  in  the  removal  of  a sheriff  from  office  upon  the  ground  that  he  was  unfit 
to  discharge  his  duties,  is  an  expense  for  a county  or  public  purpose  within  the 
meaning  of  this  section  and  the  board  of  supervisors  of  the  county  will  be 
required  by  mandamus  to  audit  such  claim  as  a county  charge.  It  seems,  that  if 
the  accusation  against  such  officer  were  frivolous  or  not  presented  in  good  faith, 
the  expense  of  the  prosecution  would  not  be  a county  charge,  and  that  the  audit 
thereof  would  be  a gift  and  within  the  prohibition  of  section  10  of  article  8 of  the 
State  Constitution.  People  ex  rel.  Nash  v.  Board  of  Supervisors  (1914),  164  App. 
Div.  89,  149  N.  Y.  Supp.  572. 

The  reasonable  costs  and  expenses  incurred  by  a sheriff  in  the  successful  defense 
of  charges  made  to  the  Governor  against  him  in  a proceeding  for  his  removal  from 
office  are  legal  county  charges,  and  when  his  claim  therefor  has  been  duly  allowed 
and  audited  by  the  board  of  supervisors  a taxpayer’s  action  will  not  lie  to  recover 
the  money  paid  pursuant  to  such  audit.  Gavin  v.  Supervisors  of  Rensselaer  (1916), 
93  Misc.  264,  157  N.  Y.  Supp.  973,  affd.  157  App.  Div.  973,  159  N.  Y.  Supp.  1114. 
There  is  no  greater  objection  to  the  payment  of  the  costs  and  expenses  incurred  by 
a public  officer  in  defending  himself  against  charges  of  misconduct  than  there  is  to 
the  payment  of  costs  and  expenses  incurred  in  the  prosecution  of  such  charges,  and 
the  board  of  supervisors  may  properly  allow  such  charges.  Gavin  v.  Board  of  Super- 
visors (1917),  221  N.  Y.  222,  affg.  174  App.  Div.  900.  But  this  rule  only  applies 
where  the  officer  has  made  a successful  defense  against  the  charges.  People  ex  rel. 
Moss  v.  Board  of  Supervisors  (1917),  178  App.  Div.  716. 

21.  Judgments  against  a county.  Section  70  of  the  General  Municipal  Law, 
post,  provides  that  where  a final  judgment  has  been  recovered  against  a municipal 
corporation  and  the  execution  thereof  is  not  stayed,  the  treasurer  of  such  corpo- 
ration shall  pay  such  judgment  upon  the  production  of  a certified  copy  of  the 
docket  thereof. 

22.  Payment  of  counsel  fees.  Since  a board  of  supervisors  has  authority  to  in- 
stitute proceedings  in  behalf  of  the  county,  the  fair  charges  of  the  attorneys  and 
counsel  employed  by  them  in  such  proceedings  are  a legal  demand  against  the 
county,  although  the  board  may  misjudge  in  regard  to  the  county  having  a cause 
of  action  in  a particular  case.  Gillespie  v.  Broas,  23  Barb.  370. 

The  district  attorney  of  any  county  in  which  a capital  or  other  criminal  action 
is  to  be  tried,  may,  with  the  approval  of  a county  judge,  employ  counsel  to  assist 
him  on  such  trial;  and  the  costs  and  expenses  thereof  are  a charge  upon  the 
county.  See  County  Law,  sec.  204,  post,  p.  143.  Superintendents  of  tne  poor  may 
employ  counsel  and  their  compensation  is  a county  charge.  Neary  v.  Robinson, 
98  N.  Y.  81. 

Costs  in  equalization  proceedings.  The  board  of  supervisors  may  employ  counsel 
to  defend  its  equalization,  and  the  expense  thereof  is  a contingent  charge  against 
the  county.  People  v.  City  of  Kingston,  101  N.  Y.  82,  96. 

Costs  in  action  against  county  treasurer.  The  amount  of  a judgment  for  costs 
against  a county  treasurer,  in  a proceeding  to  review  the  action  of  such  officer 
in  refusing  to  issue  a liquor  tax  certificate  is  a proper  charge  against  the  county. 
Report  of  Attorney-General,  1913,  Vol.  2,  p.  532. 


AUDIT;  BY  BOARD;  COUNTY  CHARGES.  47 

County  Law,  § 240. 

19.  In  any  county,  if  a prisoner,  actually  confined  in  jail,  makes  oatli 


Expense  of  town  litigation  not  county  charge.  The  expenses  of  a litiga- 
tion, arising  out  of  the  action  of  a town  in  assessing  a railroad  at  a rate  fixed  and 
directed  by  the  Board  of  Supervisors,  are  not  a county  charge;  an  agreement  by 
the  Board  of  Supervisors  to  pay  them  is  ultra  vires  and  cannot  be  enforced  by  the 
town.  People  ex  rel.  Sweet  v.  Board  of  Supervisors  of  St.  Lawrence  Co.,  101 
App.  Div.  327,  91  N.  Y.  Supp.  948. 

Liability  for  injuries.  Though  a county  have  the  duty  of  maintaining  a 
bridge,  it  is  not  liable  to  a person  sustaining  an  injury  by  reason  of  neglect  of 
this  duty;  the  right  of  action  must  have  been  given  by  statute.  Ensign  v. 
Supervisors  of  Livingston  Co.,  25  Hun  20. 

Other  county  charges.  Statutes  imposing  certain  obligations  upon  county 
officers  frequently  expressly  provide  that  the  expenses  incurred  shall  be  a county 
charge.  The  above  section  of  the  County  Law  is  general  in  its  purpose  and  includes 
as  charges  against  the  county  all  claims  which  have  been  by  such  statutes  declared 
to  be  county  charges.  Reference  should  be  made  to  the  various  chapters  and 
sections  of  this  work  relating  to  the  powers  and  duties  and  liabilities  of  county 
officers  for  the  purpose  of  determining  what  may  be  declared  as  proper  county 
charges. 

It  may  be  well,  however,  in  this  connection  to  cite  a few  special  statutes  in  which 
claims  for  services  and  expenses  are  specially  prescribed  to  be  county  charges. 

By  L.  1899,  ch.  700,  it  was  provided  that  any  county  official  who  shall  have  been 
successfully  defended  in  proceedings  to  remove  him  from  office  might  present  a 
claim  for  his  expenses  in  such  proceedings  and  have  the  same  audited  and  allowed 
by  the  board  of  supervisors.  But  in  the  case  of  Matter  of  Strauss,  44  App.  Div. 
425;  61  N.  Y.  Supp.  37,  and  Matter  of  Jensen,  44  App.  Div.  509;  60  N.  Y.  Supp. 
933,  this  act  was  declared  unconstitutional,  since  the  county  being  under  no  legal 
or  moral  obligation  to  pay  such  a claim,  it  was  in  the  nature  of  a gift  to  the 
claimant. 

Special  deputy  attorney-general,  assigned  by  attorney-general,  when 
required  by  governor,  to  prosecute  specified  criminal  charges,  is  to  be  paid  by 
county.  See  Executive  Lawr,  § 62,  subd.  2,  as  amended  by  L.  1911,  ch.  14.  Deputy 
so  assigned  may  not  compel  payment  of  compensation  until  the  amount  thereof 
has  been  fixed  by  the  attorney-general.  People  ex  rel.  Osborne  v.  Westchester  Co., 
168  App.  Div.  765,  154  N.  Y.  Supp.  266. 

County  Detective.  By  L.  1897,  ch.  62,  as  amended  by  L.  1900,  ch.  62,  and  L. 
1911,  ch.  598,  the  county  judge  of  a county  containing  a population  of  not  less  than 
one  hundred  and  twenty-five  thousand  inhabitants,  and  adjoining  a county  con- 
taining a population  of  not  less  than  one  million  inhabitants,  may  appoint  a county 
detective  for  such  county.  This  act  would  seem  to  apply  only  to  the  counties  of 
Westchester  and  Queens.  The  compensation  of  a county  detective  appointed  there- 
under is  made  a county  charge. 

Costs  and  compensation  of  counsel  in  murder  cases.  Where  services  are  ren- 
dered by  counsel  assigned  to  defend  a person  indicted  for  an  offense  which  is 
punishable  by  death,  the  court  in  which  the  defendant  is  tried  may  allow  such 
counsel  his  expenses,  and  also  reasonable  compensation  for  his  services  not  exceed- 
ing the  sum  of  $500,  which  allowance  is  a charge  upon  the  county  in  which  the 
indictment  is  found,  to  be  paid  out  of  the  court  fund.  See  Code  Crim.  Proc.,  sec. 
308,  as  amended  by  L.  1918,  ch.  242.  Where  the  defendant  is  convicted  of  a crime 
the  clerk  of  the  court  in  which  the  conviction  was  had  shall  within  two  days  after 
a notice  of  appeal  shall  be  served  upon  him  notify  the  stenographer  that  an 
appeal  has  been  taken  whereupon  the  stenographer  shall  within  ten  days  after 
receiving  such  notice  deliver  to  the  clerk  of  the  court  a copy  of  the  stenographic 
minutes  of  the  entire  proceedings  of  the  trial  certified  by  the  stenographer  as  an 
accurate  transcript  of  such  proceedings.  Such  copy  shall  be  filed  by  the  clerk  in 
his  office  and  stall  constitute  the  minutes  of  the  court  of  the  trial  and  be  in- 
cluded in  the  judgment-roll  as  provided  by  section  four  hundred  and  eighty-five  of 
this  act.  The  expense  of  such  copy  shall  be  a county  charge,  payable  to  the 
stenographer  out  of  the  court  fund  upon  the  certificate  of  the  judge  presiding  at 
the  trial.  See  Code  Crim.  Proc.,  sec.  456. 


48 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 240. 

before  the  sheriff,  jailer,  or  deputy- jailer,  that  be  is  unable  to  support 


Stenographers’  fees.  A court  stenographer  is  entitled  to  his  fees  for  minutes 
furnished  to  the  district  attorney  or  attorney-general  in  a criminal  case,  which 
fees  are  a county  charge  and  must  be  paid  by  the  county  treasurer  like  other 
county  charges.  Judiciary  Law,  § 303,  amended  by  L.  1912,  ch.  202. 

The  board  of  supervisors  of  each  county  must  provide  for  the  payment  of  the 
sums  chargeable  upon  the  treasury  of  a county  for  the  salary,  fees,  or  expenses 
of  the  stenographer  or  assistant  stenographer;  and  all  laws  relating  to  raising 
money  in  a county  by  the  board  of  supervisors  thereof,  are  applicable  to  those  sums. 

Supreme  Court  stenographers  in  second  district.  Judiciary  Law,  section 
161,  subdivisions  3 and  3a  provide  that:  “Each  justice  of  the  supreme  court 

for  the  second  judicial  district,  who  does  not  reside  in  the  county  of  Kings,  may 
appoint,  and  may  at  pleasure  remove,  a stenographer,  and  such  justices,  or  a 
majority  of  them,  may  also  appoint,  and  at  pleasure  remove,  two  additional 
stenographers.  The  justices  of  the  supreme  court  residing  in  the  county  of  Kings, 
or  a majority  of  them,  may  appoint,  and  at  pleasure  remove,  a typewriter  operator 
for  the  purpose  of  copying  their  minutes,  and  doing  any  other  confidential  work 
which  may  be  required  by  said  justices  or  the  clerk  of  the  court.  The  salary  or 
compensation  to  be  paid  to  such  typewriter  operator  shall  be  fixed  by  said  justices, 
and  the  expense  thereof  shall  be  raised  with  the  annual  tax  levy  as  a county 
charge.” 

Judiciary  Law,  section  309,  subdivisions  1 and  2,  provide  that:  “ The  stenog- 

raphers appointed  pursuant  to  section  one  hundred  and  sixty-one  of  this  chapter, 
by  the  justices  of  the  supreme  court,  residing  in  the  county  of  Kings,  shall  sev- 
erally attend,  as  directed  by  the  respective  justices  appointing  them,  the  terms 
of  the  appellate  division  and  trial  and  special  terms  of  the  supreme  court,  in  the 
county  of  Kings.  Each  of  the  stenographers  appointed  pursuant  to  said  section 
one  hundred  and  sixty-one,  by  the  justices  of  the  supreme  court  for  the  second 
judicial  district,  who  do  not  reside  in  the  county  of  Kings,  must  attend  as  directed 
by  the  justice  appointing  him  the  trial  and  special  terms  of  the  supreme  court 
held  in  the  counties  of  Suffolk,  Queens,  Nassau  and  Richmond,  or  either  of  them, 
and,  when  not  thus  officially  engaged,  the  stated  terms  of  the  county  court,  in 
each  of  those  counties.” 

Salary  of  stenographer.  Section  316  of  the  Judiciary  Law,  subdivision  2, 
as  amended  by  L.  1910,  ch.  180,  and  L.  1913,  ch.  491,  provides  that:  “Each 

stenographer  appointed  as  prescribed  in  section  one  hundred  and  sixty-one  of 
this  chapter,  by  the  justices  of  the  supreme  court  for  the  second  judicial  district 
who  do  not  reside  in  the  county  of  Kings,  shall  receive  an  annual  salary  to  be 
fixed  by  such  justices  not  exceeding  three  thousand  six  hundred  dollars.  To 
make  up  and  pay  the  salaries  specified  in  this  subdivision,  the  board  of  super- 
visors of  each  of  the  counties  in  said  district  must  annually  levy,  and  cause  to 
be  collected,  as  a county  charge,  a proportionate  part  of  the  sum  necessary  to 
pay  the  same,  to  be  fixed  by  the  comptroller  of  the  state,  in  accordance  with 
the  amount  of  the  taxable  real  and  personal  property  in  each  county,  as  shown  by 
the  last  annual  assessment-roll  therein.  The  treasurer  of  each  county  must  pay 
over  the  sum  so  raised,  to  the  comptroller  of  the  state,  who  must  thereupon  pay 
the  salary  of  each  stenographer,  in  equal  quarterly  payments,  under  the  direction 
of  the  justice  making  the  appointment.” 

Court  stenographers  in  other  districts.  Section  161  of  the  Judiciary  Law, 

as  amended  by  L.  1910,  ch.  60,  and  L.  1916,  chs.  128,  344,  provides  that: 

1.  In  addition  to  the  stenographers  appointed  under  special  laws,  the  justices 
of  the  supreme  court,  or  a majority  of  them,  for  each  judicial  district,  excepting 
the  first,  second,  third,  fifth,  seventh,  eighth  and  ninth,  shall  appoint,  and  may 
at  pleasure  remove,  three  stenographers. 

2.  The  justices  of  the  supreme  court,  residing  in  the  county  of  Kings,  or  a 
majority  of  them,  may  appoint  and  may  at  pleasure  remove,  sixteen  stenographers. 

3.  Each  justice  of  the  supreme  court  for  the  second  judicial  district,  who 
does  not  reside  in  the  county  of  Kings,  may  appoint,  and  may  at  pleasure 


AUDIT  BY  BOARD;  COUNTY  CHARGES. 

County  Law,  § 240. 

himself  during  his  imprisonment  his  support  is  a county  charge.  This 


remove,  a stenographer,  and  such  justices,  or  a majority  of  them,  may  also 
appoint,  and  at  pleasure  remove,  two  additional  stenographers. 

3-a.  The  justices  of  the  supreme  court  residing  in  the  county  of  Kings,  or  a 
majority  of  them,  may  appoint,  and  at  pleasure  remove,  a typewriter  operator 
for  the  purpose  of  copying  their  minutes,  and  doing  any  other  confidential 
work  which  may  be  required  by  said  justices  or  the  clerk  of  the  court.  The 
salary  or  compensation  to  be  paid  to  such  typewriter  operator  shall  be  fixed 
by  said  justices,  and  the  expense  thereof  shall  be  raised  with  the  annual  tax 
levy  as  a county  charge. 

4.  The  justices  of  the  supreme  court,  or  a majority  of  them,  for  the  third 
judicial  district,  shall  appoint,  and,  may  at  pleasure  remove,  four  stenog- 
raphers of  the  supreme  court  for  such  district. 

5.  Each  of  the  justices  of  the  supreme  court  assigned  to  hold  special  terms 
in  the  third  and  fourth  judicial  districts  for  the  hearing  of  contested  motions, 
and  the  trial  of  issues  of  fact  and  law,  may  appoint  and  at  pleasure  remove 
a stenographer. 

6.  The  justices  of  the  supreme  supreme  court,  or  a majority  of  them,  for 
the  fifth  and  seventh  judicial  districts,  respectively,  shall  appoint,  and  may 
at  pleasure  remove,  five  stenographers  of  the  supreme  court  for  each  of  such 
districts. 

7.  The  justices  of  the  supreme  court  for  the  eighth  judicial  district  shall  appoint, 
and  may  at  pleasure  remove,  eleven  stenographers  of  the  supreme  court  for  such 
district. 

8.  The  justices  of  the  supreme  court  for  the  ninth  judicial  district,  or  a majority 
of  them,  may  appoint  the  stenographers  of  said  court,  the  number  of  said  stenog- 
raphers not  to  exceed  the  number  of  all  the  justices  in  said  district. 

The  present  stenographers  of  the  supreme  court  for  such  district,  and  those  who 
may  hereafter  be  appointed,  shall  hold  office  until  removed  by  the  said  justices. 

Judiciary  Law,  section  309,  subdivisions  3 and  4,  provide  that:  “Each  of  the 

stenographers  appointed  pursuant  to  said  section  one  hundred  and  sixty-one  by 
the  justices  of  the  supreme  court,  for  the  ninth  judicial  district,  must  attend,  as 
directed  by  the  justice  appointing  him,  the  trial  and  special  terms  of  the  supreme 
court  held  in  the  counties  of  Westchester,  Putnam,  Dutchess,  Orange  and  Rock' 
land,  or  either  of  them,  and  when  not  thus  officially  engaged,  the  stated  terms  of 
the  county  court  in  each  of  those  counties.  Each  of  the  stenographers  appointed 
pursuant  to  said  section  one  hundred  and  sixty-one,  by  the  justices  of  the  supreme 
court  for  each  judicial  district  except  the  first,  second  and  ninth,  shall  attend 
such  special  and  trial  terms  of  the  supreme  court  in  his  judicial  district  as  be 
shall  be  assigned  to  attend  by  the  justices  of  the  supreme  court,  or  a majority  of 
them,  for  such  district.” 

Salary  of  stenographers.  Judiciary  Law,  section  313,  as  amended  by 
L.  1910,  ch.  180,  and  L.  1913,  ch.  491,  provides  that:  “ Each  of  the  stenog- 

raphers appointed  by  the  justices  of  the  supreme  court  pursuant  to  subdivisions 
one,  four,  six,  seven  and  eight  of  section  one  hundred  and  sixyt-one  of  this  chap- 
ter shall  receive  an  annual  salary  of  three  thousand  six  hundred  dollars,  to  be 
paid  by  the  comptroller  of  the  state  in  equal  quarterly  payments,  upon  the 
certificate  of  a justice  of  the  supreme  court  of  the  judicial  district  for  which  he 
shall  have  been  appointed.  To  provide  the  means  to  pay  such  salary,  the 
comptroller  of  the  state  shall,  on  or  before  the  first  day  of  November  in  each 
year,  fix  and  transmit  to  the  clerk  of  the  board  of  supervisors  in  each  of  the 
counties  in  said  district  a statement  of  the  sum  to  be  raised  by  such  board  of 
supervisors,  in  accordance  with  the  amount  of  taxable  real  and  personal  property 


50 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 242. 

subdivision  shall  also  apply  to  the  county  of  New  York.  [Sub.  19  added 
by  L.  1909,  ch.  16.] 

20.  The  expense  of  the  publication  of  notices  of  appointment  of  terms 
of  the  county  court  is  a county  charge.  [Sub.  20  added  by  L.  1909,  ch. 
16.] 

21.  The  fees  of  a county  clerk  or  of  the  clerk  of  any  court  of  record 
for  making  and  certifying  a copy  or  copies  of  any  record,  document  or 
paper,  when  ordered  so  to  do  by  the  state  comptroller,  pursuant  to  section 
four  of  the  state  finance  law,  shall  be  a charge  upon  the  county  where 
such  records,  documents  or  papers  are  recorded  or  filed.  This  subdivision 
shall  also  apply  to  the  county  of  New  York.  [Sub.  21  added  by  L.  1909, 
ch.  16.  County  Law,  § 240;  B.  C.  & G.  Cons.  L.,  p.  825.] 

§ 6.  COUNTY  CHARGES,  HOW  RAISED. 

The  moneys  necessary  to  defray  the  county  charges  of  each  county 
shall  be  levied  on  the  taxable  property  in  the  several  towns  therein,  in  the 
manner  prescribed  in  the  general  laws  relating  to  taxes;  and  in  order  to 
enable  the  county  treasurer  to  pay  such  expenses  as  may  become  payable 
from  time  to  time,  the  board  of  supervisors  shall  annually  cause  such 
sum  to  be  raised  in  advance  in  their  county,  as  they  may  deem  necessary 
for  such  purpose.23  [County  Law,  § 242;  B.  C.  & G.  Cons.  L.,  p.  830.] 


in  each  of  said  counties  as  shown  by  the  last  annual  assessment  roll  therein. 
The  boards  of  supervisors  in  each  of  such  counties  shall  annually  levy  and 
cause  to  be  collected  in  such  county  and  to  be  paid  over  to  the  county 
treasurer  thereof,  the  sums  fixed  by  the  comptroller  to  be  raised  by  such 
board  of  supervisors  and  such  county  treasurer  shall  pay  such  sum  to  the 
comptroller  of  the  state  for  the  payment  of  said  salaries.” 

Expenses.  Judiciary  Law,  section  314,  as  amended  by  L.  1910,  ch  180,  pro 
vides  that:  “ Each  of  the  stenographers  specified  in  the  last  section  is  also 

entitled  to  payment  of  his  actual  and  necessary  expenses,  while  attending  court, 
including  stationery,  and  ten  cents  for  each  mile  for  his  actual  travel,  between 
the  place  of  holding  each  term  and  his  residence,  going  and  returning,  or  from 
term  to  term,  as  the  case  may  be.  The  amount  thereof  must  be  paid  upon  the 
certificate  of  the  judge  holding  or  presiding  at  the  term  by  the  treasurer  of  the 
county  where  the  term  is  held,  from  the  court  fund,  or  the  fund  from  which 
jurors  are  paid.  But  mileage  shall  not  be  computed  beyond  the  bounds  of  the 
judicial  district,  except  where  the  usual  line  of  travel,  from  one  point  to  another 
within  that  district,  passes  partly  through  another  judicial  district. 

Judiciary  Law,  section  164  provides  that:  “ The  amount  to  which  the 

stenographers  of  the  supreme  court  are  entitled  for  expenses,  as  prescribed 
in  section  three  hundred  and  fourteen  of  this  chapter,  must  he  certified  by 
the  judge  holding  or  presiding  at  the  term.” 

Levy  for  county  charges  must  be  made  by  the  board  of  supervisors.  Chemung 
Canal  Bank  v.  Supervisors  of  Chemung,  5 Den.  517;  People  ex  rel.  Downing 
v.  Stout,  23  Barb.  338. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


51 


Explanatory  note. 


CHAPTER  IV. 

GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS;  PUBLICATION  OF 
SESSION  LAWS  ; REMOVAL  OF  COUNTY  BUILDINGS  ; OTHER 
POWERS. 

EXPLANATORY  NOTE. 

General  Powers  of  Board. 

Generally  speaking  boards  of  supervisors  only  have  the  powers  con* 
f erred  by  the  statute.  Their  powers  are  limited  to  those  so  conferred. 
If  they  act  beyond  statutory  limitation  their  acts  are  void,  the  same 
as  where  the  legislature  exceeds  the  powers  conferred  by  the  consti- 
tution. There  will  be  cases  where  the  acts  of  boards  do  not  come 
within  the  expressed  language  of  a statute,  but  will  nevertheless  be 
sustained  because  within  the  implied  powers  conferred  by  such  statute. 
In  other  words,  as  expressed  by  the  court  of  appeals  in  the  case  of 
People  ex  rel.  Wakely  v.  McIntyre,  154  N.  Y.  628,  49  NT.  E.  70, 
boards  of  supervisors,  in  the  exercise  of  the  legislative  powers  con- 
ferred upon  them  by  the  constitution,  are  not  confined  in  their  action 
to  the  bare  letter  of  the  statute,  but  may  in  the  exercise  of  a sound  dis- 
cretion, act  under  powers  that  are  to  be  fairly  implied.  However  this 
may  be,  some  statute  must  be  found  either  expressly  or  impliedly 
authorizing  the  act  sought  to  be  accomplished. 

It  will  be  noticed  that  many  of  the  powers  conferred  upon  boards 
of  supervisors  are  specified  and  declared  in  § 12  of  the  County  Law. 
Of  course,  this  section  is  not  inclusive  of  all  powers  to  be  exercised 
by  such  boards.  References  are  made  in  many  statutes,  pertaining 
to  many  subjects,  giving  boards  certain  powers  and  duties.  Many  of 
these  statutes  are  contained  in  this  chapter,  but  many  more  of  them 
will  be  found  in  chapters  covering  the  subjects  to  which  they  relate. 
It  will  not  he  necessary  in  this  preliminary  note  to  explain  the  general 
powers  conferred  by  § 12  of  the  County  Law.  The  section  itself 
must  be  considered,  together  with  the  cases  construing  the  provisions 
of  that  section.  It  may  be  appropriately  suggested  that  this  section 
is  the  most  comprehensive  of  those  laws  conferring  powers  upon  boards  of 
supervisors,  and  it  will  be  found  necessary  to  constantly  refer  to  it. 


DIVERSITY  OF  ILLlNOtf 
library. 


52 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


Explanatory  note. 

Designation  of  Newspapers. 

One  of  the  duties  of  a board  of  supervisors,  fruitful  of  much  con- 
troversy and  litigation,  is  the  designation  of  newspapers  for  the  publi- 
cation of  session  laws  and  concurrent  resolutions.  All  general  laws, 
and  all  local  laws  affecting  the  county,  are  to  be  published  in  the 
newspapers  designated.  Two  newspapers  are  to  be  designated,  one  by 
the  members  of  the  board  representing  the  majority  party,  and  one  by 
the  members  representing  the  minority  party.  It  is  not  the  politics 
of  the  member  which  controls  his  right  to  vote  for  the  newspaper.  If 
he  was  elected  on  a prohibitionist  or  independent  ticket  he  cannot  vote 
on  this  question  with  the  republicans  because  he  believes  in  the  prin- 
ciples of,  and  is  affiliated  with,  the  republican  party.  It  is  the  party 
which  he  represents  and  by  which  he  was  elected  which  determines  his 
right  to  vote  for  the  designation  of  a newspaper  for  the  publication  of 
session  laws. 

The  paper  designated  must  be  recognized  throughout  the  county 
as  representing  the  party  for  which  it  is  designated.  A paper  which 
has  not  fairly  and  for  a number  of  elections  advocated  the  election 
of  the  ticket  nominated  by  either  one  or  the  other  of  the  parties  is 
not  entitled  to  designation.  If  there  is  only  one  party  represented 
in  the  board,  the  paper  last  designated  by  the  other  party,  is  to  con- 
tinue to  publish. 


Section  1.  General  powers  of  boards  of  supervisors. 

2.  Legalization  of  informal  acts  of  town  meeting  or  village  election. 

3.  Session  laws,  designation  of  newspapers  for  publication  of. 

4.  Publication  of  session  laws  and  concurrent  resolutions;  expense 

of  publication. 

5.  Session  law  slips  to  be  forwarded  by  county  clerks  to  clerks  of 

towns,  villages  and  cities. 

6.  Newspapers  designated  to  publish  election  notices  and  official 

notices. 

7.  County  buildings,  location  of  may  be  changed;  petition  for  change 

beyond  boundaries  of  village  or  city. 

8.  Action  of  board  upon  presentation  of  petition  for  change  of  loca- 

tion. 

9.  Submission  of  question  of  removal  of  county  buildings  to  vote 

of  people. 

10.  After  destruction  of  poor-house,  petition  for  change  of  site. 

11.  Board  may  establish  fire  district  outside  of  an  incorporated  vil- 

lage; fire  commissioners;  levy  of  taxes  for  fire  protection. 

12.  Effect  of  incorporator  of  village  within  limits  of  fire  district. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


53 


County  Law,  § 12. 

13.  Soldiers’  monument,  board  of  supervisors  may  appropriate  moneys 

for  the  erection  of. 

14.  Temporary  loans ; issue  of  obligations  therefor. 

15.  Establishment  of  county  laboratories. 

16.  County  attorney. 

§ 1,  GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 

The  board  of  supervisors  shall  i1 

1.  County  property.  Have  the  care  and  custody  of  the  corporate 
property  of  the-  county.2 

1.  General  powers  of  board.  The  constitution  (art.  Ill,  sec.  27),  empowers  the 
legislature  by  general  laws  to  confer  upon  boards  of  supervisors  of  the  counties 
such  further  powers  of  local  legislation  and  administration  as  it  may  from  time 
to  time  deem  expedient.  Such  boards  are  legislative  bodies,  in  many  respects  of 
limited  powers;  but  where  they  have  jurisdiction,  they  may  act  for  the  county 
precisely  as  the  legislature  may  act  for  the  state.  If  they  act  without  juris- 
diction their  acts  are  void,  the  same  as  is  the  action  of  the  legislature  when  in 
violation  of  any  provision  of  the  constitution.  People  ex  rel.  Hotchkiss  v.  Super- 
visors of  Broome  Co.,  65  N.  Y.  222. 

The  board  of  supervisors  of  a county  is  vested  with  such  powers  of  local  legis- 
lation and  administration  as  are  conferred  upon  it  by  the  legislature.  Its  power 
is  co-extensive  with  the  power  expressly  granted  to  it  or  which  is  necessarily  or 
reasonably  implied  from  the  powers  so  expressly  conferred.  Wadsworth  v.  Super- 
visors of  Livingston  (1916),  217  N.  Y.  484,  112  N.  E.  161. 

The  acts  of  a board  of  supervisors  within  their  statutory  powers  are  legis- 
lative and  not  judicial,  and  they  cannot  be  reviewed  by  certiorari.  People  ex 
rel.  O’Connor  v.  Supervisors  of  Queens  County,  153  N.  Y.  370;  43  N.  E.  790; 
People  ex  rel.  Village  of  Jamaica  v.  Supervisors  of  Queens,  131  N.  Y.  468;  30 
N.  E.  488. 

Boards  of  supervisors,  in  the  exercise  of  the  legislative  powers  conferred  upon 
them  by  the  constitution,  are  not  confined  in  their  action  to  the  bare  letter 
of  the  statute  enacted  to  carry  out  the  constitutional  provisions,  but  may,  in 
the  exercise  of  a sound  discretion,  act  under  powers  that  are  to  be  fairly 
implied.  Within  the  limits  of  the  powers  constitutionally  delegated  by  the 
legislature,  each  board  is  clothed  with  the  sovereignty  of  the  state,  and  is 
authorized  to  legislate  as  to  all  details  precisely  as  the  legislature  might  have 
done  in  the  premises.  Woods  v.  Supervisors,  136  N.  Y.  403;  People  ex  rel., 
Wakely  v.  McIntyre,  154  N.  Y.  628,  49  N.  E.  70.  In  this  case  Bartlett,  J.,  said: 
“ The  evident  intent  of  the  framers  of  the  constitution  in  permitting  the  legis- 
lature to  delegate  certain  of  its  powers  to  the  local  boards  was  to  carry  out  a 
public  policy  which  assumes  that  the  interests  of  a particular  locality  are 
best  subserved  by  those  who  are  familiar  with  its  affairs.  It  would  be  quite 
impossible  for  a board  of  supervisors  to  properly  legislate  in  regard  to  local 
affairs,  if  it  were  not  at  liberty  to  resort  to  those  implied  powers,  within  the 
limits  of  its  jurisdiction,  vested  in  the  legislature  of  the  state.”  But,  as  was 
remarked  by  Parker,  Ch.  J.,  in  the  case  of  Weston  v.  City  of  Syracuse,  158  N.  Y. 
274,  287,  while  it  is  true  that  a board  of  supervisors  is  clothed  with  the 
sovereignty  of  the  state  to  legislate  as  to  all  details,  within  the  limits  of  its 
delegated  powers,  “ there  are  many  duties  devolved  upon  boards  of  supervisors 
by  the  legislature  which  are  not  legislative  in  character,  but  are  administrative, 
and  in  some  cases  quasi  judicial  in  nature,  and  not  at  all  impressed  with  the 
character  of  sovereignty.” 

2.  County  property.  As  to  change  in  the  location  of  county  buildings,  see 
County  Law,  sec.  31,  post,  p.  69.  Records  of  conveyances  in  the  office  of  the 
county  clerk  are  not  county  property,  and  even  if  so  regarded,  the  board  is 


Ox 


COUNTIES;  BOARDS  OF  SUPERVISORS 


County  Law,  § 12. 

2.  Audit.  Audit  all  accounts  and  charges  against  the  county,  and  direct 
annually  the  raising  of  sums  necessary  to  defray  them  in  full.* * 3 

3.  Town  charges.  Annually  direct  the  raising  of  such  sums  in  each  town  as 
shall  be  necessary  to  pay  its  town  charges.4 

4.  Taxes.  Cause  to  be  assessed,  levied  and  collected,  such  other  assessments 
and  taxes  as  shall  be  required  of  them  by  any  law  of  the  state.5 

Have  power  to  fix  the  amount  and  the  time  or  manner  of  payment  of  the 
salary  or  compensation  of  any  county  officer  or  employee,  except  a judicial  officer  or 
an  officer  or  employee  of  a county  tuberculosis  hospital  and  the  term  of  office  and 
mode  of  appointment,  number  and  grade  of  any  appointive  county  officer  and 
of  the  clerks,  assistants  or  employees  in  any  county  office,  except  an  officer  or 
employee  of  a county  tuberculosis  hospital,  notwithstanding  the  provisions  of 
any  general  or  special  law  fixing  the  amount  of  such  salary  or  compensation 
or  the  time  or  manner  of  payment  thereof,  or  fixing  the  term  of  office  or  pro- 
viding for  the  mode  of  appointment,  number  or  grade  of  any  such  county  officer 
or  of  the  clerk,  assistants  or  employees  in  any  county  office,  or  vesting  in  any 
other  board,  body,  commission  or  officer  authority  to  fix  such  term  of  office, 
or  the  amount  of  such  salary  or  compensation  or  the  time  or  manner  of  pay- 
ment thereof  or  to  provide  for  the  mode  of  appointment,  number  or  grade  of 
such  officers  or  of  the  clerks,  assistants  or  employees  in  any  county  office;  and 
the  power  hereby  vested  in  the  board  of  supervisors  shall  be  exclusive  of  any 
other  board,  body,  commission  or  officer,  except  the  authorities  of  a county 
tuberculosis  hospital,  notwithstanding  any  general  or  special  law.  The  salary 

hot  authorized  by  the  above  subdivision  to  purchase  new  indexes  for  such  con- 
veyances, as  such  subdivision  does  not  apply  to  the  acquisition  of  new  property. 
People  ex  rel.  Welch  v.  Nash,  3 Hun,  535;  affd.  62  N.  Y.  484.  But  in  the  case  of 
Schenck  v.  Mayor,  etc.,  of  New  York,  67  N.  Y.  44,  it  was  held  that  a board  of 
supervisors  has  power  to  purchase,  by  virtue  of  its  general  and  incidental 
powers,  supplies  to  equip  the  county  jail. 

A county  owning  a farm  is  subject  to  the  same  care  in  its  management  as  is 
imposed  on  other  owners  of  real  estate,  and  hence  is  liable  for  nuisance  thereon. 
Lefrois  v.  County  of  Monroe,  24  App.  Div.  421,  426,  48  N.  Y.  S'upp.  519. 

Board  cannot  lease  premises  for  an  armory  except  in  compliance  with  state 
military  code.  Boiler  v.  New  York,  40  Super.  Ct.  523. 

8.  Audit  of  claims  against  the  county,  see  preceding  chapter. 

4.  Town  charges,  what  are.  See  Town  Law,  § 170  post.  Audit  of  claims 
against  the  town,  by  the  town  board,  see  Town  Law,  sec.  133,  post,  and  notes 
thereunder.  Appeal  from  audit  by  town  board  of  fees  in  criminal  proceedings 
to  board  of  supervisors,  see  Town  Law,  sec.  177,  post;  and  as  to  fees  of  officers 
in  criminal  proceedings,  see  Town  Law,  secs.  107,  171,  post.  Accounts  against 
towns  to  be  itimized  and  verified,  see  Town  Law,  sec.  175,  post.  Abstracts  to  be 
made  by  town  auditors  of  accounts  audited  against  a town,  and  presented  to 
board  of  supervisors.  See  Town  Law,  sec.  155,  post.  The  supervisors  are  re- 
quired to  cause  the  amounts  specified  in  the  certificates  of  the  auditors  to  be 
levied  upon  the  towns,  and  they  cannot  review  or  reverse  the  action  of  the 
auditors.  Osterhoudt  v.  Rigney,  98  N.  Y.  222,  234. 

Duty  to  levy.  Supervisors  are  required  to  cause  the  amounts  specified  in  the 
certificates  of  the  town  auditors  to  be  levied  upon  the  town,  and  they  cannot 
reverse  or  review  the  action  of  the  auditors.  Osterhoudt  v.  Rigney,  98  N.  Y.  222, 
234.  When  towns  are  divided,  board  cannot  be  compelled  to  levy  until  debts 
are  apportioned.  People  ex  rel.  McKenzie  v.  Supervisors,  30  Hun,  148. 

Judgments  against  towns.  Board  cannot  be  compelled  by  mandamus  to  levy 
the  amount  of  a judgment  against  a highway  commissioner  upon  the  property 
of  the  town.  People  ex  rel.  Everett  v.  Supervisors,  93  N.  Y.  397,  affg.  29  Hun, 
185.  It  is  the  duty  of  the  board  of  supervisors  to  provide  for  the  payment  of 
judgments  against  the  town  and  mandamus  will  lie  upon  their  neglect  to  do  so. 
People  ex  rel.  Crouse  v.  Supervisors,  70  Hun,  560,  564,  24  N.  Y.  Supp.  397. 

o.  Purpose  of  tax.  The  legislature  may  delegate  to  a county  board  of  super- 
visors the  power  to  erect  a bridge  and  to  assess  a tax  on  particular  towns  for 
the  payment  thereof.  Town  of  Kirkwood  v.  Newbury,  122  N.  Y.  571,  affg.  45 
Hun,  323.  As  to  building  and  maintenance  of  bridges,  see  Huggans  v.  Riley,  125 
N.  Y.  88. 

A county  is  not  bound  to  levy  a tax  for  the  default  of  a county  treasurer, 
until  all  remedy  against  him  personally  has  been  exhausted.  Nat.  Bank  of 
Ballston  Spa  v.  Supervisors,  106  N.  Y.  488. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


55 


County  Law,  § 12. 

or  compensation  of  an  officer  or  employee  elected  or  appointed  for  a definite  term 
shall  not  be  increased  or  diminished  during  such  term.6  [Subd.  amended  by 
L.  1911,  ch,  359,  L.  1913,  eh.  742,  and  L.  1914,  ch.  358.] 

5-a.  Fix  the  amount  of  the  undertakings  required  by  law  to  be  executed  by 
the  clerk,  district  attorney  and  the  superintendent  of  the  poor  of  the  county. 
[Subd.  added  by  L.  1914,  ch.  63.] 

6.  May  borrow  money.  Borrow  money  when  they  deem  it  necessary,  for 
the  erection  or  alteration  of  county  buildings,  and  for  the  purchase  of  sites  there- 

6.  Compensation  of  officers.  The  constitution  (Art.  Ill,  sec.  28),  provides 
that  a board  of  supervisors  shall  not  “ grant  any  extra  compensation  to  any 
public  officer,  servant,  agent  or  contractor.”  In  the  case  of  People  ex  rel. 
Masterson  v.  Gallup,  65  How.  Pr.  108;  12  Abb.  N.  C.  65,  it  was  held  that  a resolu- 
tion of  the  supervisors  of  Albany  county  giving  a clerk  to  the  coroners  of  such 
county  did  not  violate  this  constitutional  provision.  But  the  Court  of  Appeals 
held  in  this  case  on  appeal  that  the  board  was  not  authorized  by  the  above 
subdivision  of  this  section  of  the  County  Law  to  appoint  such  clerk,  since  such 
subdivision  applies  only  to  those  officers  which  by  pre-existing  law  were  en- 
titled to  a clerk.  See  96  N.  Y.  628;  affg.  30  Hun,  501,  but  reversing  the  case 
above  cited. 

When  a district  attorney  is  assigned  a fixed  salary,  it  is  in  lieu  of  all  other 
compensation,  and  he  is  not  entitled  to  more  on  account  of  a new  duty  imposed 
upon  him.  People  v.  Supervisors,  1 Hill,  362.  A board  of  supervisors  may  not 
increase  the  compensation  of  its  members  for  services  performed  by  them. 
Report  of  Attorney-General  (1912),  Vol.  2,  p.  584. 

The  county  treasurer  is  himself  entitled  to  the  fees  allowed  by  law  for  re- 
ceiving and  paying  state  taxes  to  the  state  comptroller,  and  the  board  has  no 
power  whatever  over  those  fees.  Supervisors  of  Monroe  v.  Otis,  62  N.  Y.  88. 
Unless  otherwise  expressly  provided  by  law  the  fees  of  a county  treasurer  on 
account  of  state  taxes  belong  to  him.  Supervisors  of  Seneca  v.  Allen,  99  N.  Y. 
532.  See,  also,  People  ex  rel.  Lawrence  v.  Supervisors,  73  N.  Y.  173. 

It  was  intended  by  the  revision  of  the  statutes  in  the  County  Law  that  the 
county  treasurers  in  those  counties  where,  at  the  time  of  the  enactment  of  such 
law,  such  treasurers  were  salaried  officers,  that  they  should  be  retained  as  such, 
and  that  the  salary  and  compensation  which  the  board  of  supervisors  had  fixed 
for  them  should  be  in  full  of  all  compensation  allowed  them  for  every  official 
duty  pertaining  to  their  office,  including  their  services  for  the  collection  and 
paying  over  of  state,  school  and  court  moneys.  People  ex  rel.  Conine  v.  Steuben 
Co.,  183  N.  Y.  114. 

A county  treasurer  whose  salary  and  compensation  has,  pursuant  to  the 
provisions  of  this  section,  been  fixed  by  the  board  of  supervisors  “ at  the  sum 
of  $1,500,  and,  in  addition  all  fees  allowed  by  law  ” is  not  entitled  to  retain  the 
fees  and  commissions  for  collecting  and  paying  out  bank  taxes  and  court  and 
trust  funds,  as  provided  by  section  24  of  the  Tax  Law  and  section  3321  of  the 
Code  respectively,  or  for  preparing  conveyances  of  property  sold  for  taxes,  as 
provided  by  section  154  of  the  Tax  Law,  but  must  account  therefor.  Report  of 
Attorney-General  (1912),  Vol.  2,  p.  258. 

An  additional  allowance  for  clerk  hire  during  the  term  of  any  county  treas- 
urer necessarily  increases  his  compensation  and  is  unauthorized.  Report  of 
Attorney-General,  March  7,  1912. 

Court  attendants. — Where  a board  of  supervisors  passed  resolutions  empowering 
the  sheriff  to  appoint  “ three  court  officers  ” and  authorizing  the  superintendent  of 
the  court  house  and  annex  to  appoint  “ ten  laborers  ” at  three  dollars  per  day, 
thereby  providing  an  equivalent  of  thirteen  court  attendants  which  the  sheriff  of 
said  county  was  entitled  to  appoint  under  Laws  of  1910,  chapter  243,  it  was 
proper  to  recognize  only  the  court  attendants  selected  by  the  sheriff,  because  the 
amendments  to  the  County  Law  did  not  divest  the  sheriff  of  his  power  of  appoint- 
ment. Halligan  v.  Runkle  (1916),  174  App.  Div.  497,  160  N.  Y.  Supp.  42. 

County  superintendent  of  highways. — A board  of  supervisors  has  the  absolute 
and  exclusive  right  to  appoint  a county  superintendent  of  highways  and  to  fix 
his  salary  and  provide  for  the  payment  of  his  necessary  expenses,  although  said 
salary  at  the  time  of  the  appointment  exceeds  the  salary  stated  in  the  notice  pub- 
lished by  the  commission  for  the  competitive  examination  of  candidates.  Mac- 
Donald v.  Ordway  (1916),  219  N.  Y.  328,  revg.  174  App.  Div.  518. 

Superintendent  of  poor. — Personal  expenses  of  a superintendent  of  the  poor  are 


56  COUNTIES;  BOARDS  OF  SUPERVISORS. 

County  Law,  § 12. 

for,  on  the  credit  of  the  county,  and  for  the  funding  of  any  debt  of  the  county  not 
represented  by  bonds,  and  issue  county  obligations  therefor,  and  for  other  lawful 
county  uses  and  purposes; 7 and  authorize  a town  in  their  county  to  borrow  money 
for  town  uses  and  purposes  on  its  credit,  and  issue  its  obligations  therefor,  when 
and  in  the  manner,  authorized  by  law. 8 [Subd.  amended  by  L.  1915,  ch.  106.] 

7.  Animals  and  weeds , destruction  of.  Make  such  laws  and  regulations  as  they 
may  deem  necessary  for  the  destruction  of  wild  and  noxious  animals  and  weeds 
within  the  county.* * * * * * 7 8 9 

8.  Fish  and  game.  Provide  for  the  protection  and  preservation,  sub- 
ject to  the  laws  of  the  state,  of  wild  animals,  birds  and  game,  and  fish 

not  a county  charge  unless  the  board  of  supervisors  has  expressly  so  provided  in 

fixing  his  salary  or  compensation.  Matter  of  Strong  v.  Williams  (1915),  167  App. 
Div.  714,  153  N.  Y.  Supp.  175. 

Clerks  and  deputies.  Board  can  only  fix  the  number,  grades  and  pay  of  clerks 

in  county  offices  required  by  statute  to  have  such  clerks  and  deputies.  People 
ex  rel.  Masterson  v.  Gallup,  96  N.  Y.  628.  And  see  People  ex  rel.  Bacon  v.  Super- 
visors of  Kings  Co.,  105  N.  Y.  180,  affg.  33  Hun  373. 

Amendment  of  ign  authorizes  boards  of  supervisors  to  prescribe  or  fix  the  mode 
or  manner  in  which  those  authorized  by  law  to  appoint  clerks,  assistants  and 
employees  in  county  offices  should  exercise  the  power  and  does  not  confer  upon 
boards  of  supervisors  the  power  themselves  to  make  such  appointments.  Sheldon 
v.  MacArthur,  73  Misc.  575;  133  N.  Y.  Supp.  194,  affd.  148  App.  Div.  908. 

Employment  of  attorney.  A board  of  supervisors  may  employ  an  attorney  and 
counsel  as  the  necessity  arises,  but  it  cannot  appoint  an  attorney  to  act  for  a 
term  of  one  year  at  a yearly  salary  payable  in  quarterly  installments,  and  thus 
prevent  their  successors  from  exercising  the  right  to  change  counsel.  Vincent  v. 
County  of  Nassau,  45  Misc.  247,  92  N.  Y.  Supp.  32.  But  see  County  Law,  § 210, 
post,  p.  81,  as  to  employment  of  county  attorney. 

7.  County  bonds.  As  to  limitations  of  indebtedness  of  county,  and  resolutions 
authorizing  the  issue  of  obligations,  see  County  Law,  secs  13,  14,  post.  As  to  mu- 
nicipal bonds  generally,  see  General  Municipal  Law,  secs  3,  5,  12,  post. 

Highway  and  bridge  bonds.  Boards  of  supervisors  to  authorize  issue  of  bonds  by 
towns  for  highways  and  bridges,  Highway  Law,  § 97,  post.  County  or  town  may 
borrow  money  to  pay  for  county’s  and  town’s  share  of  cost  of  construction  of  county 
highway.  Highway  Law,  § 142,  post. 

Funded  debt  includes  all  county  indebtedness  embraced  within  or  evidenced  by  a 
bond,  the  principal  of  which  is  payable  at  a time  beyond  the  current  fiscal  year 
of  its  issue,  with  periodical  terms  for  the  payment  of  interest,  and  where  provision 
is  made  for  payment  by  the  raising  of  necessary  funds  by  future  taxation  and  the 
quasi  pledging,  in  advance,  of  the  county  revenue.  People  ex  rel.  Peene  v.  Carpenter, 
31  App.  Div.  603,  52  N.  Y.  Supp.  781. 

8.  Town  bonds.  This  subdivision  vests  generally  in  the  board  of  supervisors  the 
power  to  authorize  a town  to  issue  its  bonds  for  the  raising  of  money  for  a town 
purpose.  If  bonds  are  to  be  issued  for  the  construction,  repair  or  discontinuance  of 
a highway,  for  the  repair  or  rebuilding  of  a highway  or  bridge  destroyed  by  the 
elements  or  otherwise,  or  for  the  repair  or  rebuilding  of  a bridge  condemned  by  the 
State  highway  commission,  or  for  the  purchase  of  road  machinery,  application 
should  be  made  as  provided  in  section  97  of  the  Highway  Law,  as  amended  by  L. 
1914,  ch.  202,  and  L.  1915,  ch.  322.  See  also  Highway  Law,  § 97a,  as  added  by  L. 
1917,  ch.  565. 

The  above  subdivision  is  sufficiently  broad  to  empower  the  board  to  authorize  a 
town  to  raise,  by  the  issue  of  bonds,  funds  necessary- to  acquire  lands  adjacent  to  a 
town  hall.  Jamaica  Sav.  Bank  v.  City  of  New  York,  61  App.  Div.  464,  70  N.  Y. 
Supp.  967. 

As  to  power  of  board  to  authorize  a town  to  bond  itself  for  the  erection  of  a 
bridge,  see  Barker  v.  Town  of  Oswegatchie,  41  N.  Y.  St.  Rep.  821,  16  N.  Y.  Supp.  727. 

Action  of  board  legislative.  The  action  of  the  board  in  directing  issue  of  bonds 
for  the  improvement  of  a highway  is  purely  legislative,  and  cannot  be  reviewed  on 
certiorari.  People  ex  rel.  Trustees  of  Jamaica  v.  Supervisors,  131  N.  Y.  468  (1892). 

As  to  resolution  authorizing  issuance  of  bonds  by  a town,  see  County  Law,  § 14, 
post. 

9.  Noxious  weeds.  Town  meetings  may  also  provide  for  the  destruction  of  noxious 
weeds.  Town  Law,  § 43,  subd.  5,  post.  Removal  of  noxious  weeds  and  brush  within 
the  highways,  Highway  Law,  § 54,  as  amended  by  L.  1911,  ch.  151. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


57 


County  Law,  § 12. 

and  shell-fish,  within  the  county;  and  prescribe  and  enforce  the  collection 
of  penalties  for  the  violation  thereof.10 

9.  School  commissioner  districts.  Divide  any  school  commissioner’s 
district  within  the  county  which  contains  more  than  two  hundred  school 
districts,  and  erect  therefrom  an  additional  school  commissioner’s  district, 
and  when  such  district  shall  have  been  formed,  a school  commissioner  for 
the  district  shall  be  elected  in  the  manner  provided  by  law  for  the  election 
of  school  commissioners.* 11 

10.  Opening  and  closing  of  county  offices.  Fix  and  regulate  the  time 
of  opening  and  closing  the  county  offices  daily,  except  Sundays  and  holi- 
days, where  such  time  is  not  fixed  by  law.12 

11.  Contracts  with  penitentiaries.  Contract,  at  such  times  and  upon 
such  terms  as  the  board  may  by  resolution  determine,  with  the  authorities 
of  any  other  county  for  the  reception  into  the  penitentiary  of  such  county, 
and  the  custody  and  emplowment  at  hard  labor  therein,  of  any  person 
convicted  within  their  county  of  any  offense,  other  than  a felony,  and  sen- 
tenced to  imprisonment  in  a county  jail,  or  penitentiary,  for  a term  ex- 
ceeding sixty  days.13 


10*  Fish,  and  game.  The  Forest,  Fish  and  Game  Law  (now  Conservation 
Law),  has  regulated  the  taking  of  fish  and  game  within  the  several  counties  of 
the  state.  That  act  does  not  authorize  board's  of  supervisors  to  adopt  local  laws 
for  the  protection  and  preservation  of  fish  and  game.  The  legislature  having 
specially  legislated  on  this  subject,  the  board  of  supervisors  cannot  override  such 
legislation.  People  v.  Fish,  89  Hun,  163,  34  N.  Y.  Supp.  1013. 

The  boards  of  supervisors  of  Nassau  and  Suffolk  may  respectively  pass  laws 
regulating  and  controlling  the  taking  of  fish  and  shell-fish  in  arms  of  the  sea 
and  fish  bait  from  public  lands  of  such  counties,  and  prescribe  what  violations 
thereof  shall  be  punishable  as  misdemeanors  and  to  impose  penalties,  the  same 
to  be  enforced  under  the  provisions  of  article  three  of  this  act.  (Conservation 
Law,  § 334,  as  added  by  L.  1912,  ch.  318.) 

11.  School  commissioner  districts.  By  L.  1910,  chap.  607,  the  office  of 
school  commissioner  was  abolished  and  a district  superintendent  of  schools  sub- 
stituted therefor.  This  act  takes  effect  January  1,  1912.  The  board  of  super- 
visors must  divide  the  county  into  supervisory  districts  on  the  3rd  Tuesday 
of  April,  1911.  See  Education  Law,  § 381,  post. 

12.  Hours  of  closing  county  offices.  As  to  business  hours  in  office  of  county 
clerk,  see  County  Law,  sec.  165,  post,  p.  130;  in  office  of  sheriff,  see  County 
Law,,  sec.  184,  post,  p.  155. 

Holidays  and  half  holidays  shall  be  considered  as  Sunday  for  all  purposes 
relating  to  the  transaction  of  business  in  the  public  offices  of  the  state,  and 
of  each  county.  Public  Officers’  Law,  sec.  62. 

13.  Form  of  contract  with  a penitentiary  of  another  county,  see  Form 
No.  5,  post. 

Contracts.  Board  of  supervisors  cannot  contract  with  the  authorities  of  a 
penitentiary  for  the  support  of  felons.  Commissioners  of  Charities  v.  Super- 
visors, 64  Hun,  195,  18  N.  Y.  Supp.  883. 


58 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 12. 


12.  Actions  on  undertaking s.  Cause  an  action  to  be  brought  upon  the 
undertaking  of  any  county  officer,  whenever  a breach  thereof  shall 
occur.14 

13.  County  buildings;  acquisition  of  lands . Purchase,  lease  or  other- 
wise acquire,  for  the  use  of  the  county,  necessary  real  property  for  court 
houses,  jails,  alms-houses,  asylums  and  other  county  buildings,  and  for 
other  county  uses  and  purposes  ;15  and  erect,  alter,  repair,  construct,  any 
necessary  buildings  or  other  improvements  thereon  for  necessary  county 
use,  and  cause  to  be  levied,  collected  and  paid,  all  such  sums  of  money 
as  they  shall  deem  necessary  therefor ; to  select  such  name  as  they  may 
deem  proper  and  appropriate  for  the  alms-house  of  such  county  and 
thereafter  to  designate  such  alms-house  by  the  name  so  selected;  and 

Contracts  for  keeping  prisoners;  notice  to  be  published.  It  is  provided  by 
the  Prison  Law,  § 320,  as  follows: 

It  shall  be  lawful  for  the  several  boards  of  supervisors  in  the  several  counties 
of  this  state  to  enter  into  an  agreement  with  the  board  of  supervisors  of  any 
county  having  a penitentiary  therein,  or  with  any  person  in  their  behalf  by 
them  appointed  to  receive  and  keep  in  the  said  penitentiary  any  person  or 
persons  who  may  be  sentenced  to  confinement  therein  by  any  court  or  magis- 
trate, in  any  of  the  said  several  counties  in  this  state,  for  any  term  not  less  than 
sixty  days.  Whenever  such  agreement  shall  have  been  made,  it  shall  be  the  duty 
of  the  said  several  boards  of  supervisors  of  the  several  counties  aforesaid,  to  give 
public  notice  thereof,  specifying  in  such  notice  the  period  of  the  continuance 
of  such  agreement,  which  said  notice  shall  be  published  in  such  newspapers, 
printed  in  said  several  counties,  not  less  than  two,  and  for  such  period  of  time, 
not  less  than  four  weeks,  as  the  several  boards  of  supervisors  of  said  several 
counties  shall  direct. 

14.  Actions  on  undertakings.  The  word  “ undertaking  ” includes  an  official 
bond,  General  Construction  Law,  sec.  27.  As  to  the  force  and  effect  of  an 
official  undertaking  of  a county  officer,  see  County  Law,  sec.  247,  post. 
The  sureties  on  the  bond  of  a county  treasurer  are  not  exonerated  by  any 
neglect  or  malfeasance  of  the  supervisors  in  passing  upon  his  accounts.  The 
bond  is  not  conditioned  for,  and  the  law  does  not  guarantee  such  an  examina- 
tion. Supervisors  of  Monroe  v.  Otis,  62  N.  Y.  88.  The  condition  of  a treasurer’s 
bond  that  he  should  faithfully  discharge  his  duties,  involves  the  obligation  of 
making  correct  reports,  conforming  to  the  requirements  of  the  statute,  and  the 
failure  so  to  do  is  a breach  of  this  condition.  Supervisors  of  Tompkins  Co. 
V.  Bristol,  99  N.  Y.  316. 

15.  Acquisition  of  real  property.  A county,  if  unable  to  agree  with  the 
owners,  may  acquire  title  to  real  property  by  condemnation.  See  General 
Municipal  Law,  sec.  74,  post.  Proceedings  for  the  acquisition  of  real 
property  by  condemnation,  see  Condemnation  Law,  Code  Civ.  Proc.,  secs. 

3357-3382. 

The  board  of  supervisors  can  take  and  hold  a fee  in  lands  for  county  build- 
ings. And  a town  which  conveys  for  this  purpose,  for  a nominal  consideration, 
cannot,  on  a subsequent  removal  of  the  county  seat,  maintain  an  action  to 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


59 


County  Law,  § 12. 

sell,  lease  or  apply  to  other  county  use,  the  sites  and  buildings,  when  a 
site  is  changed ; to  sell,  and  for  a proper  consideration  to  convey,  all  of 
the  title  and  interest  of  the  county  in  and  to  any  land  or  property  owned 
by  the  county  but  not  in  actual  use  by  the  county ; and  if  sold,  apply  the 
proceeds  to  the  payment  for  new  sites,  buildings  and  improvements.16 
[Subd.  amended  by  L.  1917,  ch.  304.] 

14.  Jury  districts.  To  make  one  or  more  jury  districts  and  to  make 
such  regulations  in  respect  to  the  holding  of  the  terms  of  courts  as  shall 
be  necessary  by  reason  of  such  change. 

15.  Contracts  for  board  of  prisoners ,17  [Subd.  repealed  by  L.  1917, 
ch.  352.] 

16.  Tax  to  enforce  Game  Law . To  raise  by  tax  a sum  not  exceeding 
one  thousand  dollars  in  any  year,  except  in  the  county  of  Erie  and  in 
said  county  a sum  not  to  exceed  four  thousand  dollars  in  any  year  to 
aid  in  carrying  out  the  provisions  of  the  forest,  fish  and  game  law. 
[Subd.  amended  by  L.  1909,  ch.  477.] 

17.  Sheriff  salaried  office  in  Chautauqua  county.  The  board  of  super- 
visors of  Chautauqua  county  shall  have  power  to  determine  that  a sheriff 
thereafter  elected  in  such  county  shall  receive  a salary  instead  of  fees,  and 
may  fix  such  salary,  or  if  the  sheriff  of  such  county  shall  thereafter  be  made 
a salaried  office  to  determine  that  a sheriff  thereafter  elected  shall  receive 
the  fees  prescribed  by  law,  as  compensation  for  his  services,  instead  of 
his  salary.  In  case  the  office  of  sheriff  of  such  county  is  made  a salaried 
office,  in  pursuance  of  this  subdivision,  the  sheriff  shall  collect  all  fees 
and  perquisites  to  which  he  is  entitled,  in  pursuance  of  law,  except  such 
a&  are  payable  by  the  county,  and  shall  at  least  once  in  each  month  pay 


enjoin  a sale  of  the  lands.  Trustees  of  Havana  v.  Supervisors  of  Schuyler  Co., 
5 T.  & C.  703. 

16.  Erection  of  buildings.  As  to  removal  of  county  buildings,  see  County 
Law,  secs.  31-33,  post,  p.  69.  Under  the  power  conferred  upon  the  board  by 
the  above  subdivision  it  is  not  necessary  that  the  board  should  purchase  a site 
and  then  erect  a building  thereon.  If  the  county  owns  real  estate  with  an  appro- 
priate building  thereon,  it  may  appropriate  a part  of  such  building  to  be  used 
as  a jail.  Roach  v.  O’Dell,  33  Hun,  320,  affd.,  99  N.  Y.  635. 

The  supervisors  of  the  county  of  Steuben  have  authority  under  this  sub- 
division to  erect  a courthouse  in  the  city  of  Hornellville  and  to  appropriate 
money  therefor.  Special  action  by  the  supervisors  does  not  change  the  county 
seat  from  its  present  location  in  Bath.  Lyon  v.  Board  of  Supervisors,  115  App. 
Div.  193,  100  N.  Y.  Supp.  676. 

Power  to  borrow  money.  Board  is  given  power  to  borrow  money  for  erec- 
tion of  county  buildings  and  purchase  of  sites,  and  issue  of  obligations  therefor. 
Ghiglione  v.  Marsh,  23  App.  Div.  61,  48  N.  Y.  Supp.  604. 

17.  Existing  contracts  with  sheriffs  in  office  on  May  3,  1917,  providing  for  board 
of  prisoners  not  affected  by  repeal;  see  L.  1917,  ch.  352,  § 4. 


60 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 12. 

the  same  to  the  county  treasurer,  and  such  fees  and  perquisites  shall 
become  part  of  the  general  fund  of  the  county.18 

18.  Other  powers  and  duties  of  boards  of  supervisors. 

1.  Towns  and  town  meetings.  As  to  the  erection  of  new  towns  and  the  alter* 
ation  of  boundaries  of  towns  by  the  board  of  supervisors,  see  County  Law,  sec. 
35,  post.  ( For  the  pages  of  this  Manual  where  sections  of  laws  may  he  found , 
see  Schedule  of  Laws , following  table  of  contents.) 

The  board  of  supervisors  may  by  resolution  fix  a time  for  holding  biennial 
town  meetings,  see  Town  Law,  sec.  40,  post. 

2.  Registration  of  dogs;  taxation.  The  board  of  supervisors  may  fix  and 
impose  a tax  on  dogs,  see  County  Law,  sec.  110,  post. 

The  board  of  supervisors  may  regulate  the  registration  of  dogs  within  the 
county,  see  County  Law,  secs.  128-136,  post. 

•3.  Taxation.  As  to  the  duties  of  the  board  of  supervisors  in  relation  to  the 
assessment  of  bank  shares,  see  Tax  Law,  sec.  24,  post. 

The  board  of  supervisors  must  add  to  the  tax  on  a tract  of  land  belonging  to 
a non-resident  the  expense  of  making  a survey  of  such  tract  as  authorized 
by  Tax  Law,  sec.  31,  post. 

As  to  the  equalization  of  assessments  by  boards  of  supervisors,  see  Tax  Law, 
sec.  50,  post,  and  as  to  the  appointment  of  commissioners  of  equalization  by  the 
boards  of  supervisors,  see  Tax  Law,  §§  51-53,  post. 

As  to  the  duties  of  the  board  in  relation  to  the  assessment  of  non-resident 
real  property,  see  Tax  Law,  secs.  54,  55,  post. 

As  to  the  correction  of  errors  in  assessment-rolls  by  boards  of  supervisors, 
and  the  reassessment  of  property  illegally  assessed,  see  Tax  Law,  secs.  56,  57, 
post,  and  the  County  Law,  sec.  16,  post. 

As  to  the  levy  of  taxes  by  the  board  of  supervisors,  see  Tax  Law,  sec.  58, 
post. 

As  to  appeals  from  the  equalization  of  boards  of  supervisors  by  a town, 
to  the  state  board  of  tax  commissioners,  see  Tax  Law,  secs.  175-178,  post. 

The  board  of  supervisors  is  required  to  annex  to  the  tax  roll  of  each  town 
a warrant  under  the  seal  of  the  county,  signed  by  the  chairman  and  clerk  of  the 
board,  commanding  the  collector  to  collect  from  the  several  persons  named 
in  such  roll  the  several  sums  mentioned  therein.  As  to  the  completion  of  such 
warrant,  see  Tax  Law,  sec.  59,  post. 

4.  Relief  of  poor.  The  board  of  supervisors  may  determine  the  number  of 
county  superintendents  of  the  poor  and  may  oppoint  superintendents  when  a 
vacancy  shall  occur  in  the  office,  see  County  Law,  sec.  220.  The  board  of  super-  . 
visors  may  appoint  one  of  the  superintendents  of  the  poor  to  act  as  keeper  of 
the  alms-house,  see  Poor  Law,  sec.  4,  post. 

The  board  must  cause  money  to  be  raised  for  the  support  of  the  poor,  see 
Poor  Law,  sec.  11,  post. 

The  board  may  make  rules  and  regulations  respecting  the  temporary  relief 
of  the  Poor,  see  Poor  Law,  sec.  13,  post. 

The  board  shall  cause  the  amount  estimated  by  overseers  of  the  poor  and 
appropriated  by  the  town  board  to  be  raised  in  each  town,  see  Poor  Law,  sec. 
27,  post. 

The  board  shall  charge  to  the  town  liable  for  the  support  of  poor  persons, 
the  expenses  of  such  support,  when  the  overseer  of  the  proper  town  fails  to 
remove  such  person,  see  Poor  Law,  sec.  45,  post. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


61 


County  Law,  § 12. 

18.  The  board  of  supervisors  of  each  county  may  raise  by  tax  on  real 


The  board  may  abolish  the  distinction  between  town  and  county  poor,  see 
Poor  Law,  sec.  138,  post. 

The  board  shall  provide  for  the  proper  burial  of  indigent  soldiers,  sailors 
and  marines,  Poor  Law,  sec.  84,  post ; and  shall  provide  proper  head  stones 
for  the  graves  of  such  soldiers,  sailors  and  marines,  Poor  Law,  sec.  85,  post. 

The  board  shall  audit  the  accounts  of  the  Syracuse  State  Institution  for 
Feble-Minded  Children  for  support  of  children  sent  thereto,  see  State  Charities 
Law,  sec.  70,  post;  and  also  accounts  for  the  support  of  epileptics  at  Craig 
Colony,  see  State  Charities  Law,  sec.  109,  post. 

5.  Highways  and  bridges.  As  to  the  duties  of  boards  of  supervisors  in  respect 
to  highways  and  bridges  generally,  see  chapter  LXVII,  post. 

For  duties  of  the  board  of  supervisors  as  to  the  construction  of  state  and  county 
highways,  see  Highway  Law,  secs.  123-128,  131,  134-142,  148-155,  post.  As  to  state- 
ment of  clerk  of  board  of  supervisors  to  state  comptroller  and  commission  as  to 
amount  of  highway  taxes  levied  upon  towns,  see  Highway  Law,  sec.  100,  post. 

As  to  appointment  of  county  superintendent,  see  Highway  Law,  sec.  30,  post. 

As  to  duties  of  board  of  supervisors  in  respect  to  levy  of  taxes  upon  towns  for 
highway  and  bridge  purposes,  see  Highway  Law,  secs.  90-96,  post.  As  to  duties 
of  board  of  supervisors  in  respect  to  the  construction  and  maintenance  of  certain 
bridges,  see  County  Law,  sec.  63,  post;  and  as  to  duties  of  the  board  in  relation  to 
bridges  over  boundary  lines  of  towns,  see  Highway  Law,  secs.  250-262,  post. 

Application  must  be  made  to  the  board  of  supervisors  by  turnpike  corporations 
for  laying  out  the  highway  of  such  corporation,  and  the  board  is  required  to  appoint 
commissioners  for  such  purpose,  see  Transportation  Corporations  Law,  secs.  123, 
124,  post.  The  board  may  acquire  the  rights  and  franchises  of  turnpike  and  plank 
road  corporations,  see  Transportation  Corporations  Law,  § 139,  post , p.  795. 

6.  School  commissioners.  The  board  of  supervisors  may  increase  the  salaries  of 
school  commissioners  (now  district  superintendents  of  schools),  see  Education 
Law,  § 389,  post.  Office  of  school  commissioner  abolished  by  L.  1910,  ch.  607,  in 
effect  January  1,  1912. 

7.  County  Officers.  The  board  of  supervisors  may  appoint  a temporary  surro- 
gate, see  Code  Civ.  Proc.,  sec.  2492,  post.  The  board  may  create  the  office  of 
surrogate  in  counties  containing  a certain  population,  see  County  Law,  sec.  231, 
post.  Surrogates  are  required  to  report  to  the  board  of  supervisors,  see  Code  Civ. 
Proc.,  sec.  2501,  post,  p.  146. 

The  board  may  authorize  the  appointment  of  assistant  district  attorneys  in  certain 
counties,  see  County  Law,  sec.  202,  post. 

The  board  of  supervisors  may  appoint  a jail  physician  for  each  jail  in  the  county, 
see  Prison  Law,  § 348. 

The  board  of  supervisors  may  abolish  the  office  of  railroad  commissioners  in  the 
several  towns  in  the  county,  see  General  Municipal  Law,  sec.  16,  post. 

The  board  of  supervisors  may  fix  and  determine  the  salaries  of  coroners,  see 
County  Law,  sec.  191,  post. 

Coroners  are  required  to  render  to  the  board  of  supervisors  a statement  of  prop- 
erty found  on  the  person  of  the  deceased  before  the  accounts  of  such  coroners 
for  their  fees  and  compensation  can  be  audited,  see  Code  Crim.  Proc.,  sec.  788, 
post. 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


G2 

County  Law,  § 12. 

and  personal  property,  subject  to  taxation  in  such  county,  not  more 
than  five  thousand  dollars,  to  be  expended  in  the  repair  and  construction 
of  sidepaths  in  such  county.  The  county  treasurer  of  each  county  where 
such  sum  has  been  raised  shall  place  the  same  to  the  credit  of  the  sidepath 
fund,  provided  by  section  four,  chapter  one  hundred  and  fifty-two  of 
the  laws  of  eighteen  hundred  and  ninety-nine  as  amended  by  chapter  six 
hundred  and  forty  of  the  laws  of  nineteen  hundred,  and  it  shall  be  ex- 
pended and  paid  out  according  to  the  provisions  of  said  last  named 
chapter. 

19.  Whenever  a judgment  has  been  rendered  in  the  court  of  claims  in 
favor  of  any  county  against  the  state  of  New  York,  and  the  time  to  appeal 
therefrom  has  expired  or  the  attorney-general  has  issued  a certificate  that 
there  has  been  no  appeal  and  that  no  appeal  will  be  taken  by  the  state 
from  such  judgment,  the  board  of  supervisors  of  such  county  may  sell, 
assign,  transfer  or  set  over  such  judgment  to  the  comptroller,  who  may 
purchase  the  same  as  an  investment  for  the  various  trust  funds  of  the 
state  or  canal  debt  sinking  fund,  or  to  any  person,  firm,  association  or 
corporation  desiring  to  purchase  such  judgment,  for  a sum  not  less  than 
the  amount  for  which  same  was  rendered  with  accured  interest,  but  no 
judgment  so  acquired  by  the  state  shall  be  deemed  merged  or  satisfied 
thereby.  And  such  board  of  supervisors  may  designate  and  authorize  its 
chairman  and  clerk,  the  treasurer  of  the  county  and  the  attorney  of 
record  procuring  the  entry  of  such  judgment,  or  any  or  either  of  them 
to  execute  in  the  name  of  the  county  and  deliver  to  the  party  purchasing 
such  judgment  the  necessary  release,  transfer  or  assignment  required  in 
law  to  cpmplete  such  sale,  setting  over,  transfer  or  assignment. 


8.  County  jails,  work  houses  and  houses  of  detention.  The  board  of  super- 
visors may  provide  for  the  labor  of  prisoners  confined  in  county  jails,  see 
County  Law,  sec.  93,  post.  Such  board  may  establish  and  maintain  work  houses, 
see  County  Law,  sec.  100,  post.  It  may  provide  houses  of  detention  for  the 
safe  and  proper  keeping  of  women  and  children  convicted  of  crime  and  of 
persons  detained  as  witnesses,  see  County  Law,  sec.  99,  post. 

9.  Miscellaneous  duties.  As  to  the  duties  of  the  board  in  relation  to  the 
preparation  of  grand  jury  lists,  see  Code  Crim.  Proc.,  § 229a,  post.  As  to  pro- 
visions relating  to  the  adoption  of  an  official  seal  by  the  board  of  supervisors, 
see  County  Law,  sec.  245,  post. 

A hospital,  camp  or  other  establishment  for  the  treatment  of  patients 
suffering  from  pulmonary  tuberculosis  cannot  be  established  m any  town 
unless  the  board  of  supervisors  of  the  county  and  the  town  board  of  the  town 
shall  each  adopt  a resolution  authorizing  the  establishment  thereof,  and 
describing  the  limits  of  the  locality  in  which  the  same  may  be  established,  see 
Public  Health  Law,  sec.  319,  as  an  ended  by  L.  1916,  ch.  291. 

County  hospital  for  tuberculosis,  establishment  and  maintenance,  see  County 
Law,  §§  45-49e,  post. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


63 


County  Law,  § 12. 

20.  The  board  of  supervisors  shall  annually  fix  and  determine  the  com- 
pensation to  be  allowed  and  paid  to  officers  for  the  conveyance  of  juvenile 
delinquents  to  the  houses  of  refuge  and  state  industrial  schools,  and  no 
other  or  greater  amount  than  that  so  fixed  and  determined  shall  be  allowed 
and  paid  for  such  service. 

21.  The  board  of  supervisors  shall  have  power  to  direct  the  payment, 
by  justices  of  the  peace,  of  all  fines  and  penalties  imposed  and  received 
by  them,  to  the  supervisors  of  their  respective  towns,  on  the  first  Monday 
in  each  month,  and  to  direct  justices  of  the  peace  to  make  a verified  report 
of  all  fines  and  penalties  collected  by  them  to. the  board  of  town  auditors 
of  their  respective  towns  on  the  Tuesday  preceding  the  annual  town  meet- 
ing. Upon  such  payment  as  herein  prescribed  to  the  supervisor  of  any 
town,  he  shall  immediately  pay  over  such  part  of  such  fines  and  penalties 
to  any  person  or  corporation  who  shall  be  entitled  to  receive  the  same 
by  virtue  of  any  statute,  special  or  otherwise.  The  residue  of  such  amount 
shall  be  applied  to  the  support  of  the  poor  of  such  town.  This  subdivision 
shall  not  apply  to  the  county  of  Kings. 

22.  The  board  of  supervisors  may  contract  with  the  sheriff  of  their 
county,  or  the  jailer  of  the  common  jail  therein,  for  the  support  and 
maintenance  of  such  persons  as  may  be  confined  in  such  jail  upon  any 
writ  or  process  in  any  civil  action  or  proceeding  in  the  nature  of  a civil 
action.  Such  sheriff  or  jailer  shall  attach  to  all  bills  rendered  for  such 
support  and  maintenance,  a list,  under  oath,  of  the  number  and  names  of 
the  persons  to  whom  such  support  and  maintenance  was  furnished,  and 
the  length  of  time  each  person  was  so  supported.  This  subdivision  shall 
not  be  construed  as  repealing  any  present  provisions  of  law  relating  to  the 
care,  custody,  support  or  maintenance  of  such  prisoners  in  the  counties  of 
Kings  and  Monroe. 

23.  The  board  of  supervisors  of  a county  in  which  a law  library  is 
maintained  by  the  state  shall,  upon  the  request  of  a judge  of  the  court 
of  appeals  who  resides  therein,  provide  and  maintain  for  his  use,  suitable 
and  commodious  offices,  approved  by  him.  In  case  of  the  refusal  or 
neglect  of  such  board  of  supervisors  to  provide  and  maintain  such  offices 
the  expense  of  the  same  pursuant  to  the  judiciary  law  shall  be  a county 
charge. 

23a.  The  board  of  supervisors  of  any  county  may  appropriate  and 
make  available  for  the  home  defense  committee  of  the  county  such 
amount  as  it  may  deem  proper  to  defray  the  disbursements  of  the  com- 
mittee, to  be  paid  out  by  the  county  treasurer  on  the  order  of  the  treas- 
urer of  such  committee  out  of  any  moneys  of  the  county  available  there- 
for ; but  this  subdivision  shall  not  be  operative  longer  than  the  expira- 
tion of  six  months  after  the  close  of  the  present  war.  [Subd.  added  by 
L.  1917,  ch.  525.] 


64 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 12. 

24.  The  board  of  supervisors  of  any  county,  except  Kings,  Queens, 
Livingston,  Monroe,  Cortland,  Westchester  and  Onondaga,  may,  in  their 
discretion,  provide  for  the  employment  of  a stenographer  for  the  county 
court  thereof,  and  said  board  of  supervisors  must  fix  his  compensation 
and  provide  for  the  payment  thereof  in  the  same  manner  as  other  county 
expenses  are  paid.  [Subd.  amended  by  L.  1915,  ch.  91.] 

25.  The  board  of  supervisors  of  each  county  must  provide  for  the  pay- 
ment of  the  sums,  chargeable  upon  the  treasury  of  the  county,  for  the 
salary,  fees,  or  expenses  of  a stenographer  or  assistant  stenographer; 
and  all  laws  relating  to  raising  money  in  a county,  by  the  board  of 
supervisors  thereof,  are  applicable  to  those  sums. 

26.  The  board  of  supervisors  of  any  county  may,  on  the  application 
of  any  city  of  the  third  class,  village,  town,  school  district,  water  dis- 
trict, lighting  district  or  fire  district  in  the  county,  authorize  such 
municipality  or  district  by  referendum  vote  thereon,  to  raise  moneys 
or  issue  the  bonds  or  other  obligations  of  such  municipality  or  district, 
to  run  for  such  period  of  time  not  exceeding  fifty  years,  as  the  board 
of  supervisors  may  prescribe,  for  paving  the  streets,  roads  and  high- 
ways and  constructing  sidewalks  within  such  municipality,  and  any 
public  municipal  or  district  improvement,  and  to  raise  moneys  by  local 
taxation  for  the  redemption  of  such  bonds  or  obligations;  to  extend 
or  diminish  municipal  or  district  boundary  lines;  to  widen,  extend, 
limit  or  diminish  the  area  occupied  by  streets,  roads  and  highways ; and 
to  establish,  increase  or  lower  stated  salaries  of  local  officials.  Nothing 
in  this  subdivision,  however,  shall  operate  to  abridge  the  right  or  power 
now  possessed  by  any  such  municipality  or  district,  under  any  general  or 
special  law,  whether  heretofore  or  hereafter  enacted,  to  perform  any  of 
the  acts  which  such  municipality  or  district  might  perform  without 
authority  from  such  board ; but  the  provisions  of  this  subdivision  shall 
be  liberally  construed  to  enable  municipalities  and  districts,  with  the 
authority  of  the  board  of  supervisors,  to  exercise  their  legitimate  munic- 
ipal or  district  functions  without  special  recourse  to  the  legislature. 
[Subd.  26,  added  by  L.  1910,  ch.  141,  and  amended  by  L.  1913,  ch. 
351.] 

27.  The  board  of  supervisors  of  any  county  in  which  there  is  a so- 
ciety for  the  prevention  of  cruelty  to  children  may  from  time  to  time 
appropriate  and  pay  for  the  support  and  maintenance  of  such  society 
from  county  funds  available  therefor,  such  sums. as  it  may  deem  proper 
and  may  raise  moneys  for  such  purposes  by  tax  on  real  and  personal 
property  within  the  county.  The  moneys  thus  applied  shall  be  paid  to 
the  board  of  directors  of  such  society  and  by  it  expended  for  corporate 
purposes,  but  the  board  of  supervisors  may,  in  its  discretion,  prescribe 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


65 


County  Law,  § 12. 

rules  and  regulations  governing  such  expenditures  and  require  the  sub- 
mission of  reports  of  the  disbursements  of  the  corporation  and  the  ap- 
proval by  the  board  of  supervisors  of  accounts  to  be  paid  from  moneys 
thus  appropriated.  [Subd.  27  added  by  L.  1911,  ch.  545.] 

28a.  The  board  of  supervisors  of  any  county  may  from  time  to  time 
appropriate  and  pay  out  for  the  general  improvement  of  agricultural 
conditions  and  for  the  support  and  maintenance  of  county  farm  bureaus 
to  conduct  demonstration  work  in  agriculture  and  home  economics  and 
for  the  employment  by  said  bureaus  of  county  agricultural  agents  and 
home  demonstration  agents,  and  for  any  other  purpose  which  the  board 
of  supervisors  shall  deem  proper  and  which,  in  its  judgment,  will  en- 
courage and  promote  the  general  improvement  of  agricultural  condi- 
tions therein,  such  sums  as  it  may  deem  proper,  and  may  raise  money 
for  such  purpose  by  a tax  on  real  and  personal  property  in  the  county. 
The  board  of  supervisors  may  by  resolution,  duly  passed,  direct  the 
county  treasurer  to  pay  out  moneys  from  such  appropriation  upon  the 
order  of  the  treasurer  of  the  county  farm  bureau  association  upon  pre- 
sentation to  him,  the  said  county  treasurer,  of  an  order  drawn  by  the 
treasurer  of  the  said  county  farm  bureau  association  upon  such  fund, 
in  payment  of  claims  for  which  said  organization  is  liable,  approved  by 
the  president  of  said  organization,  such  order  to  be  accompanied  by  a 
statement  of  the  items  for  which  such  charge  or  claim  is  made,  and  duly 
verified,  and  such  order  when  paid  shall  be  a sufficient  voucher  in  the 
hands  of  said  county  treasurer  for  his  authority  to  pay  out  such  moneys, 
and  the  hoard  of  supervisors  may  from  time  to  time  by  resolution  make 
any  further  conditions  or  restrictions  in  the  disbursements  of  such 
funds  as  it  may  deem  proper ; provided  that  this  money  shall  he  ex- 
pended under  an  agreement  to  be  entered  into  between  the  farm  bureau 
county  association  of  farmers  supporting  the  work  and  the  state  leader 
of  county  agents,  for  the  co-operative  management  of  said  farm  bureau 
and  the  proper  supervision  of  said  county  agricultural  agent  and  home 
demonstration  agent;  and  provided  that  the  co-operative  relations  there- 
in established  shall  continue  until  either  party  to  the  agreement  shall 
notify  the  other  party  that  it  wishes  to  terminate  the  agreement.  Such 
a notification  shall  be  in  writing  and  shall  be  served  at  least  six  months 
preceding  any  action  taken  to  annul  the  agreement.  After  receiving 
such  notice  co-operative  relationships  between  said  parties  shall  cease  at 
the  expiration  of  the  six  months’  period  of  notice  providing  reconsider- 
ation or  request  for  continuance  is  not  made  by  the  party  issuing  noti- 
fication of  desire  to  continue  work  under  the  provisions  of  this  agree- 
ment. 

On  or  before  the  first  day  of  October  in  each  year  and  at  any  other 


65a 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 12. 

time  when  requested  by  the  board  of  supervisors  tbe  officers  of  sucb 
farm  bureau  association  shall  report  in  writing  to  tbe  board  of  super- 
visors a detailed  statement  of  its  work  and  transactions  for  tbe  year 
ending  September  thirtieth,  and  for  any  other  period  which  tbe  board 
of  supervisors  may  request  and  in  sucb  form  as  said  board  may  direct. 

There  shall  be  annually  appropriated  out  of  any  moneys  in  tbe  treas- 
ury not  otherwise  appropriated,  for  tbe  purpose  of  assisting  in  the  or- 
ganization and  contributing  toward  the  support  of  county  farm  bureaus 
in  the  various  counties  of  tbe  state  tbe  sum  of  six  hundred  dollars 
($600)  per  annum  for  each  county  in  the  state  which  shall  qualify  as 
required  by  this  section,  provided,  however,  that  no  sucb  bureau  shall 
be  entitled  to  receive  any  money  so  appropriated  unless  tbe  county  in 
which  the  same  is  organized  shall  appropriate  through  its  board  of 
supervisors  or  otherwise  raise  and  provide  at  least  eighteen  hundred 
dollars  per  annum  for  the  support  and  maintenance  thereof;  and  in 
addition  there  shall  be  annually  appropriated  such  sums  of  money  as 
may  be  necessary  for  the  proper  and  necessary  supervision  thereof. 

The  general  supervision  of  the  co-operative  agricultural  extension  and 
development  work  herein  provided  for  shall  be  under  the  joint  direc- 
tion of  the  commissioner  of  agriculture  and  the  dean  of  the  New  York 
state  college  of  agriculture  through  a representative  to  be  known  as  state 
leader  of  county  agents,  mutually  agreed  upon,  and  they  are  hereby 
authorized  to  make  rules  and  regulations  for  the  organization  and  con- 
duct of  such  county  farm  bureaus,  and  the  moneys  appropriated  pursu- 
ant to  this  subdivision  shall  be  paid  by  the  state  treasurer  on  the  war- 
rant of  the  comptroller  on  vouchers  and  certificates  approved  by  the 
commissioner  of  agriculture.  [Subd.  28a  added  by  L.  1917,  ch.  281, 
and  amended  by  L.  1918,  ch.  301.] 

29.  The  board  of  supervisors  of  any  county  may  from  time  to  time 
appropriate  and  pay  out  for  the  general  improvement  of  agricultural 
conditions  in  said  county  such  sums  as  it  may  deem  proper,  and  may 
raise  money  for  such  purpose  by  a tax  on  real  and  personal  property  in 
the  county.  The  moneys  so  raised  may  be  used  in  the  employment  of  a 
person  or  persons  to  give  free  agricultural  advice  in  said  county  and  for 
any  other  purpose  which  the  board  of  supervisors  shall  deem  proper  and 
which,  in  its  judgment,  will  encourage  and  promote  the  general  improve- 
ment of  agricultural  conditions  therein.  [Sud.  28  added  by  L.  1912, 
ch.  35,  and  renumbered  29  by  L.  1917,  ch.  106.] 

29.  Where  by  statute  a county  is  required  to  cause  to  be  raised  and 
paid  moneys  for  the  support  and  maintenance  of  any  person  or  persons 
in  any  state  charitable  institution  which  otherwise  would  be  a charge 
against  and  payable  by  the  towns  and  cities  of  such  county,  or  where  a 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. ' 


65b 


County  Law,  § 12. 

county  officer,  or  board,  is  required  to  incur  expenses  for  supplies  or 
services,  which  are  required  to  be  apportioned  to  the  towns  and  cities  of 
such  county,  the  board  of  supervisors  of  such  county  may  audit  and  pay 
claims  therefor  and  cause  the  amounts  thereof  to  be  raised  by  tax  levy 
and  collected  in  the  same  manner  and  at  the  same  time  as  state  and 
county  taxes  are  levied,  assessed  and  collected  in  said  towns  and  cities. 
[Subd.  29  added  by  L.  1912,  ch.  148.] 

30.  The  board  of  supervisors  of  any  county  in  which  there  is  a so- 
ciety for  the  prevention  of  cruelty  to  animals  may  from  time  to  time 
appropriate  and  pay  for  the  support  and  maintenance  of  such  society 
from  county  funds  available  therefor,  such  sums  as  it  may  deem  proper 
and  may  raise  moneys  for  such  purpose  by  tax  on  real  and  personal 
property  within  the  county.  The  moneys  thus  applied  shall  be  paid  to 
the  board  of  directors  of  such  society  and  by  it  expended  for  corporate 
purposes,  but  the  board  of  supervisors  may,  in  its  discretion,  prescribe 
rules  and  regulations  governing  such  expenditures  and  requiring  the 
submission  of  reports  of  the  disbursements  of  the  corporation  and  the 
approval  by  the  board  of  supevisors  of  accounts  to  be  paid  from  moneys 
thus  appropriated.  [Subd.  27  added  by  L.  1911,  ch.  663,  renumbered 
28  by  L.  1912,  ch.  148,  and  renumbered  30  by  L.  1917,  ch.  106.] 

32.  The  board  of  supervisors  of  any  county  in  which  there  are  moneys 
in  the  county  treasury  consisting  of  revenues  received  under  the  pro- 
visions of  chapter  six  hundred  and  forty  of  the  laws  of  nineteen  hun- 
dred, repealed  by  chapter  three  hundred  and  thirty  of  the  laws  of  nine- 
teen hundred  and  eight,  may  provide  by  resolution  that  such  moneys 
shall  be  expended  for  the  repair  and  improvement  of  side-paths,  in  the 
various  towns  of  the  county,  under  the  direction  of  the  county  superin- 
tendent of  highways,  so  far  as  the  same  may  be  sufficient  therefor,  upon 
side-paths  leading  from  each  city  or  town,  in  an  amount  to  be  specified 
in  the  resolution,  equal  to  the  portion  derived  from  the  revenues  col- 
lected under  such  chapter  therein.  The  moneys  to  be  thus  applied  shall 
be  paid  to  the  county  superintendent  of  highways  by  the  county  treas- 
urer in  the  same  manner  as  other  county  funds  which  are  ordered  paid 
by  the  board  of  supervisors ; but  all  orders  or  warrants  therefor  shall 
refer  to  such  fund  as  the  side-path  fund.  [Subd.  added  by  L.  1912,  ch. 
194,  and  renumbered  32  by  L.  1917,  ch.  106.] 

33.  The  board  of  supervisors  shall  have  power  to,  and  may,  provide  a 
fund  for  the  payment  in  advance  of  audit  of  properly  itemized  and  veri- 
fied bills  for  the  expenses  of  the  district  attorney  lawfully  and  necessar- 
ily incurred  in  the  prosecution  of  criminal  actions  or  proceedings  aris- 
ing in  his  county,  and,  by  resolution,  authorize  the  county  treasurer  to 
apply  said  fund  in  payment  of  such  bills  on  the  approval  of  the  district 


65c 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 12. 

attorney  endorsed  thereon;  said  hills  so  paid  to  he  transmitted  to  the 
clerk  of  the  board  of  supervisors  and  audited  by  it  at  its  next  regular 
session  held  subsequent  to  their  payment.  The  district  attorney  and 
any  claimant  receiving  payment  as  aforesaid  shall  be  jointly  and  sev- 
erally liable  for  any  item  or  items  contained  in  a bill  so  paid  in  advance 
of  audit  which  shall  be  disallowed  and  rejected  by  the  board  of  super- 
visors upon  final  audit,  to  be  recovered  in  an  action  brought  by  the 
board  of  supervisors  in  the  name  of  the  county.  [Subd.  29  added  by 
L.  1912,  ch.  235,  and  renumbered  33  by  L.  1917,  ch.  106.] 

34.  The  board  of  supervisors  are  authorized  to  contract  for  telephone 
service  and  for  the  lighting,  heating  and  maintenance  of  county  build- 
ings, and  to  provide  the  method  and  time  of  payment  for  the  same,  or  it 
may  provide  a fund  for  payment  in  advance  of  audit  of  such  bills,  and 
by  resolution  authorize  the  county  treasurer  to  apply  such  fund  to  the 
payment  of  duly  itemized  and  verified  bills  for  such  purposes,  on  the 
approval  endorsed  thereon  of  its  proper  committee  of  the  proper  county 
officer  having  charge  thereof ; such  bills  so  paid  to  be  transmitted  to  the 
clerk  of  the  board  of  supervisors  for  final  audit  as  provided  in  the  next 
preceding  subdivision  of  this  section.  The  members  of  any  committee, 
or  any  officer,  approving  said  bills  as  aforesaid,  and  any  claimant  receiv- 
ing payment,  shall  be  jointly  and  severally  liable  for  the  amount  of  any 
bill  or  item  or  items  contained  in  a bill  so  paid  in  advance  of  audit, 
which  shall  be  rejected  and  disallowed  by  the  board  of  supervisors  upon 
final  audit,  to  be  recovered  in  an  action  brought  by  the  board  of  super- 
visors in  the  name  of  the  county.  [Subd.  30  added  by  L.  1912,  ch.  235, 
and  renumbered  34  by  L.  1917,  ch.  106.] 

34.  The  board  of  supervisors  of  the  county  of  Erie  shall  have  power 
exclusively,  and  it  shall  be  its  duty,  to  contract  annually  with  one  or 
more  undertakers  for  the  care,  removal  and  burial  of  bodies  of  persons 
dying  within  said  county,  where  there  are  no  known  relatives,  friends 
or  personal  representatives  of  such  deceased  in  the  state  liable  or  willing 
to  become  responsible  for  the  expense  thereof  and  for  the  conveyance 
and  delivery  of  such  bodies  to  and  from  the  public  morgue  of  such 
county  and  the  performance  of  any  other  acts  incidental  thereto.  Each 
undertaker,  with  whom  such  a contract  shall  be  made,  shall  execute  and 
deliver  a bond  in  such  amount,  with  such  sureties  and  upon  such  con- 
ditions as  such  board  shall  require.  [Subd.  34  added  by  L.  1917,  ch. 
289.] 

35.  The  board  of  supervisors  of  a county  adjoining  a city  of  the  first 
class,  shall  have  the  power  to  appoint  a commission  of  taxpayers,  of  said 
county,  not  exceeding  seven  in  number,  who  shall  serve  without  com- 
pensation, to  examine  the  question  of  the  application  of  the  different 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


65d 


County  Law,  § 12. 

laws  of  tlie  state  as  applicable  to  the  method  of  *government  of  the 
county,  its  population,  needs  and  the  advisability  of  changing  the  forms 
or  methods  of  government  of  the  county  and  its  several  localities;  to 
investigate  the  form  of  government  of  other  counties  or  cities;  within 
and  without  the  state  of  Ye w York,  the  method  used  in  the  administra- 
tive, judicial  and  economic  branches  of  the  different  municipalities  in- 
vestigated, for  the  purpose  of  recommending  an  improvement  in  the 
government  and  welfare  of  the  people  of  the  county,  and  to  report  its 
investigations,  findings  and  recommendations  with  all  convenient  speed 
to  the  board  of  supervisors.  Such  commission  of  taxpayers  shall  have 
the  power  to  employ  counsel,  to  appoint  such  assistant  or  assistants,  in- 
cluding one  or  more  stenographers  as  the  commission  may  require  to 
aid  in  such  investigation,  to  fix  the  salaries  of  such  counsel,  assistants 
and  stenographers,  to  purchase  the  necessary  stationery  and  equipment. 
The  board  of  supervisors  shall  provide  rooms  for  the  commission  to  hold 
its  meetings,  and  raise  and  provide  the  money  by  taxation  Or  otherwise 
to  pay  all  expenses  necessarily  incurred  during  the  investigation  by  such 
commission  and  such  counsel,  assistants  and  stenographers  as  may  be 
employed  by  said  commission.  [Subd.  31  added  by  L.  1914,  ch.  324, 
and  renumbered  35  by  L.  1917,  ch.  106.] 

36.  The  board  of  supervisors  is  authorized  to  provide  for  the  payment 
of  properly  itemized  and  verified  bills  of  district  superintendents  of 
schools  of  the  supervisory  districts  in  the  county  rendered  by  them  for 
expenses  incurred  for  necessary  printing  and  office  supplies,  subject  to 
such  conditions  as  the  board  may  prescribe.  The  board  may,  by  resolu- 
tion, authorize  the  incurring  of  indebtedness  for  such  purposes  and  when 
so  authorized  the  bills  therefor  shall  be  audited  and  paid  in  the  same 
manner  a3  other  charges  against  the  county.  [Subd.  31  added  by  L. 
1914,  ch.  389,  and  renumbered  36  by  L.  1917,  ch.  106.] 

37.  The  board  of  supervisors  in  any  county  in  which  the  poor  are  a 
town  charge  may  by  resolution  provide  that  a soldier,  sailor  or  marine 
who  has  served  in  the  military  or  naval  service  of  the  United  States  and 
who  has  received  an  honorable  discharge  from  service,  or  his  family  or 
the  family  or  any  who  may  be  deceased  shall  be  relieved  and  provided 
for  as  a county  charge.  Application  for  such  relief  and  the  granting 
thereof  shall  be  governed  by  sections  eighty,  eighty-one  and  eighty-two 
of  the  poor  law.  [Subd.  32  added  by  L.  1915,  ch.  243,  and  renumbered 
37  by  L.  1917,  ch.  106.] 

38.  The  board  of  supervisors  of  any  county  containing  a population 
of  less  than  two  hundred  thousand  and  adjoining  a city  of  the  first  class 
may  authorize  the  establishment  of  a plan  for  the  grades  of  streets, 

* So  in  original. 


65c 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 12. 

avenues  and  boulevards ; the  alteration  of  such  plan  of  grades,  or  of  any 
plan  thereof,  which  shall  have  been  established  by  law ; the  laying  out, 
opening,  grading,  construction,  closing  and  change  of  line,  or  of  the 
width  of  any  one  or  more  of  such  streets,  avenues  and  boulevards  or 
any  other  streets,  avenues  and  boulevards,  within  said  county,  or  any 
part  or  parts  thereof,  and  of  the  courtyards,  sidewalks  and  roadways  ; 
to  provide  for  the  estimation  and  award  of  the  damages  to  be  sustained, 
and  for  the  assessment  on  property  intended  to  be  benefited  thereby,  and 
fixing  assessment  districts  therefor,  the  levying,  collection  and  payment 
of  such  damages,  and  of  all  other  charges  and  expenses  to  be  incurred, 
or  which  may  be  necessary  in  carrying  out  the  provisions  of  this  sub- 
division ; the  laying  out  of  new  or  additional  streets,  avenues  or  boule- 
vards according  to  a general  scheme  or  plan  for  the  improvement  of 
highways  in  said  town,  the  acceptance  by  town  officers  of  conveyances  of 
land  for  public  highways',  naming  and  changing  of  names  of  streets  and 
avenues  within  the  said  county,  the  opening,  laying  out,  grading,  con- 
struction, closing  and  change  of  line  of  any  street,  avenue  or  boulevard 
within  the  county,  provided,  however,  that  nothing  shall  be  done  here- 
under in  respect  or  concerning  any  street,  avenue  or  boulevard  situated 
within  an  incorporated  village,  without  the  consent  of  the  board  of 
trustees  of  such  incorporated  village.  The  provisions,  however,  for  the 
defraying  of  the  expenses  thereof  by  assessment  as  herein  provided,  shall 
only  be  exercised  on  the  petition  of  the  property  owners  who  own  more 
than  one-half  of  the  frontage  on  any  such  street,  avenue  or  boulevard, 
or  on  the  certificate  of  the  supervisor,  justices  of  the  peace,  and  town 
clerk  of  the  town  in  which  said  street,  avenue  or  boulevard  is  located, 
or  two-thirds  of  such  officers,  that  the  same  is  in  their  judgment  proper 
and  necessary  for  the  public  interest ; or  in  case  the  said  street,  avenue, 
or  boulevard,  in  respect  to  which  such  action  is  proposed  to  be  taken, 
shall  lie  in  two  or  more  towns,  on  a like  certificate  of  such  town  officers 
of  each  of  said  towns,  or  two-thirds  of  all  of  them;  provided,  however, 
that  before  proceeding  to  make  any  such  certificate,  the  said  officers,  or 
such  number  of  them  as  aforesaid,  shall  give  ten  days’  notice  by  publica- 
tion in  one  of  the  weekly  papers  of  said  county  and  by  posting  in  six 
public  places  in  said  town,  or  in  each  of  said  towns,  of  the  time  and 
place  at  which  they  will  meet  for  the  purpose  of  considering  the  same, 
at  which  meeting  the  public  and  all  persons  interested  may  appear  and 
be  heard  in  relation  thereto ; and  provided  that  no  such  street  or  avenue 
shall  be  laid  out,  opened  or  constructed  upon  or  across  any  lands  hereto- 
fore acquired  by  the  right  of  eminent  domain,  and  held  in  fee  for  depot 
purposes  by  any  railroad.  [Subd.  32  added  by  L.  1915,  ch.  679,  and 
renumbered  38  by  L.  1917,  ch.  106.] 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


County  Law,  § 12. 


65  f 


39.  Should  the  hoard  of  supervisors  of  any  county  containing  a pop- 
ulation of  less  than  two  hundred  thousand  and  adjoining  a city  of  the 
first  class  at  any  time  deem  it  for  the  public  interest  to  acquire  title 
to  lands  and  premises  required  for  any  streets,  highway  or  boulevard 
heretofore  or  hereafter  laid  out,  widened,  altered,  extended  or  otherwise 
improved,  it  may  acquire  the  same  by  dedication,  or  by  condemnation 
under  the  condemnation  law,  provided,  however,  that  no  land  shall  be 
acquired  for  any  street,  highway  or  boulevard  in  an  incorporated  village 
without  the  consent  of  the  board  of  trustees  of  such  incorporated  village. 
Such  board  may  direct,  by  a two-thirds  vote,  where  no  buildings  are 
upon  the  lands,  that  the  title  to  any  piece  or  parcel  of  land  lying  within 
the  lines  of  any  such  street,  highway,  or  boulevard  shall  be  vested  in  the 
county  upon  the  date  of  recovery  of  such  dedication  or  upon  the  date  of 
the  filing  of  the  oath  of  the  condemnation  commissioners  as  provided 
in  the  condemnation  law,  or  upon  a specified  date  thereafter  and  where 
there  are  buildings  upon  such  lands,  upon  a date  not  less  than  six 
months  from  the  date  of  the  filing  of  said  oath.  Thereafter,  when  the 
condemnation  commissioners  shall  have  taken  and  filed  said  oath,  upon 
the  date  of  such  filing  or  upon  such  subsequent  date  as  may  be  specified, 
where  no  buildings  are  upon  such  lands  and  where  there  are  buildings 
upon  such  lands  upon  the  date  specified  by  said  board  of  supervisors 
either  before  or  after  the  filing  of  such  oath,  the  same  being  not  less 
than  six  months  from  the  date  of  said  filing,  the  county  shall  become 
and  be  seized  in  fee  of  said  lands,  tenements,  and  hereditaments  in  the 
said  resolution  mentioned,  that  shall  or  may  be  so  required  as  aforesaid, 
the  same  to  be  held,  appropriated,  converted  and  used  to  and  for  such 
purpose  accordingly,  in  like  manner  as  are  other  public  streets  in  said 
county.  In  such  cases  interest  at  the  legal  rate  upon  the  sum  or  sums  to 
which  the  owners,  lessees,  parties  or  persons  are  justly  entitled  upon  the 
date  of  the  vesting  of  title  in  the  county  as  aforesaid,  from  said  date  to 
the  date  of  the  report  of  the  commissioners  shall  be  allowed  by  the  com- 
missioners as  a part  of  the  compensation  to  which  such  owners,  lessees, 
parties  or  persons  are  entitled.  In  the  other  cases,  title,  as  aforesaid, 
shall  vest  in  the  county  upon  the  confirmation  by  the  court  of  the  report 
of  the  condemnation  commissioners.  Upon  the  vesting  of  title  as  herein 
provided,  the  county  or  any  person  or  persons  acting  under  its  authority, 
may  immediately,  or  at  any  time  thereafter  take  possession  of  the  same, 
or  any  part  or*  parts  thereof,  without  any  suit  or  proceeding  at  law  for 
that  purpose.  The  title  acquired  by  the  county,  to  lands  and  premises 
required  for  a street,  shall  be  in  trust,  and  such  lands  and  premises 
appropriated  and  kept  open  for,  or  as  part  of  a public  street  or  high- 
way, forever,  in  like  manner  as  the  other  streets  in  the  county.  [Subd. 


COUNTIES  ; BOARDS  OF  SUPERVISORS. 


66 


County  Law,  § 15. 

33  added  by  L.  1915,  ch.  679,  amended  by  L.  1916,  ch.  5,  and  renum- 
bered 39  by  L.  1917,  cb.  106.] 

40.  The  board  of  supervisors  of  any  county  wherein  a deputy  county 
treasurer  is  not  now  allowed  by  law  to  be  appointed,  may  by  resolution 
authorize  the  appointment  of  a deputy  county  treasurer  and  shall  fix 
his  salary.  Such  deputy  county  treasurer  shall  act  for  the  county  treas- 
urer during  his  absence  from  the  state  or  his  inability  to  act  as  such 
county  treasurer,  and  may  act  for  such  county  treasurer  during  his 
temporary  absence  from  the  office  when  authorized  so  to  do  by  such 
treasurer.  Such  authorization  shall  be  in  writing  under  the  hand  and 
seal  of  such  treasurer.  [Subd.  40  added  by  L.  1917,  ch.  106.] 

41.  The  board  of  supervisors  of  Ontario  county  shall  have  power  to 
and  may  provide  for  the  payment  in  advance  of  audit  of  properly  item- 
ized and  verified  bills  for  the  expenses  of  any  county  officer  necessarily 
incurred  by  him  in  the  performance  of  his  duties  and  for  supplies  or- 
dered and  purchased  by  him,  not  however,  exceeding  the  sum  of  fifty 
dollars  unless  the  same  is  approved  by  the  chairman  of  the  committee 
having  charge  the  affairs  of  his  office,  and  may  by  resolution  au- 
thorize the  clerk  of  the  board  to  draw  orders  upon  the  county  treasurer 
in  payment  of  such  bills  approved  by  the  chairman  of  its  committee  on 
finance  or  by  such  other  member  of  the  board  as  it  may  determine,  and 
certified  by  the  county  attorney  to  be  lawful  county  charges.  Said  bills 
so  paid  to  be  audited  by  the  board  at  its  next  regular  session  held  subse- 
quent to  their  payment.  The  said  officer  and  any  claimant  receiving 
payment  as  aforesaid  shall  be  jointly  and  severally  liable  for  any  item 
or  items  contained  in  a bill  so  paid  in  advance  of  audit  which  shall  be 
disallowed  or  rejected  by  such  board  of  supervisors  upon  final  audit,  to 
be  recovered  in  an  action  brought  by  the  board  of  supervisors  in  the 
name  of  the  county.  Said  board  may  also  provide  for  the  payment  in 
advance  of  audit  of  the  salaries  and  compensation  of  the  superintendent, 
nurses  and  employees  at  Oak  Mount  sanatorium,  on  properly  itemized 
and  verified  bills  therefor,  and  a pay  roll  of  the  same,  duly  approved 
by  the  state  civil  service  commission,  in  the  same  manner  as  other 
claims  hereinbefore  mentioned.  [Subd.  41  added  by  L.  1918,  ch.  390.] 

§ 2.  LEGALIZATION  OF  INFORMAL  ACTS  OF  TOWN  MEETING  OR 
VILLAGE  ELECTION. 

Any  such  board  may,  by  a two-thirds  vote  of  all  its  members,  legalize 
the  informal  acts  of  any  town  meeting  or  village  election  within  such 
county,  and  the  regular  acts  of  an  one  or  more  town  or  village  officers, 
performed  in  good  faith,  and  within  the  scope  of  their  authority. 
[County  Law,  § 15 ; B.  C.  & G.  Cons.  L.,  p.  717.] 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


66a 


County  Law,  § 20. 

§ 3.  SESSION  LAWS,  DESIGNATION  OF  NEWSPAPERS  FOR  PUB- 
LICATION. 

The  members  of  the  board  of  supervisors  in  each  county  representing, 
respectively,  each  of  the  two  principal  political  parties  into  which  the 
people  of  the  country  are  divided  or  a majority  of  such  members  repre- 
senting respectively,  each  of  such  parties,  shall  designate  in  writing  a 
paper  fairly  representing  the  political  party  to  which  they  respectively 
belong,  regard  being  had  to  the  advocacy  by  such  paper  of  the  principles 
of  its  party  and  its  support  of  the  state  and  national  nominees  thereof, 
and  to  its  regular  and  general  circulation  in  the  towns  of  the  county,  to 
publish  the  session  laws  and  concurrent  resolutions  of  the  legislature  re- 
quired by  law  to  be  published,  which  designation  shall  be  signed  by  the 
members  making  it  and  filed  with  the  clerk  of  the  board  of  supervisors.19 


19.  Number  of  votes.  Under  the  act  of  1845,  ch.  280,  containing  a provision 
that  in  designating  official  newspapers  each  member  of  the  board  should  vote 
for  one  paper,  and  that  the  two  newspapers  receiving  the  highest  number  of 
votes  should  be  designated,  it  was  held  that  votes  cast  bearing  the  names  of 
two  newspapers  were  void,  and  that  at  least  three  votes  having  only  one  name 
on  each  must  be  cast  to  constitute  a valid  election ; i.  e.,  two  votes  for  one  paper, 
and  one  for  another.  People  ex  rel.  Del.  Vecchio  v.  Supervisors  of  Kings  Co., 
3 Keyes,  630,  3 Abb.  Ct.  App.  Dec.  560. 

Representatives  of  political  parties. — The  designation  is  to  be  made  by 
majority  of  supervisors  representing  the  two  political  parties.  People  ex  rel. 
Baldwin  v.  Barnes,  17  App.  Div.  197,  45  N.  Y.  Supp.  356.  And  should  be  made 
annually.  Rept.  of  Atty.-Genl.  (1903),  495. 

A Republican  who  had  been  elected  supervisor  of  his  town  upon  the  Republican 
ticket  sought  a renomination,  but  was  u«successful.  He  was  then  nominated  by 
the  Democrats  and  placed  at  the  head  of  the  ticket  under  the  regular  party  symbol 
of  that  party.  He  was  elected  over  the  regular  Republican  candidate.  It  was 
held  that  he  was  entitled  to  vote  with  the  Democratic  members  of  the  board  upon 
the  question  of  designating  a Democratic  newspaper  for  the  publication  of  the 
session  laws.  Norris  v.  Wyoming  County  Times,  83  App.  Div.  525,  82  N.  Y. 
Supp.  322. 

A city  editor  of  a newspaper,  who  is  not  a stockholder  in  the  corporation  pub- 
lishing such  newspaper,  or  otherwise  financially  interested  therein,  is  not  pro- 
hibited from  voting  as  a supervisor  for  the  designation  of  such  newspaper  to  pub- 
lish the  session  laws.  People  ex  rel.  Crowe  v.  Peek,  88  Misc.  230,  151  N.  Y.  Supp. 
835. 

The  purpose  to  be  served  by  requiring  publication  of  the  Session  Laws 
and  Concurrent  Resolutions  of  the  Legislature  is  to  give  to  the  people  of 
the  State  early  and  general  notice  of  their  enactment  and  of  the  provisions 
thereof.  It  is  publicity  of  the  laws  for  general  information  of  the  people  subject 
to  them  that  is  sought.  People  ex  rel.  Utica  Sunday  Tribune  Co.  v.  Williams, 
140  App.  Div.  58,  60,  124  N.  Y.  Supp.  328,  affd.,  200  N.  Y.  585  (Mem.)  ; People 
ex  rel.  Mayham  v.  Dickson,  138  App.  Div.  606,  123  N.  Y.  Supp.  110. 


66b 


COUNTIES;  BOARDS  OP  SUPERVISORS 
County  Law,  § 20. 


If  a majority  of  the  members  of  the  board  representing  either  of  such 
parties  cannot  agree  upon  a paper  or  shall  fail  to  make  a designation  of 
a paper  or  papers,  as  above  provided,  then  and  in  such  case,  the  paper 
or  papers  last  previously  designated  in  behalf  of  the  party  or  parties 
whose  representatives,  or  a majority  of  thejn,  have  failed  to  agree  shall 
be  held  to  be  duly  designated  to  publish  the  laws  for  that  year,  and  any 
designation  of  a paper  or  papers  made  contrary  to  the  provisions  of  this 

“ In  testing  the  question  whether  a newspaper  does  in  fact  fairly  represent  the 
principles  of  a political  party  so  as  to  make  it  eligible  for  designation  regard  must, 
as  the  statute  provides,  be  had,  not  only  to  its  advocacy  of  the  principles  of  its 
party  and  its  support  of  the  state  and  national  nominees  thereof,  but  also  to  its 
general  and  regular  circulation  in  the  towns  of  the  county  in  which  it  is  published. 
If  a newspaper  is  deficient  in  either  of  these  particulars,  and  there  is  another  news- 
paper published  in  the  county  which  clearly  measures  up  to  the  full  requirements 
of  the  statute,  it  would  seem  that  a designation  of  the  former  would  not  be  war- 
ranted. Such  a newspaper  may  be  a type  or  specimen  of  a party  paper,  but  it 
does  not  fairly  represent  the  party  to  which  it  belongs  within  the  plain  purpose 
and  intent  of  the  statute.”  People  ex  rel.  Utica  Sunday  Tribune  Co.  v.  Williams, 
140  App.  Div.  58,  60,  124  N.  Y.  Supp.  328,  affd.  200  N.  Y.  585  (Mem.). 

In  determining  whether  a newspaper  is  eligible  to  be  designated  pursuant  to  this 
section,  for  the  publication  of  .Session  Laws  and  Concurrent  Resolutions  of  the 
Legislature,  regard  must  be  had  not  only  to  its  advocacy  of  the  principles  of  its 
party  and  its  support  of  the  State  and  National  nominees,  but  also  to  its  general 
and  regular  circulation  in  the  towns  of  the  county  where  it  is  published.  If  a news- 
paper be  deficient  in  either  of  these  particulars  it  should  not  be  designated  if  there 
be  another  paper  published  in  the  county  which  masures  up  to  the  full  requirements 
of  the  statute.  Hence,  the  designation  of  a newspaper  whose  aggregate  circulation 
does  not  exceed  1,000  copies,  and  which  has  no  circulation  in  two  of  the  towns  of 
the  county,  is  of  no  effect,  if  there  is  another  paper  published  in  the  county,  qualified 
on  the  grounds  of  political  advocacy  which  has  a circulation  of  over  11,000  covering 
all  of  the  towns  of  the  county.  People  ex  rel.  Guernsey  v.  Somers  (1912),  153  App. 
Div.  623. 

Where  one  of  two  Republican  papers  of  equal  party  loyalty  has  a circulation  of 
2,700  within  a county  and  the  other  has  only  900  within  the  same  territory  the 
former  should  be  designated.  People  ex  rel.  Mayham  v.  Dickson,  138  App.  Div.  606, 
123  N.  Y.  Supp.  110. 

The  fact  that  a newspaper  has  for  a long  series  of  years  advocated  the  principles 
and  policies  of  a political  party,  gives  it  no  right  to  the  publication  of  the  Session 
Laws,  etc.,  unless  it  is  at  the  time  of  the  designation  fulfilling  that  role.  It  seems, 
that  a board  of  supervisors  acting  in  good  faith  may  designate  a newspaper  to 
publish  the  Session  Laws,  etc.,  on  behalf  of  a political  party,  although  such  paper 
has  not  always  been  a party  organ,  in  the  place  of  the  paper  which  had  always 
fulfilled  this  role,  but  which,  upon  a particular  occasion  and  in  the  year  just  then 
closing,  had  concededly  varied  its  policy  and  refrained  from  the  support  of  some 
of  the  party  candidates.  People  ex  rel.  Elmira  Advertiser  Association  v.  Gorman 
(1915),  169  App.  Div.  891,  155  N.  Y.  Supp.  727;  App.  dismissed,  222  N.  Y.  (mem.). 

Failure  of  the  clerk  to  file  the  designation  until  nearly  a year  after  it  has  been 
made,  does  not  authorize  the  selection  of  the  paper  last  designated.  Rept.  of  Atty. 
Genl.,  Mch.  1,  1911. 

The  paper  should  fairly  represent  the  party  for  which  it  is  designated.  People 
v.  Supervisors  of  Monroe  Co.,  60  Hun  328,  14  N.  Y.  Supp.  867.  Effect  of  a tie  vote, 
see  People  v.  Supervisors  of  Seneca,  18  How.  Pr.  461. 

The  members  of  the  board  of  supervisors  are  not  required  to  select  the  news- 
paper having  the  largest  circulation,  but  in  making  the  designation  of  the  news- 
paper the  statute  requires  that  they  must  have  regard  to  its  regular  and  general 
circulation  in  the  towns  of  the  county.  An  agreement  by  the  paper  designated 
with  other  newspapers  in  the  county  for  the  joint  publication  of  the  Session 
Laws,  is  illegal.  People  ex  rel.  Republican  and  Journal  Co.  v.  McCarthy,  134  App. 
Div.  761,  119  N.  Y.  Supp.  387;  and  see  People  ex  rel.  Utica  Sunday  Tribune  Co. 
v.  Hugo,  93  Misc.  618,  158  N.  Y.  Supp.  490. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


66c 


County  Law,  § 20. 

section  shall  be  void.  If  there  shall  be  but  one  paper  published  in  the 
county,  then,  in  that  case,  the  laws  shall  be  published  in  that  paper.  If 
either  of  the  two  principal  parties  into  which  the  people  of  the  county 
are  divided  shall  have  no  representative  among  the  members  of  the 
board  of  supervisors,  then,  and  in  that  event,  the  newspaper  last  legally 
designated  in  behalf  of  such  party,  not  having  a representative  among 
the  members  of  the  board  of  supervisors,  shall  be  held  to  be  duly  desig- 
nated to  publish  the  laws  for  that  year.  The  clerk  of  each  board  of 
supervisors  as  soon  as  such  designation  is  made  shall  forward20  to  the 

Revocation  of  designation. — Members  cannot  change  designation  after  certifi- 
cate has  been  filed  with  clerk.  People  v.  Supervisors  of  Monroe,  60  Hun,  328, 
14  N.  Y.  Supp.  867. 

A valid  designation  of  a newspaper  by  the  board  of  supervisors,  made  at  any 
meeting,  cannot  be  revoked.  Rept.  of  Atty.  Gen.,  Jan.  14,  1911. 

A supervisor  may  revoke  his  signature  to  the  designation  of  a newspaper  by 
delivering  to  the  clerk  a written  notice  to  that  effect  at  any  time  before  the 
clerk  has  acted  upon  the  designation.  The  power  to  designate  newspapers 
under  this  section  is  conferred  upon  the  supervisors  individually.  People  ex 
rel.  Harper  v.  Roberts,  52  Misc.  308,  102  N.  Y.  Supp.  1110. 

Effect  of  reversal  of  order  in  certiorari. — A board  of  supervisors  designated 
a newspaper  to  publish  the  session  laws  and  concurrent  resolutions.  On  review 
of  this  action  by  certiorari  on  behalf  of  another  newspaper,  the  Appellate 
Division  annulled  the  designation,  whereupon  the  relator  was  designated  by  the 
board  as  the  official  paper.  Thereafter  the  action  of  the  Appellate  Division  was 
reversed  (199  N.  Y.  382)  and  the  relator  applied  for  a mandamus  to  compel  the 
comptroller  to  audit  its  bill  for  services  rendered  while  it  was  the  official  paper 
under  such  designation.  Held,  that  since  the  judgment  of  a competent  court 
is  binding  until  it  is  reversed,  the  relator  is  entitled  to  be  paid  for  services 
rendered  until  the  reversal  of  the  order  of  the  Appellate  Division  in  the 
certiorari  proceeding.  People  ex  rel.  Republican  & J.  Co.  v.  Lazansky,  208  N.  Y. 
435,  revg.  153  App.  547. 

Where  a new  political  party,  at  the  last  general  election,  cast  the  second 
highest  number  of  votes  in  a particular  county,  thus  becoming  one  of  the  two 
principal  parties  into  which  the  people  of  the  county  have  divided  themselves, 
and  yet  has  no  representative  in  the  board  of  supervisors,  and  no  newspaper 
which  had  been  previously  designated  to  publish  the  Session  Laws  and  which 
could  hold  over,  a contingency  arises  not  provided  for  in  section  20  of  the 
County  Law,  and  it  is  the  duty  of  the  board  of  supervisors,  under  its  general 
power,  to  designate  a newspaper  representing  the  principles  of  the  new  party 
to  publish  the  Session  Laws,  concurrent  resolutions  of  the  legislature  and  its 
own  acts,  and  it  may  be  compelled  to  perform  that  duty  by  mandamus.  People 
ex  rel.  Bonheur  v.  Crist,  208  N.  Y.  6. 

Session  laws  and  concurrent  resolutions  to  be  published  in  same  paper. — 
The  purpose  of  this  section  is  to  give  publicity  and  not  patronage.  Thus,  the 
supervisors  of  one  party  have  no  right  to  select  one  paper  to  publish  the  Session 
Laws  and  another  to  publish  the  concurrent  resolutions.  People  ex  rel.  Hall  v. 
Ford,  127  App.  Div.  444,  112  N.  Y.  Supp.  130. 

20.  Mandamus  to  compel  clerk  to  give  notice  of  designation.  The  board  of 


•66d  COUNTING;  BOARD'S  OF  SUPERVISORS. 

Legislative  Law,  § 4 8. 

secretary  of  state  a notice  stating  the  name  and  address  of  such  news- 
papers as  have  been  selected  for  the  publication  within  the  county  of  the 
laws  and  concurrent  resolutions  of  the  legislature,  or  if  there  is  but  one 
newspaper  in  such  county  he  shall  before  the  first  day  of  January  in 
each  year,  forward  to  the  secretary  of  state  a notice  stating  the  name  and 
address  of  such  newspaper,  and  that  it  is  the  only  newspaper  published 
in  the  county.  [County  Law,  § 20;  B.  C.  & G.  Consol.  L.,  p.  722.] 

§ 4.  PUBLICATION  OF  SESSION  LAWS  AND  CONCURRENT  RESOLUTIONS. 

1.  All  laws  of  a general  nature  which  shall  hereafter  be  passed  by  the 
legislature  of  this  state,  shall  be  published  in  at  least  two  newspapers  in 
each  county  of  this  state  where  there  are  or  may  be  hereafter  two  news- 
papers published ; and  in  one  newspaper  in  each  county  where  but  one 
newspaper  is  published  or  may  be  published;  except  that  in  the  county 
■of  New  York  they  shall  be  published  in  four  newspapers,  two  in  borough 
of  Manhattan  and  two  in  borough  of  Bronx.  All  laws  of  a local  nature 
which  shall  hereafter  be  passed  by  the  legislature  of  this  state,  shall  be 
published  in  like  manner  in  each  of  the  counties  interested  in  the  same. 
All  laws  affecting  two  or  more  counties,  and  not  all  the  counties  of  the 
state,  shall  be  considered  local  laws  applicable  to  the  several  counties 
affected.  [Subd.  amended  by  L.  1911,  ch.  97.] 

2.  It  shall  be  the  duty  of  the  secretary  of  state  to  transmit  in  the  order 
in  which  they  are  passed,  and  within  twenty  days  from  the  date  of  the 
filing  of  said  laws  in  his  office,  to  each  treasurer  of  the  several  counties  of 
the  state,  and  to  the  publisher  of  each  newspaper  designated  by  law  to 
publish  the  session  laws  of  a general  nature,  and  such  as  relate  to  the 
local  affairs  therein,  for  publication  in  the  manner  provided  for  in  this 

supervisors  of  a county  cannot  designate  newspapers  to  publish  Session  Laws  for 
a period  exceeding  one  year.  After  such  designation  has  once  been  lawfully  made 
it  cannot  be  revoked.  Where  the  clerk  of  a board  refuses  to  notify  the  secretary 
of  state  of  such  designation  without  good  reason,  a writ  of  mandamus  will  be  issued 
to  compel  him  to  perform  such  duty.  Matter  of  Troy  Press  Co.,  94  App.  Div.  514, 
88  N.  Y.  Supp.  115,  affd.  179  N.  Y.  529.  Compare  People  ex  rel.  Donnelly  v.  Riggs, 
19  Misc.  693,  45  N.  Y.  Supp.  53,  holding  that  the  duty  of  the  clerk  is  not  abso- 
lutely ministerial,  but  involves  to  some  extent  the  exercise  of  discretion;  therefore, 
mandamus  will  not  lie  against  him  to  act  in  a particular  manner. 

Certiorari  will  not  lie  except  where  the  question  to  be  reviewed  is  clearly  of  a 
judicial  character.  Hence,  the  determination  of  the  supervisors,  representing  one 
of  the  two  principal  political  parties  into  which  the  people  of  the  county  are  di- 
vided, or  a majority  of  them,  which  designates  a newspaper  to  publish  the  Session 
Laws  and  Concurrent  Resolutions  in  an  administrative  act  not  reviewable  by  cer- 
tiorari. People  ex  rel.  R.  & J.  Co.  v.  Wiggins,  199  N.  Y.  382,  revg.  138  App.  Div. 
933  and  127  App.  Div.  444,  112  N.  Y.  Supp.  130. 

The  statute  does  not  require  the  designation  of  the  paper  having  the  largest  cir- 
culation in  the  county  but  leaves  a very  large  discretion  to  the  board  of  supervisors, 
and  their  acts  in  this  respect  are  purely  administrative  and  not  reviewable.  People 
ex  rel.  Utica  Sunday  Tribune  Co.  v.  Hugo  (1916),  93  Misc.  618,  158  N.  Y.  Supp.  490. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


67 


Legislative  Law,  § 48. 

section.  It  shall  be  the  duty  of  each  treasurer  to  cause  the  same  to  be 
published  in  the  papers  designated  for  publishing  them,  within  ninety 
days  from  date  of  the  receipt  thereof  by  the  said  publisher;  and  the  whole 
of  every  such  law  which,  in  the  ordinary  type  of  the  newspaper  in  which 
it  is  published,  would  not  occupy  more  than  two  columns,  must  be  pub- 
lished in  one  issue,  and  when  it  exceeds  such  space,  shall  be  published  as 
soon  as  possible,  by  occupying  such  space  in  each  successive  issue.  The 
secretary  of  state  shall  cause  to  be  stated  upon  each  and  every  law  trans- 
mitted by  him  for  publication  as  aforesaid,  the  exact  number  of  folios  con- 
tained therein,  which  shall  be  the  basis  for  payment;  and  he  shall  also 
indicate  in  the  same  manner,  which  are  general  laws,  and  which  are  laws 
of  a local  nature  applicable  only  to  the  county  affected.  It  shall  be  the 
duty  of  the  publisher  of  each  newspaper  designated  to  publish  the  session 
laws,  to  forward  to  the  secretary  of  state,  a marked  copy  of  each  general 
law  published  in  said  newspaper  within  five  days  after  such  publication, 
and  also  to  forward  to  the  county  treasurer  of  the  county  within  which  such 
publication  is  made,  a marked  copy  of  each  local  law  passed  by  the  legis- 
lature and  published  under  the  provisions  of  this  section.  It  shall  be  the 
duty  of  the  county  treasurer  to  keep  a correct  record  of  all  laws  received 
from  the  secretary  of  state  for  publication,  with  the  date  of  receipt,  and 
number  of  folios  indicated,  and  to  report  to  the  secretary  of  state  on  or 
before  October  first,  in  each  year,  whether  the  publication  of  general  laws 
has  been  regularly  made  as  provided  by  law,  and  he  shall  also  report  to  the 
board  of  supervisors  of  his  county  during  the  first  week  of  the  annual 
session  thereof,  whether  the  publication  of  local  laws  has  been  made  as 
provided  by  law,  transmitting  with  his  report  a copy  of  each  local  law 
received  from  the  secretary  of  state,  with  the  number  of  folios  indicated 
in  each  such  local  law,  together  with  the  date  of  publication  in  news- 
papers legally  designated  to  make  such  publication. 

3.  The  secretary  of  state  shall  designate  two  newspapers  in  each  of  the 
counties  of  Queens  and  Richmond  for  the  publication  of  session  laws  re- 
quired by  law  to  be  published,  representing  respectively,  each  of  the  two 
principal  political  parties  into  which  the  people  of  such  counties  are  di- 
vided, on  the  nomination  of  the  county  committee  of  each  of  such  parties. 

4.  The  secretary  of  state  shall  send  to  each  newspaper  designated  pursu- 
ant to  law,  in  the  order  in  which  they  are  passed,  and  as  soon  as  the  slips 
are  printed,  copies  of  such  concurrent  resolutions  as  are  required  to  be 
published.  Concurrent  resolutions  proposing  amendments  to  the  consti- 
tution shall  be  published  in  such  newspapers  once  in  each  week  for 
thirteen  consecutive  weeks,  under  the  direction  of  the  secretary  of  state  at 
the  expense  of  the  state,  in  such  a manner,  by  the  use  of  italics  and 
brackets,  as  to  indicate  the  new  matter  added  or  the  old  matter  eliminated. 

5.  The  charge  for  such  publication  of  general  laws  in  the  newspapers 


68 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 21;  Legislative  Law,  § 49. 

designated  to  publish  said  laws,  shall  be  paid  by  the  treasurer  of  the 
state  on  the  warrant  of  the  comptroller,  after  certification  by  the  secretary 
of  state,  that  the  said  publication  has  been  regularly  made  as  provided  in 
this  section,  at  the  fixed  rate  of  thirty  cents  for  each  folio  of  one  hundred 
words.  The  charge  for  such  publication  of  laws  of  a local  nature  in  the 
newspapers  designated  to  publish  said  laws  shall  be  paid  by  the  several 
counties  of  the  state  in  which  said  laws  may  be  published  in  the  manner 
prescribed  by  this  subdivision,  at  a rate  which  shall  not  be  less  than  twenty- 
five  cents  nor  more  than  fifty  cents  for  each  folio  of  one  hundred  words, 
as  the  board  of  supervisors  in  the  several  counties  may  determine.  It 
shall  be  the  duty  of  each  board  of  supervisors  in  the  several  counties  of  this 
state,  in  making  out  the  assessment-rolls,  to  assess  and  levy  on  the  taxable 
property  of  the  county  whose  representatives  they  are,  such  sums  as  shall 
be  sufficient  to  defray  the  expense  of  publishing  the  laws  of  a local  nature 
applicable  only  to  the  county  effected,  in  the  newspaper  designated. 

6.  This  section  shall  not  apply  to  counties  in  which  the  publication  of  the 
laws  provided  for  in  this  section  is  regulated  by  special  provision  of  law, 
where  the  same  is  inconsistent  therewith,  but  the  number  of  papers  in 
which  such  laws  are  directed  to  be  advertised,  and  the  rates  of  compensation 
for  such  publications  fixed  by  such  special  provision  shall  not  be  changed 
by  the  provisions  of  this  section.  [Legislative  Law,  § 48;  B.  C.  & G.  Cons. 
L.,  p.  3117.] 

7.  Compensation  for  publication  of  local  laivs.- — The  charge  for  the  pub- 
lication of  laws  of  a local  nature  in  the  newspapers  designated  to  publish 
said  laws  shall  be  paid  by  the  several  counties  of  the  state  in  which  said 
laws  may  be  published  in  the  manner  and  at  the  compensation  prescribed 
by  section  forty-eight  of  the  legislative  law.  [County  Law,  § 21;  B.  C.  & 
G.  Cons.  L.,  p.  723.] 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


69 


County  Law,  §§  22,  31. 

§ 6.  NEWSPAPERS  DESIGNATED  TO  PUBLISH  ELECTION  NOTICES  AND 
OFFICIAL  NOTICES. 

Such  boards,  except  in  the  counties  of  Erie  and  Kings,  shall  in  like 
manner,  designate  two  newspapers,21  representing  respectively  each  of 
the  two  principal  political  parties  into  which  the  electors  of  the  county 
are  divided,  in  which  shall  be  published  the  election  notices  issued  by 
the  secretary  of  state,  and  the  official  canvass,  and  fix  the  compensation 
therefor,  which  shall  be  a county  charge.  [County  Law,  § 22 ; B.  C. 
& G.  Cons.  L.,  p.  724.] 

§ 7.  COUNTY  BUILDINGS,  LOCATION  OF,  MAY  BE  CHANGED;  PETITION 
FOR  CHANGE  BEYOND  BOUNDARIES  OF  VILLAGE  OR  CITY. 

The  board  of  supervisors  may,  except  in  the  county  of  Kings,  by  a 
majority  vote  of  all  the  members  elected  thereto,  fix  or  change  the  site  of 
any  county  building,  and  the  location  of  any  county  office  ;22  but  the  site  or 

21.  Designation  of  more  than  two  newspapers. — An  attempt  by  members  of  a 
board  of  supervisors  to  designate  for  the  publication  of  election  notices  four  papers 
for  each  of  the  two  principal  political  parties  is  void  as  to  all  the  papers  so  desig- 
nated, and  a resolution  revoking  the  designation  is  unnecessary.  The  compensation 
to  be  paid  for  publishing  election  notices  is  not  limited  by  the  rates  fixed  for  the 
publication  of  the  Session  Laws.  Matter  of  Ford  v.  Supervisors,  92  App.  Div.  119, 
87  N.  Y.  Supp.  417,  appeal  dismissed  178  N.  Y.  616. 

In  construing  this  section  the  identity  of  the  two  principal  political  parties  is 
established  by  the  result  of  the  state  election  rather  than  by  the  outcome  of  a 
county  or  local  election.  In  designating  newspapers  to  publish  the  election  notices 
the  choice  should  therefore  be  confined  to  newspapers  representing  the  parties 
whose  candidates  receive  the  highest  number  of  votes  in  the  last  State  election. 
Rept.  of  Atty.  Genl.  (1912),  Vol.  2,  p.  379. 

Publication  of  determinations  and  statements  of  county  boards  of  canvassers 
as  to  persons  elected  should  be  made  only  as  to  county  officers,  members  of  assem- 
bly and  county  propositions.  Rept.  of  Atty.  Genl.  (1912),  Vol.  2,  p.  423. 

Provisions  mandatory. — The  provisions  of  this  section  relative  to  the  “ official 
canvass  ” are  mandatory  and  such  canvass  which  is  a tabulation  of  all  the  votes 
of  the  county  by  election  districts,  should  be  published  in  addition  to  the  publi- 
cation of  the  determinations  and  statements  mentioned  in  section  438  of  the 
Election  Law.  Opinion  of  Atty.  Genl.  (1917),  10  State  Dept.  Rep.  506. 

All  determinations  of  the  county  board  of  canvassers  and  the  statements  upon 
which  they  are  based,  are  required  to  be  published  in  one  issue  of  two  newspapers 
designated  by  the  board  of  supervisors.  The  determination  may  be  combined  as 
to  all  officers  elected  in  the  county.  Opinion  of  State  Comptroller  (1916),  10  State 
Dept.  Rep.  547. 

22.  Constitutionality.— The  provisions  of  this  section  and  of  §§  32  and  33  post , 
as  to  removal  of  county  buildings  and  offices  from  one  part  of  the  county  to  an- 
other, are  not  an  invalid  delegation  of  the  legislative  power  to  the  people;  the  line 
of  demarcation  between  legislative  and  administrative  functions  may  not  always 
be  easily  ascertained,  but  the  deciding  upon  the  site  of  county  buildings  is  in  its 
nature  administrative  and  is  not  strictly  and  exclusively  a legislative  power 
within  the  meaning  of  the  Constitution.  Stanton  v.  Board  of  Supervisors,  191 
N.  Y.  428,  affg.  112  App.  Div.  877,  98  N.  Y.  Supp.  1059. 

Exclusive  power  to  erect  county  buildings  and  to  fix  or  change  the  site  is 
vested  in  the  board  of  supervisors,  except  where  a change  in  location  exceeds  one 
mile,  and  a submission  of  the  proposition  to  the  electors  of  the  county  is  not  bind- 
ing on  the  board.  Rept.  of  Atty.  Genl.,  Apr.  28,  1911. 

Majority  vote. — A resolution  to  change  a county  seat  must  be  adopted  by  a ma- 
jority vote  of  the  members  elected,  and  a member  not  legally  elected  is  not  to  be 
counted;  an  act  of  the  legislature  attempting  to  legalize  an  illegal  resolution  of 
the  board,  locating  or  changing  a county  seat,  is  in  violation  of  article  3,  § 18,  of 


70 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 32. 

location  of  no  county  building  or  office  shall  be  changed  when  the  change 
shall  exceed  one  mile,  and  shall  be  beyond  the  boundaries  of  the  incorpo- 
rated village  or  city,  where  already  situated,  except  upon  a petition  of  at 
least  twenty-five  freeholders  of  the  county,  describing  the  buildings  or 
office,  the  site  or  location  of  which  is  proposed  to  be  changed,  and  the  place 
at  or  near  which  it  is  proposed  to  locate  such  new  building  or  office ; which 
petition  shall  be  published  once  in  each  week  for  six  weeks  immediately 
preceding  an  annual  or  special  meeting  of  such  board,  in  three  news- 
papers of  the  county,  if  there  be  so  many,  otherwise,  in  all  the  newspapers 
published  in  the  county  as  often  as  once  a week.  With  such  petition  shall 
also  be  published  a notice,  signed  by  the  petitioners,  to  the  effect  that 
such  petition  will  be  presented  to  the  board  of  supervisors  at  the  next 
meeting  thereof. 

The  board  of  supervisors  of  any  county  may  acquire  a new  site  or  location 
for  the  county  almshouse,  erect  suitable  buildings  thereon,  and  remove  the 
inmates  of  the  existing  almshouse  thereto,  upon  a majority  vote  of  all  the 
members  elected  to  said  board  at  a regular  session  thereof  or  at  a special 
session  called  for  that  purpose,  in  any  case  where  the  state  board  of 
charities  shall  have  certified  to  said  board  of  supervisors  that  in  the  opinion 
of  a majority  of  said  state  board  of  charities  such  change  is  necessary  to  the 
proper  care  of  the  inmates  of  such  institution ; in  which  case  it  shall  not  be 
ncesssary  to  receive  or  publish  the  petition  hereinbefore  provided  or  to  sub- 
mit the  question  of  change  or  removal  to  the  electors  of  such  county  as 
provided  in  sections  thirty-two  and  'thirty-three  of  this  chapter;  provided, 
however,  that  no  site  or  location  shall  be  selected  or  acquired  by  such  board 
of  supervisors  which  shall  not  have  been  approved  by  said  state  board  of 
charities.  [County  Law,  § 31,  B.  C.  & G.  Cons.  L.,  p.  729.] 

§ 8.  ACTION  OF  BOARD  UPON  PRESENTATION  OF  PETITION  FOR 
CHANGE  OF  LOCATION. 

On  the  presentation  of  such  petition  and  notice,  with  due  proof  of  their 
publication,  if  a majority  of  all  the  members  elected  to  such  board  vote  in 
favor  of  a resolution  for  the  removal  of  the  site  of  the  buildings  described 
in  such  petition,  to  the  site  also  therein  described,  or  the  change  of  the 
location  of  its  county  offices  or  any  of  them,  said  board  shall  thereupon 
direct  that  such  resolution,  together  with  the  notice  that  the  question  of 
such  removal  will  be  submitted  to  the  electors  of  the  county  at  the  ensuing 
general  election,  be  published  in  at  least  two  newspapers  published  in  the 
county  to  be  designated  by  the  board,  once  in  each  week  for  six  consecu- 

the  Constitution.  Williams  v.  Boynton,  147  X.  Y.  426,  affg.  71  Hun  309,  25  N.  Y. 
Supp.  60.  See  also  Trustees  of  Havana  v.  Supervisors,  2 Hun  600. 

New  courthouse. — The  building  of  a new  courthouse  in  addition  to  the  two 
already  existing  in  a county  is  not  a change  of  location  of  a county  building  re- 
quiring the  vote  of  the  electors  of  the  county  under  this  section.  Lyon  v.  Board 
of  Supervisors,  115  App.  Div.  193,  100  N.  Y.  676. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


n 


County  Law,  §§  33,  34. 

live  weeks  immediately  preceding  such  general  election.  Such  resolution 
and  notice  shall  be  published  accordingly.23  [County  Law,  § 32;  B.  C.  & 
G.  Cons.  L.,  p.  730.] 

§ 9.  SUBMISSION  OF  QUESTION  OF  REMOVAL  OF  COUNTY  BUILD- 
INGS TO  VOTE  OF  PEOPLE. 

The  question  of  the  removal  of  the  site  of  such  buildings,  or  the  change 
of  the  location  of  any  such  office,  shall  thereupon  be  voted  on  by  the 
electors  of  the  county  at  such  general  election  by  ballot.  If  a majority 
of  the  ballots  cast  shall  be  in  favor  of  such  removal,  the  proceedings  of 
such  board  of  supervisors  shall  be  deemed  ratified  by  the  electors,  and  the 
change  of  the  site  of  such  buildings,  or  the  removal  of  such  offices,  shall 
be  made  accordingly  : but  the  old  site,  and  buildings  thereon  shall  be  con- 
tinued and  used  until  new  buildings  upon  the  new  site  have  been  provided 
and  accepted  by  the  board  of  supervisors.  [ County  Law,  § 33 ; B.  C.  & 
G.  Cons.  L.,  p.  730.] 

§ 10.  AFTER  DETRUCTION  OF  POOR-HOUSE,  PETITION  FOR 
CHANGE  OF  SITE. 

Whenever  any  county  poor-house  or  almshouse  shall  have  heretofore  been, 
or  shall  hereafter  be  destroyed  by  fire  or  otherwise,  twelve  or  more  resi- 
dent freeholders  of  the  county  may  present  to  the  chairman  of  the  board 
of  supervisors  of  the  county  a petition  for  the  change  of  site  of  such  county 
poor-house.  If  the  annual  meeting  of  the  board  of  supervisors  is  to  be  held 
at  any  time  within  three  months  following  the  presentation  of  such  petition 
to  the  chairman,  he  shall  cause  the  same  to  be  presented  to  such  annual 
meeting  for  the  consideration  and  action  of  such  board;  but  if  an  annual 
meeting  of  the  board  is  not  to  be  held  within  three  months  following  the 
presentation  of  such  petition  to  the  chairman,  he  shall,  upon  the  presenta- 
tion of  such  petition  to  him,  cause  a special  meeting  of  such  board  to  be 
convened  for  the  purpose  of  considering  and  acting  upon  such  petition. 


23.  Legislature  cannot  change  location.  The  legislature  cannot  pass  a 
private  or  local  bill  locating  or  changing  county  sites,  see  Constitution,  art. 
3,  sec.  18.  It  was  held  in  the  case  of  Williams  v.  Boynton,  147  N.  Y.  426, 
42  N.  E.  184,  that  a special  act  of  the  legislature  which  undertakes  to  vali- 
date an  illegal  and  wholly  unauthorized  resolution  of  the  board  of  super- 
visors, locating  or  changing  a county  site,  is  a local  act;  and  that  such  act 
is  an  attempt  to  do  indirectly  what  cannot,  within  the  provision  of  the 
constitution,  be  done  directly  by  the  legislature,  and  is  therefore  unconstitu- 
tional and  void.  But  see  People  ex  rel.  Commissioners  v.  Supervisors,  36  Misc. 
597,  73  N.  Y.  Supp.  1098,  aff’d  170  N.  Y.  105. 


72 


COUNTIES;  BOARDS  OF  SUPERVISORS. 
County  Law,  § 34. 


Such  meeting  may  be  called  upon  a notice  signed  by  the  chairman,  directed 
to  the  members  of  the  board  and  stating  the  time,  place  and  object  of  the 
meeting,  which  shall  be  served  upon  each  member  of  the  board,  either  per- 
sonally or  by  leaving  it  at  his  residence  with  some  person  of  suitable  age 
and  discretion,  at  least  three  days  before  the  time  when  such  meeting  is  to 
be  held,  or  by  mail  at  least  ten  days  before  such  time.  The  chairman  shall 
call  such  meeting  to  be  held  upon  some  day  within  thirty  days  from  the 
time  of  the  presentation  of  the  petition  to  him.  At  any  such  special  meet- 
ing or  at  any  annual  meeting  at  which  such  petition  shall  be  presented  for 
the  consideration  and  action  of  the  board,  the  board  may  by  a vote  of  two- 
thirds  of  all  the  members  thereof,  determine  by  resolution,  to  change  the 
site  of  any  such  county  poor-house,  and  to  purchase  a new  site  and  farm 
for  such  county-house  and  for  the  support,  care  and  maintenance  of  the 
poor  of  the  county,  and  to  sell  and  convey  the  old  site  of  the  county  poor- 
house  and  the  farm  connected  therewith.24  The  board  shall  also,  by  resolu- 
tion, direct  that  every  such  resolution,  with  a notice  signed  by  the  chairman 
and  clerk  of  the  board,  that  the  question  of  such  sale  and  disposal  of  the 
old  site  and  farm,  and  the  purchase  of  a new  site  and  farm  for  the  county 
poor-house,  and  for  the  support,  care  and  maintenance  of  the  poor  of  the 
county,  will  be  submitted  to  the  electors  of  the  county,  at  the  ensuing  town 
meeting  to  be  held  in  the  several  towns  thereof,  shall  be  published  in  at 
least  six  newspapers  published  in  the  county  designated  by  the  boards,  if 
there  be  that  number,  if  not,  in  all  the  newspapers  of  the  county,  at  least 
one  full  week  immediately  preceding  such  town  meeting,  and  posted  for  at 
least  ten  days  before  the  town  meeting  in  at  least  six  public  places  in  each 
town  in  the  county.  If  the  annual  town  meetings  of  the  county  are  not  to 
be  held  within  three  months  after  the  passage  of  such  resolution,  the  board 
shall,  by  resolution,  direct  that  a special  town  meeting  shall  be  held  in  each 
town  of  the  county  on  a day  to  be  specified  therein,  at  which  such  ques- 
tions will  be  submitted  to  the  electors  of  the  county.  Every  resolution  of 
the  board  calling  such  special  town  meeting  shall  be  published  in  at  least 
six  newspapers  of  the  county,  to  be  designated  by  the  board,  for  the  period 
of  at  least  four  successive  weeks  immediately  preceding  the  time  when  such 
special  town  meetings  are  to  be  held;  or  if  a less  number  of  newspapers 
than  six  are  published  in  the  county,  such  resolution  shall  be  published  in 
all  the  newspapers  thereof.  At  any  annual  or  special  town  meeting  at 
which  such  question  shall  be  submitted  to  the  electors  of  the  county,  the 
vote  shall  be  by  ballot,  which  shall  be  in  this  form : “ In  favor  of  the  sale 


24.  Form  of  resolution. — Resolution  changing  the  location  of  county  build- 
ings need  not  comply  with  section  17  of  the  County  Law.  Stantion  v.  Super- 
visors of  Essex  County,  112  App.  Div.  877,  98  N.  Y.  Supp.  1059. 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS.  73 

County  Law,  § 34. 

and  disposal  of  the  present  county  poor-house  site  and  farm ; and  of  the 
purchase  of  a new  site  and  farm 99 ; or,  “ Against  the  sale  and  disposal  of 
the  present  county  poor-house  site  and  farm,  and  the  purchase  of  a new 
site  and  farm.”  The  ballots  shall  be  provided  and  delivered  by  the  county 
clerk  of  the  county ; and  the  expense  thereof  shall  be  a county  charge.  The 
officers  presiding  at  such  town  meeting  shall  canvass  the  votes  cast  thereat 
and  make  a correct  statement  of  the  number  cast  in  favor  of  and  the  num- 
ber cast  against  the  question  submitted,  and  certify  the  same  in  duplicate; 
one  of  which  shall  immediately  be  filed  in  the  town  clerk’s  office,  and  the 
other  of  which  shall,  within  twenty-four  hours  after  the  conclusion  of  such 
canvass,  be  filed  in  the  county  clerk’s  office.  Within  twenty-four  hours 
after  the  statements  of  the  canvass  of  votes  in  all  the  towns  of  the  county 
shall  have  been  filed  with  the  county  clerk,  he  shall  canvass  and  compile 
a statement  of  the  whole  number  of  votes  cast  in  the  county  upon  the  ques- 
tion submitted,  and  of  the  number  cast  in  favor  of  and  against  such  ques- 
tion, respectively,  and  make  and  record  a certificate  of  such  result  in  his 
office;  and  within  twenty-four  hours  thereafter  cause  a certified  copy 
thereof  to  be  delivered  to  the  chairman  of  the  board  of  supervisors,  if  a 
majority  of  the  electors  of  a county  voting  upon  such  question  at  such 
town  meetings  shall  have  voted  in  favor  of  the  question  submitted.  The 
chairman  of  the  board,  upon  the  receipt  of  the  certified  copy  of  such  cer- 
tificate from  the  county  clerk,  shall  call  a special  meeting  of  the  board, 
to  be  held  at  some  time  to  be  designated  by  him,  not  more  than  thirty 
days  thereafter,  and  of  which  meeting  notice  shall  be  given  to  each  mem- 
ber of  the  board,  either  personally  or  by  mail,  at  least  ten  days  before 
the  time  of  the  meeting.  If  the  annual  meeting  of  the  board  is  to  be  held 
within  such  period  of  thirty  days  a special  meeting  shall  not  be  called.  At 
any  special  meeting  of  the  board,  called  and  convened  as  herein  provided, 
or  at  any  annual  meeting  convened  within  such  period  of  thirty  days, 
such  board  of  supervisors  shall  have  full  power  and  authority  to  sell  and 
dispose  of  the  site  and  farm  then  owned  and  used  by  the  county  for  the 
support,  care  and  maintenance  of  its  poor,  and  to  select,  locate  and  pur- 
chase a new  site  or  farm  for  the  county  poor-house,  and  for  the  support, 
care  and  maintenance  of  the  poor  of  the  county,  and  to  raise  all  necessary 
sums  of  money  upon  the  taxable  property  of  the  county  to  defray  the  ex- 
pense and  cost  of  the  purchase  of  such  new  site  and  farm,  and  to  carry 
out  the  provisions  of  this  section  over  and  above  the  amount  that  shall  be 
realized  from  the  sale  and  disposal  of  the  old  site  and  farm,  and  such 
moneys  as  may  be  in  the  hands  of  the  county  treasurer  of  the  county 
applicable  to  such  purchase.  And  the  board  may  also,  at  any  such  meeting, 
provide  for  the  erection  of  a new  county  poor-house,  and  other  buildings 
to  be  used  in  connection  therewith,  and  for  the  levy  of  a tax  upon  the 
taxable  property  of  the  county,  to  raise  the  necessary  sums  of  money  to 


74 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 38. 

defray  the  expense  thereof.  In  case  there  shall  be  no  chairman  of  the 
board  of  supervisors  at  a time  when  any  notice  required  by  this  section  is 
to  be  served,  or  any  call  of  a meeting  to  be  made  by  such  chairman,  the 
clerk  of  the  board  of  supervisors,  if  there  be  one,  or,  if  not,  any  member 
of  the  board  of  supervisors  designated  by  such  petitioners,  shall  serve  the 
notices  and  call  the  meetings  required  by  this  section  to  be  served  or  called 
by  the  chairman. 

This  section  shall  not  apply  to  Kings  county.25  [County  Law,  § 34; 
B.  C.  & G.  Cons.  L.,  p.  731.] 


§11.  BOARD  MAY  ESTABLISH  FIRE  DISTRICT  OUTSIDE  OF  AN 
INCORPORATED  VILLAGE;  FIRE  COMMISSONERS;  LEVY 
OF  TAXES  FOR  FIRE  PROTECTION. 

1.  Each  board  of  supervisors  may,  on  the  written,  verified  petition  of 
the  taxable  inhabitants  of  a proposed  fire  district  outside  of  an  incorpo- 
rated village  or  city,  and  within  the  county,  whose  names  appear  on  the  last 
preceding  assessment-roll  of  the  town  wherein  such  proposed  fire  district 
is  located,  as  owning  or  representing  more  than  one-half  of  the  taxable 
real  property  of  such  district,  or  as  owning  or  representing  more  than 
one-half  of  the  taxable  real  property  of  such  district  owned  by  the  resi- 
dents thereof,  establish  such  district  as  a fire  district.26  Where  such  pro- 
posed fire  district  is  situated  in  two  or  more  counties,  the  board  of  super- 
visors of  each  county  in  which  a part  of  such  fire  district  is  located,  may, 
by  resolution,  on  the  written,  verified  petition  of  the  taxable  inhabitants 
of  that  portion  of  the  proposed  fire  district  located  in  such  county,  whose 
names  appear  on  the  last  preceding  assessment-roll  of  the  town  or  towns 
in  which  the  proposed  fire  district  is  located,  as  owning  or  representing 
one-half  of  the  taxable  real  property  of  that  part  of  such  proposed  fire 
district  located  in  such  county  owned  by  the  residents  thereof,  direct 
that  when  a similar  resolution  is  adopted  by  the  board  of  supervisors  of 
each  of  the  other  counties  in  which  such  proposed  fire  district  is  located, 


25.  Reference. — This  and  the  preceding  section  were  both  taken  in  part  from 
L.  1885,  ch.  160,  as  amended,  and  are  apparently  in  conflict  with  each  other.  This 
section  is  to  be  followed  where  it  is  sought  to  acquire  a new  site  for  an  alms- 
house after  the  destruction  of  the  old  almshouse. 

26.  Establishment  of  districts;  preliminary  petition.  The  action  of  the 
board  of  supervisors  in  undertaking  to  establish  a fire  district  in  a town,  under 
the  above  section,  is  legislative  in  character  and  is  not  rendered  subject  to 
review  by  a certiorari,  because  the  affidavit  verifying  the  preliminary  petition 
does  not  state  that  the  petition  complies  with  the  requirements  of  the  statute 
that  the  names  attached  appear,  by  the  last  assessment-roll,  to  be  those  of  the 
owners  of  more  than  one-half  of  the  taxable  real  property  of  the  district 
described.  Since  the  action  of  the  board  is  legislative  in  form,  they  are  pre- 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


75 


County  Law,  § 38. 

and  upon  the  adoption  of  such  resolution  by  each  such  hoard,  such  fire 
district  shall  be  and  be  deemed  to  be  legally  established.  No  such  dis- 
trict shall  extend  in  any  direction  to  exceed  one  mile  from  the  nearest 
engine  or  hose  or  hook  and  ladder  house  located  within  the  district, 
or  to  exceed  three  miles  from  the  nearest  station  at  which  an  automobile 
fire  engine  or  an  automobile  chemical  engine  is  maintained  within  the 
district.  When  any  two  or  more  fire  districts,  established  as  above  pro- 
vided, not  within  an  incorporated  village,  adjoin  each  other,  the  board 
of  supervisors  of  the  county  in  which  said  districts  are  located,  may, 
upon  a written,  verified  petition  of  the  taxable  inhabitants  of  each  of 
said  districts  whose  names  appear  on  the  last  preceding  assessment-roll 
of  the  town  or  towns  within  which  said  fire  districts  are  located,  as 
owning  or  representing  more  than  one-half  of  the  taxable  real  property 
of  each  of  said  districts,  or  as  owning  or  representing  more  than  one-half 
of  the  taxable  real  property  of  each  of  said  districts  owned  by  the  resi- 
dents thereof,  consolidate  such  fire  districts  ana  establish  the  same  into 
one  fire  district.  The  trustees  of  such  fire  district  hereinafter  provided 
may  establish,  equip  and  maintain  such  engine,  hose  or  hook  and  ladder 
houses  as  they  may  deem  necessary.  [Sub.  amded.  by  L.  1914,  ch.  381.] 
2.  When  any  such  fire  district  has  been  established  or  consolidated  in 
the  manner  above  provided,  the  legal  voters  thereof  may  elect  not  less 
than  three  nor  more  than  five  residents  thereof  to  be  the  fire  commissioners 
for  a term  of  five  years  or  such  less  term  as  a majority  of  such  voters 
at  the  time  of  any  such  election  may  express  on  their  ballots;27  and  may 
also  elect  a treasurer  in  such  fire  district  for  a term  of  three  years,  who 
shall  be  entitled  to  receive  and  have  the  custody  of  the  funds  of  the  dis- 
trict and  pay  out  the  same  for  the  purposes  herein  provided  for,  on  the 
order  of  the  fire  commissioners,  which  treasurer  before  entering  on  the  du- 
ties of  his  office,  shall  give  such  security  as  the  board  or  boards  of  super- 
visors may  require.  The  first  election  for  such  fire  commissioners  and 
treasurer  shall  be  called  by  the  clerk  of  the  town  within  which  any  such 
district  shall  be  established,  or  when  any  such  district  is  within  more  than 


sumed  to  have  determined  the  preliminary  question  of  fact  that  the  petition 
was  signed  by  the  requisite  number  of  owners  of  taxable  real  property;  and 
although  such  determination  may  not  be  final  the  burden  of  showing  the  fact  to 
be  otherwise  devolves  upon  those  who  attack  the  validity  of  the  action  of  the 
board.  This  may  be  done  in  an  appropriate  action,  but  not  in  certiorari  pro- 
ceedings where  the  issue  is  not  raised.  The  statutory  requirement  of  a petition 
is  not  violated  by  the  circulation  and  presentation  as  one  petition,  of  several 
separate  pieces  of  paper,  all  expressing  the  same  subject  matter,  alike  except  as 
to  the  signatures.  People  ex  rel.  O’Connor  v.  Supervisors  of  Queens  County, 
153  N.  Y.  370;  47  N.  E.  790.  Cited  in  Weston  v.  City  of  Syracuse,  158  N.  Y.  274, 
28C.  Resolution  will  not  be  invalidated  by  recital  of  repeal  statute.  Matter 
of  Rockaway  Park  Imp.  Co.,  83  Hun,  263,  31  N.  Y.  Supp.  386. 

27.  Fire  commissioners. — Election  of  fire  commissioners  must  follow  act  of 
board  creating  fire  district.  Matter  of  Rockaway  Park  Imp.  Co.,  83  Hun,  263,  31 
N.  Y.  Supp.  386. 


76 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 38. 

one  town  within  the  county,  or  if  located  in  more  than  one  county, 
by  the  clerks  of  such  towns  jointly  and  concurrently,  within  thirty 
days  from  the  establishment  or  consolidation  of  such  fire  district  or  dis- 
tricts, and  upon  such  notice  and  in  the  same  manner  as  required  for 
special  town  meetings.  All  subsequent  elections  shall  be  called  in  the 
same  manner  by  the  clerk  or  clerks  of  the  town  or  towns,  not  less  than 
thirty  days  prior  to  the  expiration  of  the  term  of  office  of  any  such  com- 
missioners or  of  the  treasurer;  special  elections  to  fill  any  vacancies  shall 
be  called  in  the  same  manner  within  thirty  days  after  any  such  vacancy 
shall  occur. 

3.  Any  such  district  when  established  or  consolidated  shall  be  known 
by  such  name  as  the  fire  commissioners  thereof  may  adopt  at  their  first 
meeting  for  the  organization,  and  thereafter  such  fire  commissioners  shall 
be  authorized  and  empowered  to  purchase  apparatus  for  the  extinguish- 
ment of  fires  therein;  rent  or  purchase  suitable  real  estate  and  buildings 
or  erect,  alter  or  repair  buildings,  for  the  keeping  and  storing  of  the  same  ; 
and  to  procure  supplies  of  water,  and  have  control  and  provide  for  the 
maintenance  and  support  of  a fire  department  in  such  district;  and  shall 
have  power  to  organize  fire,  hook,  hose,  ladder,  axe  and  bucket  fire 
patrol  companies ; and  to  appoint  a suitable  number  of  able  and  respectable 
inhabitants  of  said  district  as  firemen  and  to  prescribe  the  duties  of  the 
firemen  and  the  rules  and  regulations  for  the  government  of  all  com- 
panies and  of  the  fire  department  in  such  district;  and  who  shall  have 
power  to  make  any  and  all  contracts  within  the  appropriations  voted  by 
the  resident  taxpayers  of  the  district  for  the  purpose  of  carrying  out  the 
authorization  and  powers  herein  granted. 

4.  Such  fire  commissioners  may  expend  in  any  one  year  for  any  or  all 
the  purposes  above  specified  a sum  or  sums  not  exceeding  the  total  of  five 
hundred  dollars,  and  make  a contract  for  a supply  of  water  for  fire  pur- 
poses for  a period  not  to  exceed  five  years,  without  any  appropriation 
voted  therefor  by  the  taxpayers  of  such  district.  For  the  purpose  of 
giving  effect  to  these  provisions  the  fire  commissioners  are  hereby  author- 
ized whenever  a tax  shall  be  voted  to  be  collected  in  instalments  for  the 
purposes  of  carrying  out  the  authorization  and  powers  herein  granted,  to 
borrow  so  much  of  the  sum  voted  as  may  be  necessary  at  a rate  of  in- 
terest not  exceeding  six  per  centum  per  annum  and  to  issue  bonds  or 
other  evidences  of  indebtedness  therefor,  which  shall  be  a charge  upon 
the  district  and  be  paid  at  maturity ; and  such  bonds  shall  not  be  sold 
below  par ; due  notice  of  the  time  and  place  of  the  sale  of  such  bonds 
shall  be  given  at  least  ten  days  prior  thereto ; the  payment  or  collection 
of  the  last  instalment  shall  not  be  extended  beyond  ten  years  from  the 
time  when  such  vote  was  taken.  [Subd.  4,  amended  by  L.  1918,  ch.  110.] 

5.  Whenever  the  fire  commissioners  in  any  such  fire  district  shall  sub- 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


77 


County  Law,  § 38. 

mit  a request  in  writing  for  an  appropriation  of  any  sum  of  money  for 
the  purposes  herein  authorized,  the  clerk  or  clerks  of  the  town  or  towns 
in  which  such  fire  district  shall  be  located,  shall  call  a meeting  of  the 
resident  taxpayers  of  the  district  for  the  purpose  of  voting  upon  the  ques- 
tion of  appropriating  such  money,  such  meeting  to  be  called  by  a notice 
posted  conspicuously  in  at  least  two  of  the  most  public  places  in  such 
fire  district,  at  least  ten  days  before  the  holding  of  any  such  meeting, 
which  notices  shall  state  the  time,  place  and  purpose  of  the  meeting. 
At  any  such  meeting  such  resident  taxpayers  may  appropriate  the  amount 
requested  by  the  fire  commissioners,  or  any  less  amount,  and  may  deter- 
mine that  the  sum  so  appropriated  or  some  part  thereof  shall  be  raised 
by  instalments.  When  any  such  appropriation  is  made,  or  when  any 
amount  less  than  the  sum  of  one  hundred  dollars  shall  have  been  expended 
by  such  fire  commissioners,  as  above  authorized,  the  amount  appropriated 
or  expended  and  the  amount  contracted  to  be  paid  yearly  for  the  supply 
of  water  for  fire  purposes,  shall  be  assessed,  levied  and  collected  on  such 
district,  in  the  same  manner,  at  the  same  time  and  by  the  same  officers  as 
the  taxes  of  the  town  in  which  the  district  is  located,  are  assessed,  levied 
and  collected,  and  when  collected  shall  be  paid  over  immediately  by  the 
supervisor  of  the  town  to  the  treasurer  of  the  fire  district;  and  the  town 
shall  be  responsible  for  any  and  all  sums  so  collected  until  the  same  shall 
be  paid  over  to  such  treasurer.28 

6.  Such  fire  commissioners  shall  before  the  annual  meeting  of  the 
board  of  supervisors  present  to  the  supervisor  of  the  town  or  towns  in 
which  such  fire  district  is  situated  an  itemized  and  verified  statement 
in  duplicate  of  the  amount  expended  by  them  during  the  preceding  year, 
without  an  appropriation  having  been  made  therefor  by  the  taxpayers  of 
such  district.  The  supervisors  shall  file  one  of  such  duplicates  in  the 
office  of  the  town  clerk,  and  one  shall  be  presented  by  him  to  the  board  of 
supervisors. 

7.  All  meetings  of  any  such  district  called  for  the  election  of  officers, 
or  for  the  appropriation  of  money,  shall  be  presided  over  by  a resident 
taxpayer  to  be  designated  by  the  fire  commissioners,  except  that  the  first 
meeting  after  any  such  fire  district  shall  have  been  established  shall  be 
presided  over  by  a resident  taxpayer  selected  by  the  legal  voters  at  the 
meeting;  and  all  elections  for  fire  commissioners  and  for  treasurer  shall 
be  by  ballot,  in  the  same  manner  as  is  provided  for  the  election  of  other 


28.  Women  may  vote  on  an  appropriation  of  money  for  a fire  district.  Rept. 
of  Atty.  Genl.  407. 

Assessments  for  fire  department  purposes.  Rept.  of  Atty.  Genl.  (1896)  188. 
Taxation  in  fire  districts  in  unincorporated  villages.  Rept.  of  Atty.  Genl. 
(1899)  356. 


78 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 38. 

town  officers.  Such  meetings  shall  be  open  to  receive  ballots  for  not 
less  than  two  hours,  which  hours  shall  be  stated  in  the  notice.  There 
shall  be  one  inspector  to  receive  ballots  and  one  clerk  to  record  the  names 
of  the  voters.  The  chairman,  inspector  and  clerk  shall  receive  the  sum  of 
three  dollars  each  for  their  services  as  such. 

8.  The  board  of  supervisors  in  any  county  in  which  any  such  fire 
district  shall  have  been  heretofore  or  shall  be  hereafter  established,, 
or,  where  such  fire  district  is  located  in  two  or  more  counties,  the  several 
boards  of  supervisors  of  the  counties  in  which  a part  of  such  fire  dis- 
trict is  located,  by  resolution  adopted  in  the  manner  provided  for  the  estab- 
lishment of  such  district,  may  at  any  time,  upon  the  written  verified 
petition  of  the  taxable  inhabitants  of  any  such  district,  whose  names 
appear  upon  the  last  preceding  assessment-roll  of  the  town  within  which 
such  district  is  located  as  owning  or  representing  more  than  one-half 
of  the  taxable  real  property  of  such  district,  or  as  owning  or  representing 
more  than  one-half  of  the  taxable  real  property  in  such  district  owned 
by  the  residents  thereof,  discontinue  such  district  as  a fire  district, 
and  upon  such  action  being  taken  by  the  supervisors,  the  fire  commissioners 
of  such  district,  where  it  is  wholly  within  a village  incorporated  since 
said  district  was  formed,  shall  turn  over  to  any  fire  corporation  organized 
by  the  trustees  of  said  village  all  the  property  thereof,  such  village  to 
pay  all  the  debts  thereof,  and  in  other  than  such  last-named  districts 
the  fire  commissioners  shall  proceed  to  sell  the  property  belonging  to  such 
district  at  public  sale;  three  notices  of  such  sale  shall  be  posted  conspicu- 
ously in  three  of  the  most  public  places  in  the  district,  for  a period  of 
thirty  days  prior  to  the  sale,  and  the  proceeds  of  such  sale  shall  be  paid 
over  by  the  treasurer  of  the  district  to  the  supervisor  of  the  town  and 
the  sum  so  paid  over  shall  be  credited  to  the  taxable  real  property 
located  in  such  district,  in  the  next  succeeding  assessment  of  town  taxes, 
provided,  however,  that,  if  there  be  outstanding  any  bonded  or  other  in- 
debtedness of  such  fire  district,  the  proceeds  of  such  sale  shall  be  used 
to  pay  such  bonds  or  obligations  as  shall  then  be  due,  and  as  to  any  bonds 
or  obligations  which  are  not  due,  such  part  of  said  proceeds  as  shall  be 
sufficient  to  meet  such  outstanding  bonds  or  obligations  at  their  maturity 
shall  be  invested  and  held  by  the  county  treasurer  under  the  supervision 
of  the  board  of  supervisors  as  a sinking  fund  for  the  redemption  of  such 
outstanding  bonds  or  obligations  at  their  maturity.  Provided,  however, 
that  if  it  shall,  at  any  time,  be  possible  to  purchase  at  par  or  less  any 
of  such  bonds  or  obligations,  such  board  of  supervisors  may  cause  to  be 
bought  in  and  canceled  any  such  bonds  or  obligations  of  the  fire  district; 
and  if  such  proceeds  of  such  sale  and  the  income  therefrom  be  not 
sufficient  to  redeem  such  bonds  or  obligations  at  their  maturity,  and  to 
pay  the  interest  thereon,  then  there  shall  be  levied  and  collected,  in  annual 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


79 


County  Law,  § 38. 

instalments,  from  the  district  charged  with  the  payment  of  such  bonds  or 
obligations,  such  a sum  as  will  be  sufficient  to  pay  the  interest  on  such  bonds 
or  obligations  and  to  redeem  them  at  their  maturity.  If,  however,  there  shall 
be  any  excess  collected,  such  excess  shall  be  paid  over  to  the  supervisor  of  the 
town,  and  the  sum  so  paid  over  to  the  supervisor  shall  be  credited  to  the  tax- 
able real  property  located  in  such  district,  in  the  next  succeeding  assessment 

of  town  taxes.  [Sub.  amended  by  L.  1910,  ch.  115.] 

9.  Whenever  any  portion  of  any  such  fire  district  heretofore  or  hereafter 

established  shall  be  incorporated  into  the  corporate  limits  of  any  incorporated 
village  or  city,  the  board  of  supervisors  of  the  county  in  which  such  district  is 
located,  or  where  such  fire  district  is  located  in  two  or  more  counties,  the 
several  boards  of  supervisors,  by  resolution  adopted  as  herein  provided  for 
the  establishment  of  such  district,  shall,  upon  the  written  verified  petition  of 
more  than  one-half  in  assessed  valuation  of  the  taxable  inhabitants  of  such  in- 
corporated portion  of  the  fire  districts,  or  upon  the  written,  verified  petition 

of  more  than  one-half  in  assessed  valuation  of  the  taxable  inhabitants  of  such 
unincorporated  portion  of  the  fire  district,  change  the  boundaries  of  such 
district  in  such  manner  as  shall  exclude  such  incorporated  portion  of  the 
district,  if  the  petition  be  by  such  taxable  inhabitants  of  the  incorporated  por- 
tion, or  in  such  manner  as  to  exclude  such  unincorporated  portions  of  the 
district,  if  the  petition  be  by  such  taxable  inhabitants  of  the  unincorporated 
parts  and  thereafter  such  excluded  portion  of  the  district  shall  not  be  entitled 
to  the  protection,  nor  liable  to  be  assessed  or  taxed  for  the  support  of  the  fire 
department  of  such  district,  and  the  portion  not  excluded  shall  thereupon 
assume  and  be  liable  to  pay  all  the  bonded  or  other  indebtedness  of  said 
district.  [Sub.  amended  by  L.  1910,  ch.  115.] 

10.  Where  any  two  fire  districts  not  within  any  incorporated  village  adjoin 
each  other,  the  boundary  line  between  such  districts  may  be  changed  by  the 
board  of  supervisors  of  the  county  in  which  they  are  located,  or,  where  such 
fire  district  is  located  in  two  or  more  counties,  by  resolution  adopted  in  the 
manner  herein  provided  for  establishing  such  district,  as  the  case  may  be,  upon 
a written  verified  petition  of  the  taxable  inhabitants  of  the  portion  of  the  fire 
district  applied  to  be  changed,  whose  names  appear  upon  the  last  preceding 
assessment-roll  of  the  town  within  which  said  portion  of  said  fire  district  is 
located,  as  owning  or  representing  more  than  one-half  of  the  taxable  property 
of  such  portion  of  said  fire  district,  or  as  owning  or  representing  more  than 
one-half  of  the  taxable  real  property  of  such  portion  of  said  fire  district  owned 
by  the  residents  thereof,  provided  the  taxable  inhabitants  of  both  said  fire  dis- 
tricts and  within  the  county,  whose  names  appear  upon  the  last  preceding 
assessment-roll  of  the  town  or  towns,  owning  or  representing  more  than  one- 
half  of  the  taxable  property  of  said  district,  or  as  owning  or  representing  more 
than  one-half  of  the  taxable  real  property  of  such  fire  districts  owned  by  the 
residents  thereof,  shall  consent  in  writing  to  such  change. 

11.  Territory  not  in  a city,  village  or  fire  district  may  be  annexed  to  an  adjoining 
fire  district  as  provided  in  this  subdivision.  A verified  petition  for  such  annexation 
describing  the  territory  and  signed  by  taxable  inhabitants  whose  names  appear  on 
the  last  preceding  assessment-roll  of  the  town  wherein  such  proposed  annexed  terri- 
tory is  located  as  owning  or  representing  more  than  one-half  of  the  taxable  real 
property  of  such  annexed  territory  or  as  owning  or  representing  more  than  one-half 
of  the  taxable  real  property  of  such  annexed  territory  owned  by  the  residents 
thereof,  may  be  presented  to  the  commissioners  of  such  fire  district.  Each  person 
signing  the  petition  shall  state  opposite  his  or  her  name  the  assessed  valuation  of 
ii.e  property  assessed  to  him  or  her  in  such  territory.  Such  petition  must  be  verified 
by  at  least  three  persons  signing  the  same  to  the  effect  that  the  petition  represents 
in  value  more  than  one-half  of  the  assssed  valuation  of  the  property  as  above 
described  or  that  it  represents  in  value  more  than  one-half  of  the  taxable  real  prop- 
erty of  such  territory  owned  by  the  residents  thereof.  Such  petition  must  be  accom- 
panied by  a resolution  of  the  board  of  supervisors  of  the  county  in  which  such  ter- 
ritory is  situated  consenting  to  such  annexation.  Upon  the  presentation  of  such 
petition  and  consent  the  fire  commissioners  shall  cause  a proposition  for  such  annexa- 
tion to  be  submitted  at  a special  election.28a  If  the  proposition  be  adopted,  the 

28a.  Who  may  vote  on  question  of  annexation.  Only  qualified  voters  residing  in 
the  original  fire  district  are  entitled  to  vote  at  a special  election  called  for  the 


so 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  §§  39,  40. 

petition  and  consent  and  the  certificate  of  the  election  shall  be  recorded  in  the  book 
of  records  of  the  commissioners  of  the  district.  Such  annexation  shall  take  effect 
upon  the  receipt  by  the  fire  commissioners  of  the  certificate  of  the  clerk  of  the  board 
of  supervisors,  under  the  seal  of  his  office,  certifying  that  he  has  received  and  placed 
on  file  in  the  office  of  the  board  of  supervisors  an  outline  map  and  description  of 
the  corporate  limits  of  such  fire  district  as  extended,  together  with  the  date  of 
filing  tl:e  same  in  his  office.  Such  outline  map  and  description  shall  plainly  show 
and  describe  the  territory  annexed.  A certificate  thereof  containing  a description 
of  the  territory  annexed  shall,  within  ten  days  after  such  election,  be  filed  by  the 
fire  commissioners  in  the  offices  of  the  clerk  of  the  town  and  of  the  county  in  which 
such  annexed  territory  is  situated.  [County  Law,  § 38,  as  amended  by  L.  1909, 
ch.  405;  subd.  11,  added  by  L.  1913,  ch.  127;  B.  C.  & G.  Cons.  L.  p.  735.] 

§ 12.  EFFECT  OF  INCORPORATION  OF  VILLAGE  WITHIN  LIMITS 
OF  FIRE  DISTRICT. 

Whenever  any  fire  district  is  located  entirely  within  the  corporate 
limits  of  two  or  more  villages  by  virtue  of  the  incorporation  of  such  vil- 
lages after  the  establishment  of  such  fire  district,  and  the  said  villages 
or  either  of  them  has  not  been  excluded  from  the  limits  or  boundaries  of 
such  fire  districts  in  accordance;  with  the  provisions  of  section  thirty- 
eight  of  this  chapter,  the  town  board  and  the  board  of  fire  commissioners 
of  such  fire  district,  shall  meet  together  on  the  Friday  next  preceding 
the  annual  meeting  of  the  board  of  supervisors  and  estimate  the  amount 
necessary  for  the  support  of  the  fire  department  within  such  fire  dis- 
trict, the  purchase,  lease  and  maintenance  of  suitable  real  estate  and 
buildings  for  the  keeping  and  storing  of  the  same  for  the  purchase  of 
the  water  supply  for  fire  purposes  and  for  the  payment  of  debts  and 
accounts  which  may  have  become  due  and  shall  certify  the  same  to  the 
board  of  supervisors  of  the  county,  which  said  estimated  amount  shall,  in 
the  same  manner  as  the  expenses  of  the  town  are  raised,  be  assessed, 
levied  and  collected  only  from  the  property  within  such  fire  district. 
The  collector  shall  pay  the  sums  thus  collected  to  the  supervisor  of  the 
town  who  shall  pay  the  same  to  the  treasurer  of  the  fire  district  upon 
the  order  of  the  board  of  fire  commissioners.  [County  Law,  § 39,  B. 
C.  & G.  Cons.  L.  p.  740.] 

§ 13.  SOLDIERS’  MONUMENT,  BOARD  OF  SUPERVISORS  MAY  AP- 
PROPRIATE MONEYS  FOR  THE  ERECTION  OF. 

Any  such  board  may  also,  by  a vote  of  two-thirds  of  its  members, 
raise  and  appropriate  such  moneys  as  it  may  deem  necessary,  for  the 
erection  within  the  county  of  public  monuments,  in  commemoration  of 
the  federal  soldiers  and  sailors  in  the  late  war  of  the  rebellion,  or  of  any 
other  public  person  or  event,  and  for  repairing  and  remodeling  such 
monuments ; all  moneys  so  raised  shall  be  expended  by  direction  of  the 
board  of  supervisors ; but  no  county  officer  shall  receive  any  compensa- 
tion for  services  rendered  pursuant  to  this  section.29  [County  Law, 
§ 40 ; B.  C.  & G.  Cons.  L.,  p.  740.] 

purpose  of  annexing  territory.  Those  residing  in  the  territory  to  be  annexed  are 
mere  petitioners  submitting  their  requests  to  the  original  fire  district  and  can  in  no 
way  participate  in  such  special  election.  Opinion  of  Atty.-Genl.,  November  (1916), 
9 State  Dept.  Rep.  449. 

29.  Erection  of  public  monuments.  Town  Law,  § 45,  provides  that:  “It 

shall  be  competent  for  electors  of  any  town,  at  any  regular  town  meeting  at 
any  regular  election  to  vote  any  sum  of  money,  to  be  designated  by  a majority 
of  all  the  electors  voting  at  such  town  meeting  or  election,  for  the  purposes 


GENERAL  POWERS  OF  BOARDS  OF  SUPERVISORS. 


81 


County  Law,  §§  41,  43,  44. 

§ 14.  TEMPORARY  LOANS;  ISSUE  OF  OBLIGATIONS  THEREFOR. 

Whenever  moneys  are  borrowed  by  a county  on  temporary  loans,  pur- 
suant to  a resolution  duly  adopted  by  the  board  of  supervisors  of  such 
county,  in  anticipation  of  the  taxes  of  the  current  fiscal  year  and  for  the 
purposes  for  which  such  taxes  are  levied,  as  provided  by  section  five  of 
the  general  municipal  law,  the  notes,  certificates  of  indebtedness  or  other 
county  obligations  issued  for  the  moneys  so  borrowed  shall  be  signed  by 
the  county  treasurer  and  countersigned  by  the  county  clerk.  The  county 
clerk  shall  enter  in  a book  in  his  office,  to  be  provided  therefor  at  the 
expense  of  the  county,  the  date  of  each  such  note,  certificate  of  indebtedness 
or  other  county  obligation,  the  amount  for  which  it  was  issued,  the  time 
when  payable,  and  a general  statement  as  to  the  resolution  of  the  board 
of  supervisors  authorizing  the  issue  thereof.  [County  Law,  § 41,  B.  C.  & G. 
Cons.  L.,  p.  741.] 

§ 15.  ESTABLISHMENT  OF  COUNTY  LABORATORIES. 

The  board  of  supervisors  of  any  county  shall  have  the  power,  by  the 
vote  of  a majority  of  said  board,  to  establish  a county  laboratory  and  to 
appoint  a thoroughly  trained  and  competent  county  bacteriologist  to  have 
charge  of  such  laboratory,  and  such  assistants  as  may  be  required.  [County 
Law,  § 43;  B.  C.  & G.  Cons.  L.,  p.  742.] 

Such  board  of  supervisors  shall  have,  by  like  vote,  power  to  fix  the 
compensation  of  such  county  bacteriologist  and  to  remove  him  from 
office;  fix  the  compensation  of  such  assistants  and  remove  them  from 
office;  also  to  provide  any  necessary  supplies,  equipments,  and  samples 
not  otherwise  provided.  Such  board  of  supervisors  may  from  time  to 
time  make  such  rules  and  regulations  concerning  the  duties  and  liabilities 


of  erecting  a public  monument  within  such  town  in  memory  of  the  soldiers 
of  such  town  or  in  commemoration  of  any  public  person  or  event;  but  no  debt 
shall  be  created  nor  shall  any  tax  be  imposed  on  any  town  for  such  purpose 
unless  the  same  shall  have  been  voted  for  by  a majority  of  the  legal  voters  of 
the  town  affected,  voting  at  such  election.  The  board  of  supervisors  may 
legalize  the  vote  of  any  town  for  such  purpose,  and  after  such  vote  they  may 
raise  or  authorize  the  specified  sum  or  sums  of  money  to  be  raised  for  such 
purpose  in  any  of  the  modes  provided  for  by  law  for  raising  money  for  towns. 
All  moneys  expended  by  any  town  for  the  purposes  authorized  by  this  section 
shall  be  expended  under  the  direction  of  the  supervisor,  town  clerk  and 
justices  of  the  peace  of  such  town  or  a majority  of  them  or  by  a commissioner  or 
commissioners  for  that  purpose  appointed  by  such  town  officers  or  by  a majority 
of  them.  But  nothing  in  this  section  shall  affect  the  right  of  the  electors  to 
vote  on  a propositon  heretofore  directed  to  be  submitted  by  a board  of  super- 
visors, or  the  power  of  a board  of  supervisors  to  carry  into  effect  the  vote  upon 
such  proposition.” 


82  COUNTIES;  BOARDS  OF  SUPERVISORS. 

County  Law,  § 210. 

of  such  officers  as  said  board  may  deem  for  the  best  interests  of  the  county. 
Provided  that  the  board  of  supervisors  of  any  county  having  no  county 
bacteriologist  may,  and  such  board  is  hereby  authorized  and  empowered 
to  make  a contract  with  a county  having  such  county  bacteriologist 
and  county  laboratory,  or  with  a city  having  a city  bacteriologist  and  city 
laboratory,  for  the  performance  of  such  services  as  said  board  may  deem 
necessary  in  the  interests  of  public  health.  [County  Law,  § 44;  B.  C.  & 
G-.  Cons.  L.,  p.  742.] 

§ 16.  COUNTY  ATTORNEY. 

The  board  of  supervisors  in  any  county  may  appoint  a county  attorney 
who  shall  be  removable  at  its  pleasure.  The  term  of  office  of  a county 
attorney  so  appointed  shall  be  two  years,  unless  sooner  removed,  and 
his  salary  shall  be  fixed  by  the  board  of  supervisors  and  be  a county 
charge.  The  board  of  supervisors  may,  by  local  law,  prescribe  the  duties, 
of  the  county  attorney,  which  duties  may  include  the  services  to  town 
boards  and  town  officials  when  not  in  conflict  with  the  interests  of  the 
county.  [County  Law,  § 210,  B.  C.  & G.  Cons.  L.,  p.  814.] 

The  board  of  supervisors  in  any  county  may  appoint  a county  attor- 
ney. The  term  of  office  of  a county  attorney  so  appointed  shall  be  two 
years  and  his  salary  shall  be  fixed  by  the  board  of  supervisors  and  be  a 
county  charge.  A county  attorney  may  be  removed  by  the  appointing 
officer  for  inefficiency,  neglect  of  duty  or  misconduct  in  office,  but  only 
after  notice  and  an  opportunity  to  be  heard.  The  board  of  supervisors 
may,  by  local  law,  prescribe  the  duties  of  the  county  attorney,  which 
duties  may  include  the  services  to  town  boards  and  town  officials  when 
not  in  conflict  with  the  interests  of  the  county.  [County  Law,  § 210,, 
as  amended  by  L.  1918,  ch.  573;  B.  C.  & G.  Cons.  L.,  p.  814.] 


COUNTY  BOARDS  OF  CANVASSERS. 
Explanatory  note. 


83 


CHAPTER  Y. 

BOARDS  OF  SUPERVISORS  AS  BOARDS  OF  COUNTY  CANVASSERS. 

EXPLANATORY  NOTE. 

County  Canvass. 

The  powers  and  duties  of  boards  of  supervisors  as  county  canvassers 
are  prescribed  by  sections  430  to  439  of  the  Election  Law.  The  pro- 
ceedings of  the  board  as  to  the  canvass  of  votes  cast  at  general  elections 
held  in  the  county  are  declared  in  such  sections.  The  canvass  includes 
the  consideration  of  statements  received  from  the  inspectors  of  the 
several  election  districts  in  the  county,  and  the  determination  of  the 
number  of  votes  cast  in  the  county  for  the  candidates  for  public  office 
and  for  and  against  such  propositions  as  may  have  been  submitted  at  the 
election.  Separate  statements  are  required  to  he  made  of  the  votes  cast 
for  electors,  state  officers,  representatives  in  Congress,  members  of  as- 
sembly, state  senators,  county  offices  and  proposed  constitutional  amend- 
ments or  other  propositions.  The  board  is  to  transmit  such  statements  to 
the  state  hoard  of  canvassers,  except  that  in  the  case  of  votes  cast  for 
county  officers  and  offices  filled  by  votes  cast  in  the  county  or  any  portion 
thereof,  in  which  case  the  board  is  to  decide  for  the  statements  before  it 
as  to  the  persons  who  have  been  elected. 

Meetings  and  Organization  of  Board  of  Canvassers. 

The  board  of  supervisors  meets  as  a board  of  county  canvassers  in  the 
county  clerk’s  office  on  the  Tuesday  following  the  election.  The  board 
must  then  elect  a chairman.  The  county  clerk  acts  as  the  secretary 
of  the  board ; in  his  absence,  the  deputy  county  clerk  acts  as  such. 

Section  1.  Organization  of  county  board  of  canvassers;  meetings. 

2.  Production  of  original  statements  and  copies  thereof. 

3.  Correction  of  clerical  errors  in  election  district  statements. 

4.  Correction  in  state  or  county  board  of  canvassers’  statement. 

5.  Statements  of  canvass  by  county  boards. 

6.  Decision  of  county  board  as  to  persons  elected. 

7.  Transmission  of  statements  of  county  boards  to  secretary  of  state 

and  municipal  assembly. 


84: 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


Election  Law,  § 430. 

§ 1.  ORGANIZATION  OF  COUNTY  BOARDS  OF  CANVASSERS; 

MEETINGS. i 

The  board  of  supervisors  of  each  county  shall  be  the  county  board  of 
canvassers  of  such  county.  The  county  board  of  canvassers  of  each 
county  within  the  city  of  New  York  shall  consist  of  the  members  of  the 
board  of  aldermen  of  the  city  of  New  York  elected  as  such  within  the 
county.  The  said  county  boards  of  canvassers  shall  also  within  their 
respective  counties  be  the  city  board  of  canvassers  of  such  city.  The 
county  board  of  canvassers  of  a county  containing  a city  or  cities  shall 
be  the  city  board  of  canvassers  of  such  city  or  cities,  except  that  the  board 
of  aldermen  of  the  city  of  Buffalo  shall  be  the  city  board  of  canvassers 
for  such  city.  The  county  board  of  canvassers  of  the  respective  counties 
shall  meet  on  the  Tuesday  next  after  each  election  of  public  officers  held 
in  such  county  other  than  an  election  of  town,  city,  village  or  district 
school  officers  held  at  a different  time  from  a general  election.  The 
board  of  county  canvassers  shall  meet  at  the  usual  place  of  meeting  of 
the  board  of  supervisors,  except  that  in  a county  wholly  included  in  the 
city  of  New  York  such  board  of  county  canvassers  shall  meet  at  the 
office  of  the  county  clerk.  Upon  such  meeting  they  shall  choose  one  of 
their  number  chairman  of  such  board.  In  a county  having  a single 
commissioner  of  elections,  instead  of  a board  of  elections,  such  commis- 
sioner  shall  be  the  secretary  of  the  board  of  county  canvassers.  In 
a county  wholly  included  within  the  limits  of  the  city  of  New  York  and 
in  a county,  if  any,  in  which  the  general  powers  and  duties  of  a county 
board  of  elections  is  devolved  upon  the  county  clerk  by  this  chapter,  the 
county  clerk,1 2  or  if  he  be  absent  or  unable  to  act,  a deputy  county  clerk 
designated  by  the  clerk,  shall  be  secretary  of  the  board  of  county  can- 
vassers. In  every  other  county  of  the  state  the  president  of  the  board  of 
elections  shall  be  the  secretary  of  the  board  of  county  canvassers,  or  if 
he  be  absent  or  unable  to  act,  the  secretary  of  such  board  shall  be  the 
secretary  of  the  board  of  county  canvassers.  When  a chairman  of 
the  board  of  county  canvassers  shall  have  been  chosen,  as  above  pro- 
vided, the  secretary  of  such  board  shall  thereupon  administer  the  con- 
stitutional oath  of  office  to  the  chairman,  who  shall  then  administer  such 
oath  to  each  member,  and  to  the  secretary  of  the  board.  A majority  of 
the  members  of  any  board  of  canvassers  shall  constitute  a quorum 
thereof.  If,  on  the  day  fixed  for  such  meeting,  a majority  of  any  such 
board  shall  not  attend,  the  members  of  the  board  then  present  shall  elect 
the  chairman  of  the  board  and  adjourn  to  some  convenient  hour  of  the 
next  day.  If  such  board,  or  a majority  thereof,  shall  fail  or  neglect  to 


1.  As  to  conduct  of  elections  and  powers  and  duties  of  county  boards  of  can- 
vassers, see  Jewett’s  Election  Manual,  1918.  Published  by  Matthew  Bender  & Co 
Albany,.  N.  Y. 

2.  If  the  county  clerk  fails  to  appear,  and  if  his  deputy  be  also  absent,  the  board 
has  power  to  appoint  a secretary  in  their  place  to  perform  the  duties  which  appertain 
to  that  office.  The  same  is  true,  if  the  county  clerk  is  present  but  refuses  to  perform 
his  duties.  People  ex  rel.  Daley  v.  Rice,  129  N.  Y.  449“;  29  N.  E.  355. 


COUNTY  BOARDS  OF  CANVASSERS. 


85 


Election  Law,  §§  431,  432. 

meet  within  two  days  after  the  time  fixed  for  organizing  snch  hoard,  the 
supreme  court,  or  any  justice  thereof,  or  county  judge  within  such 
county,  may  compel  the  members  thereof  by  writ  of  mandamus  to  meet 
and  organize  forthwith.  [Election  Law,  § 430 ; as  amended  by  L.  1910, 
ch.  432,  and  L.  1916,  ch.  537 ; B.  C.  & G.  Cons.  L.,  p.  1570.] 

§ 2.  PRODUCTION  OF  ORIGINAL  STATEMENTS  AND  COPIES 
THEREOF. 

As  soon  as  such  board  of  county  canvassers  shall  have  been  organized, 
the  officer  with  whom  they  were  filed  shall  deliver  to  such  board  of  can- 
vassers all  the  returns  with  tally  sheets  annexed  containing  the  original 
statements  of  canvass  received  from  inspectors  of  election  for  districts 
within  the  county  for  which  said  board  are  county  or  city  canvassers. 
The  original  statements  which  have  been  delivered  to  members  of  the 
board  of  canvassers  shall  then  be  delivered  to  the  board.  If  any  member 
of  the  county  board  of  canvassers  shall  be  unable  to  attend  the  first 
meeting  of  such  board,  he  shall,  at  or  before  such  meeting,  cause  to  be 
delivered  to  the  secretary  of  such  board  any  original  statement  that  may 
have  come  into  his  possession.  If,  at  the  first  meeting  of  a county  board 
of  canvassers  of  any  county,  all  returns  with  tally  sheets  annexed  so 
required  to  be  produced  shall  not  be  produced  before  the  board,  it  shall 
adjourn  to  some  convenient  hour  of  the  same  or  the  next  day,  and  the 
secretary  of  such  board  shall,  by  special  messenger  or  otherwise,  obtain 
such  missing  returns,  if  possible,  otherwise  he  shall  procure  the  other 
set  of  returns  with  tally  sheets  annexed,  or,  failing  that,  the  third  set  of 
returns  without  tally  sheets,  in  time  to  be  produced  before  such  board  at 
its  next  meeting.  At  such  first  meeting,  or  as  soon  as  an  original  state- 
ment of  the  result  of  the  canvass  of  the  votes  cast  at  such  election  in 
every  election  district  of  the  county  shall  be  produced  before  such  board, 
the  board  shall  proceed  to  canvass  the  votes  cast  in  such  county  at  such 
election.3  [Election  Law,  § 431,  as  amended  by  L.  1913,  ch.  821,  and 
L.  1916,  ch.  537 ; B.  C.  & G.  Cons.  L.,  p.  1572.]' 


§ 3.  CORRECTION  OF  CLERICAL  ERRORS  IN  ELECTION  DISTRICT 
STATEMENT. 

If,  upon  proceeding  to  canvass  such  votes,  it  shall  clearly  appear  to 
any  county  board  of  canvassers  that  certain  matters  are  omitted  from 
any  such  statement  which  should  have  been  inserted,  or  that  any  merely 
clerical  mistakes  exist  therein,  they  shall  have  power,  and  such  power 
is  hereby  given,  to  summon  the  election  officers  whose  names  are  sub- 
scribed thereto  before  such  board,  and  such  election  officers  shall  forth- 
with meet  and  make  such  correction  as  the  facts  of  the  case  require;  but 
such  election  officers  shall  not  change  or  alter  any  decision  before  made 

3.  Determination  of  board.  It  is  not  the  duty  of  a board  of  county  can- 
vassers to  ascertain  which  of  the  candidates  for  an  office  was  in  fact  elected,  but 
simply  to  determine  from  the  documentary  evidence  .before  them,  furnished  by 
inspectors  of  election,  upon  which  alone  they  may  act,  the  number  of  votes  given 
for  each  candidate.  People  ex  rel.  Noyes  v.  Board  of  Canvassers,  126  N.  Y.  392. 


80 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


Election  Law,  § 433. 

by  them,  but  shall  only  cause  their  canvass  to  be  correctly  stated.* * * 4  The 
board  of  county  canvassers  may  adjourn  from  day  to  day  not  exceeding 
three  days  in  all,  for  the  purpose  of  obtaining  and  receiving  such  cor- 
rected statements.  [Election  Law,  § 432,  as  amended  by  L.  1913,  ch. 
821 ; B.  C.  & G.  Cons.  L.,  p.  1573.] 

§ 4.  CORRECTION  IN  STATE  OR  COUNTY  BOARD  OF  CANVASS- 
ERS’ STATEMENT. 

The  Supreme  Court  may,  upon  affidavit  presented  by  any  voter  show- 
ing that  errors  have  occurred  in  any  statement  or  determination  made 
by  the  state  board  of  canvassers,  or  by  any  board  of  county  canvassers,  or 
that  any  such  board  has  failed  to  act  in  conformity  to  law,  make  an  order 


Ministerial  duties.  Board  of  county  canvassers  cannot  act  judicially.  Id. 

People  ex  rel.  Blodgett  v.  Board,  44  N.  Y.  St.  Rep.  738,  19  N.  Y.  Supp.  206;  Matter 

of  Woods,  5 Misc.  575,  26  N.  Y.  Supp.  169;  People  ex  rel.  Derby  v.  Rice,  129  N.  Y. 
461.  See  Matter  of  Hart,  161  N.  Y.  507. 

4.  Correction  of  errors.  A board  of  county  canvassers  has  only  ministerial 
and  not  judicial  duties  to  perform,  and  cannot  enter  upon  a judicial  inves- 
tigation to  ascertain  the  genuineness  of  a return  which  the  law  requires  in- 
spectors to  make  to  it.  The  correctness  of  such  return  is  favored  by  the 
presumption  of  official  honesty  and  regularity.  If  the  returns  are  not  regular, 
the  board  should  send  them  back  to  the  inspectors  for  correction.  People  ex  rel. 
Russell  v.  Board,  46  Hun,  390;  People  ex  rel.  Noyes  v.  Board  of  County  Can- 
vassers, 126  N.  Y.  392;  27  N.  E.  792;  People  ex  rel.  Fiske  v.  Devermann,  83  Hun, 
181;  31  N.  Y.  Supp.  593. 

Boards  of  canvassers  have  no  power  conferred  upon  them  to  correct  frauds 
or  rectify  mistakes,  except  clerical  ones.  Their  duty  is  simply  to  add  to- 
gether the  statements  of  results  filed  with  them  by  inspectors.  People  ex  rel. 
Blodgett  v.  Board  of  Town  Canvassers,  44  N.  Y.  St.  Rep.  738;  19  N.  Y.  Supp. 
206.  But  returns  cannot  be  sent  back  to  inspectors  of  election  for  a re- 
count. People  ex  rel.  Fiske  v.  Devermann,  83  Hun,  181;  31  N.  Y.  Supp.  593. 

A writ  of  mandamus  will  issue  to  compel  the  board  to  send  back  to  the 
inspectors,  for  correction,  returns  which  do  not  show  upon  their  face  that  any 
particular  person  received  any  votes  whatsoever  and  which  do  not  contain  a 
statement  of  the  number  of  general  ballots  protested  as  “ marked  for  identifica- 
tion.” People  ex  rel.  Ranton  v.  City  of  Syracuse,  83  Hun,  203;  34  N.  Y.  Supp. 
661;  People  ex  rel.  Munro  v.  Board,  129  N.  Y.  469.  But  where  it  does  not 
clearly  appear  that  a clerical  error  exists  in  the  returns  of  a canvass  an  appli- 
cation to  the  court  to  have  it  corrected  will  be  refused.  Matter  of  Application 
of  Aldermen,  49  N.  Y.  Supp.  241. 

When  the  statement  or  return  states  a less  number  of  votes  for  certain  can- 
didates than  that  shown  by  the  unquestioned  tally  sheet  the  board  of  county 
canvassers  may  be  required  by  mandamus,  on  the  petition  of  the  candidates 
prejudiced,  to  exercise  the  powers  conferred  by  this  section  to  summon  in- 
spectors to  correct  their  returns.  Matter  of  Stewart,  155  N.  Y.  545,  affg.  24 
App.  Div.  201,  48  N.  Y.  Supp.  957. 


COUNTY  BOARDS  OF  CANVASSERS. 


87 


Election  Law,  § 433. 

requiring  such  board  to  correct  such  errors,  or  perform  its  duty  in  the  man- 
ner prescribed  by  law,  or  show  cause  why  such  correction  should  not  be 
made  or  such  duty  performed.  If  such  board  shall  fail  or  neglect  to  make 
such  correction,  or  perform  such  duty,  or  show  cause  as  aforesaid,  the 
court  may  compel  such  board,  by  writ  of  mandamus,  to  correct  such  errors 
or  perform  such  duty ; and  if  it  shall  have  made  its  determination  and  dis- 
solved, to  reconvene  for  the  purpose  of  making  such  corrections  or  per- 
forming such  duty.5  Such  meeting  of  the  board  of  state  or  county  can- 


5.  Court  may  compel  board  to  perform  its  duty.  The  above  section  is  in 
effect  a re-enactment  of  L.  1880,  ch.  460,  authorizing  the  Supreme  Court  in 
proceedings  by  writ  of  mandamus  to  correct  errors  in  the  determination  of 
boards  of  county  canvassers  and  to  compel  them  to  reconvene  and  declare  a 
truthful  result  of  the  returns  before  them.  See  People  ex  rel.  Noyes  v.  Board  of 
County  Canvassers,  126  N.  Y.  392;  27  N.  E.  792;  Kutz  v.  County  Canvassers, 
12  Abb.  N.  C.  84;  People  ex  rel.  Noyes  v.  Board,  126  N.  Y.  392;  People  ex  rel. 
Daley  v.  Rice,  129  N.  Y.  449;  People  ex  rel.  Munro  v.  Board,  129  N.  Y.  469; 
People  ex  rel.  Russell  v.  Board,  46  Hun,  390;  People  ex  rel.  Fiske  v.  Dever- 
mann,  83  Hun,  81,  31  N.  Y.  Supp.  593. 

The  board  of  county  canvassers  is  manifestly  created  for  the  fulfillment 
of  a mere  ministerial  function.  The  legislature  has  not  invested  it  with 
power  to  determine  questions  concerning  the  conduct  or  legality  of  an  election. 
These  boards  derive  their  powers  strictly  from  the  statute.  They  cannot  hear 
or  consider  evidence  outside  of  the  returns.  They  are  restricted  by  the  law 
of  their  creation  to  certain  prescribed  functions,  and  in  their  fulfillment  they 
act  under  the  written  commands  of  the  statute.  A writ  of  mandamus  will  lie 
against  them  for  a failure  to  perform  a specific  duty  which  has  been  imposed 
upon  them  by  statute,  or  where  they  have  failed  to  conform  to  the  law,  or  have 
refused  some  legal  right.  People  ex  rel.  Derby  v.  Rice,  129  N.  Y.  461;  29  N.  E. 
358.  The  courts  in  *the  issuing  of  such  writs  will  not  compel  the  hoard  to  do 
that  which  the  statute  does  not  authorize  them  to  do.  Matter  of  Woods,  5 Misc. 
575;  26  N.  Y.  Supp.  169. 

Upon  a writ  of  mandamus  to  require  the  board  of  canvassers  to  reconvene  and 
correct  alleged  errors  in  its  canvass  of  the  votes  cast  upon  a question  relating  to 
the  location  of  county  buildings,  the  court  cannot  decide  whether  the  question, 
as  printed  on  the  ballot,  was  in  the  form  prescribed  by  law.  People  ex  rel. 
Williams  v.  Board  of  Canvassers,  105  App.  Div.  197,  94  N.  Y.  Supp.  996. 

When  refusal  of  mandamus  proper.  When  a relator  seeks  a determination 
by  mandamus  of  a canvassing  board  that  he  has  been  elected  to  an  office  in  the 
possession  of  another,  claiming  title  thereto,  who  is  not  a party  to  the  proceed- 
ing, the  court  may  refuse  the  writ  as  a matter  of  discretion  leaving  him  to  his 
remedy  in  the  action  provided  by  law  for  the  determination  of  a title  to  an 
office.  Matter  of  Hart,  159  N.  Y.  278. 

The  court  has  no  power  to  interfere  by  mandamus  with  the  canvassing  of 
returns,  regular  upon  their  face,  by  the  county  board,  when  it  is  simply  alleged 
that  fraud  has  been  committed  in  the  counting  of  votes  by  the  inspectors. 
If  there  were  two  returns,  one  true  and  the  other  false,  the  court  might 
compel  the  board  to  canvass  the  true  one.  People  ex  rel.  Gregg  v.  Board  of 
County  Canvassers,  54  Hun,  595;  8 N.  Y.  Supp.  259. 


88  COUNTIES;  BOARDS  OF  SUPERVISORS. 

Election  Law,  § 437. 

vassers  shall  be  deemed  a continuation  of  its  regular  session,  for  the  pur- 
pose of  making  such  corrections,  or  otherwise  acting  as  the  court  may 
order,  and  the  statements  and  certificates  shall  be  made  and  filed  as  the 
court  shall  direct,  and  shall  stand  in  lieu  of  the  original  certificates  and 
statements  so  far  as  they  shall  vary  therefrom,  and  shall  in  all  places 
be  treated  with  the  same  effect  as  if  such  corrected  statements  had  been  a 
part  of  the  originals  required  by  law. 

A special  proceeding  authorized  by  this  section  must  be  commenced 
within  four  months  after  the  statement  or  determination  in  which  it  is 
claimed  errors  have  occurred  was  made,  or  within  four  months  after  it  was 
the  duty  of  the  board  to  act  in  the  particular  or  particulars  as  to  which 
it  is  claimed  to  have  failed  to  perform  its  duty.  [Election  Law,  § 433 ; B. 
C.  & G.  Cons.  L.,  p.  1573.] 

§ 5.  STATEMENTS  OF  CANVASS  BY  COUNTY  BOARDS;  PRESERVATION 
OF  PROTESTED,  VOID  AND  WHOLLY  BLANK  BALLOTS. 

Upon  the  completion  by  a county  board  of  canvassers  of  the  canvass  of 
votes  of  which  original  statements  of  canvass  are  by  law  required  to  be 
delivered  to  them,  by  the  boards  or  officers  with  whom  the  same  may 
have  been  filed  by  the  inspectors  of  election,  they  shall  make  separate 
statements  thereof  as  follows :* * * * *  6 


The  court  cannot  compel  the  county  hoard  of  canvassers  to  change  the  returns 

of  a general  election  so  as  to  show  separately  the  number  of  votes  cast  for  the 

office  of  governor  in  the  name  of  and  under  the  emblem  of,  the  political  party 
whose  candidate  for  the  office  was  the  same  as  that  of  another  political  party, 

in  order  that  it  shall  appear  from  the  returns  filed  in  the  office  of  the 
secretary  of  state,  whether  or  not  such  first  mentioned  political  party  polled 

10,000  votes  for  such  officer  at  such  election,  and  is  thus  entitled  to  make  its 
nominations  for  the  next  year  by  convention.  People  ex  rel.  Boies  v.  Board 
of  Canvassers,  79  App.  Div.  514,  N.  Y.  Supp. 

6.  The  statement  returned  by  board  of  county  canvassers  to  the  State 
board  may  not  lawfully  contain  anything  save  the  whole  number  of  votes 
given  in  the  county,  the  names  of  the  candidates,  and  the  number  of  votes  given 
for  each,  and  this  must  be  made  up  solely  from  the  original  statements  of  the 
canvass  returned  by  the  inspectors  in  each  and  all  of  the  election  districts  of 
the  county.  Such  a board  has  no  authority  to  transmit  with  its  return  any 
paper  attacking  the  validity  of  the  election,  and  if  such  a paper  is  so  transmitted 
the  state  board  has  no  power  to  consider  it.  People  ex  rel.  Derby  v.  Rice,  129 
N.  Y.  461. 

Separate  return  of  votes  cast  for  candidates  of  political  party.  The  court 
cannot  compel  a county  board  of  canvassers  to  make  its  return  so  as  to  show 
separately  the  number  of  votes  cast  for  the  office  of  governor  in  the  column 
and  under  the  emblem  of  a political  party  whose  candidate  for  the  office  of 
governor  was  the  same  as  that  of  another  political  party,  in  order  that  it  may 
appear  from  the  returns  filed  in  the  office  of  the  secretary  of  state  whether  or 


COUNTY  BOARDS  OF  CONVASSERS. 


89 


Election  Law,  § 437. 

1.  One  statement  of  all  such  votes  cast  for  each  office  of  elector  of 
president  and  vice-president  of  the  United  States. 

2.  One  statement  of  all  such  votes  cast  for  each  state  office,  to  in- 
clude, in  the  case  of  a candidate  for  governor  who  was  nominated  by 
two  or  more  parties  or  independent  bodies,  a separate  statement  of  the 
number  of  votes  cast  for  him  as  the  candidate  of  each  party  or  inde^ 
pendent  body  by  which  he  was  nominated. 

3.  One  statement  of  all  such  votes  cast  for  each  office  of  representa- 
tive in  congress,  except  that  the  board  of  canvassers  in  the  county  of 
New  York  shall  not  make  a statement  of  the  votes  cast  in  any  election 
district  in  said  county,  for  any  candidate  for  the  office  of  assemblyman, 
senator  or  representative  in  congress,  the  candidates  for  which  were  also 
voted  for  by  voters  in  election  districts  in  any  county  not  within  the  city 
of  New  York. 

4.  One  statement  as  to  all  such  votes  cast  upon  every  proposed  con- 
stitutional amendment  or  other  proposition  or  question  duly  submitted  to 
all  the  voters  of  the  state. 

5.  One  statement  as  to  all  the  votes  cast  for  all  and  each  of  the  candi- 
dates for  each  office  of  member  of  assembly  for  which  the  voters  of  such 
county  or  any  portion  thereof,  except  as  provided  in  paragraph  num- 
bered three  in  this  section,  were  entitled  to  vote  at  such  election. 

6.  One  statement  as  to  all  the  votes  cast  for  each  county  office,  and 
office  of  school  commissioner,  for  which  the  voters  of  such  county,  or 
any  portion  thereof,  were  entitled  to  vote  at  such  election,  and  to  be 
canvassed  by  them. 

7.  One  statement  as  to  all  the  votes,  if  any,  upon  any  proposition  or 
question  upon  which  only  the  voters  of  such  county  were  entitled  to  vote 
at  such  election. 

8.  In  the  counties  wholly  or  partly  within  the  city  of  New  York, 
the  respective  county  boards  shall  make  a separate  statement  as  to  the 
votes,  if  any,  so  cast  upon  any  proposition  or  question  upon  which  only 
the  voters  of  such  city  were  entitled  to  vote  at  such  election  in  such 
county  or  portion  thereof. 

Each  such  statement  shall  set  forth,  in  words  written  out  at  length, 
all  votes  cast  for  all  the  candidates  for  each  such  office ; and  if  any  such 
office  was  to  be  filled  at  such  election  by  the  voters  of  a portion  only  of 


not  such  political  party  polled  the  required  number  of  votes  for  state  officers 
to  entitle  it  to  make  its  nominations  by  conventions  during  the  next  year. 
There  is  no  provision  in  the  statute  authorizing  such  a separate  return.  People 
ex  rel.  Boies  v.  Board  of  Canvassers,  79  App.  Div.  514,  80  N.  Y.  Supp.  25. 


90 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


Election  Law,  § 438. 

a county,  all  the  votes  cast  for  all  the  candidates  for  each  office  in  any 
such  portion  of  a county,  designating  it  by  its  proper  district  number 
or  other  appropriate  designation ; the  name  of  each  such  candidate ; the 
number  of  votes  so  cast  for  each,  and,  in  the  case  of  a candidate  for 
governor  who  was  nominated  by  two  or  more  parties  or  independent 
bodies,  the  number  separately  stated  of  votes  cast  for  him  as  the  candi- 
date of  each  party  or  independent  body  by  which  he  was  nominated; 
and  the  whole  number  of  votes  so  cast  upon  any  proposed  constitutional 
amendment  or  other  proposition  or  question,  and  all  the  votes  so  cast  in 
favor  of  and  against  the  same  respectively.  In  the  counties  wholly  or 
partly  within  the  city  of  Yew  York,  the  respective  county  boards  shall 
make  a separate  statement  of  the  votes  cast  for  all  the  city  offices  voted 
for  by  the  voters  of  such  city  or  any  portion  thereof,  within  such 
counties. 

The  statements  required  by  this  section  shall  each  be  certified  as  cor- 
rect over  the  signatures  of  the  members  of  the  board,  or  a majority  of 
them,  and  shall  be  filed  and  recorded  in  the  office  of  the  board  of  elec- 
tions of  each  county,  except  in  the  counties  wholly  within  the  city  of 
Yew  York,  and  in  such  counties  they  shall  be  filed  in  the  office  of  the 
county  clerk.  When  the  whole  canvass  shall  be  completed,  all  original 
statements  of  canvass  used  thereat  shall  be  filed  in  the  office  of  the 
secretary  of  the  board,  who  shall  file  a report  of  such  canvass  with  the 
board  of  supervisors,  except  in  counties  wholly  within  a city  of  the  first 
class.  The  original  statement  of  canvass  not  used  at  the  canvass  and 
the  packages  of  protested,  void  and  wholly  blank  ballots  shall  be  retained 
in  the  office  in  which  or  by  the  officer  with  whom  they  were  filed,  except 
as  otherwise  expressly  provided  by  law.  The  packages  of  protested,  void 
and  wholly  blank  ballots  shall  be  retained  inviolate  in  the  office  in  which 
they  are  filed  subject  to  the  order  and  examination  of  a court  of  com- 
petent jurisdiction,  or  to  examination  by  a committee  of  the  senate  or 
assembly  to  investigate  and  report  on  a contested  election  of  member 
of  the  legislature  where  such  ballots  were  cast  at  such  election,  and  may 
be  destroyed  at  the  end  of  six  months  from  the  time  of  the  completion 
of  such  canvass,  unless  otherwise  ordered  by  a court  of  competent  juris- 
diction or  unless  such  committee  examination  be  pending.  [Election 
Law,  § 437,  as  amended  by  L.  1913,  ch.  821,  L.  1914,  ch.  244,  and  L. 
1916,  ch.  537;  B.  C.  & G.  Cons.  L.,  p.  1576.] 

§ 6.  DECISIONS  OF  COUNTY  BOARDS  AS  TO  PERSONS  ELECTED. 

Upon  the  completion  of  the  statements  required  by  the  preceding 
section  the  board  of  canvassers  for  each  county  shall  determine  what 


COUNTY  BOARDS  OF  CANVASSERS. 


91 


Election  Law,  § 438. 

person  has  by  the  greatest  number  of  votes  been  so  elected  to  each  office 
of  member  of  assembly  to  be  filled  by  the  voters  of  each  county  for 
which  they  are  county  canvassers  if  constituting  one  assembly  district, 
or  in  each  assembly  district  therein,  if  there  be  more  than  one,  and  each 
person  elected  by  the  greatest  number  of  votes  to  each  county  office  of 
such  county  to  be  filled  at  such  election,  and  if  there  be  more  than  one 
school  commissioner  district  in  such  county,  each  person  elected  by  the 
greatest  number  of  votes  to  the  office  of  school  commissioner  to  be  filled 
at  such  election  in  each  district.  The  board  of  elections  of  the  county 
of  Hamilton  shall  forthwith  transmit  to  the  board  of  elections  of  the 
county  of  Fulton  a certified  copy  of  the  statement  so  filed  and  recorded 
in  its  office  of  the  county  board  of  canvassers  of  Hamilton  county  as  to 
all  the  votes  so  cast  in  Hamilton  county  for  all  the  candidates  and  for 
each  of  the  candidates  for  the  office  of  member  of  assembly  of  the 
assembly  district  composed  of  Fulton  and  Hamilton  counties;  and  the 
board  of  elections  of  Fulton  county  shall  forthwith  deliver  the  same  to 
the  Fulton  county  board  of  canvassers,  who  shall  from  such  certified 
copy,  and  from  their  own  statement  as  to  the  votes  so  cast  for  such  office 
in  Fulton  county,  determine  what  person  was  at  such  election  elected 
by  the  greatest  number  of  votes  to  such  office.  Such  board  of  each  county 
shall  determine  whether  any  proposition  or  question  submitted  to  the 
voters  of  such  county  only  has  by  the  greatest  number  of  votes  been 
adopted  or  rejected. 

All  such  determinations  shall  be  reduced  to  writing  and  signed  by 
the  members  of  such  board,  or  a majority  of  them,  and  filed  and  re- 
corded in  the  office  of  the  board  of  elections  of  such  county,  except  in 
the  counties  wholly  within  the  city  of  Hew  York,  and  in  such  counties 
the  county  clerk,  who  or  which  shall  each  cause  a copy  thereof,  and  of 
the  statement  filed  and  recorded  in  his  or  its  office,  upon  which  such 
determination  was  based,  to  be  published  in  accordance  with  the  pro- 
visions of  the  laws  of  eighteen  hundred  and  ninety-two,  chapter  six 
hundred  and  eighty-six,  sections  twenty-one  and  twenty-two. 

The  board  of  elections  of  each  county,  except  in  the  counties  wholly 
within  the  city  of  Hew  York,  and  in  such  counties  the  county  clerk,  shall 
prepare  as  many  certified  copies  of  each  certificate  of  the  determination 
of  the  county  board  of  canvassers  of  such  county  as  there  are  persons 
declared  elected  in  such  certificate,  and  shall,  without  delay,  transmit 


92 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


Election  Law,  § 439. 

such  copies  to  the  persons  therein  declared  to  be  elected,  respectively.7 
[Election  Law,  § 438 ; as  amended  by  L.  1916,  ch.  537 ; B.  C.  & G. 
Cons.  L.,  p.  1578.] 

§ 7.  TRANSMISSION  OF  STATEMNTS  OF  COUNTY  BOARDS  TO 
SECRETARY  OF  STATE  BOARD  OF  ELECTIONS. 

Upon  the  filing  in  the  office  of  the  county  clerk  or  board  of  elections 
of  a statement  of  the  county  board  of  canvassers  as  to  the  votes  cast  for 
candidates  for  the  offices  of  electors  of  president  and  vice-president, 
or  as  to  the  votes  cast  for  candidates  for  state  officers,  except  members 
of  assembly,  and  for  representatives  in  congress,  or  as  to  the  votes  cast 
on  any  proposed  constitutional  amendment  or  other  proposition  or  ques- 
tion submitted  to  all  the  voters  of  the  state,  such  county  clerk  or  board  of 
elections  shall  forthwith  make  two  certified  copies  of  each  such  state- 
ment, and,  within  five  days  after  the  filing  thereof  in  his  or  its  office, 
transmit  by  mail  one  of  such  copies  to  the  secretary  of  state,  and  one  to 
the  comptroller  of  the  state.  The  comptroller  shall  forthwith  upon  the 
receipt  thereof  deliver  such  certified  copy  to  the  secretary  of  state.  If 
any  certified  copy  shall  not  be  received  by  the  secretary  of  state  on  or 
before  the  last  day  of  November  next  after  a general  election,  or  within 
twenty  days  after  a special  election,  he  shall  dispatch  a special  mes- 
senger to  obtain  such  certified  copy  from  the  county  clerk  or  board  of 
elections  required  to  transmit  the  same,  and  such  county  clerk  or  board 
of  elections  shall  immediately  upon  demand  of  such  messenger  at  his  or 
its  office  make  and  deliver  a certified  copy  to  such  messenger  who  shall, 
as  soon  as  practicable,  deliver  it  to  the  secretary  of  state. 

The  board  of  elections  of  each  county,  except  a county  wholly  within 
the  city  of  New  York,  and  in  any  such  county  the  county  clerk,  shall 
transmit  to  the  secretary  of  state  within  twenty  days  after  a general 
election,  and  within  ten  days  after  a special  election,  a list  of  the  names 
and  residences  of  all  persons  determined  by  the  board  of  county  can- 
vassers of  such  county  to  be  elected  member  of  assembly,  or  to  any 
county  office;  and  on  or  before  the  fifteenth  day  of  December  in  each 
year  a certified  tabulated  statement  of  the  official  canvass  of  the  votes 

7.  Canvass  of  votes  cast  for  persons  of  similar  names.  The  board  of 
county  canvassers  cannot  determine  that  the  votes  cast  for  several  somewhat 
similar  names  were  all  intended  for  the  same  person,  and  from  the  result  thus 
reached  issue  a certificate  of  election  to  him,  ‘but  they  should  certify  separately 
the  separate  names  and  issue  the  certificate  of  election  to  the  one  entitled  thereto 
on  the  face  of  the  returns.  People  ex  rel.  Katham  v.  County  Board  of  Canvassers, 
75  App.  Div.  110;  77  N.  Y.  Supp.  620. 


CLERKS  OF  BOARDS  OF  SUPERVISORS. 


93 


Election  Law,  § 439. 

cast  in  each,  such  county  by  election  districts  for  candidates  for  governor, 
lieutenant-governor,  secretary  of  state,8  comptroller,  treasurer,  attorney- 
general,  state  engineer  and  surveyor  and  United  States  senator,  or  any 
proposed  constitutional  amendment  or  other  proposition,  at  the  last  pre- 
ceding general  election,  to  include,  in  the  case  of  a candidate  for  governor 
who  was  nominated  by  two  or  more  parties  or  independent  bodies,  a 
separate  statement  of  the  number  of  votes  cast  for  him  as  the  candidate 
of  each  party  or  independent  body  by  which  he  was  nominated. 

Upon  the  filing  in  the  office  of  the  county  clerk  of  a county  wholly 
or  partly  within  the  city  of  New  York  of  a statement  of  the  county 
board  of  canvassers  as  to  the  votes  cast  for  candidates  for  a city  office 
within  such  city,  such  county  clerk  shall  forthwith  make  a certified  copy 
of  each  such  statement  and,  within  five  days  after  the  filing  thereof  in 
his  office,  deliver  in  a sealed  envelope  such  certified  copy  to  the  board 
of  elections  of  the  city  of  New  York;  on  or  before  the  fifteenth  day  of 
December  in  any  year  in  which  there  shall  have  been  an  election  for  a 
city  office  for  which  votes  were  cast  in  a county  within  the  city  of  New 
York  the  county  clerk  thereof  shall  file  with  the  city  clerk  of  such  city  a 
certified  copy  of  the  official  canvass  of  the  votes  cast  in  such  county  or 
portion  thereof  by  election  districts  for  such  city  office,  and  such  canvass 
by  election  districts  shall,  as  soon  as  possible  thereafter,  be  published  in 
the  City  Record.  [Election  Law,  § 439,  as  amended  by  L.  1914,  ch, 
244,  and  L.  1916,  ch.  537 ; B.  C.  & G.  Cons.  L.,  p.  1579.] 


8.  Failure  or  refusal  of  clerk  to  send  statement.  If  the  county  clerk  fails 
or  refuses  to  send  certified  copies  of  the  statements  of  county  hoards  to  secre- 
tary of  state  and  other  state  officers,  the  board  may  cause  statements,  attested 
by  one  of  their  number  acting  as  secretary  pro  tempore,  to  be  transmitted,  and 
such  statements  shall  be  filed  and  considered  by  the  board  of  state  canvassers 
as  the  properly  certified  result  of  the  canvass  of  the  board  of  county  canvassers. 
People  ex  rel.  Daley  v.  Rice,  129  N.  Y.  449 ; 29  N.  E.  358. 

The  court  cannot  compel  the  return  to  be  changed  so  as  to  show  that  a political 
party  polled  10,000  votes,  and  is  thus  entitled  to  make  nominations  by  convention. 
People  ex  rel.  Boies,  79  App.  Div.  514. 


94 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


Explanatory  note. 


CHAPTER  VI. 

CLERKS  OF  BOARDS  OF  SUPERVISORS. 

EXPLANATORY  NOTE. 

Appointment  of  Clerk. 

Each  board  of  supervisors  is  required  to  appoint  a clerk,  who  shall 
serve  during  the  pleasure  of  the  board  and  until  his  successor  is  ap- 
pointed. (County  Law,  § 10,  ante.)  His  compensation  is  fixed  by  the 
hoard.  ( Idem .)  He  should  take  the  constitutional  oath  of  office  like 

any  other  county  officer,  before  the  county  clerk  or  county  judge  (County 
Law,  § 246,  post.)1 

Functions  of  Clerk. 

The  clerk  has  many  important  duties  to  perform,  some  expressly  re- 
quired by  statute  and  others  conferred  upon  him  by  the  board.  He  is 
to  record  all  the  proceedings  of  the  board,  file  and  preserve  accounts 
acted  upon  or  audited  by  the  board,  give  certified  copies  of  accounts 
when  requested  and  upon  the  payment  of  fees  for  copying,  prepare 
tax-rolls  under  the  direction  of  the  board,  and  perform  or  cause  to  be 
performed  under  the  direction  of  the  board  such  clerical  duties  as  may 
be  demanded  of  him.  Abstracts  of  county  accounts  are  to  be  prepared 
by  him,  and  he  is  to  cause  their  publication.  Town  abstracts  prepared 
by  town  auditors  are  to  be  submitted  to  him  and  he  should  publish  them 
with  the  abstracts  of  county  accounts.  ('See  Town  Law,  § 155,  as 
amended  by  L.  1910,  ch.  316.) 

Section  1.  General  duties  of  cleiks  of  boards  of  supervisors. 

2.  Clerk  to  cause  statement  of  accounts  audited  to  be  published. 

3.  Statement  of  railroad,  telegraph,  telephone  and  electric  light  taxes. 

4.  Failure  to  make  statement,  return  or  report,  penalty  for;  action  to 

recover  penalty. 

§ 1.  GENERAL  DUTIES  OF  CLERKS  OF  BOARDS  OF  SUPERVISORS. 

Clerks  of  boards  of  supervisors  shall  :2 


1.  For  form  of  oath  of  office,  see  Form  No.  6,  post. 

For  manner  of  executing  oath,  time  and  place  of  filing  and  effect  of  failure  to  file, 
see  Public  Officers  Law,  secs.  10,  13,  15  and  30,  post. 

2.  In  Westchester  county  the  board  is  authorized  to  appoint  one  or  two 


CLERKS  OF  BOARDS  OF  SUPERVISORS. 


95 


County  Law,  § 50. 

1.  Record  in  books  provided  for  the  purpose  all  the  proceedings  of  such 
board.8 

2.  Make  regular  entries  of  all  their  resolutions  or  decisions.* * 3 4 

3.  Record  the  vote  of  each  supervisor  on  any  question  submitted  to  the 
board,  when  the  law  authorizing  the  vote  requires  an  entry  of  the  yeas  and 
nays,  and  in  other  cases  if  required  by  any  member  present. 

4.  File  and  preserve  all  accounts  acted  upon  by  the  board. 

5.  Designate  upon  every  account  audited  and  allowed  by  the  board 
the  amount  so  audited  and  allowed  and  the  items  or  amount  disallowed ; 
and  deliver  to  any  person  who  may  demand  it  a certified  copy  of  any 
account  on  file  in  his  office,  on  receiving  from  such  person  eight  cents  per 
folio  therefor.5 

6.  Keep  the  books  and  papers  of  the  board  open  to  public  inspection 
without  charge. 

7.  Transmit  to  the  librarian  of  the  state  library  at  Albanay,  a copy  of 
the  proceedings  of  such  board,  annually,  and  within  twenty  days  after 
the  same  shall  be  published. 

8.  Prepare  the  tax-rolls  under  the  direction  of  the  board. 


deputy  clerks  to  said  board,  and  may  fix  their  compensation  and  prescribe  their 

duties.  See  L.  1903,  ch.  483. 

3.  Record  of  proceedings.  The  duties  of  the  clerk  of  a board  of  super- 
visors are  purely  ministerial, — simply  to  record  correctly  what  took  place 
at  the  session  of  the  board,  in  the  order  in  which  it  took  place.  He  cannot 
alter  or  affect  the  action  of  the  board  in  any  way.  It  is  his  duty  by  law 
to  make  a correct  recital  of  the  doings  of  the  board.  People  ex  rel.  Bur- 
roughs v.  Brinkerhoff,  68  N.  Y.  259,  267. 

The  record  of  proceedings  of  the  board  of  supervisors,  kept  pursuant  to  this 
section,  is  for  public  information  and  for  authentic  evidence,  and  it  seems  that 
the  supervisors  are  not  entitled  to  compensation  for  special  services  rendered  to 
the  county,  in  the  absence  of  a record  showing  that  such  special  duties  were  law- 
fully committed  to  them.  Wallace  v.  Jones,  122  App.  Div.  497,  501,  107  N.  Y. 
Supp.  288. 

4.  Entries  by  clerk.  The  proper  mode  by  which  a board  of  supervisors 
renders  itself  legally  liable  is  by  resolution  entered  in  its  minutes;  its  clerk  is 
to  make  entries  of  all  resolutions  or  decisions  on  questions  concerning  the 
raising  or  payment  of  moneys.  Chemung  Canal  Bank  v.  Supervisors  of 
Chemung,  5 Den.  517. 

Service  of  process  in  actions  against  the  county  may  be  made  upon  the  clerk. 
People  ex  rel.  Van  Keuren  v.  Town  Auditors,  74  N.  Y.  310. 

5.  Town  abstracts  are  to  be  delivered  by  town  boards  to  the  clerk  of  the 
board  of  supervisors  and  he  “ shall  cause  the  same  to  be  printed,  with  the 
statements  required  to  be  printed  by  him.”  See  Town  Law,  sec.  155,  post. 


96 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 51. 

9.  Perform  such  other  duties  as  may  lawfully  be  required  of  him  by  the 
board.* 1 2 3 4 5 6  [County  Law,  § 50;  B.  C.  & G.  Cons.  L.,  p.  748.]. 

§ 2.  CLERK  TO  CAUSE  STATEMENT  OF  ACCOUNTS  AUDITED  TO 
BE  PUBLISHED. 

The  clerk  shall  annually,  on  or  before  the  first  day  of  January,  make 
out  and  certify,  and  within  two  weeks  cause  to  be  published  in  a news- 
paper printed  in  the  county,  with  the  abstract  of  accounts  furnished  by 
town  auditors,  a statement  for  the  preceding  year,  containing: 

1.  An  abstract  of  all  county  accounts  presented  to  the  board  at  its  last 
annual  meeting,  allowed  or  disallowed,  with  the  amount  claimed  and 
allowed,  and  the  name  of  each  person  presenting  the  same,  and  the  general 
nature  of  the  account. 

2.  The  amount,  items  and  nature  of  all  compensation,  audited  by  the 
board  to  each  member  thereof. 


6.  Other  powers  and  duties  of  clerk.  (See  Schedule  of  Laws  after  table  of 
contents  for  pages  in  this  Manual  where  sections  referred  to  may  be  found.) 

1.  As  to  taxation.  The  clerk  of  the  board  of  supervisors  is  required  to 
transmit  to  the  comptroller,  on  or  before  the  second  Monday  in  December  in 
each  year,  a statement  of  the  equalized  valuation  of  the  real  and  personal 
property  in  each  tax  district,  and  also  a statement  of  the  names  of  corpora- 
tions and  the  amount  for  which  each  is  assessed.  See  Tax  Law,  sec.  61,  post. 
He  is  also  required,  on  or  before  December  20  in  each  year,  to  transmit 
to  the  county  treasurer  an  abstract  of  the  tax  rolls.  See  Tax  Law,  sec. 
62,  post.  For  form  of  abstract  of  tax  rolls,  see  Form  No.  44,  post. 

2.  As  to  relief  of  poor.  The  supervisor  of  each  town  is  required  to  report 
to  the  clerk  of  the  board  of  supervisors  an  abstract  of  the  amount  expended 
in  the  town  for  the  relief  of  the  poor.  See  Poor  Law,  sec.  141,  post.  For 
form  of  report,  see  Form  No.  73,  post.  When  the  distinction  between  town  and  county 
poor  has  been  abolished  by  the  board  of  supervisors,  the  clerk  is  required  to  serve  upon 
each  town,  village  and  city  clerk,  and  upon  each  of  the  superintendents  and  over- 
seers of  the  poor,  a copy  of  the  resolution  adopted  by  the  board.  See  Poor  Law, 
sec.  138,  post. 

3.  As  to  highways.  The  clerk  of  the  board  of  supervisors  is  required  to 
transmit  to  the  comptroller  and  the  commission  the  amount  of  highway 
taxes  levied  in  each  town  in  the  county  for  the  repair  and  improvement  of 
highways  therein  during  the  ensuing  year.  See  Highway  Law,  sec.  100. 
Transmission  of  resolutions  for  construction  of  county  highways  to  State 
Commission,  Highway  Law,  § 123,  as  amended  by  L.  1909,  ch.  487,  and  § 128,  as 
amended  by  L.  1909,  ch.  240. 

4.  As  to  session  laws.  The  clerk  is  required  to  forward  to  the  secretary  of 
state  the  names  of  the  newspapers  designated  by  the  board  to  publish  the 
session  laws.  See  County  Law,  sec.  20,  ante. 

5.  As  to  reports.  Reports  of  county  officers  are  to  be  filed  with  the  clerk 
of  the  board  of  supervisors  on  or  before  the  fifth  day  of  November  of  each 
year,  and  are  to  be  by  him  laid  before  the  board  of  supervisors.  See  County 
Law,  sec.  243,  post. 

7.  Publication  of  abstracts.  The  above  section,  and  section  155  of  the  Town 


CLERKS  OF  BOARDS  OF  SUPERVISORS. 


97 


County  Law,  §§  52,  53. 

3.  The  number  of  days  the  board  was  in  session,  and  the  distance 
traveled  by  each  member  in  attending  the  same.* * * * * 7 8  [County  Law,  § 51 ; 
B.  C.  & G.  Cons.  L.,  p.  749.] 

§ 3.  STATEMENT  OF  RAILROAD,  TELEGRAPH,  TELEPHONE  AND 
ELECTRIC  LIGHT  TAXES. 

The  clerk  shall,  within  five  days  after  the  making  out,  or  issuing  of 
the  annual  tax  warrant  by  the  board  of  supervisors,  prepare  and  deliver 
to  the  county  treasurer  of  his  county,  a statement  showing  the  title 
of  all  railroad  corporations  and  telegraph,  telephone  and  electric-light 
lines  in  such  county,  as  appear  on  the  last  asssesment-roll  of  the  towns 
or  cities  therein,  the  valuation  of  the  property,  real  and  personal,  of 
such  corporation  and  line  in  each  town  or  city,  and  the  amount  of  tax 
assessed  or  levied  on  such  valuation  in  each  town  or  city  in  his  county.9 
[County  Law,  § 53 ; B.  C.  & G.  Cons.  L.,  p.  750.] 


Law  as  amended  by  L.  1910,  ch.  316,  only  authorize  the  publication  of  town  and 

county  abstracts  in  a single  publication.  These  accounts  cannot  be  cut  up  and 

distributed  for  publication  in  a number  of  papers  throughout  the  county.  Rogers  v. 

Board  of  Supervisors,  77  App.  Div.  501,  78  N.  Y.  Supp.  1081. 

For  form  of  statement  of  county  and  town  accounts  required  by  the  above  section, 

see  Form  No.  7,  post. 

8.  Report  as  to  town  bonds.  The  supervisor  of  each  town  which  has  a public  debt 
consisting  of  bonds  or  other  evidence  of  debt  issued  on  the  credit  of  the  town,  is 
required  to  make  a report  to  the  board  of  supervisors  at  each  annual  session  thereof 
of  the  amount  of  such  indebtedness,  specifying  the  different  acts  under  which  the 
bonds  were  issued,  the  rate  of  interest,  the  amount  unpaid,  and  the  amount  coming 
due  during  the  term  of  office  of  the  supervisor.  See  Town  Law,  §§  190-192,  post. 

9.  See,  also,  Tax  Law,  sec.  60,  post,  which  is  to  the  same  effect,  and  must  be 
construed  with  the  above  section. 


98 


COUNTIES;  BOARDS  OF  SUPERVISORS. 


County  Law,  § 54. 

§ 4.  FAILURE  TO  MAKE  STATEMENT,  RETURN  OR  REPORT,  PEN- 
ALTY FOR;  ACTION  TO  RECOVER  PENALTY. 

1.  Any  such  clerk,  or  any  person  or  persons  required  under  this 
article  to  make  any  report,  return  or  statement  who  shall  refuse  or 
neglect  to  make  the  same,  shall  forfeit  to  the  county  the  sum  of  one 
hundred  dollars,  to  be  recovered  by  the  district  attorney  thereof  in  the 
name  of  the  county,  and  whenever  such  failure  or  neglect  is  caused  by 
any  such  clerk,  person  or  persons  required  to  make  such  report,  return 
or  statement  under  the  provisions  of  section  fifty-two  of  this  article, 
such  district  attorney  shall  forthwith  proceed  to  obtain  such  forfeiture 
on  notice  in  writing  by  the  state  comptroller  of  such  failure  or  neglect ; 
but  such  clerk  shall  not  be  subject  to  such  forfeiture,  in  case  he  certify 
to  the  said  comptroller,  on  or  before  the  second  Monday  in  December, 
the  name  or  names  of  such  person  or  persons  who  have  refused  or  ne- 
glected to  furnish  him  with  the  information  necessary  to  make  such 
report,  return  or  statement  required  by  said  section  fifty-two  of  this 
article;  provided,  however,  that  any  such  report,  return  or  statement, 
which  may  have  been  made  after  said  second  Monday  in  December, 
shall  be  furnished  by  said  clerk  to  the  comptroller  immediately  upon 
its  receipt.10 

2.  The  costs  awarded  upon  the  collection  of  such  recoveries  may  be 
retained  by  the  district  attorney  for  his  own  use.  [County  Law,  § 54 ; 
B.  C.  & G.  Cons.  L.,  p.  751.] 


10.  Penal  provision  as  to  failure  to  make  report.  Section  1842  of  the  Penal  Law 
provides  that,  “A  county  officer  or  an  officer  whose  salary  is  paid  by  the  county,  who 
neglects  or  refuses  to  make  a report  under  oath  to  the  board  of  supervisors  of  such 
county  on  any  subjects  or  matters  connected  with  the  duties  of  his  office,  whenever 
required  by  resolution  of  such  board,  is  guilty  of  a misdemeanor.” 


FART  IT. 


COUNTY  OFFICERS;  JAILS  AND  PRISONERS;  LOAN  COMMIS- 
SIONERS ; COUNTY"  HOSPITALS. 


CHAPTER  VII. 

COUNTY  TREASURER. 

EXPLANATORY  NOTE. 

Office  of  County  Treasurer. 

The  county  treasurer  is  the  chief  fiscal  officer  of  the  county,  and  as 
ouch  he  has  the  custody  and  control  of  all  county  funds.  The  office  of 
county  treasurer  is  not  recognized  in  the  constitution  as  in  the  case  of 
sheriff,  county  clerk  and  district-attorney,  and  the  legislature  may  pro- 
vide for  his  election  or  appointment  by  some  competent  county  au- 
thority. The  office  under  the  statute  at  the  present  time  is  elective. 

Duties  of  Office. 

The  general  duties  of  the  office  are  prescribed  by  § 142  of  the  County 
Law.  But  the  county  treasurer  has  many  other  duties  conferred  upon 
him  by  other  statutes.  These  duties  pertain  to  financial  matters  in 
which  the  state  or  county  are  interested.  It  is  attempted  to  group  in 
this  chapter  all  the  statutes  especially  conferring  duties  upon  the  county 
treasurer  not  properly  included  in  separate  chapters.  Where  he  has 
duties  to  perform  in  connection  with  other  county  officers  or  relating 
to  subjects  covered  by  other  chapters,  references  are  made  to  those 
chapters.  It  will  be  noticed  that  the  county  treasurer  performs  im- 
portant duties  in  respect  to  the  collection  of  liquor  taxes  and  taxes  upon 
decedent’s  estates.  In  respect  to  these  taxes  he  acts  as  agent  for  the 
state,  and  is  required  to  account  to  state  officers. 

Official  Bonds. 

As  the  county  treasurer  is  the  custodian  and  disburser  of  county  and 
state  funds,  the  statute  is  explicit  in  its  requirement  of  a bond.  Such 
bond  is  to  be  in  the  sum  fixed  by  the  board  of  supervisors,  if  in  session, 
if  not  by  the  county  judge  and  county  clerk.  The  bond  is  approved  in 

99 


100 


COUNTY  OFFICERS. 


County  Law,  § 140. 

the  same  manner.  The  hoard  of  supervisors  may  require  additional 
security,  whenever  the  bond  given  is,  in  its  opinion,  insufficient.  The 
bond  is  for  the  protection  of  the  county,  and  also  of  the  state,  to  the 
extent  of  the  moneys  in  his  hands  belonging  to  the  state.  If  a county 
treasurer  defaults  his  sureties  should  first  be  compelled  to  account ; if 
the  remedy  against  the  sureties  is  not  sufficient  to  make  good  the  loss 
of  the  state,  action  may  then  be  taken  against  the  county.  The  county 
will  be  bound  to  make  good  the  loss  to  the  state  upon  the  theory  that 
the  county  treasurer  is  the  agent  of  the  county. 

If  a county  treasurer  defaults  in  the  payment  of  school  moneys,  a 
town  or  the  supervisor  thereof  may  sue  on  the  bond. 


6. 


7. 


8. 


Section  1.  County  treasurer  to  be  elected  in  each  county;  vacancy  filled  by 
governor;  term  of  office;  official  undertaking. 

2.  Deputy  county  treasurers  in  certain  counties. 

3.  General  powers  and  duties  of  county  treasurer. 

4.  Time  for  making  report  may  be  extended  by  order  of  Supreme 

Court. 

5.  County  treasurer  to  designate  banks  of  deposit;  interest  on  de- 

posits to  be  credited;  deposits,  -when  made. 

Depositary  to  give  undertaking  before  receiving  deposits;  con- 
tents and  effect  of  undertaking. 

Treasurer  not  relieved  from  liability  by  designation  of  deposi- 
tary and  deposit  of  money. 

Moneys  deposited  not  to  be  drawn  except  upon  order  of  super- 
visors; transfer  of  funds  from  one  depositary  to  another. 

9.  Treasurer  to  deliver  books  and  funds  to  successor;  penalty  for 
failure. 

10.  Penalty  for  neglect  to  make  report  or  statement. 

11.  Late  county  treasurer  may  maintain  action  for  recovery  of  moneys. 

12.  Duties  of  county  treasurer  in  respect  to  cemetery  trusts. 

13.  Penalty  for  neglect  to  pay  over  money  on  order  of  the  court. 

14.  Misappropriation  of  moneys  and  securities  by  county  treasurer. 

15.  Duties  under  the  Liquor  Tax  Law;  tax  to  be  paid  to  county 
treasurer  and  distributed  by  him. 

Compensation  of  county  treasurers  on  account  of  the  Liquor 
Tax  Law. 

Duties  of  county  treasurers  under  taxable  transfer  provisions  of 
Tax  Law. 


16 


17 


§ 1.  COUNTY  TREASURER  TO  BE  ELECTED  IN  EACH  COUNTY; 

VACANCY  FILLED  BY  GOVERNOR;  OFFICIAL  UNDERTAK- 
ING. 

There  shall  continue,  (1)  to  be  elected  in  each  of  the  counties  except 
in  the  counties  of  Kings,  Queens  and  Richmond,  a county  treasurer,  who 


COUNTY  TREASURER. 


101 


County  Law,  § 140. 

shall  hold  his  office  for  three  years  from  and  including,  in  the  county  of 
Monroe,  the  first  Tuesday  of  October,  and  in  the  other  counties,  the  first 
day  of  January,  succeeding  his  election,  and  until  his  successor  is  duly 
elected  and  qualified;  (2)  to  be  appointed  by  the  governor,  by  and  with 
the  consent  of  the  senate,  if  in  session,  a county  treasurer,  when  a vacancy 
shall  occur  in  such  office,  and  the  person  so  appointed  shall  hold  the  office 
until  and  including,  in  the  county  of  Monroe,  the  first  Monday  of  October, 
and  in  the  other  counties,  the  last  day  of  December,  succeeding  his 
appointment,  and  until  his  successor  shall  be  duly  elected  and  qualified.1 
Every  person  elected  or  appointed  to  the  office  of  county  treasurer  shall, 
before  he  enters  upon  the  duties  of  his  office,  and  if  appointed,  within 
fifteen  days  after  notice  thereof,  give  an  undertaking  to  the  county,  with 
three  or  more  sufficient  sureties,  with  the  approval  of  the  board  of  super- 
visors, if  in  session,  indorsed  thereon  by  the  clerk,  otherwise  with  the  ap- 


1.  References.  (See  Schedule  of  Laws  after  table  of  contents  for  pages  in 
this  Manual  where  laws  referred  to  may  be  found.)  The  constitution  provides 
that  county  officers  whose  election  or  appointment  is  not  provided  for  by  the 
Constitution,  shall  be  elected  by  the  electors  of  the  respective  counties  or  ap- 
pointed by  the  boards  of  supervisors,  or  other  county  authorities,  as  the  leg- 
islature shall  direct.  See  Constitution,  art.  10,  sec.  2.  Vacancies  in  county 
elective  offices  are  to  be  filled  in  the  manner  provided  by  the  legislature;  but 
“ but  no  person  appointed  to  fill  a vacancy  shall  hold  his  office  by  virtue  of  such 
appointment  longer  than  the  commencement  of  the  political  year  next  suc- 
ceeding the  first  annual  election  after  the  happening  of  the  vacancy.”  See 
Constitution,  art.  10,  sec.  5. 

Official  oaths,  when  and  how  taken.  County  Law,  sec.  246,  post.  Effect  of 
failure  to  take  oath.  Public  Officers  Law,  sec.  13,  post.  Vacancy  created  by 
failure  to  take  oath.  Public  Officers  Law,  sec.  30,  post. 

Undertaking*,  further  provisions  respecting.  County  Law,  sec.  247,  post. 
Public  Officers  Law,  sec.  11,  post.  Money  to  be  delivered  to  county  treasurer 
before  executing  undertaking;  force  and  effect  of  undertaking.  Public  Officers 
sec.  12,  post.  Effect  of  failure  to  execute  undertaking.  Public  Officers  Law, 
sec.  13,  post.  Validation  of  official  acts  of  treasurer  before  executing  bond. 
Public  Officers  Law,  sec.  15,  post.  Vacancy  in  office  created  by  failure  to  execute 
undertaking.  Public  Officers  Law,  sec.  30,  sub.  7,  post. 

Vacancies,  how  created.  Public  Officers  Law,  sec.  30,  post. 

Resignations  of  all  county  officers  are  to  be  made  to  the  county  clerk. 
Public  Officers  Law,  sec.  31,  post. 

Supervisor.  County  treasurer  not  eligible  to  office  of  supervisor.  Town 
Law,  sec.  81,  post.  , 

Official  seal  of  county  treasurer.  County  Law,  sec.  245,  post. 

Superintendent  of  the  poor,  county  treasurer  not  to  be  elected  or  appointed 
as.  County  Law,  sec.  220,  post. 

Compensation  and  clerks  of  county  treasurer,  board  of  supervisors  to  deter- 
mine. County  Law,  sec.  12,  sub.  5,  write. 

Expiration  of  term,  county  treasurer  to  hold  office  until  successor  is 
appointed  and  has  qualified.  Public  Officers  Law,  sec.  5,  post. 


102 


COUNTY  OFFICERS. 


County  Law,  § 140. 

proval  of  the  county  judge  and  county  clerk,  and  in  such  sum  as  such 
board  or  judge  and  clerk  approving  the  same  shall  direct,  to  the  effect  that 
such  person  shall  faithfully  execute  the  duties  of  his  office,  and  shall  pay 
over  according  to  law,  and  account  for  all  moneys,  property  and  securities 
which  shall  come  to  his  hands  as  treasurer,  and  render  a just  and  true  ac- 
count thereof  to  the  board  of  supervisors  when  required,  and  obey  all  orders 
and  directions  of  a competent  court  relating  thereto.  When,  in  the  opinion 
of  the  board  of  supervisors,  the  moneys  intrusted  to  such  person  as  treas- 
urer shall  be  unsafe,  or  the  surety  insufficient,  such  board  may  require  from 
such  treasurer  a new  or  further  undertaking  to  the  same  effect  as  at  first, 
and  with  like  sureties;  and  if  such  county  treasurer  shall  fail  to  renew  such 
undertaking  as  required  within  twenty  days  after  he  shall  be  notified  by 
such  board  of  such  request,  such  omission  shall  work  a forfeiture  of  his 
office  and  the  same  shall  become  vacant.  Such  undertaking,  with  the  ap- 
proval indorsed  thereon,  shall  be  filed  in  the  office  of  the  county  clerk.  The 
sureties  and  county  therein  named  shall  be  liable  to  the  state  for  the  pay- 
ment to  the  state  treasurer,  according  to  law,  of  all  moneys  belonging  to 
the  state,  which  shall  come  into  his  hands  as  county  treasurer,  and  for  the 
rendering  of  a just  and  true  account  thereof  to  the  state  comptroller.2 
[County  Law,  § 140;  B.  C.  & G.  Cons.  L.,  p.  780.] 


2.  Official  undertaking.  The  county  treasurer  may  file  his  bond  at  any 
time  before  entering  upon  the  duties  of  his  office.  McRoberts  v.  Winant,  15  Abb. 
Pr.  N.  S.  210.  Additional  securities  may  be  required  by  board  of  supervisors. 
Denton  v.  Merrill,  43  Hun,  224. 

A bond  of  the  county  treasurer  conditioned,  “ that  he  shall  faithfully  ex- 
ecute the  office  of  treasurer  of  such  county  and  pay  all  moneys  which  shall 
come  into  his  hands  as  treasurer  according  to  law,  and  render  a just  and 
true  account  thereof,  to  the  said  supervisors,  or  to  the  comptroller  of  the 
state  when  required,”  and  a further  condition  that  he  “ shall  well,  truly,  and 
faithfully  execute  and  perform  the  duties  of  treasurer  of  said  county,  ac- 
cording to  law,”  contains  in  substance  all  that  the  act  requires,  and  is  valid. 
Supervisors  of  Alleghany  County  v.  Van  Campen,  3 Wend.  48.  In  the  case 
of  Supervisors  of  Schoharie  County  v.  Pindar,  3 Lans.  8,  it  was  held  that  a 
bond  is  not  void  because  its  condition  “ to  account  to  the  board  of  super- 
visors,” contains  also  the  words,  “ or  to  the  comptroller  of  the  state.”  These 
words  may  be  regarded  as  surplusage. 

Liability  of  sureties.  The  sureties  on  the  bond  of  a county  treasurer 
are  not  exonerated  by  any  neglect  or  malfeasance  of  the  supervisors  in  pass- 
ing upon  his  accounts.  The  bond  is  not  conditioned  for,  and  the  law  does  not 
guarantee  such  examination.  Supervisors  of  Monroe  County  v.  Otis,  62  N.  Y.  88. 

The  imposition  by  the  board  of  supervisors  upon  the  county  treasurer, 
during  his  term  of  office,  of  the  duty  of  raising,  keeping  and  disbursing  large 
sums  of  money,  in  addition  to  the  usual  and  ordinary  duties  of  his  office, 
does  not  discharge  the  sureties  upon  his  bond  from  all  liability.  Conceding 
that  no  liability  is  imposed  upon  them  on  account  of  such  increased  duties. 


COUNTY  TREASURER. 


103 


County  Law,  § 141. 


§ 2.  DEPUTY  COUNTY  TREASURERS  IN  CERTAIN  COUNTIES. 

The  county  treasurer  of  any  county,  having  a population  of  less  than 
fifty  thousand  according  to  the  last  preceding  state  or  federal  census,  may, 
when  authorized  by  a resolution  of  the  board  of  supervisors,  appoint  and 
at  pleasure  remove  a deputy  county  treasurer,  who  shall  perform  all  the 
duties  and  possess  all  the  powers  of  a county  treasurer,  during  his  absence, 
or  inability  to  act.  The  compensation  of  such  deputy  shall  be  paid  by  the 
treasurer  out  of  the  fees  or  salary  allowed  to  him  by  law  and  shall  not  be 
a county  charge.  The  appointment  of  such  deputy  shall  not  release  the 
treasurer,  from  any  liability  in  relation  to  the  moneys  in  his  hands  or 
under  his  control,  or  in  any  manner  affect  such  liability,  but  any  default 
by  such  deputy  shall  be  deemed  a default  of  such  treasurer,  and  he  shall 
be  liable  therefor.  The  undertaking  of  the  county  treasurer  required  by 
section  one  hundred  and  forty  of  this  chapter  given  after  this  chapter 
takes  effect  shall  cover  the  acts  and  default  of  such  deputy.  In  all  other 
cases  the  county  treasurer  shall,  before  said  deputy  enters  upon  the  dis- 
charge of  his  duties,  give  an  undertaking  with  three  or  more  sufficient 
sureties  to  the  effect  that  such  deputy  shall  faithfully  execute  the  duties  of 
his  office  and  shall  not  make  default  therein,  the  amount  thereof  to  be  fixed 
and  the  same  to  be  approved  as  provided  in  section  one  hundred  and  forty 
of  this  chapter  for  the  fixing  of  the  amount  and  the  approval  of  the  under- 


every  obligation  in  reference  to  the  usual  and  ordinary  duties  of  the  treasurer 
remains  unaffected.  Supervisors  of  Monroe  County  v.  Clark,  92  N.  Y.  391; 
see,  also.  People  v.  Vilas,  36  N.  Y.  459. 

The  sureties  of  a county  treasurer  are  liable  for  his  failure  to  account  for 
interest  on  funds  deposited.  Supervisors  of  Richmond  v.  Wandel,  6 Lans.  33. 

Allegations  of  money  in  hands  of  treasurer  and  refusal  to  pay  on  orders  of 
the  board  of  supervisors,  are  material  to  constitute  the  breach,  in  an  action 
on  the  bond.  Supervisors  of  Monroe  v.  Beach,  9 Wend.  143. 

Moneys  due  state.  The  relation  of  the  treasurer  to  the  county  and  his  duties 
have  the  nature  of  an  agency;  and  all  losses  sustained  by  reason  of  his  default 
are  chargeable  on  the  county.  Supervisors  v.  Otis,  62  N.  Y.  88.  See  also 
Denton  v.  Merrill,  43  Hun,  224;  Newman  v.  Supervisors  of  Livingston  Co.,  45 
N.  Y.  676,  686. 

The  moneys  due  the  state  are  payable  by  the  county  treasurer,  not  as  the 
county’s  officer  or  agent,  but  as  an  individual;  and  not  until  the  remedy  against 
both  the  treasurer  and  his  bail  has  been  exhausted  can  the  county  be  required  to 
act.  Nat.  Bank  of  Ballston  Spa.  v.  Supervisors,  106  N.  Y.  488. 

Action  on  bond  for  conversion  of  school  money.  The  bond  of  a county 
treasurer  running  to  the  county,  conditioned  for  the  faithful  performance  of  the 
duties  of  his  office,  and  for  the  payment  over  to  the  proper  authorities  of  all 
moneys  received  by  him  as  such  treasurer  may  be  sued  upon  by  a town  or 
supervisor  thereof  to  recover  school  money  which  had  been  converted  by  the 
treasurer  to  his  own  use.  Town  of  Ulysses  v.  Ingersoll,  182  N.  Y.  369,  reversing 
81  App.  Div.  304,  80  N.  Y.  Supp.  924. 


104 


COUNTY  OFFICERS. 


County  Law,  § 142. 

taking  of  the  county  treasurer.  [County  Law,  § 141;  B.  C.  & G.  Cons. 
L.,  p.  782.] 

§ 3.  GENERAL  POWERS  AND  DUTIES  OF  COUNTY  TREASURER. 

The  county  treasurer  shall;* 1 2 3 

1.  Receive  all  moneys  belonging  to  the  county,  and  all  other  moneys  by 
law  directed  to  be  paid  to  him,  and  apply  them,  and  render  an  account 
thereof,  as  required  by  law.4 

2.  Keep  a true  account  of  the  receipt  and  expenditures  of  all  such 


3.  General  powers  and  duties  of  county  treasurer. 

1.  As  to  moneys  paid  into  court.  All  moneys  paid  court  are  to  be  paid  to  the 
county  treasurer.  Code  Civ.  Proc.,  sec.  745.  The  county  treasurer  is  a trustee  of 
the  fund  and  may  bring  an  action  in  relation  thereto.  Code  Civ.  Proc.,  sec.  749. 
Upon  the  expiration  of  term,  removal  or  death  of  a county  treasurer,  fund  must  be 
credited  to  his  successor.  Code  Civ.  Proc.,  sec.  750.  No  part  of  fund  to  be  paid  out 
except  upon  order  of  court.  Code  Civ.  Proc.,  sec.  751,  as  amended  by  L.  1917,  ch.  731. 
Accounts,  how  kept.  Code  Civ.  Proc.,  sec.  752.  Report  of  funds  to  comptroller. 
Code  Civ.  Proc.,  sec.  753,  as  amended  by  L.  1917,  ch.  731. 

2.  As  to  taxation.  The  tax  assessed  upon  bank  shares  is  to  be  paid  to  the 
county  treasurer,  to  be  paid  by  him  upon  the  order  of  the  board  of  super- 
visors to  the  several  tax  districts  in  the  county  entitled  to  share  in  the  ap- 
portionment of  such  tax,  see  Tax  Law,  sec.  24,  post.  Statements  of  debts 
owing  to  non-residents  are  to  be  made  to  the  county  treasurer  whose  duty 

it  is  to  transmit  to  the  assessors  of  each  tax  district  copies  of  so  much 
of  such  statements  as  relate  to  such  district,  see  Tax  Law,  sec.  35,  post. 
The  clerk  of  each  board  of  supervisors  is  required  to  furnish  to  the 
county  treasurer  a statement  of  the  corporations  assessed  within  the  several 
tax  districts,  see  Tax  Law,  sec.  60,  post.  The  clerk  is  also  required 
to  deliver  to  the  county  treasurer  an  abstract  of  the  several  tax  rolls,  see 
Tax  Law,  sec.  62,  post.  A railroad,  telegraph,  telephone  or  electric 

light  company  may  pay  their  taxes  to  the  county  treasurer  whose  duty  it 
is  to  credit  the  amount  thereof  to  the  collector  of  the  proper  tax  district,  see 
Tax  Law,  sec.  73,  post.  The  county  treasurer  may  enforce  the  collection  of  a 
tax  against  a telegraph,  telephone  or  electric  light  line  by  a sale  of  the  instru- 
ments and  batteries  connected  with  such  lines.  Tax  Law,  sec.  74,  post.  The 
county  treasurer  may  issue  his  warrant  to  the  sheriff  for  the  collection  of 
unpaid  taxes  on  debts  owing  to  non-residents  of  the  United  States,  see  Tax 
Law,  secs.  76,  77,  post.  Collectors  are  required  to  make  a return  to  the 
county  treasurer  of  the  amount  of  taxes  unpaid  and  the  county  treasurer  is 
authorized  to  incur  such  expenses  as  he  may  deem  necessary  for  the  examina- 
tion of  such  returns  so  that  he  may  make  a proper  sale  of  lands  for  unpaid 
taxes,  see  Tax  Law,  sec.  82,  post.  A collector  is  required  to  file  with  the 
county  treasurer  one  of  duplicate  receipts  received  by  him  from  the  officers 
and  persons  to  whom  he  has  made  payment,  see  Tax  Law,  sec.  84,  post. 
The  county  treasurer  may  upon  the  application  of  any  supervisor  extend 
the  time  for  the  collection  of  taxes,  see  Tax  Law,  sec.  85,  and  County  Law,  sec. 
16,  post.  The  county  treasurer  is  required  to  give  to  the  collector  who  shall 
have  fully  paid  over  and  duly  accounted  for  all  taxes  collected  by  him,  a written 
certificate  of  such  settlement,  see  Tax  Law,  sec.  88,  post.  The  county  treasurer 


COUNTY  TREASURER. 


105 


County  Law,  § 142. 

moneys,  in  books  prepared  for  the  purpose  at  the  expense  of  the  county.4 5 


is  required  to  deliver  to  the  supervisor  an  abstract  of  the  amount  of  taxes  un- 
paid on  resident  real  property,  see  Tax  Law,  sec.  89,  post. 

It  is  provided  by  section  90  of  the  Tax  Law,  post,  that,  “Each  county 
treasurer  shall  pay  to  the  creditors  of  the  county  from  moneys  paid  to 
him  by  the  collectors  of  taxes  of  the  several  towns  therein,  such  sums  and 
in  such  manner  as  the  hoard  of  supervisors  of  the  county  direct.”  As  to  pay- 
ment of  state  tax  to  comptroller  and  fees  therefor,  see  Tax  Law,  sec.  91,  post. 
The  comptroller  is  required  to  state  annually  on  June  1st  the  account  of  each 
county  treasurer,  and  if  any  part  of  a state  tax  is  unpaid  at  that  date  the 
comptroller  must  transmit  by  mail  to  the  county  treasurer  a copy  of  such  ac- 
counts and  a requisition  that  he  must  pay  the  balance  due  to  the  state  within 
thirty  days,  see  Tax  Law,  sec.  92,  post.  In  case  of  a default  by  the  county 
treasurer  or  collector  the  county  is  to  be  chargeable,  see  Tax  Law,  sec.  93,  post. 

As  to  sales  by  county  treasurer  for  unpaid  taxes,  see  Tax  Law,  secs.  150-160, 
post.  The  county  treasurer  is  required  to  invest  for  the  benefit  of  the  town 
taxes  paid  in  such  town  by  railroads  constructed  with  aid  of  such  town,  see 
General  Municipal  Law,  sec.  13,  post.  As  to  payment  to  county  treasurer  by 
county  clerk  of  amounts  received  on  account  of  mortgage  tax,  see  Tax  Law,  sec. 
261,  post. 

3.  As  to  the  relief  of  the  poor.  The  county  treasurer  is  required  to  charge 
to  the  several  towns  the  amount  of  money  expended  for  the  support  of  the 
poor,  see  Poor  Law,  sec.  9,  post.  He  is  required  to  keep  accounts  with  the 
several  towns  as  to  the  receipts  and  expenditures  for  town  poor,  see  Poor 
Law,  sec.  8,  post.  Overseers  of  the  poor  are  required  to  pay  to  the  county 
treasurer  moneys  in  their  hands  when  the  distinction  between  town  and  county 
poor  is  abolished,  see  Poor  Law,  sec.  139,  post. 

4.  As  to  school  moneys.  The  county  treasurer  is  required  to  furnish  to  the 
commissioner  of  education  a report  showing  the  unexpended  moneys  in  their 
hands  applicable  to  the  payment  of  teachers’  wages  and  to  library  purposes, 
see  Education  Law,  sec.  495.  The  county  treasurer  is  required  to  pay  to  the 
collector  of  each  school  district  the  amount  of  taxes  returned  to  him  as  unpaid, 
upon  the  voucher  or  draft  of  the  board  of  supervisors,  see  Education  Law,  sec. 
435,  as  amended  by  L.  1910,  chap.  284,  and  L.  1915,  chap.  136.  The  amount  so  paid  is 
to  be  laid  by  the  county  treasurer  before  the  board  of  supervisors,  who  shall  cause 
the  amount  thereof  to  be  levied  upon  the  lands  chargeable  therewith;  the  amount 
of  any  such  tax  so  levied  may  paid  by  the  owner  to  the  county  treasurer,  see  Educa- 
tion Law,  sec.  436. 

5.  As  to  highways.  The  moneys  received  from  the  state  in  aid  of  the  improvement 
and  repair  of  highways  under  sec.  101  of  the  Highway  Law,  as  amended  by  L.  1913, 
chap.  375,  are  to  be  paid  by  the  county  treasurer  to  the  supervisor  of  each  town  as 
provided  in  the  Highway  Law,  sec.  103,  post. 

6.  Fees.  As  to  fees  of  county  treasurer,  see  Code  Civ.  Proc.,  sec.  3321,  and  chap. 
71,  post. 

4.  Payment  of  claims.  For  an  improper  refusal  to  pay  a claim  upon 

the  order  of  the  board  of  supervisors,  the  appropriate  remedy  is  by  man- 
damus; they  have  no  right  to  adjust  claims  presented  to  them,  nor  to  deter- 
mine the  validity  of  demands.  Huff  v.  Knapp,  5 N.  Y.  65.  If  the  subject 
matter  of  a claim  against  the  county  is  within  the  jurisdiction  of  the  board 
of  supervisors,  and  the  board  allows  the  claim,  the  county  treasurer  has  no 


10G 


COUNTY  OFFICERS. 


County  Law,  § 142. 

3.  Yearly,  and  at  such  times  as  the  board  of  supervisors  shall  by 
resolution  require,  make  a true,  written  statement  of  his  accounts  generally, 
verified  by  his  oath  to  be  in  all  respects  true,  and  file  the  same  with  the 
clerk  of  the  county,  and  transmit  a copy  thereof  by  mail  to  the  comptroller 
and  state  treasurer.* * * * 5 6 

4.  On  or  before  the  first  day  of  March  in  each  year  transmit  to  the  state 
comptroller  a statement  of  all  moneys  received  by  him  during  the  preced- 
ing year  for  penalties  belonging  to  the  people  of  the  state;  and  at  the 
same  time,  pay  to  the  treasurer  of  the  state,  the  amount  of  such  penalties, 
after  deducting  his  compensation,  in  the  same  manner  as  state  taxes  are 
directed  to  be  paid.7 

5.  On  or  before  the  fifteenth  day  of  April  in  each  year  pay  to  the 
treasurer  of  the  state  one-half  of  the  state  tax  raised  and  paid  over  to  him ; 
and  on  or  before  the  fifteenth  day  of  May,  the  other  half,  retaining  the 
compensation  to  which  he  may  be  entitled,  which  shall  not  in  any  case  ex- 
ceed the  sum  of  two  thousand  dollars.  If  any  county  treasurer  shall  not 
pay  over  the  state  tax  as  herein  directed,  the  comptroller  shall  charge  on 


right  to  refuse  payment  on  the  ground  that  the  payment  was  excessive.  Peo- 
ple ex  rel.  Martin  v.  Earle,  16  Abb.  Pr.  N.  S.  64.  Where  it  appears  on  the 
face  of  the  account  that  the  board  of  supervisors  had  no  jurisdiction  to  allow 
the  account,  it  is  the  duty  of  the  county  treasurer  to  withhold  payment.  Peo- 
ple v.  Lawrence,  6 Hill,  244. 

To  account  for  interest.  If  a county  treasurer  fails  to  pay  over  money  in 
his  hands,  he  should  be  charged  with  interest  upon  the  amount  found  to  be  due, 

from  the  time  that  his  successor  qualifies  and  enters  office,  as  the  sum  from 
that  time  is  not  an  unliquidated  claim  within  the  rule  as  to  interest.  Super- 
visors of  Monroe  County  v.  Clarke,  25  Hun,  282.  See,  also,  Supervisors  of 

Chenango  County  v.  Birdsall.  4 Wend.  453. 

5.  Accounts  of  county  treasurer.  The  county  treasurer  is  required  to  keep 
a true  account  of  all  moneys  which  come  into  his  hands  as  such,  in  a book  kept 
for  that  purpose,  provided  at  the  expense  of  the  county.  Herendeen  v.  De  Witt, 
49  Hun,  53.  This  statutory  provision  imposes  an  active  duty  upon  the 
treasurer,  and  a failure  to  perform  it  constitutes  a breach  of  the  condition  of 
his  bond.  Supervisors  of  Monroe  Co.  v.  Clarke,  92  N.  Y.  391,  397.  A copy  of 
such  accounts  duly  certified  by  the  treasurer  may  be  used  in  evidence.  Erickson 
v.  Smith,  2 Abb.  Ct.  App.  Dec.  64,  38  Hun,  Pr.  454. 

6.  A failure  or  refusal  to  furnish  report  when  required  by  the  board 
of  supervisors  is  a misdemeanr.  See  Penal  Law,  sec.  1842,  ante. 

7.  Recovery  and  disposition  of  penalties.  Actions  for  penalties  incurred 
to  the  people  of  the  state  may  be  brought  by  the  attorney-general  or  district 
attorney,  see  Code  Civ.  Proc.,  sec.  1962.  Penalties  recovered  by  the  district 
attorney,  which  belong  to  the  county,  must  be  paid  to  the  county  treasurer, 
and  such  district  attorney  is  required  to  account  for  all  penalties  received  by 
him,  at  the  first  term  of  the  county  court  held  in  each  calendar  year,  County 
Law,  sec.  201.  post. 


COUNTY  TREASURER. 


10? 


County  Law,  § 142. 

all  sums  withheld,  such  rate  of  interest  as  shall  be  sufficient  to  repay  all 
expenditures  incurred  by  the  state  in  borrowing  money,  equivalent  to  the 
amount  so  withheld,  and  such  additional  rate  as  he  shall  deem  proper,  not 
exceeding  ten  per  centum,  from  the  first  day  of  April  in  each  year,  which 
shall  be  regarded  as  funds  in  the  hands  of  the  county  treasurer,  belonging 
to  the  state,  and  for  which  his  sureties  and  county  shall  be  liable.8 

6.  Within  ten  days  after  the  first  day  of  July  in  each  year,  make  and 
file  in  the  office  of  the  clerk  of  his  county,  a special  report,  which  shall 
contain  a statement  of  all  moneys  or  securities  in  his  hands  belonging  to 


8.  This  subdivision  is,  for  the  most  part,  superseded  by  section  91  of  the  Tax  Law, 
post. 

Fees  and  compensation.  The  board  of  supervisors  may  fix  the  compen- 
sation of  county  treasurers.  See  County  Law,  sec.  12,  subd.  5,  as  amended 
by  L.  1911,  chap.  359,  L.  1913,  chap.  742,  L.  1914,  chap.  358.  But  the  fees 
snowed  by  law  for  receiving  and  paying  over  the  state  taxes  belong  to  the 

county  treasurer  and  not  to  the  county.  The  compensation  so  fixed  is  for 

services  rendered  to  the  state, — the  allowance  is  by  competent  authority, 
from  a fund  not  belonging  to  the  county,  and  over  which  it  has  no  control, 
and  the  county  has  no  right  to  the  same,  either  as  originally  belonging  to  it, 
or  as  received  for  its  use.  Supervisors  of  Monroe  Co.  v.  Otis,  62  N.  Y.  88. 
But  if  it  be  expressly  declared  by  statute  that  the  salary  as  fixed  is  in  full 
compensation  for  all  his  services  it  has  been  held  that  such  fees  cannot  be 
retained  by  him  for  his  own  use,  see  Supervisors  of  Seneca  Co.  v.  Allen,  99  N. 
Y.  532;  Supervisors  of  Erie  Co.  v.  Jones,  119  N.  Y.  339.  See  People  ex  rel. 

Conine  v.  Steuben  County,  183  N.  Y.  114;  Upham  v.  State  of  New  York,  174 

N.  Y.  336. 

The  limitation  contained  in  subdivision  5 authorizing  a county  treasurer  to  retain 
compensation  on  account  of  the  state  tax  received  and  paid  over  by  him  in  a sum  not 
exceeding  $2,000  does  not  supersede  the  limitation  of  $500  fixed  by  L.  1871,  ch.  110, 
§ 1,  amending  L.  1846,  ch.  189,  and,  therefore,  the  treasurer  of  a county  not  excepted 
from  the  provisions  of  the  act  of  1871,  cannot  receive  more  than  $500  for  receiving 
and  paying  over  state  tax  and  school  moneys.  Upham  v.  State  of  New  York,  174 
N.  Y.  336,  affirming  62  App.  Div.  631,  71  N.  Y.  Supp.  1150.  Such  act  does  not  au- 
thorize a county  treasurer  to  retain  for  his  own  use  fees  for  receiving  and  paying 
over  state  taxes  and  school  moneys.  People  ex  rel.  Conine  v.  County  of  Steuben,  183 
N.  Y.  114,  affg.  93  App.  Div.  604. 

When  county  treasurers  become  salaried  officers  they  are  not  entitled  to  exact  for 
their  own  use,  fees  or  commissions  for  receiving  and  paying  out  moneys  passing 
t . rough  their  hands  in  the  course  of  legal  proceedings.  Matter  of  N.  Y.  Central, 
etc.,  R.  Co.,  7 Abb.  N.  C.  408. 

A county  treasurer  is  not  allowed  commissions  on  moneys  not  received  by  him, 
as  on  collector’s  fees  retained  by  the  collectors,  back  taxes  and  taxes  levied  on  non- 
residents’ lands  returned  to  the  comptroller’s  office.  Supervisors  of  Chenango  v. 
Birdsall,  4 Wend.  453.  Where  the  compensation  of  a county  treasurer  is  fixed  by 
the  supervisors,  he  is  not  entitled  to  a fee  on  the  state  tax  in  addition  to  such  com- 
pensation. People  ex  rel.  Conine  v.  County  of  Steuben,  41  Misc.  590,  85  N.  Y.  Supp. 
244,  affd.  93  App.  Div.  604,  183  N.  Y.  114?  He  is  also  entitled  to  the  compensation 
subsequently  provided  by  the  legislature  for  collecting  liquor  taxes,  making  reports 
and  issuing  licenses,  under  the  Liquor  Tax  Law.  Montgomery  v.  Vosburgli.  74  Misc. 
562,  134  N.  Y.  Supp.  457.  As  to  rate  of  commissions  allowed  county  treasurers,  see 
Supervisors  of  Otsego  v.  Hendryx,  58  Barb.  279. 

An  additional  alio  nance  for  clerk  hire  during  the  term  of  a county  treasurer 
necessarily  increases  his  compensation  and  is  unauthorized.  Kept,  of  Atty.  Genl., 
Mch.  7,  1912. 


108 


COUNTY  OFFICERS. 


County  Law,  §§  143,  144. 

infants,  or  other  persons,  for  whom  invested,  and  how  invested,  with  a 
particular  description  of  such  securities,  containing  a statement  of  the 
amount  due  thereon  for  principal  and  interest,  with  a statement  of  his 
account  with  each  infant,  up  to  the  first  day  of  July  preceding  the  date  of 
such  report,  the  amount  of  fees  charged  by  him,  the  amount  in  his  hands 
invested  and  uninvested,  and  to  whom  the  same  belongs;  and  if  he  has  in 
his  hands  any  money  not  invested,  such  report  shall  state  the  amount  there- 
of, the  length  of  time  the  same  has  been  in  his  hands  uninvested,  and  the 
reasons  therefor;  and  whether  the  moneys  so  uninvested  are  for  principal 
and  interest,  and  the  length  of  time  any  principal  sum  thereof  shall  have 
remained  so  uninvested,  during  the  year  preceding  the  date  of  such  report ; 
which  report  he  shall  verify  to  be  in  all  respects  true ; 

7.  Exhibit  to  the  board  of  supervisors,  at  their  annual  meeting,  or 
whenever  they  direct,  all  his  books  and  accounts,  and  all  vouchers  relating 
thereto,  to  be  audited  and  allowed.  [County  Law,  § 142;  B.  C.  & G. 
Cons.  L.,  p.  783.] 

§ 4.  TIME  FOR  MAKING  REPORT  MAY  BE  EXTENDED  BY  ORDER 
OF  SUPREME  COURT. 

The  time  for  making  and  filing  any  report  herein  required,  may  be 
extended  twenty  days  by  a justice  of  the  Supreme  Court,  upon  good 
cause  shown;  but  no  order  shall  be  made,  unless  notice  of  the  application 
of  the  same  shall  have  been  served  on  the  district  attorney  -of  the  county ; 
and  no  such  order  shall  be  of  any  force  or  effect,  until  the  original  order 
signed  by  the  justice,  with  the  papers  on  which  the  same  was  granted,  shall 
have  been  filed  in  the  office  of  the  county  clerk.  [County  Law,  § 143;  B. 
C.  & G.  Cons.  L.,  p.  785.] 

§ 5.  COUNTY  TREASURER  TO  DESIGNATE  BANKS  OF  DEPOSIT; 

INTEREST  ON  DEPOSITS  TO  BE  CREDITED;  DEPOSITS, 
WHEN  MADE. 

Each  county  treasurer  shall,  within  twenty  days  after  he  shall  have 
entered  upon  the  duties  of  his  office,  except  in  counties  whose  board  of 
supervisors  shall  otherwise  direct,  designate  by  written  instrument  in 
duplicate,  one  copy  of  which  shall  be  filed  in  the  office  of  the  county 
clerk,  and  the  other  in  the  office  of  the  state  treasurer,  one  or  more  good  and 
solvent  banks,  bankers,  or  banking  associations,  in  such  county;  or  if  there 
shall  be  no  such,  then  in  an  adjoining  county  within  the  state,  for  the 
deposit  of  all  moneys  received  by  him  as  such  treasurer  and  agree  with 
such  bank  or  banks,  banker  or  bankers,  or  banking  associations,  upon  the 
rate  of  interest  to  be  paid  on  the  moneys  so  deposited.  The  accrued 
interest  thereon  shall,  as  often  as  once  in  six  months,  be  credited  by  such 


COUNTY  TREASURER. 


109 


County  Law,  §§  145,  146. 

depositary  to  the  account  of  such  county  treasurer,  for  the  use  of  his 
county;  and  he  shall  deposit  with  such  depositary,  or  depositaries,  at  least 
once  in  each  week,  and  in  a county  containing  a city  having  more  than 
ten  thousand  inhabitants,  daily,  all  such  moneys  so  received  by  him.  But 
nothing  herein  shall  limit  the  power  of  any  court  or  officer,  by  whose  direc- 
tion any  moneys  shall  be  paid  over  to,  or  received,  by  such  treasurer, 
to  direct  in  relation  to  the  custody  or  investment  thereof,  or  the  disposi- 
tion to  be  made  of  the  interest  thereon;  and  no  interest  received  from  any 
moneys  so  deposited  which  are  not  received  for  some  public  use,  shall 
belong  to  the  county.9  [County  Law,  § 144;  B.  C.  & G.  Cons.  L.,  p.  785.] 

§ 6.  DEPOSITARY  TO  GIVE  UNDERTAKING  BEFORE  RECEIVING 
DEPOSITS;  CONTENTS  AND  EFFECT  OF  UNDERTAKING. 

Each  bank,  banker,  or  banking  association,  so  designated,  shall,  for  the 
benefit  and  security  of  the  county,  and  before  receiving  any  such  deposit, 
give  to  the  county  a good  and  sufficient  undertaking,  with  two  or  more 
sureties  to  be  approved  by  the  judge  of  the  county  in  which  such 
bank,  banker  or  banking  association,  shall  be  located,  the  chairman  of  the 
board  of  supervisors  of  the  county  of  which  such  treasurer  is  an  officer,  and 
such  treasurer,  or  any  two  of  them.  Such  undertaking  shall  specify  the 
amount  which  such  treasurer  shall  be  authorized  to  have  on  deposit  at  any 
one  time  with  such  depositary,  and  shall  be  to  the  effect  that  such  depositary 
shall  faithfully  keep  and  pay  over  on  the  order  or  warrant,  of  such  treasurer, 
or  on  any  other  lawful  authority,  such  deposits,  and  the  agreed  interest 
thereon ; and  for  the  payment  of  such  bonds  or  coupons,  as  by  their  terms 
are  made  payable  at  a bank  or  banks,  for  the  payment  of  which  a deposit 
shall  be  made  by  such  treasurer  with  such  depositary.  Such  undertaking 
shall  be  filed  by  the  clerk  of  the  board  of  supervisors  with  the  clerk  of  the 
county.  [County  Law,  § 145;  B.  C.  & G.  Cons.  L.,  p.  785.] 

§ 7.  TREASURER  NOT  RELIEVED  FROM  LIABILITY  BY  DESIGNA- 
TION OF  DEPOSITARY  AND  DEPOSIT  OF  MONEY. 

Such  designation  and  deposit  of  moneys  shall  not  release  the  treasurer,  or  his 
sureties,  from  any  liability  in  relation  to  such  moneys,  or  in  any  manner  affect 
such  liability;  but  any  default  by  such  depositary,  shall  be  deemed  a default 
of  such  treasurer,  and  he  and  his  sureties  shall  be  liable  therefor.  [County 
Law,  § 146;  B.  C.  & G.  Cons.  L.,  p.  786.] 


9.  Authority  to  designate  banks  of  deposit. — The  board  of  supervisors  has  no 
authority  to  direct  the  county  treasurer  where  he  shall  deposit  the  moneys  of 
the  county  that  come  into  his  hands.  Rept.  of  Atty.-Genl.  (1911),  Vol.  2,  p.  608. 

The  necessity  of  designating  hanks  is  in  no  way  eliminated  by  the  fact  that 
a county  treasurer  succeeds  himself.  Rept.  of  Atty.-Genl.  (1903),  210. 


110 


COUNTY  OFFICERS. 


County  Law,  §§  147,  148. 

§ 8.  MONEYS  DEPOSITED  NOT  TO  BE  DRAWN  EXCEPT  UPON 
ORDER  OF  SUPERVISORS;  TRANSFER  OF  FUNDS  FROM  ONE 
DEPOSITARY  TO  ANOTHER. 

The  county  treasurer  shall  draw  the  moneys  so  deposited  only  for  the 
payment  of  claims  ordered  to  be  paid  by  the  board  of  supervisors,  or 
other  lawful  authority,  or  of  salaries,  county  officers,  or  pursuant  to 
the  lawful  direction  of  some  court;  and  if  he  shall  draw  or  appropriate 
any  money  for  any  other  purpose,  it  shall  be  deemed  a malfeasance  in 
office,  and  cause  for  removal  therefrom.  Nothing  herein  shall  prevent  such 
county  treasurer  from  transferring  any  such  moneys  from  one  depositary 
to  another,  which  shall  have  duly  qualified  by  giving  security  as  herein 
provided.10  County  Law,  § 147;  B.  C.  & G.  Cons.  L.,  p.  786.] 

§ 9.  TREASURER  TO  DELIVER  BOOKS  AND  FUNDS  TO  SUCCES- 
SOR; PENALTY  FOR  FAILURE. 

When  the  right  of  a county  treasurer  to  his  office  expires,  the  books  and 
papers  belonging  to  the  office,  and  all  money  in  his  hands  by  virtue  thereof, 
shall,  upon  his  oath,  or  if  not  living,  upon  the  oath  of  his  executor  or 
administrator,  be  delivered  to  his  successor.11  Any  person  violating  this 
section  shall  forfeit  to  the  county  the  sum  of  twelve  hundred  and  fifty 
dollars.  Such  successor  may  recover  such  forfeitures,  books,  papers  or 


10.  Audit.  It  is  well  settled  that  the  duties  imposed  upon  the  board  of 
passing  and  auditing  claims  and  ordering  their  payment  cannot  be  delegated 
to  a county  auditor.  People  v.  Neff,  191  N.  Y.  210,  affg.  122  App.  Div.  135,  106 
N.  Y.  Supp.  747. 

Money,  belonging1  to  county,  deposited  in  a bank  by  the  county  treasurer  in 
his  name  as  “ treasurer  ” and  not  mixed  with  his  own  funds,  on  his  becoming 
bankrupt,  belong  to  county.  Supervisors  of  Schuyler  v.  Bank  of  Havana,  5 
Hun  649,  affd.  76  N.  Y.  598.  County  treasurer  cannot  determine  for  himself  the 
amount  of  a levy  to  be  applied  to  a sinking  fund.  Matter  of  Clark,  20  Wk.  Dig. 
274. 

11.  Delivery  of  books,  etc.  County  treasurer  cannot  set  up  invalidity  of 
act  by  which  funds  were  received  by  him,  and  claim  them  himself.  Supervisors 
of  Seneca  v.  Allen,  99  N.  Y.  532.  Delivery  of  books  to  successor.  Supervisors  of 
Monroe  v.  Clark,  92  N.  Y.  391. 

Where  a trust,  upon  which  certain  securities  are  held,  terminates  during  the 
term  of  the  county  treasurer,  he  is  not  hound  to  deliver  them  to  his  successor;  it 
seems  that  he  must  turn  them  over  when  the  trust  has  not  expired;  quaere  as  to 
military  fund.  Supervisors  of  Tompkins  v.  Bristol,  15  Hun  116. 

Summary  proceedings  to  compel  delivery  of  papers  and  books  by  out  going 
officer,  see  Public  Officers  Law,  § 80.  A person  who  wrongfully  refuses  to 
surrender  the  official  seal  or  any  books  or  papers  appertaining  to  his  office, 
upon  the  demand  of  his  lawful  successor,  is  guilty  of  a misdemeanor,  see  Penal 
Law,  sec.  1836.  post. 


COUNTY  TREASURER. 


Ill 


County  Law,  §§  149,  151. 

money  due,  by  action  or  other  legal  proceedings,  in  the  name  of  hi& 
county,  upon  the  official  undertaking  of  such  former  county  treasurer,  or  as 
otherwise  authorized  by  law.  Whenever  required  so  to  do  by  the  state 
comptroller,  he  shall  bring  and  maintain  such  action  at  the  expense  of  the 
county,  for  the  recovery  of  all  moneys  and  securities  paid  into  court,  or 
that  belong  to  any  heir,  litigant  or  party,  or  that  stand  to  the  credit  of 
any  action  or  proceeding  which  have  come  into  the  hands  of  any  county 
treasurer  whose  right  to  office  already  has  expired,  or  hereafter  shall 
expire,  or  which  have  been  placed  to  his  credit  in  any  bank  or  depository, 
or  with  which  he  is  in  any  way  chargeable,  and  which  have  not  been 
delivered  to  his  successor;  and  for  all  increase,  loss,  penalty,  damage  or 
expense  lawfully  chargeable  to  such  treasurer  in  connection  therewith. 
A party  to  whom  such  county  treasurer  may  have  transferred  or  assigned 
any  security  or  other  property  belonging  to  any  fund  held  by  him,  may  be 
made  a defendant  in  the  same  action,  and  the  rights  of  the  several  parties 
determined  therein.  Any  action  so  brought  at  the  direction  of  the  state 
comptroller  shall  not  be  discontinued  or  compromised  without  the  approval 
of  the  state  comptroller.  [County  Law,  § 148;  B.  C.  & G.  Cons.  L., 
p.  787.] 

§ 10.  PENALTY  FOR  NEGLECT  TO  MAKE  REPORT  OR  STATEMENT. 

If  a county  treasurer  shall  neglect  to  make  any  report  or  statement 
herein  required  of  him,  except  as  herein  otherwise  provided,  he  shall 
forfeit  to  the  county  a sum  to  be  determined  by  the  jury  or  court  before 
whom  the  trial  is  had,  not  less  than  one  hundred  nor  more  than  five 
hundred  dollars,  to  be  recovered  by  the  district  attorney,  by  action  in  the 
name  of  the  county,  against  such  treasurer  and  his  sureties,  or  one  or  more 
of  them.12  [County  Law,  § 149;  B.  C.  & G.  Cons.  L.,  p.  787.] 

§ 11.  LATE  COUNTY  TREASURER  MAY  MAINTAIN  ACTION  FOR 
RECOVERY  OF  MONEYS. 

The  county  treasurer  of  any  county  in  this  state,  within  three  years 
after  he  has  ceased  to  be  county  treasurer,  may  maintain  an  action  in 
any  court  of  record  in  this  state  as  late  county  treasurer  to  recover  any 
moneys,  funds  or  properties  belonging  to  the  county  or  deposited  with  such 
county  treasurer  pursuant  to  law,  without  right  obtained,  received,  con- 
verted or  appropriated,  disposed  of  or  withheld  by  any  party  or  parties, 


12.  Failure  to  make  a report  required  by  law  is  a misdemeanor,  see  Penal 
Law,  § 1842,  ante. 


112 


COUNTY  OFFICERS. 


County  Law,  § 152. 

association  or  corporation,  their  legal  representatives  and  assigns,  during 
the  term  or  terms  of  office  of  such  county  treasurer. 

Any  and  all  moneys,  funds  and  properties  recovered  in  such  an  action, 
shall  be  paid  to  and  deposited  with  the  then  treasurer  of  the  county  from 
which  such  moneys,  funds  and  properties  were  taken. 

Upon  the  payment  of  any  moneys  or  the  depositing  of  any  funds  by  a 
late  county  treasurer  bringing  such  action,  he  shall  be  forthwith  credited 
with  the  amount  and  value  of  such  deposit. 

This  section  shall  apply  to  all  county  treasurers  of  this  state  elected  to 
office  on  or  after  the  seventh  day  of  November,  eighteen  hundred  and 
eighty-two.  [County  Law,  § 151 ; B.  C.  & G.  Cons.  L.,  p.  788.] 


§ 12.  DUTIES  OF  COUNTY  TREASURER  IN  RESPECT  TO  CEME- 
TERY TRUSTS. 

A person  residing  in  this  state  may  create  a trust  in  perpetuity  for  the 
maintenance  of  a cemetery  lot,  the  preservation  of  a building,  structure, 
fence  or  walk  therein,  the  renewal  or  preservation  of  a tomb,  monument, 
stone,  fence,  railing  or  other  erection  or  structure  on  or  around  such  lot, 
or  the  planting  or  cultivation  of  trees,  shrubs,  flowers  or  plants  in  or  about 
such  lot,  or  for  any  of  such  purposes,  by  transferring,  conveying,  devising 
or  bequeathing  to  the  county  treasurer  of  the  county  in  which  such  person 
resides  or  in  which  such  cemetery  is  located,  or  if  such  person  resides  or 
such  cemetery  is  located  in  a county  wholly  within  a city,  to  the  chamberlain 
of  such  city,  real  or  personal  property,  and  designating  such  county  treas- 
urer or  chamberlain  as  trustee  in  the  instrument  creating  such  trust.  Such 
instrument  may  direct  that  the  income  derived  from  such  property  shall  be 
applied  to  one  or  more  of  the  purposes  specified  in  this  section.  A county 
treasurer  or  city  chamberlain  designated  as  trustee  in  pursuance  of  this 
section,  may  in  his  discretion  accept  the  property  so  transferred,  and  if 
he  accepts  the  same,  he  shall  cause  the  same  to  be  invested  in  accordance 
with  the  terms  of  the  trust,  if  any  are  prescribed,  and  otherwise  shall 
invest  and  reinvest  such  property  in  securities  in  which  savings  banks 
are  authorized  to  invest.  The  income  derived  from  such  property  shall 
be  collected  by  the  county  treasurer  or  chamberlain  who  shall  be  entitled 
to  receive  five  per  centum  of  such  income  for  administering  the  trust. 
The  balance  of  such  income  shall  be  paid  by  the  county  treasurer  or  cham- 
berlain to  the  person  or  corporation  owning  or  conducting  such  cemetery, 
provided  such  person  or  corporation  is  willing  to  accept  the  same  and  apply 
the  money  so  received,  so  far  as  the  same  may  be  applicable,  in  furtherance 
of  the  purposes  for  which  such  trust  was  created.  Such  money  shall  not 
be  paid  to  an  individual  unless  he  shall  give  to  the  county  treasurer  or 
chamberlain  a bond  in  an  amount  to  be  approved  by  him  conditioned  for 


COUNTY  TREASURER. 


113 


County  Law,  § 152. 

the  faithful  application  of  such  money,  in  accordance  with  the  terms  of 
the  trust.  If  at  any  time  after  the  creation  of  such  trust  there  is  no  person 
or  corporation  willing  to  receive  and  apply  the  income  thereof  in  accordance 
with  the  terms  of  the  trust,  the  county  treasurer  or  chamberlain  shall  pre- 
sent a petition  to  the  county  judge  of  the  county,  or  a justice  of  the  supreme 
court  of  the  district  wherein  such  cemetery  is  located,  praying  for  directions 
as  to  the  manner  in  which  such  trust  shall  be  administered  by  him.  Such 
county  judge  or  justice  of  the  supreme  court  may,  by  order,  direct  that 
the  trust  shall  be  directly  administered  by  the  county  treasurer  or  city 
chamberlain  or  may  otherwise  provide  for  the  administration  thereof  in 
such  manner  as  shall,  so  far  as  practicable,  carry  out  the  intent  of  the 
creator  of  the  trust.  [County  Law,  § 152 ; B.  C.  & G-.  Cons.  L.,  p.  788.] 


§ 13.  PENALTY  FOR  NEGLECT  TO  PAY  OVER  MONEY  ON  ORDER 
OF  THE  COURT. 

Whenever  any  county  treasurer,  after  service  on  him  personally,  or  by 
leaving  at  his  office,  in  his  absence,  with  some  person  having  charge 
thereof,  or  if  such  service  can  not  be  made,  by  leaving  with  some  person 
of  suitable  age  and  discretion  at  his  place  of  residence,  or  at  his  last  place 
of  residence  in  the  county,  if  he  has  departed  therefrom,  of  a certified 
copy  of  an  order  of  the  court,  directing  the  payment  or  delivery  of  any 
money  or  securities  held  by  him  pursuant  to  an  order  of  the  court,  to 
any  person  or  persons,  shall  fail  or  neglect  so  to  do,  or  where  any  county 
treasurer  has  invested  or  loaned  any  moneys  held  by  him  pursuant  to  an 
order  of  the  court,  to  any  person  or  persons  on  inadequate  or  worthless 
securities,  and  shall  fail  or  neglect,  when  required  so  to  do,  to  pay  over 
the  amount  of  the  moneys  so  invested  to  the  person  or  persons  entitled 
thereto,  the  court  may,  by  order,  direct  that  an  action  be  brought  upon 
the  official  bond  of  such  treasurer,  against  him  and  his  sureties,  to  recover 
the  amount  of  the  money  or  securities  so  directed  to  be  paid  or  delivered, 
or  of  the  moneys  so  invested  on  inadequate  or  worthless  security,  for  the 
benefit  of  the  person  or  persons  in  whose  behalf  the  direction  shall  have 
been  by  such  order  given,  and  whose  name  or  names  appear  therein,  or 
their  assigns,  and  thereupon  such  action  may  be  brought  for  such  pur- 
pose.13 [County  Law,  § 153;  B.  C.  & G.  Cons.  L.,  p.  789.] 


13.  Action  on  bond.  Where  county  treasurer  has  converted  money  to  his 
own  use  and  an  action  is  brought  upon  his  bond  to  recover  same,  the  action  is 
properly  brought  in  the  name  of  the  board  of  supervisors,  and  the  recovery 
will  inure  to  the  benefit  of  the  individual  whose  property  was  converted.  Board 
of  Supervisors  of  Tompkins  Co.  v.  Bristol,  99  N.  Y.  316. 


114 


COUNTY  OFFICERS. 


Penal  Law,  § 1867;  Liquor  Tax  Law,  § 10. 

§ 14.  MISAPPROPIATION  OF  MONEYS  AND  SECURITIES  BY 
COUNTY  TREASURER. 

A county  treasurer,  who  wilfully  misappropriates  any  moneys,  funds 
or  securities,  received  by  or  deposited  with  him  as  such  treasurer,  or  who- 
is  guilty  of  any  other  mtalfeasance  or  wilful  neglect  of  duty  in  his  office,, 
is  punishable  by  a tine  not  less  than  five  hundred  dollars  nor  more 
than  ten  thousand  dollars,  or  by  imprisonment  in  a state  prison  not 
less  than  one  year  or  more  than  five  years,  or  by  both  such  fine  and 
imprisonment.  [Penal  Law,  § 1867;  B.  C.  & G-.  Cons.  L.,  p.  4052.] 

§ 15.  DUTIES  UNDER  THE  LIQUOR  TAX  LAW;  TAX  TO  BE  PAID 
TO  COUNTY  TREASURER  AND  DISTRIBUTED  BY  HIM. 

The  taxes  assessed,  and  all  fines  and  penalties  incurred  under  this 
chapter  except  those  assessed  undeT  subdivisions  four  and  five  of  section 
eight  and  under  section  nine-a  and  all  fines  and  penalties  incurred  in 
connection  therewith  in  counties  or  boroughs  having  a special  deputy 
commissioner  of  excise  shall  be  collected  by  and  paid  to  him.  In  all 
other  counties  such  taxes,  fines  and  penalties  shall  be  collected  by  and 
paid  to  the  county  treasurer  of  the  county  in  which  the  traffic  is  carried 
on.  All  taxes  assessed  under  subdivisions  four  and  five  of  section  eight 
and  under  section  nine-a  of  this  chapter,  and  all  fines  and  penalties  in 
connection  therewith,  shall  he  collected  by  and  paid  to  the  state  com- 
missioner of  excise.  All  taxes,  fines  and  penalties  under  subdivisions 
four  and  five  of  section  eight  shall  be  paid  by  the  state  commissioner  of 
excise  to  the  state  treasurer.  One-fourth  of  the  revenues  resulting  from 
taxes,  fines  and  penalties  collected  under  the  provisions  of  section  nine-a 
of  this  chapter  which  accrue  after  June  thirtieth,  nineteen  hundred  and 
eighteen  and  one-half  of  revenues  which  accrue  before  July  first,  nine- 
teen hundred  and  eighteen,  shall  be  paid  by  the  state  commissioner  of 
excise  to  the  state  treasurer.  The  remainder  of  such  revenues  shall  be- 
long to  the  town  or  city  in  which  the  traffic  was  carried  on  from  which 
such  revenues  were  received  and  shall  be  paid  to  the  supervisor  of  such 
town  or  to  the  treasurer  or  fiscal  officer  of  such  city.  After  June  thir- 
tieth, nineteen  hundred  and  eighteen,  one-fourth  of  the  revenues  result- 
ing from  taxes,  fines  and  penalties  under  the  provisions  of  this  chapter 
excepting  taxes  collected  under  subdivisions  four  and  five  of  section 
eight  and  under  section  nine-a  and  before  July  first,  nineteen  hundred 
and  eighteen,  one-half  of  tre  revenues  result  from  fines  and  penalties, 
under  the  provisions  of  this  chapter  less  the  amount  allowed  for  collect- 
ing the  same,  shall  be  paid  by  the  county  treasurers,  and  by  the  several 
special  deputy  commissioners  receiving  the  same  within  ten  days  from 
the  receipt  thereof,  to  the  treasurer  of  the  state  of  Hew  York  to  the 
credit  of  the  general  fund,  as  a part  of  the  general  tax  revenue  of  the 
state  and  shall  be  appropriated  to  the  payment  of  the  current  general 
expenses  of  the  state  and  the  remainder  thereof,  less  the  amount  allowed 


COUNTY  TREASURER. 


115 


Liquor  Tax  Law,  § 10. 

for  collecing  the  same,  shall  belong  to  the  town  or  city  in  which  the 
traffic  was  carried  on  from  which  revenues  were  received,  and  shall  be 
paid  by  the  county  treasurer  of  such  county,  or  by  the  special  deputy 
commissioner  to  the  supervisor  of  such  town,  or  to  the  treasurer  or  fiscal 
officer  of  such  city,  within  ten  days  from  the  receipt  thereof.  All  excise 
moneys  collected  by  county  treasurers  and  special  deputy  commissioners 
of  excise  shall  be  deposited  until  the  same  shall  be  paid  over  to  the 
state  or  local  fiscal  officer  as  is  herein  provided,  in  hank  or  other  deposi- 
tories designated  by  the  state  commissioner  of  excise,  who  shall  require 
from  each  such  bank  or  depository  a bond  running  to  the  people  of  the 
state  of  ~Ne w York  in  such  penalty  and  with  such  sureties  as  shall  be  ap- 
proved by  the  said  state  commissioner,  conditioned  that  such  bank  or 
depository  will  safely  keep  all  such  moneys  that  may  be  so  deposited 
in  or  held  by  it  on  deposit  and  will  promptly  pay  the  same  over  at  any 
and  all  times  upon  legal  demand  therefor.  Action  on  said  bond  for 
any  default  or  violation  of  its  conditions  may  be  brought  by  the  state 
commissioner  of  excise  who  shall  distribute  the  amount  of  money  re- 
covered to  the  locality  and  the  state  as  their  respective  interests  may 
appear.  At  the  time  of  making  such  payment  the  special  deputy  com- 
missioner or  county  treasurer  shall  furnish  to  the  officer  of  such  city 
or  town  to  whom  such  payment  is  made  a written  statement  under  oath 
stating  when  such  money  was  received  and  from  whom  received ; and 
that  the  statement  includes  all  the  moneys  received  to  a date  named  in 
such  statement.  Such  revenues  shall  be  appropriated  and  expended  by 
such  town  or  city,  in  such  manner  as  is  now  or  may  hereafter  be  pro- 
vided by  law  for  the  appropriation  and  expenditures  of  sums  received 
for  excise  licenses  or  in  such  other  manner  as  may  hereafter  be  provided 
by  law ; and  any  portion  of  such  revenues  not  otherwise  specifically  ap- 
propriated by  law  may  be  applied  to  the  ordinary  expenses  of  the  city 
or  town.  Any  special  deputy  commissioner  or  county  treasurer  wdio 
shall  neglect  or  refuse  to  apportion  and  pay  over  such  moneys,  as  above 
provided,  shall,  in  addition  to  the  fines  and  penalties  otherwise  pro- 
vided in  this  chapter,  he  liable  to  a penalty  of  fifty  dollars  for  each  and 
every  offense,  to  be  recovered  in  an  action  by  the  officer  entitled  to  re- 
ceive such  excise  moneys,  brought  by  such  officer  in  the  name  of  the 
city  or  town  entitled  thereto,  with  costs,  in  addition  to  the  money  un- 
lawfully withheld ; and  if  any  special  deputy  commissioner  or  county 
treasurer  shall  wilfully  make  and  verify  a false  statement  under  this 
section,  he  shall  he  guilty  of  perjury.14  [Liquor  Tax  Law,  § 10,  as 
amended  by  L.  1916,  ch.  416,  L.  1917,  ch.  623,  and  L.  1918,  ch.  473; 
B.  C.  & G.  Cons.  L.,  p.  3278.] 

14.  Other  provisions  of  Liquor  Tax  Law  relating  directly  or  indirectly  to  the  duties 
of  the  county  treasurer  are  as  follows: 

Amount  of  tax.  Liquor  Tax  Law,  sec.  8,  as  amended  by  L.  1909,  ch.  281;  L.  1910, 
chs.  485,  494;  L.  1911,  ch.  298;  L.  1913,  ch.  168;  L.  1915,  ch.  654;  L.  1916,  ch. 
416;  L.  1917,  ch.  623,  and  L.  1918,  ch  473. 

Books  and  blanks  furnished  by  state  excise  commissioner.  Liquor  Tax  Law,  sec. 
12,  as  amended  by  L.  1909,  chs.  240,  281,  and  L.  1912,  ch.  263. 


116 


COUNTY  OFFICERS. 


Liquor  Tax  Law,  § 11;  Tax  Law,  §§  237,  240. 

§ 14.  COMPENSATION  OF  COUNTY  TREASURERS  ON  ACCOUNT  OF 
THE  LIQUOR  TAX  LAW. 

As  full  compensation  and  in  full  payment  of  all  charges  and  expenses 
for  collecting  the  taxes  herein  provided  for,  and  keeping  the  necessary 
hooks,  and  making  the  necessary  reports,  as  required  by  the  state  com- 
missioner of  excise,  and  issuing  the  liquor  tax  certificates,  the  officer 
charged  therewith,  shall  be  allowed,  except  as  provided  in  section  six,  in 
counties  containing  a city  of  the  first  or  second  class  one  per  centum  of 
the  amount  of  taxes,  penalties  and  fines  collected  ; in  counties  contain- 
ing a city  of  the  third  class,  but  not  a city  of  the  first  or  second  class, 
two  per  centum ; in  all  other  counties,  three  per  centum,  which 
amount  shall  be  deducted  and  retained  by  him  from  the  moneys  so 
collected,  as  his  compensation  for  the  duties  imposed  upon  him  by  this 
chapter,  and  in  addition  to  the  salary  or  fees  allowed  by  law  for  the 
performance  of  his  other  official  duties,  and  charged  one-half  to  the 
state  and  one-half  to  the  locality  to  which  the  tax  belongs.  [Liquor 
Tax  Law,  § 11;  B.  C.  & G.  Cons.  L.,  p.  3280.] 

§ 16.  DUTIES  OF  COUNTY  TREASURERS  UNDER  TAXABLE  TRANS- 
FER PROVISIONS  OF  TAX  LAW. 

The  tax  shall  be  paid  to  the  treasurer  in  a county  in  which  the  office 
of  appraiser  is  not  salaried,  and  in  other  counties,  to  the  state  comp- 
troller and  said  treasurer  or  state  comptroller  shall  give,  and  every  ex- 
ecutor, administrator  or  trustee  shall  take,  duplicate  receipts  from  him 
of  such  payment.15  [See  Tax  Law,  § 222,  in  part;  B.  C.  & G.  Cons. 
L.,  p.  5990.] 

Fees  of  county  treasurer. — The  treasurer  of  each  county  in  which  the 
office  of  appraiser  is  not  salaried  shall  be  allowed  to  retain,  on  all  taxes 


Bond  of  applicants  for  liquor  tax  certificates  to  be  approved  by  county  treasurer. 
Liquor  Tax  Law,  sec.  16,  as  amended  by  L.  1910,  ch.  484;  L.  1911,  ch.  223,  and 
L.  1916,  ch.  416. 

Application  for  liquor  tax  certificates,  what  to  state.  Liquor  Tax  Law,  sec  15, 
as  amended  by  L.  19091,  ch.  281;  L.  1910,  chs.  485,  494,  503;  L.  1911,  ch.  643; 
L.  1912,  ch.  378;  L.  1913,  ch.  168;  L.  1915,  ch.  654;  L.  1917,  ch.  623,  and  L. 
1918,  ch.  473. 

Certificates,  liquor  tax,  to  be  issued  by  county  treasurer.  Liquor  Tax  Law,  sec.  17, 
as  amended  by  L 1910,  ch.  49'4;  L.  1913,  ch.  168,  and  L.  1917,  ch.  623. 

Refusal  to  grant  certificate,  county  treasurer  to  endorse  reasons  therefor  on  appli- 
cation. Liquor  Tax  Law,  sec.  27,  as  amended  by  L.  1909,  ch.  281,  and  L.  1910,  ch. 

503. 

Injunctions  to  restrain  unlawful  traffic  in  liquors,  county  treasurer  may  institute 
proceedings.  Liquor  Tax  Law,  sec.  28,  as  amended  by  L.  1909,  ch.  281,  and  L.  1918, 
ch.  473. 

Violations  of  Liquor  Tax  Law,  county  treasurer  to  make  complaint  thereof  to  dis- 
trict attorney.  Liquor  Tax  Law,  sec.  40. 

See  B.  C.  & G.  Cons  L.,  pp.  3272-3368. 

15.  The  amount  of  the  tax  on  transfers  is  determined  by  the  Tax  Law,  § 220, 
as  amended  by  ±j.  1910,  ch.  706;  L.  1911,  ch.  732;  L.  1915,  ch.  664,  and  L.  1916, 

ch.  323,  and  § 221,  as  amended  by  L.  1910,  chs.  600,  706;  L.  1911,  ch.  732;  L.  1912, 

ch.  206;  L.  1913,  chs.  356,  795;  L.  1916,  ch.  548;  L.  1917,  ch.  53,  and  L.  1918,  ch. 
HI. 

For  provisions  generally,  relating  to  the  taxation  of  taxable  transfers,  and  the 
duties  of  county  officers  in  respect  thereto,  see  McElroy  on  Taxable  Transfers, 
published  by  Matthew  Bender  & Co.,  Albany,  N.  Y. 


COUNTY  COMPTROLLER;  COUNTY  AUDITORS. 


117 


Tax  Law,  § 240. 

paid  and  accounted  for  by  him  each  fiscal  year  under  this  article,  five 
per  centum  on  the  first  fifty  thousand  dollars,  two  and:  one-half  per 
centum  on  the  next  fifty  thousand  dollars,  and  one  per  centum  on  all 
additional  sums.  Such  fees  shall  be  in  addition  to  the  salaries  and  fees 
now  allowed  by  law  to  such  officers.  [Tax  Law,  § 237 ; B.  C.  & G. 
Cons.  L.,  p.  6013.] 

Reports  of  county  treasurer. — Each  county  treasurer  in  a county  in 
which  the  office  of  appraiser  is  not  salaried  shall  make  a report,  under 
oath,  to  the  state,  comptroller,  on  January,  April,  July  and  October  first 
of  each  year,  of  all  taxes  received  by  him  under  this  article,  stating  for 
what  estate  and  by  whom  and  when  paid.  The  form  of  such  report  may 
be  prescribed  by  the  state  comptroller.  He  shall,  at  the  same  time,  pay 
the  state  treasurer  all  taxes  received  by  him  under  this  article  and  not 
previously  paid  into  the  state  treasury,  except  as  provided  in  the  next 
section,  and  for  all  such  taxes  collected  by  him  and  not  paid  into  the 
state  treasury  within  thirty  days  from  the  times  herein  required,  he 
shall  pay  interest  at  the  rate  of  ten  per  centum  per  annum.  [Tax  Law, 
§ 240,  as  amended  by  L.  1911,  ch.  800;  B.  C.  & G.  Cons.  L.,  p.  6014.] 


118 


COUNTY  OFFICERS. 


County  Law,  § 234. 

CHAPTER  VIII. 

COUNTY  COMPTROLLER;  COUNTY  AUDITORS. 

EXPLANATORY  NOTE. 

County  Comptroller. 

The  office  of  county  comptroller  is  a new  office,  created  by  L.  1909,  ch. 
466,  which  inserted  a new  article  14a  in  the  county  law.  When  a peti- 
tion signed  by  one  per  cent  of  the  total  vote  cast  in  the  county  for  the 
office  of  governor  at  the  last  general  election  is  presented  to  the  county 
clerk,  a proposition  must  ba  submitted  to  the  voters  of  the  county  for 
the  creation  of  the  office.  If  the  proposition  is  adopted,  a county 
comptroller  must  be  elected  at  the  next  general  election. 

The  duties  of  such  officer  are  prescribed  by  statute.  He  is  not  to 
supersede  the  board  of  supervisors  in  the  audit  of  claims  against  the 
county,  but  is  to  investigate  as  to  such  claims  and  report  thereon  to  the 
board. 

County  Auditor. 

Chapter  152  of  the  Laws  of  1910,  as  amended  by  L.  1913,  ch.  384, 
amends  the  County  Law  by  adding  a new  article  thereto,  which  author- 
izes a board  of  supervisors  to  appoint  a county  auditor.  Such  officer, 
when  appointed,  audits  all  claims  against  the  county,  to  the  same  effect 
as  though  audited  by  the  board  of  supervisors. 

Section  1.  County  comptroller;  term  of  office. 

2.  Duties  of  county  comptroller;  issue  and  sale  of  bonds. 

3.  County  employees;  how  paid. 

4.  Filing  and  verification  of  accounts. 

5.  Purchase  of  supplies  by  county  officers;  sheriff  to  be  custodian  of 

buildings. 

6.  Estimate  of  county  officers. 

7.  Accounts  with  treasurer. 

8.  Appointment  of  county  auditors. 

9.  Duties. 

§ 1.  COUNTY  COMPTROLLER;  TERM  OF  OFFICE. 

Upon  the  filing  with  the  county  clerk  of  any  county,  prior  to  the 
first  day  of  October,  of  a petition,  duly  signed  by  a number  of  voters 
equal  to  at  least  one  per  centum  of  the  total  vote  cast  in  such  county  for 
the  office  of  governor  at  the  last  general  election,  asking  that  the  office  of 
county  comptroller  be  created  in  and  for  such  county,  such  county  clerk 
shall  prepare  a question  to  be  submitted,  in  the  same  manner  as  other 
questions  are  submitted,  to  the  voters  of  such  county  at  the  next  general 
election,  in  substantially  the  following  form : “ Shall  the  office  of  county 
comptroller  be  created  in  and  for  the  county  of  V 9 At  the 

next  general  election  after  the  affirmative  determination  of  such  propo- 
sition, there  shall  be  elected,  in  the  same  manner  as  are  other  county 


COUNTY  COMPTROLLER;  COUNTY  AUDITORS. 


119 


County  Law,  § 235. 

-officers,  a county  comptroller,  whose  term  of  office  shall  commence  on  the 
first  day  of  January  following  and  shall  he  for  three  years  and  whose 
successor  shall  be  elected  in  like  manner  for  a term  of  three  years.  A 
member  of  the  board  of  supervisors,  during  the  term  for  which  he  has 
been  so  elected  or  appointed,  shall  not  be  eligible  for  election  or  ap- 
pointment to  the  office  of  county  comptroller,  nor  shall  any  person 
elected  or  appointed  to  the  office  of  county  comptroller,  while  holding 
such  office,  be  eligible  to  election  or  appointment  as  supervisor.  Before 
entering  upon  the  duties  of  his  office  he  shall  take  the  constitutional 
oath  and  execute  to  the  county  a bond  with  good  and  sufficient  sureties 
to  be  approved  by  the  county  judge  in  a sum  to  be  fixed  by  the  board 
of  supervisors,  conditioned  upon  the  faithful  performance  of  his  duties. 
The  board  of  supervisors  shall  prescribe  the  annual  salary  of  such 
county  comptroller  and  the  compensation  of  assistants  appointed  by  him 
and  shall  provide  and  maintain  suitable  rooms  to  be  used  by  such  county 
comptroller  as  his  office.  The  office  of  the  county  comptroller  shall  be 
open  daily,  with  the  exception  of  Sundays  and  holidays,  from  nine  ante 
meridian  until  five  post  meridian.  The  county  comptroller  may  be  re- 
moved by  the  governor  within  the  term  for  which  he  shall  have  been 
chosen,  after  a copy  of  the  charges  against  him  and  an  opportunity  to 
be  heard  in  his  defense  shall  have  been  given  to  such  comptroller.  If 
a vacancy  shall  occur,  otherwise  than  by  expiration  of  term,  the  governor 
shall  appoint  a person  to  execute  the  duties  of  county  comptroller  until 
the  vacancy  shall  be  filled  by  an  election. 

If  the  county  comptroller  shall  be  unable  to  perform  the  duties  of  his 
office  in  consequence  of  sickness  or  temporary  absence  from  the  county 
he  may  designate  one  of  the  assistants,  deputies,  inspectors  or  clerks  in 
his  office  to  act  in  his  place.  If  the  county  comptroller  shall  be  so  in- 
capacitated for  more  than  ten  days  without  making  such  designation, 
the  board  of  supervisors  may  do  so.  Such  designation  shall  be  in  writ- 
ing and  shall  be  signed  by  the  county  comptroller  in  case  he  makes  such 
designation  and  by  the  chairman  and  clerk  of  the  board  of  supervisors 
in  case  such  designation  is  made  by  the  board  of  supervisors.  Such  des- 
ignation shall  be  filed  with  the  county  clerk  and  the  clerk  so  designated 
shall  be  known  as  the  acting  county  comptroller.  The  assistant,  deputy, 
inspector  or  clerk  so  designated  shall  perform  the  duties  of  the  county 
comptroller  until  the  county  comptroller  shall  resume  them.  An  assist- 
ant, deputy,  inspector  or  clerk  so  designated  shall  not  receive  any  addi- 
tional compensation  while  acting  as  county  comptroller  to  that  which 
he  is  receiving  at  the  time  of  the  designation.  [County  Law,  § 234,  in- 
serted by  L.  1909,  ch.  466,  and  amended  by  L.  1917,  ch.  76;  B.  C.  & 
G.  Cons.  L.,  p.  820.] 

§ 2.  DUTIES  OF  COUNTY  COMPTROLLER;  ISSUE  AND  SALE  OF 
BONDS. 

The  comptroller  shall  superintend  the  fiscal  affairs  of  the  county  pur- 
suant to  law  and  the  resolutions  of  the  board  of  supervisors.  He  shall 
keep  a separate  account  with  every  officer  and  department  and  with  each 
improvement  for  which  funds  are  appropriated  or  raised  by  tax  or  as- 
sessment. Ho  warrant  shall  be  drawn  for  the  payment  of  any  claim  or 


120 


COUNTY  OFFICERS. 


County  Law,  § 235. 

obligation  of  the  county  unless  it  state  particularly  against  which  of  such 
funds  it  is  drawn.  No  fund  shall  be  overdrawn  nor  shall  any  warrant 
be  drawn  against  one  fund  to  pay  a claim  chargeable  to  another.  The 
county  comptroller  shall  perform  such  other  and  further  duties  as  may 
from  time  to  time  be  prescribed  by  law  or  by  resolution  of  the  board  of 
supervisors,  not  inconsistent  with  this  act  or  other  laws  of  the  state.  All 
accounts  or  claims  against  the  county  for  work,  labor,  services,  mer- 
chandise or  materials,  for  the  county  or  any  county  officer,  and  all 
.accounts  or  claims  against  the  county  for  fees  by  any  officer  or  officers 
authorized  to  charge  and  collect  fees  from  the  county  shall  be  filed  in 
the  office  of  the  county  comptroller  before  being  presented  to  the  board 
of  supervisors.  The  county  comptroller  shall  cause  each  claim  upon  pre- 
sentation to  him  to  be  numbered  consecutively,  and  the  number,  date  of 
presentation,  the  name  of  the  claimant  and  a brief  statement  of  the 
character  of  each  claim,  shall  be  entered  in  a book  kept  for  such  purpose, 
which  shall  at  all  times  during  office  hours  be  so  placed  as  to  be  conven- 
ient for  public  inspection  and  examination.  The  county  comptroller  shall 
examine  and  report  upon  all  accounts  or  claims  against  the  county  for 
work,  labor,  services,  merchandise  or  materials  furnished  the  county  or 
any  officer  or  department  thereof  and  all  accounts  or  claims  against  the 
county  for  fees  by  any  officer  or  officers  authorized  to  charge  and  collect 
fees  from  the  county,  before  the  same  shall  be  audited  and  ordered  paid 
by  the  board  of  supervisors ; he  shall  ascertain,  before  reporting  to  the 
board  of  supervisors,  whether  such  accounts  or  claims  and  the  prices 
therein  are  just  and  true,  and  whether  the  prices  charged  and  the  quality 
of  the  merchandise  furnished  are  in  accordance  with  the  contract  or 
agreement  therefor,  if  any  such  contract  or  agreement  has  been  made, 
and  whether  the  work,  labor  and  services  have  been  performed  and  the 
merchandise  or  materials  delivered  and  whether  the  services  for  which 
any  officer  or  officers  are  entitled  to  collect  fees  from  the  county  have  been 
performed  and  whether  the  fees  charged  therefor  are  in  accordance  with 
law,  and  shall  attach  a certificate  to  each  claim  or  account,  stating  the 
result  of  such  examination,  and,  if  it  is  advised  by  him  that  any  such 
account  or  claim  be  rejected  or  modified,  stating  the  reasons  for  such  re- 
jection or  modification.  Such  account  or  claim  with  the  certificate  at- 
tached thereto  shall  be  filed  in  his  office,  and  shall  during  office  hours  be 
open  to  public  inspection.  The  board  of  supervisors  shall  not  audit  any 
account  or  claim  which  the  county  comptroller  advises  should  be  rejected 
or  modified,  except  where  such  account  or  claim  is  modified  in  accordance 
with  the  recommendations  of  the  county  comptroller,  unless  two- thirds 
of  all  the  members  elected  to  the  board  of  supervisors  shall  vote  in  favor 
of  the  payment  of  said  account  or  claim  notwithstanding  the  recommend- 
ation of  the  countv  comotroller.1  The  comptroller  shall  cause  to  be  kept 

1.  Audit  of  rejected  claim. — The  hoard  of  supervisors  cannot  legally  audit  a 
claim  which  the  county  comptroller  advises  should  be  rejected  or  modified, 
unless  two-thirds  of  the  hoard  vote  in  favor  of  such  audit.  The  remedy  of  the 
claimant  is  by  certiorari.  Becker  v.  County  of  Oneida,  157  App.  Div.  457. 


COUNTY  COMPTROLLER;  COUNTY  AUDITORS. 


121 


County  Law,  § 236. 

in  his  office  such  books  as  are  necessary  to  contain  all  claims  and  accounts 
against  the  county  presented  to  him  for  examination,  and  the  action  taken 
by  him  on  each,  and  a record  of  the  money  appropriated  by  the  board 
of  supervisors  for  the  benefit  of  the  county  buildings  and  officers  and 
the  amount  drawn  thereon,  and  a record  of  all  contracts  or  agreements 
made  for  supplies  to  be  furnished  any  county  building  or  county  office. 
The  county  comptroller  shall  report  to  the  board  of  supervisors  at  each 
regular  meeting  thereof  the  balance  of  the  appropriation  to  each  depart- 
ment remaining  unexpended.  A county  comptroller  first  elected  in  any 
county  as  above  provided  is  authorized  after  he  enters  upon  the  dis- 
charge of  his  duties  to  employ  such  expert  accountants  as  may  be  neces- 
sary in  opening  the  proper  books  in  his  office  and  in  establishing  the 
financial  system  herein  provided  for  such  time  as  he  shall  deem  necessary, 
not  exceeding  ninety  days,  and  the  expense  thereof  shall  be  a county 
charge.  All  bonds  of  the  county  for  whatever  purpose  issued  shall  be 
advertised  and  sold  by  the  county  comptroller.  He  shall  cause  to  be 
published,  for  such  time  as  the  board  of  supervisors  shall  prescribe,  a 
notice  containing  a description  of  the  bonds  to  be  sold,  the  manner  and 
place  of  sale,  and  the  time  when  the  same  shall  be  sold.  Award  shall  be 
made  to  the  highest  bidder.  At  any  sale  of  bonds  the  county  comp- 
troller may  reject  all  bids  and  readvertise,  if  in  his  opinion  the  price 
offered  is  inadequate.  All  bonds  shall  be  signed  in  the  name  of  the  county, 
by  the  chairman  of  the  board  of  supervisors  and  county  treasurer  and 
countersigned  by  the  county  comptroller.  A list  of  all  bonds  issued  by  the 
county  shall  be  kept  in  the  county  comptroller’s  office  and  when  any 
bonds  are  paid  by  the  county  treasurer  they  shall  be  presented  by  him 
to  the  county  comptroller  for  cancellation.  [County  Law,  § 235,  as 
inserted  by  L.  1909,  ch.  466,  and  amended  by  L.  1910,  ch.  8;  B.  C.  & 
G.  Cons.  L.,  p.  821.] 

§ 3.  COUNTY  EMPLOYEES;  HOW  PAID. 

Before  presentation  to  the  county  comptroller  of  the  claims  or  payrolls 
for  services  rendered  to  the  county,  or  for  services  of  subordinate  officials, 
such  claims  shall  be  certified  by  the  county  officer  appointing  or  employ- 
ing such  persons  to  the  effect  that  such  such  persons  were  regularly 
appointed  to  or  employed  in  the  positions  held  by  them ; that  the  services 
represented  were  actually  performed  and  that  the  compensation  demanded 
in  said  claims  and  the  amounts  contained  in  such  payrolls  were  correct. 
Upon  the  presentation  of  such  claims  or  payrolls  to  the  county  comp- 
troller by  the  several  county  officers  he  shall  examine  the  same,  report 
thereon  to  the  board  of  supervisors  and  a certified  transcript  of  such 
claims  or  payrolls  as  allowed  shall  be  made  by  the  county  comptroller  and 


122 


COUNTY  OFFICERS. 


County  Law,  §§  237,  238. 

delivered  to  the  county  treasurer.  All  original  payrolls  and  claims  for 
services  shall  be  tiled  in  the  office  of  the  county  comptroller  and  transcripts 
thereof  in  the  office  of  the  county  treasurer.  All  county  employees  and 
county  officers  shall  be  paid  by  warrants  issued  by  the  county  comptroller 
upon  the  county  treasurer.  [County  Law,  § 236,  as  inserted  by  L.  1909,  ch, 
466;  B.  C.'&  G.  Cons.  L.,  p.  823.] 

§ 4.  FILING  AND  VERIFICATION  OF  ACCOUNTS. 

Each  account  or  claim  presented  to  the  county  comptroller  for  examina- 
tion shall  be  approved  by  the  officer  or  head  of  the  department  incurring 
the  same;  such  claim  or  account  shall  be  verified  by  the  person  presenting 
it  to  the  effect  that  it  is  just,  true  and  correct;  that  no  part  thereof  ha& 
been  paid  or  otherwise  settled;  that  the  prices  charged  in  such  account& 
or  claims  are  correct  and  just,  and,  if  there  is  any  contract  or  agreement 
therefor,  that  the  prices  are  in  accordance  with  such  contract  or  agree- 
ment, a copy  of  which  must  be  attached  to  said  account  or  claim.  All 
orders  or  warrants  for  the  payment  of  any  claims  or  accounts  examined 
by  the  county  comptroller  and  ordered  paid  by  the  board  of  supervisors, 
shall  be  drawn  by  the  clerk  of  said  board  and  countersigned  by  the  chair- 
man thereof  and  by  the  county  comptroller  before  the  same  are  paid  by 
the  county  treasurer.  [County  Law,  § 237,  as  inserted  by  L.  1909,  ch.. 
466;  B.  C.  & G.  Cons.  L.,  p.  823.] 

§ 5.  PURCHASE  OF  SUPPLIES  BY  COUNTY  OFFICERS;  SHERIFF 
TO  BE  CUSTODIAN  OF  BUILDINGS. 

County  officers  may  purchase  for  the  use  of  the  buildings  or  offices 
of  which  they  have  charge  or  custody  all  supplies  necessary  for  their 
support  and  maintenance,  all  accounts  for  which  shall  be  presented  to 
the  county  comptroller  to  be  examined  by  him,  and  in  case  any  purchase 
or  contract  shall  involve  an  expense  exceeding  two  hundred  dollars  it 
shall  be  let  to  the  lowest  responsible  bidder,  after  public  notice  such  as  the 
board  of  supervisors  shall  prescribe.  The  superintendent  or  custodian 
of  a county  building,  a county  officer,  county  comptroller  or  supervisor 
shall  not  be  directly  or  indirectly  interested  in  a contract  or  purchase  of 
supplies  by  any  such  superintendent  or  custodian  or  county  officer.  All 
written  contracts  or  agreements  for  supplies  for  any  county  building  or 
office  shall  be  made  in  duplicate,  one  copy  of  which  shall  be  filed  in  the 
office  of  the  county  comptroller  and  one  copy  in  the  office  of  the  super- 
intendent or  custodian  of  the  county  building  or  county  office  for  which 
such  contracts  were  made.  The  sheriff  of  the  county  shall  be  the  super- 
intendent and  custodian  of  the  county  jail  and  such  other  of  the  county 
buildings  as  the  board  of  supervisors  shall  designate  and  shall  make  all 


COUNTY  COMPTROLLER;  COUNTY  AUDITORS.  123 

County  Law,  §§  239,  240. 

contracts  for  heating,  lighting  and  the  care  and  maintenance  of  the 
buildings  of  which  he  is  custodian.  [County  Law,  § 238,  as  inserted  by  L. 
1909,  ch.  466;  B.  C.  & G.  Cons.  L.,  p.  824.] 


§ 6.  ESTIMATE  OF  COUNTY  OFFICERS. 

The  superintendent  or  custodian  of  county  buildings  and  all  county 
officers  shall  annually  submit  to  the  board  of  supervisors  on  or  before 
the  fifteenth  of  the  last  month  of  the  fiscal  year  upon  forms  pre- 
scribed by  the  county  comptroller  an  estimate  of  the  amount  necessary 
to  be  expended  for  supplies,  for  the  support,  the  conduct  and  maintenance 
of  such  buildings  or  offices  during  the  next  fiscal  year.  They  shall  include 
in  their  annual  report  to  the  board  of  supervisors  at  its  first  regular  meet- 
ing after  the  beginning  of  the  fiscal  year  upon  forms  prescribed  by  the 
county  comptroller  the  quantity  of  supplies  used  by  them,  the  amount 
paid  for  them  during  the  preceding  year;  and  also  a statement  of  all  con- 
tracts made  by  them  for  supplies,  and  all  facts  as  shall  be  required  to 
show  whether  such  contracts  were  reasonable  and  just  and  shall  state 
the  action  of  the  board  of  supervisors  thereon.  The  board  of  supervisors 
may  call  upon  any  such  superintendent  or  custodian  or  officer  for  a 
further  or  more  detailed  report  or  for  further  information  on  any  subject 
embraced  in  the  report.  The  board  of  supervisors  by  a committee  ap- 
pointed for  the  purpose  may  investigate  any  such  report  or  any  agreement 
or  contract  for  supplies  at  any  time.  Upon  such  examination  said  board 
or  committee  shall  have  the  power  to  subpoena  witnesses  and  to  compel 
their  attendance  with  or  without  books  or  papers.  [County  Law,  § 239,  as 
inserted  by  L.  1909,  ch.  466 ; B.  C.  & G.  Cons.  L.,  p.  824.] 

§ 7.  ACCOUNTS  WITH  TREASURER. 

The  comptroller  shall  keep  an  account  between  the  county  and  treas- 
urer of  all  moneys  received  and  disbursed  by  the  treasurer,  and  for  all 
purchases  made  shall  procure  daily  statements  from  the  treasurer  as  to 
the  moneys  received  and  disbursed  by  such  treasurer.  He  shall  procure 
from  the  banks  in  which  the  amounts  have  been  deposited  by  the  treas- 
urer monthly  statements  of  the  moneys  which  have  been  received  and 
paid  out  on  account  of  the  county.  He  shall  examine  the  treasurer’s 
books,  accounts  and  bank  books  and  ascertain  as  to  their  correctness  and 
shall  render  to  the  board  of  supervisors,  as  often  as  such  board  shall 
prescribe,  a detailed  report  of  the  funds  and  of  the  financial  condi- 
tion of  the  county.  All  moneys  deposited  by  the  treasurer  shall  be  placed 
to  the  credit  of  the  county.  The  treasurer  shall  keep  bank  books  in  which 
shall  be  entered  his  deposits  in  and  moneys  drawn  from  the  banks  or 
trust  companies  in  which  such  deposits  shall  be  made.  He  shall  exhibit 


124 


COUNTY  OFFICERS. 


County  Law,  §§  215,  216. 

such  books  to  the  county  comptroller  for  his  inspection  at  least  once  each 
month,  and  oftener  if  required.  The  banks  or  trust  companies  in  which 
such  deposits  are  made  shall  make  to  the  comptroller  monthly  statements 
of  moneys  which  shall  have  been  received  and  paid  out  by  them  on  account 
of  the  county.  Deposits  in  banks  and  trust  companies  shall  be  made  by 
the  treasurer  in  conformity  with  the  provisions  of  this  chapter.  [County 
Law,  § 239a,  as  inserted  by  L.  1909,  ch.  466;  B.  C.  & G.  Cons.  L.,  p.  825.] 

§ 8.  APPOINTMENT  OF  COUNTY  AUDITORS. 

The  board  of  supervisors  in  any  county  may,  by  resolution  duly  adopted, 
appoint  a county  auditor  or  auditors  in  and  for  such  county  and  fix  the 
term  of  office  and  salary.  The  county  auditor  or  auditors  may  also  act 
as  county  purchasing  agent  or  committee  where  so  directed  by  the  board 
of  supervisors  which  shall  prescribe  the  place  where  and  the  time  when 
the  office  shall  be  open.  [County  Law,  § 215,  as  added  by  L.  1910,  ch.  152.] 

§ 9.  DUTIES. 

The  county  auditor  or  auditors  shall  audit  all  the  bills  for  the  ex- 
penses of  the  several  county  officials  for  repairs  and  maintenance  of  the 
several  county  offices  and  buildings  under  their  respective  jurisdictions 
and  the  expenses  of  county  officials  and  all  other  bills  that  are  properly 
chargeable  to  the  county,  unless  their  powers  shall  be  limited  by  the 
board  of  supervisors,  and  when  so  audited  they  shall  have  the  same  force 
and  effect  as  if  audited  by  the  board  of  supervisors  and  shall  be  paid  by 
the  county  treasurer  upon  the  certificate  of  such  auditor  or  auditors  in 
the  same  manner.  But  any  board  of  supervisors  which  has  appointed 
or  which  may  hereafter  appoint  a county  auditor  or  county  auditors, 
may  by  resolution  limit  his  or  their  power  of  audit  to  certain  accounts 
or  classes  of  accounts  against  the  county,  in  which  case  such  auditor  or 
auditors  shall  have  power  to  audit  such  accounts  or  classes  of  accounts 
only.  The  board  of  supervisors  also  by  resolution  or  resolutions,  duly 
adopted,  shall  prescribe  the  form  and  manner  of  presentation  of  such 
bills,  and  the  form  and  manner  in  which  such  auditor  or  auditors  shall 
keep  a record  of  the  presentation  thereof,  and  the  action  of  such  auditor 
or  auditors  thereon.  In  case  of  refusal  or  neglect  of  such  auditor  or 
auditors  to  audit  any  bill  presented  for  audit  for  the  full  amount  claimed 
the  claimant  shall  be  unprejudiced  by  such  refusal  or  neglect  and  shall 
have  the  right  to  present  the  same  to  the  board  of  supervisors  for  audit. 
[County  Law,  § 216,  as  added  by  L.  1910,  ch.  152,  and  amended  by  L. 
1913,  ch.  384.] 


COUNTY  CLERK. 


Explanatory  note. 


125 


CHAPTER  IX. 

COUNTY  CLERK. 

EXPLANATORY  NOTE. 

Office  of  County  Clerk. 

The  office  of  county  clerk  is  created  and  the  term  fixed  at  three  years 
by  the  constitution.  The  office  is  thus  a constitutional  office  and  may 
not  be  abolished  or  the  term  changed  by  act  of  the  legislature. 

The  duties  of  the  office  are  prescribed  by  statute.  The  county  clerk 
is  the  clerk  of  the  supreme  and  county  courts  and  his  duties  as  such  are 
conferred  upon  him  by  the  Judiciary  Law  and  the  Code  of  Civil  Pro- 
cedure. He  is  made  the  recording  officer  in  all  counties,  except  those 
having  registers  of  deeds,  by  the  Real  Property  and  other  laws.  It  is 
not  within  the  scope  of  this  work  to  treat  of  his  powers  and  duties  as  a 
clerk  of  the  court  or  a recording  officer.  We  will  only  consider  his 
powers  and  duties  as  a county  administrative  officer. 


Section 


1.  Election,  appointment,  term  of  office  and  undertaking  of  county 

clerk. 

2.  General  powers  and  duties  of  county  clerk. 

3.  County  clerk  to  appoint  a deputy;  oath  of  office  of  deputy;  designa- 

tion of  clerk  to  act  as  deputy. 

4.  Duties  of  deputy  county  clerk. 

5.  Duties  of  special  deputy  county  clerk. 

6.  County  clerk  to  present  statement  of  receipts  and  expenditures 

to  board  of  supervisors. 

7.  Business  hours  in  office  of  county  clerk. 

8.  County  clerk  may  complete  records  of  predecessor. 

9.  County  clerks  may  receive  certain  papers  for  safe  keeping. 

10.  County  clerk  shall  maintain  register  of  moneys  paid  or  ordered  paid 

into  court,  penalty  for  failure  thereof. 

10a.  Records  to  be  kept  by  the  county  clerk. 

11.  False  certificates  by  clerk,  etc.;  penalty  for  recording  instrument  with- 

out acknowledgment  attached. 


12.  County  clerk  omitting  to  publish  statement  required  by  law. 


126 


COUNTY  OFFICERS. 


County  Law,  § 160. 

§ 1.  ELECTION,  APPOINTMENT,  TERM  OF  OFFICE  AND  UNDERTAKING 
OF  COUNTY  CLERK. 

There  shall  continue: 

1.  To  be  elected  in  each  of  the  counties  a county  clerk,  who  shall  hold 
his  office  for  three  years  from  and  including  the  first  day  of  January 
succeeding  his  election ; 

2.  To  be  appointed  by  the  governor,  a county  clerk,  when  a vacancy 
shall  occur  in  such  office,  and  the  person  so  appointed  shall  hold  the  office 
until  and  including  the  last  day  of  December  succeeding  the  first  annual 
election  after  the  happening  of  the  vacancy. 

Every  person  elected  or  appointed  to  the  office  of  county  clerk  shall, 
before  he  enters  on  the  duties  of  his  office,  and  if  appointed,  within 
fifteen  days  after  notice  thereof,  execute  an  undertaking  to  the  county, 
with  at  least  two  sureties,  with  the  approval  of  the  board  of  supervisors, 
if  in  session,  indorsed  thereon  by  the  clerk  of  the  board,  otherwise  with 
the  approval  of  the  county  judge,  or  a justice  of  the  supreme  court  re- 
siding in  the  county,  and  in  such  sum  as  such  board,  judge  or  justice 
approving  the  same  shall  direct,  to  the  effect  that  he  will  faithfully 
execute  and  discharge  the  duties  of  county  clerk,  and  account  for  all 
moneys  deposited  with  him  pursuant  to  law,  or  the  order  of  any  court, 
or  by  his  predecessor  in  office,  and  pay  them  over  as  required  by  law, 
or  directed  by  such  order.1  [County  Law,  § 160,  as  amended  by  L. 
1914,  eh.  62;  B.  C.  & G.  Cons.  L.,  p.  790.] 


1.  Reference.  Reference  should  be  made  to  the  following  provisions  relating  to 
county  clerks  (See  Schedule  of  Laws,  after  Table  of  Contents,  for  places  in  this 
Manual  where  laws  referred  to  may  be  found)  : 

County  clerk  must  be  elected  by  electors  of  county  for  terms  of  three  years,  except 
in  New  York  and  Kings  counties.  Constitution,  art.  X,  sec.  1. 

Local  officer;  state  officer.  The  county  clerk  in  all  his  administrative  duties  is  a 
local  officer  elected  by  the  electors  of  the  county  and  paid  by  taxes  collected  from 
the  people  included  in  the  territory  comprising  the  county.  It  is  only  when  he 
performs  state  functions  that  he  is  to  be  treated  as  a state  officer.  People  ex  rel. 
Plancon  v.  Prendergast  (1916),  219  N.  Y.  252,  114  N.  E.  433. 

Removal  of  county  clerk.  The  county  clerk  is  removable  by  the  governor. 
Constitution,  art.  X,  sec.  1.  The  procedure  for  such  removal  is  prescribed  by 
Public  Officers  Law,  secs.  33-35,  post.  The  expenses  of  such  removal  are  a 
county  charge.  County  Law,  sec.  240,  sub.  16,  ante. 

Official  oath  to  be  taken.  County  Law,  sec.  246,  post.  Effect  of  failure  to 
take  oath.  Public  Officers  Law,  sec.  13,  post.  Vacancy  created  by  failure  to 
take.  Public  Officers  Law,  sec.  30,  post. 

Undertaking,  further  provisions  respesting.  County  Law,  sec.  247,  post. 
Public  Officers  Law,  sec.  11,  post.  Effect  of  failure  to  execute  undertaking. 
Public  Officers  Law,  sec.  13,  post.  Validation  of  official  acts  before  executing 
undertaking.  Public  Officers  Law,  sec.  15,  post.  Vacancy  in  office  created  by 
failure  to  execute  undertaking.  Public  Officers  Law,  sec.  30,  sub.  7,  post. 
Vacancies,  how  created.  Public  Officers  Law,  sec.  30,  post. 

Resignations  of  county  clerks  are  to  be  made  to  the  governor.  Public  Officers 
Law,  sec.  31,  post. 

Expiration  of  term  of  office,  county  clerk  to  hold  office  after,  until  successor 
Is  appointed  and  has  qualified.  Public  Officers  Law,  sec.  5,  post. 

Fees  of  county  clerk,  see  ch.  71,  post. 

Special  acts  relating  to  salaries  of  county  clerks.  In  many  of  the  counties 

the  office  of  county  clerk  is  made  salaried  by  special  act  of  the  legislature. 
It  is  eenerallv  provided  in  such  acts  that  the  fees  chargeable  by  the  county 
clerk  for  services  performed  by  him  shall  belong  to  the  county. 

The  following  is  a list  of  such  acts:  — 


COUNTY  CLERK. 


127 


County  Law,  § 161. 

§ 2.  GENERAL  POWERS  AND  DUTIES  OF  COUNTY  CLERK. 

The  county  clerk  shall : 

1.  Have  the  custody  of  all  books,  records,  deeds,  parchments,  maps 
and  papers/  deposited  in  his  office  in  pursuance  of  law,  and  attend  to 
their  arrangement  and  preservation.2 


Alleghany  county,  L.  1897,  ch.  340. 

Bronx  county,  L.  1912.  ch.  548,  as  amended  by  L.  1913,  oh.  266,  as  to  fees,  see 
L.  1915,  ch.  355. 

Broome  county,  L.  1900,  ch.  655. 

Cattaraugus  county,  L.  1891,  ch.  281,  as  amended  by  L.  1901,  ch.  2,  and  L.  1914, 
ch.  129. 

Cayuga  county,  L.  1906,  ch.  93,  as  amended  by  L.  1907,  ch.  29. 

Chautauqua  county,  L.  1890,  ch.  547,  as  amended  by  L.  1903,  ch.  310;  L.  1907, 
ch.  101,  and  amended  by  L.  1908,  ch.  39. 

Columbia  county,  L.  1893,  ch.  52,  as  amended  by  L.  1901,  ch.  463. 

Delaware  county,  L.  1911,  ch.  110. 

Erie  county,  L.  1885,  oh.  502,  as  amended  by  L.  18S7,  ch.  125,  L.  1891,  ch.  149, 
and  L.  1910,  ch.  48. 

Genesee  county,  L.  1909,  ch.  334. 

Greene  county,  L.  1900,  ch.  161. 

Herkimer  countv,  L.  1891,  ch.  47,  as  amended  by  L.  1904,  ch.  66,  L.  1905,  ch.  412, 
and  L.  1908,  ch.  413. 

Livingston  countv,  L.  1903,  ch.  200,  amended  by  L.  1905,  ch.  52,  and  L.  1916, 
ch.  241. 

Madison  county,  L.  1891,  ch.  64,  as  amended  by  L.  1898,  ch.  492,  L.  1897,  ch. 
540,  and  L.  1898,  ch.  492. 

Monroe  county,  L.  1886,  ch.  195,  as  amended  by  L.  1889,  ch.  498,  L.  1893, 
ch.  243,  and  L.  1907,  ch.  55. 

Montgomery  county,  L.  1898,  ch.  41,  as  amended  by  L.  1899,  ch.  216. 

Nassau  county,  L.  1901,  ch.  337. 

Niagara  county,  L.  1894,  ch.  422,  as  amended  by  L.  1896,  ch.  25. 

Oneida  county,  L.  1898,  ch.  10. 

Onondaga  county,  L.  1893,  ch.  520,  as  amended  by  L.  1895,  ch.  44,  L.  1896, 
ch.  14,  L.  1897,  ch.  512.  L.  1898,  ch.  14,  L.  1900,  ch.  116,  L.  1901,  ch.  516,  L.  1903, 
ch.  604,  L.  1904,  ch.  175,  and  L.  1912,  ch.  244. 

Ontario  county,  L.  1890,  ch.  327,  as  amended  by  L.  1895,  ch.  128. 

Orange  county,  L.  1904,  ch.  213,  as  amended  by  L.  1907,  ch.  31,  and  L.  1911, 
ch.  691. 

Oswego  county,  L.  1897,  ch.  118,  amended  L.  1906,  ch.  143,  and  L.  1908,  ch. 
453. 

Richmond  county,  L.  1909,  ch.  813. 

St.  Lawrence  county,  L.  1887,  ch.  392,  as  amended  by  L.  1888,  ch.  79,  L.  1889, 
ch.  287,  and  L.  1896,  ch.  47. 

Saratoga  county,  L.  1898,  ch.  43,  as  amended  by  L.  1909,  ch.  72. 

Schenectady  county,  L.  1907,  ch.  390. 

Schuyler  county,  L.  1892,  ch.  590. 

Seneca  county,  L.  1899,  ch.  546. 

Steuben  county,  L.  1890,  ch.  323,  as  amended  by  L.  1893,  ch.  713,  and  L.  1908, 
ch.  15. 

Sullivan  county,  L.  1897,  ch.  440,  as  amended  by  L.  1901,  ch.  119. 

Tompkins  county,  L.  1909,  ch.  298. 

Ulster  county,  L.  1906,  ch.  103,  as  amended  by  L.  1911,  ch.  237. 

Washington  county,  L.  1897,  ch.  116,  as  amended  by  L.  1898,  ch.  324,  L.  1906, 
ch.  112,  and  L.  1911,  ch.  723. 

Wayne  county,  L.  1892,  ch.  663. 

Westchester  county,  L.  1909,  ch.  318. 

Yates  county,  L.  1897,  ch.  363. 

2.  Books  and  papers. — The  clerk  has  the  power  to  repair  damage  accidentally 
done  to  books,  papers,  etc.,  in  his  office  at  a reasonable  expense,  and  the  cost 


128 


COUNTY  OFFICERS. 


County  Law,  § 161. 

2.  Provide  at  the  expense  of  the  county,  all  necessary  books  for  re- 
cording all  papers,  documents  or  matters  authorized  by  law  to  be  recorded 
in  his  office. 

3.  When  a certificate  of  election,  or  appointment  to  any  county  office, 
or  revocation  thereof,  is  received  at  his  office,  give  immediate  notice 
thereof,  at  the  expense  of  the  county,  to  every  person  named  therein. 
When  any  other  commission  or  appointment  to  office,  or  order  of  removal 
from  office  is  received  at  his  office,  give  immediate  notice  thereof,  at  the 
expense  of  the  state,  to  every  person  named  therein. 

4.  Give  immediate  notice  to  the  governor,  at  the  expense  of  the  state, 
when  there  is  a vacancy  in  any  county  office  which  he  is  authorized  to  fill; 
and  the  names  of  all  persons  elected  or  appointed  to  any  such  office  who 
have  neglected,  within  the  time  required  by  law,  to  file  the  constitutional 
oath  of  office,  or  the  undertaking  severally  required  of  them;  and  on  or 
before  the  fifteenth  day  of  January  in  each  year,  the  names  of  all  persons 
elected  or  appointed  to  a county  office  in  his  county  during  the  preceding 
year,  who  have  duly  qualified. 

5.  On  or  before  the  first  day  of  January  in  each  year,  report  to  the 
secretary  of  state,  at  the  expense  of  the  state,  the  names  of  all  corpora- 
tions whose  certificates  of  incorporation  have  been  filed  in  his  office  during 
the  previous  year. 

6.  Eecord  at  length  in  the  book  kept  in  his  office  for  recording  certifi- 
cates of  incorporation  an  order  entered  in  his  office  changing  the  name  of 
a corporation.  This  subdivision  also  applies  to  the  county  of  New  York. 

7.  Annually,  in  the  month  of  December,  report  to  the  secretary  of 
state  all  changes  of  names  of  individuals  or  of  corporations,  which  have 
been  made  in  pursuance  of  orders  filed  in  his  office  during  the  past  year  and 
since  the  last  previous  report,  and  also  report  in  like  manner  to  the 
superintendent  of  banks  all  changes  of  the  names  of  banking  corporations, 
and  to  the  superintendent  of  insurance  all  changes  of  names  of  corpora- 
tions authorized  to  make  insurances.  This  subdivision  also  applies  to  the 
county  of  New  York. 

8.  Keep  in  his  office  a book,  free  at  all  times  to  public  inspection,  in 


thereof  is  a county  charge.  Worth  v.  City  of  Brooklyn,  34  App.  Div.  223,  54  N.  Y. 
Supp.  484. 

Making  new  indexes.  A board  of  supervisors  has  no  power  to  contract  with  a 
county  clerk  to  make  an  entirely  new  set  of  indexes  of  the  county  records  for  a 
compensation  in  addition  to  his  regular  fees  where  the  old  indexes  have  become 
dilapidated  and  inadequate.  Wadsworth  v.  Supervisors  of  Livingston  (1916),  217 
N.  Y.  484,  112  N.  E.  161,  revg.  159  App.  Div.  934,  144  N.  Y.  Supp.  1149. 

Presumption  as  to  existence  of  document.  The  law  presumes  that  all  officers  in- 
trusted with  the  custody  of  public  files  and  records  will  perform  their  official  duty 
by  keeping  the  same  safely  in  their  offices,  and  if  a paper  is  not  found  where,  if  in 
existence,  it  ought  to  be  deposited  or  recorded,  the  presumption  thereupon  arises 
that  no  such  document  has  ever  been  in  existence,  and  until  this  presumption  is  re- 
butted it  must  stand  as  proof  of  such  non-existence.  Deshong  v.  City  of  New  York, 
176  N.  Y.  475. 


COUNTY  CLERK. 


129 


County  Law,  § 162. 

which  shall  be  entered  all  fees  charged  or  received  bj  him  for  any  official 
service,  the  time  of  receiving  it,  its  nature,  and  the  persons  for  whom 
rendered. 

9.  Except  as  otherwise  specially  prescribed  by  law,  each  county  clerk 
or  register,  who  receives  a salary,  must  account  for,  under  oath,  and  pay 
to  the  treasurer  of  his  county,  in  the  manner  prescribed  by  law,  all  fees, 
perquisites,  and  emoluments,  received  by  him,  for  his  official  services. 
This  subdivision  also  applies  to  the  county  of  New  York. 

10.  Upon  request,  and  upon  payment  of,  or  offer  to  pay,  the  fees 
allowed  by  law,  diligently  search  the  files,  papers,  records,  and  dockets 
in  his  office;  and  either  make  one  or  more  transcripts  therefrom,  and 
certify  to  the  correctness  thereof,  and  to  the  search,  or  certify  that  a 
document  or  paper,  of  which  the  custody  legally  belongs  to  him,  cannot 
be  found.  This  subdivision  also  applies  to  a register  of  a county  and 
to  the  county  of  New  York. 

11.  Be  clerk  of  the  county  court  in  his  county.  [County  Law,  § 
161;  B.  C.  & G.  Cons.  L.,  p.  791.] 

§ 3.  COUNTY  CLERK  TO  APPOINT  A DEPUTY;  OATH  OF  OFFICE  OF 
DEPUTY;  DESIGNATION  OF  CLERK  TO  ACT  AS  DEPUTY. 

Every  county  clerk  shall,  within  ten  days  after  entering  upon  the 

3.  Other  powers  and  duties.  Among  the  other  powers  and  duties  of  county  clerks 
the  following  are  here  referred  to:  — 

Notary  public,  county  clerk  must  notify  person  appointed  as.  Executive  Law, 
sec.  103,  as  amended  by  L.  1915,  ch.  18. 

Elections.  County  clerk  to  publish  notice  of  submission  of  proposed  constitutional 
amendments  and  other  questions.  Election  Law,  sec.  294,  as  amended  by  L.  1910, 
ch.  446.  Compensation  for  duties  respecting  elections  to  be  fixed  by  board  of  super- 
visors. Election  Law,  see  County  Law,  § 319.  Copy  of  election  laws  to  be  trans- 
mitted to  clerk.  Election  Law,  sec.  320,  as  amended  by  L.  1916,  ch.  537,  and  L.  1918, 
ch.  323.  Certificates  of  nomination  to  be  filed  in  office  of  clerk.  Election  Law, 
sec.  127,  as  amended  by  L.  1911,  ch.  891,  and  L.  1913,  ch.  820,  and  sec.  128,  as 
amended  by  L.  1911,  ch.  891;  L.  1913,  ch.  820,  and  L.  1918,  ch.  298.  County  clerk 
to  publish  nominations.  Election  Law,  sec.  130,  as  amended  by  L.  1911,  ch.  891, 
and  L.  1915,  ch.  673.  List  of  candidates  to  be  sent  to  town  clerks  and  aldermen. 
Election  Law,  sec.  131,  as  amended  by  L.  1911,  ch.  891.  Notice  of  declination  of 
nominations  to  be  filed  with  clerk.  Election  Law,  sec.  133,  as  amended  by  L.  191, 
ch.  891,  and  L.  1913,  ch.  820.  Clerk  to  notify  committees.  Id.  Vacancies  in  nomi- 
nations, how  filled,  and  correction  of  certificates  of  nominations.  Election  Law, 
sec.  135,  as  amended  by  L.  1911,  ch.  891,  and  L.  1913,  ch.  820  and  sec.  136,  as  amended 
by  L.  1911,  ch.  891;  L.  1913,  ch.  820,  and  L.  1918,  ch.  298;  sec.  137,  as  amended  by 
L.  1911,  ch.  891,  and  L.  1913,  ch.  821.  See  Jewett’s  Election  Manual,  1918,  published 
by  Matthew  Bender  & Co.,  Albany,  N.  Y. 

Ballots,  form  of.  Election  Law,  sec.  331,  as  added  by  L.  1913,  ch.  821,  and  amended 
by  L.  1914,  chs.  87,  244;  L.  1916,  ch.  537,  and  L.  1918,  ch.  323,  and  sec.  332,  as 
amended  by  L.  1913,  ch.  821.  Sample  ballots  and  instruction  cards  to  be  provided  for 
each  polling  place.  Election  Law,  sec.  333,  as  amended  by  L.  1913,  ch.  821.  County 
clerk  to  furnish  blank  forms  for  election  officers.  Election  Law,  sec.  334,  as  amended 
by  L.  1913,  ch.  821.  Number  of  official  ballots.  Election  Law,  sec.  340,  as  amended 
by  L.  1913,  ch.  820.  County  clerk  to  furnish  and  distribute  ballots  and  stationery. 
Election  Law,  sec.  344,  as  amended  by  L.  1916,  ch.  537  and  secs.  .342  and  343,  as 
amended  by  L.  1916,  ch.  537. 

Clerk  of  county  board  of  canvassers.  See  Election  Law,  sec.  430,  as  amended  by 
L.  1910,  ch.  432,  and  L.  1916,  ch.  537. 

District  superintendents  of  schools,  county  clerks  to  furnish  to  commission- 
ers of  education  certificates  of  election  of.  Education  Law,  § 383,  as  amended 


130 


COUNTY  OFFICERS. 


County  Law,  §§  163,  163a. 

duties  of  his  office,  make,  under  his  hand  and  seal,  and  record  in  his  office,  a 
written  appointment  of  some  suitable  person  to  be  deputy  clerk  of  his  county. 
In  counties  containing  a population  of  more  than  one  hundred  thousand  by  the 
last  preceding  federal  census  or  state  enumeration,  the  county  clerk,  may,  in  like 
manner,  appoint  not  to  exceed  two  additional  deputies.  The  clerks  of  the  counties 
of  New  York,  Kings,  Bronx,  Queens  and  Richmond  may  also  designate  assistants 
or  clerks  appointed  by  him  and  employed  in  the  naturalization  of  aliens  to  be 
special  deputy  county  clerks  authorized  to  administer  oaths  required  by  the 
naturalization  laws;  but  such  special  deputy  county  clerks  shall  not  receive  any 
compensation  other  than  the  salaries  paid  them  as  such  assistants  or  clerks.  Every 
such  deputy,  and  every  such  special  deputy  designated  pursuant  to  the  provisions 
of  this  section,  shall  hold  such  office  during  the  pleasure  of  the  clerk.  When  any 
such  deputy  is  temporarily  absent,  disqualified  or  disabled,  the  clerk  shall  appoint 
some  one  of  his  assistants  to  act  as  a deputy  in  his  place  for  a period  not  exceeding 
thirty  days  and  without  any  additional  compensation.  Before  any  such  deputy  so 
appointed,  or  special  deputy  so  designated  pursuant  to  the  provisions  of  this  section, 
enters  on  his  duties  as  such,  he  shall  take  the  constitutional  oath  of  office.  If 
there  shall  be  no  county  clerk,  or  deputy  county  clerk,  or  assistant  authorized  to 
act  as  deputy,  the  county  judge  may  designate  in  writing,  to  be  recorded  in  the 
county  clerk’s  office,  a suitable  person  to  act  as  county  clerk  with  all  the  powers, 
duties  and  privileges  of  the  office,  and  subject  to  the  liabilities  thereof,  until  a 
county  clerk  shall  have  been  elected,  or  appointed,  and  qualified.  This  section  shall 
not  apply  to  or  affect  any  special  deputy  clerk  to  the  county  clerk  appointed 
pursuant  to  the  provisions  of  the  judiciary  law  of  this  state.  [County  Law,  § 162, 
as  amended  by  L.  1911,  ch.  727,  and  L.  1916,  ch.  452;  B.  C.  & G.  Cons.  L.,  p.  793.] 

§ 4.  DUTIES  OF  DEPUTY  COUNTY  CLERK. 

Any  such  deputy  may  perform  such  duties  of  the  clerk  as  may  be  assigned  to 
him  by  an  order  of  the  clerk  to  be  entered  in  his  office  and  shall  also  perform  all 
the  duties  of  the  clerk  when  the  clerk  shall  be  absent  from  his  office,  or  shall  be 
incaipable  of  performing  the  duties  thereof,  or  when  the  office  shall  become  vacant, 
until  it  shall  be  filled,  except  that  of  deciding  upon  the  sucffiiency  of  sureties,  which 
duty  shall  devolve  upon  the  county  judge.*  [County  Law,  § 163;  B.  C.  & G. 
Cons.  L.,  p.  793.] 

§ 4-a.  DUTIES  OF  ASSISTANT  CLERKS  IN  COUNTIES. 

The  clerk  of  any  county  may  designate  one  of  his  assistants  to  be  the  calendar 
clerk  of  such  county  who  may  in  the  absence  of  any  deputy  clerk  or  for  the  pur- 
pose of  assisting  any  deputy  clerk,  and  after  taking  the  required  oath,  perform 
such  duties  of  the  clerk  as  may  be  assigned  to  him  by  an  order  of  the  county  clerk 
to  be  entered  in  his  office.  The  compensation  of  any  such  assistant  of  the  clerk 
shall  be  fixed  by  the  county  clerk,  and  when  so  fixed,  no  additional  compensation 
shall  be  paid  to  any  such  assistant  of  the  clerk  for  the  performance  of  any  duties 
whatsoever  which  the  county  clerk  may  assign  to  him.  [County  Law,  § 163-a,  as 
added  by  L.  1913,  ch.  368.] 


by  L.  1910,  ch.  607.  Oath  of,  to  be  filed  in  county  clerk’s  office.  Idem,  § 385,  as 
amended  by  L.  1910,  ch.  607. 

Registration  of  titles  to  real  property.  The  county  clerk  has  certain  duties 
to  perform  under  the  so-called  Torrens  Land  Title  Registration  Act  which  was 
enacted  into  law  by  ch.  444  of  L.  1908,  and  re-enacted  in  Real  Prop.  Law,  art.  12. 

4.  Charges  against  employees  may  be  heard  by  deputy  in  the  event  of  the 
clerk’s  inability.  People  ex  rel.  De  Vries  v.  Hamilton,  84  App.  Div.  369,  82  N.  Y. 
Supp.  884. 

The  authority  of  a deputy  clerk,  discharging  the  duties  of  clerk  in  conse- 
quence of  the  death  of  his  principal,  ceases  on  the  appointment  by  the  governor 
of  a person  to  be  clerk  during  the  vacancy.  People  v.  Fisher,  24  Wend.  215. 

Oath  may  be  administered  by  deputy,  who  may  sign  name  of  clerk  to  jurat. 
People  v.  Powers,  19  Abb.  Pr.  99. 


COUNTY  CLERK. 


131 


County  Law,  § 169. 

§ 5.  DUTIES  OF  SPECIAL  DEPUTY  COUNTY  CLERK. 

1.  In  every  county  other  than  the  counties  of  Queens,  Dutchess, 
Orange  and  Rockland  the  county  clerk  may,  from  time  to  time,  by  an 
instrument  in  writing  filed  in  his  office,  appoint,  and  at  pleasure  re- 
move, one  or  more  special  deputy  clerks  to  attend  upon  any  or  all  of 
the  terms  or  sittings  of  the  courts  of  which  he  is  clerk,  and  in  any 
county  having  a population  of  more  than  sixty  thousand  at  the  last 
enumeration,  the  salary  of  such  special  deputy  clerks  shall  be  fixed  by 
the  board  of  supervisors  of  such  county,  and  when  the  said  salary  shall 
be  so  fixed  the  same  shall  be  paid  from  the  court  funds  of  said  county 
or  from  an  appropriation  made  therefor.  Each  person  so  appointed 
must,  before  he  enters  upon  the  duties  of  his  office,  subscribe  and  file 
in  the  clerk’s  office  the  constitutional  oath  of  office;  and  he  possesses 
the  same  power  and  authority  as  the  clerk  at  any  sitting  or  term  of  the 
court  which  he  attends,  with  respect  to  the  business  transacted  thereat. 
The  salaries  of  special  deputy  clerks  and  assistants  appointed  in 
Queens  county  under  the  provisions  of  section  one  hundred  and  fifty- 
nine  of  the  judiciary  law  shall  be  fixed  by  the  justice  residing  in  such 
county  and  shall  be  a county  charge.  In  the  county  of  Westchester 
before  such  appointment  shall  become  effective  the  same  shall  be  ap- 
proved in  writing  by  a majority  of  the  justices  of  the  supreme  court 
residing  within  the  judicial  district  of  the  appointee,  which  approval 
shall  be  filed  in  the  office  of  the  clerk  of  the  county.  Before  the  removal 
of  such  appointee,  as  herein  provided,  shall  become  effective,  the  same 
shall  be  concurred  in  by  a majority  of  the  justices  of  the  supreme  court 
residing  within  the  judicial  district  of  the  appointee  and  a certificate 
of  such  concurrence  of  removal  shall  be  filed  in  the  office  of  the  clerk 
of  the  county  by  said  justices.  The  provisions  of  this  subdivision  shall 
not  apply  to  the  first  judicial  department. 

All  special  deputy  clerks  appointed  in  the  counties  of  Dutchess, 
Orange  and  Rockland,  situate  in  the  ninth  judicial  district  hereunder, 
shall  be  appointed  by  the  justices  of  the  supreme  court  residing  in  said 
district,  or  a majority  of  them,  which  appointment  shall  be  filed  in 
writing  in  the  clerk’s  office  of  the  county  affected  thereby,  and  the  sal- 
aries of  such  deputy  clerks  shall  be  fixed  by  the  justices  making  the 
appointment  and  paid  as  hereinbefore  provided.  [Subd.  1,  amended  by 
L.  1915,  ch.  345,  and  L.  1918,  ch.  411.] 

2.  The  minutes  of  the  part  or  term  of  the  supreme  court  to  which 
any  of  the  special  deputy  clerks  to  the  clerk  of  the  county  of  New  York 
appointed  pursuant  to  the  judiciary  law  is  assigned,  kept  by  him,  and 
the  records  kept  by  the  supreme  court  jury  clerk  in  the  first  judicial 
district  shall  be  kept  by  the  county  clerk  of  New  York  county  in  his 
office  and  said  county  clerk  shall  give  extracts  from  such  minutes  and 
records  as  now  prescribed  by  law. 

3.  The  minutes  and  records  kept  by  the  special  deputy  clerks  ap- 
pointed in  the  county  of  Queens  pursuant  to  the  judiciary  law  shall  be 


132 


COUNTY  CLERK. 


County  Law,  §§  164,  165. 

kept  by  tbe  county  clerk  in  his  office  and  he  shall  give  extracts  from 
such  minutes  and  records  as  now  prescribed  by  law.  [County  Law, 
§ 169,  as  amended  by  L.  1910,  ch.  694,  and  L.  1913,  chs.  109,  367, 
637;  B.  C.  & G.  Cons.  L.,  p.  796.] 

§ 6.  COUNTY  CLERK  TO  PRESENT  STATEMENT  OF  RECEIPTS  AND 
EXPENDITURES  TO  BOARD  OF  SUPERVISORS. 

Every  county  clerk  shall  present  to  the  board  of  supervisors  of  his 
county,  upou  the  first  day  of  their  annual  meeting,  a statement,  verified 
by  his  oath  to  be  true,  showing  for  the  year  preceding  the  first  day  of 
January : 

1.  The  amount  of  all  fees  charged  or  received  for  searches,  and  for 
certificates  thereof. 

2.  The  amount  of  all  fees  charged  or  received  for  recording  any 
documents  in  his  office,  and  for  certificates  thereof. 

3.  The  amount  of  all  sums  charged  or  received  for  services  rendered 
the  county. 

4.  The  amount  of  all  sums  charged  or  received  for  official  services. 

5.  The  sums  paid  by  him  for  assistance,  fuel,  lights,  stationery  and 
other  incidental  expenses,  the  names  of  the  persons  paid  and  the  items 
thereof ; but  he  shall  not  make  any  charge  against  the  county  for  sta- 
tionery, except  record  books  and  stationery  furnished  by  him  for  courts 
held  in  his  county,  but  the  board  of  supervisors  may  allow  the  county 
clerk  the  necessary  expenses  incurred  by  him  for  lighting  and  heating 
his  office.5  [County  Law,  § 164;  B.  C.  & G.  Cons.  L.,  p.  794.] 

§ 7.  BUSINESS  HOURS  IN  OFFICE  OF  COUNTY  CLERK. 

Clerks  of  counties,  courts  of  record,  and  registers  of  deeds,  except  in 
the  counties  of  New  York,  Kings,  Queens,  Erie  and  Westchester,  as 
hereinafter  provided,  shall  respectively  keep  open  their  offices  for  the 
transaction  of  business  every  day  in  the  year,  except  Sundays  and  other 
days  and  half-days  declared  by  law  to  be  holidays  or  half-holidays,6 

5.  For  form  of  statement  of  county  clerk  to  be  made  to  the  board  of  supervisors 
see  Form  8,  post. 

6.  Holidays  and  half-holidays  are  enumerated  in  the  General  Construction  Law, 
sec.  24,  as  amended  by  L.  1909,  ch.  112,  as  follows:  Jan.  1 (New  Year’s  day) ; Febru- 
ary 12  (Lincoln’s  birthday)  ; February  22  (Washington’s  birthday)  ; May  30 
(Memorial  day);  July  4 (Independence  day);  first  Monday  of  September  (Labor 
day) ; Oct.  12  (Columbus  day)  ; first  Tuesday  after  first  Monday  in  November  (Elec- 
tion day);  Thanksgiving  day;  December  25  (Christmas  day).  If  any  such  days  fall 
on  Sunday,  the  day  following  is  observed  as  a holiday.  The  term,  half-holiday, 
includes  the  period  from  noon  to  midnight  of  each  Saturday  which  is  not  a holiday. 

Office  hours.  Keeping  open  the  clerk’s  office  after  or  before  the  hours  mentioned 
is  not  unlawful;  and  a certificate  of  nomination  may  be  filed  at  11  P.  M.  on  the  last 
day  allowed  for  such  filing.  Matter  of  Norton,  34  App.  Div.  79,  53  N.  Y.  Supp.  109'3. 

judgments  docketed  out  of  office  hours  must  be  considered  as  docketed  and  become 
liens  equally  at  the  next  office  hour  thereafter.  France  v.  Hamilton,  26  How.  Pr. 
180. 

Business  in  public  offices  on  holidays.  Holidays  and  half-holidays  shall  be 
considered  as  Sunday  for  all  purposes  relating  to  the  transaction  of  business  in 
the  public  offices  of  the  state,  and  of  each  county.  [Public  Officers  Law,  § 62.] 


COUNTY  CLERK. 


133 


County  Law,  §§  166,  167. 

from  nine  o’clock  in  the  forenoon  to  five  o’clock  in  the  afternoon.  In 
the  counties  of  New  York,  Kings  and  Queens,  said  offices,  the  sheriff’s 
office  and  the  offices  of  the  commissioner  of  jurors  shall  remain  open 
during  the  months  of  July  and  August  in  each  year  from  nine  o’clock 
in  the  forenoon  to  two  o’clock  in  the  afternoon,  and  during  the  other 
months  in  the  year  from  nine  o’clock  in  the  forenoon  to  four  o’clock 
in  the  afternoon ; and  in  Erie  county  the  county  clerk’s  office  shall  re- 
main open  from  nine  o’clock  in  the  forenoon  to  five  o’clock  in  the  after- 
noon; and  in  Westchester  county  the  offices  of  clerks  of  counties,  courts 
of  record,  registers  of  deeds,  sheriffs,  commissioner  of  jurors  and  sur- 
rogates shall  remain  open  from  nine  o’clock  in  the  forenoon  to  five 
o’clock  in  the  afternoon,  except  during  the  months  of  July  and  August, 
when  they  shall  remain  open  from  nine  o’clock  in  the  forenoon  to  three 
o’clock  in  the  afternoon.  [County  Law,  § 165,  as  amended  hy  L.  1909, 
ch.  199,  and  L.  1918,  ch.  576;  B.  C.  & G.  Cons.  L.,  p.  794.] 

§ 8.  COUNTY  CLERK  MAY  COMPLETE  RECORDS  OF  PREDECESSOR. 

1.  The  county  clerk  of  any  county  of  this  state  upon  order  duly  made 
by  the  supreme  court  at  a special  term  thereof  shall  hereafter  have  power 
to  complete  and  sign  and  certify  in  his  own  name,  adding  to  his  signature 
the  date  of  so  doing,  all  records  of  papers,  orders  and  mintues  of  pro- 
ceedings of  any  court  of  which  he  is  clerk  or  ex  officio  clerk,  left  un- 
completed or  unsigned  hy  any  of  his  predecessors.  This  subdivision 
shall  also  apply  to  the  county  of  New  York.  [County  Law,  § 166,  as 
amended  by  L.  1915,  ch.  246 ; B.  C.  & G.  Cons.  L.,  p.  795.] 

2.  The  county  clerk  of  any  county  or  register  if  any  upon  an  order 
made  by  the  county  judge  or  by  a justice  of  the  supreme  court  in  a 
county  in  which  there  is  no  county  judge  and  filed  with  such  clerk,  may 
complete  and  sign  all  uncompleted  or  unsigned  records  of  conveyances 
and  mortgages  of  real  estate  and  other  instruments  affecting  real  prop- 
erty filed  for  record  during  the  term  of  any  of  his  predecessors.  Such 
records  shall  be  signed  in  his  own  name.  [Subd.  added  by  L.  1915,  ch. 
246.] 

§ 9.  COUNTY  CLERKS  MAY  RECEIVE  CERTAIN  PAPERS  FOR  SAFE 
KEEPING. 

The  clerk  of  every  county  in  this  state,  and  the  register  of  deeds  in 
the  county  of  New  York,  upon  being  paid  the  fees  allowed  therefor  by 
law,  shall  receive  and  deposit  in  their  offices  respectively,  any  deeds, 
conveyances,  wills  or  other  papers  or  documents,  which  any  person  shall 
offer  to  them  for  that  purpose ; and.  shall  give  to  such  person  a written 
receipt  therefor. 

Such  instruments,  papers  and  documents,  shall  be  properly  indorsed 
so  as  to  indicate  their  general  nature  and  the  names  of  the  parties  thereto, 
shall  be  filed  by  the  officer  receiving  the  same,  stating  the  time  when 
received,  and  shall  be  deposited  and  kept  by  him  and  his  successors 
in  office,  with  his  official  papers,  in  some  place  separate  and  distinct  from 
such  papers. 

The  instruments,  papers  and  documents  so  received  and  deposited, 


134 


COUNTY  OFFICERS. 


County  Law,  § 168. 

shall  not  be  withdrawn  from  such  office,  except  on  the  order  of  some 
court  of  record,  for  the  purpose  of  being  read  in  evidence  in  such  court, 
and  then  to  be  returned  to  such  office;  nor  shall  they  be  delivered  with- 
out such  order,  to  any  person,  unless  upon  the  written  order  of  the  person 
or  persons  who  deposited  the  same,  or  their  executors  or  administrators. 

Such  instruments,  papers  and  documents  so  deposited  shall  be  open 
to  the  examination  of  any  person  desiring  the  same,  upon  payment  of  the 
fees  allowed  by  law.  [County  Law,  § 167;  B.  C.  & G.  Cons.  L.,  p.  795.] 


§ 10.  COUNTY  CLERK  SHALL  MAINTAIN  REGISTER  OF  MONEYS 
PAID  OR  ORDERED  PAID  INTO  COURT;  PENALTY  FOR 
FAILURE  THEREOF. 

The  county  clerk  in  each  of  the  counties  of  this  state  shall  maintain 
and  keep  in  his  office  a book  to  be  known  as  a court  and  trust  fund  regis- 
ter to  be  used  solely  as  a record  of  moneys  and  securities  paid  or  trans- 
ferred, or  ordered  or  required  to  be  so  paid  or  transferred  into  court. 
Immediately  upon  the  filing  in  his  office  of  any  judgment,  order  or 
decree  of  any  court  directing  the  payment  or  transfer  of  money  or  se- 
curities, the  amount  thereof  being  stated,  or  determinable  upon  the  hap- 
pening of  the  contingency  expressed  in  said  judgment,  order  or  decree, 
to  the  treasurer  of  his  or  any  other  county  of  the  state,  or  in  the  coun- 
ties of  Bronx,  Hew  York,  Kings,  Queens  and  Richmond  to  the  cham- 
berlain of  the  city  of  Hew  York,  or  upon  the  filing  in  his  office  of  any 
report  of  a referee  or  other  person,  or  treasurer’s  or  chamberlain’s  re- 
ceipt, stating  that  a sum  of  money  has  been  deposited  with  such  treas- 
urer or  chamberlain,  in  accordance  with  any  such  judgment,  order  or 
decree  or  with  any  provision  of  law;  or  upon  the  filing  or  entry  in  his 
office  of  any  other  paper  or  record  from  which  it  appears  that  money 
or  securities,  the  amount  thereof  being  stated,  or  determinable  upon  the 
happening  of  the  contingency  expressed  in  said  paper  or  record,  have 
been  or  should  be  paid  to  such  treasurer  or  chamberlain;  or  upon  the 
receipt  by  any  such  clerk  of  moneys  required  by  any  judgment,  order 
or  decree  of  the  court,  or  by  any  provision  of  law,  to  be  brought  into 
court,  the  clerk  shall  enter  in  his  court  and  trust  fund  register,  the 
title  of  the  action  or  proceeding  in  which  such  judgment,  order  or  decree 
was  made,  or  in  which  moneys  are  required  to  be  deposited,  together 
with  a statement  of  the  amount  so  deposited,  or  ordered  or  required  to 
be  deposited,  if  said  judgment,  order  or  decree  contains  the  amount  of 
the  same,  or,  otherwise,  of  the  amount  to  be  deposited  as  shown  by  the 
report  of  the  referee  or  other  person,  or  of  the  amount  received  by  such 
clerk,  or  shown  by  the  records  of  his  office,  if  the  said  amount  has  been 
determined,  or  if  not  determined,  a statement  of  the  contingency  upon 
the  happening  of  which  the  amount  is  determinable,  and  the  name  of 
the  person  or  persons,  if  any,  for  whom  such  money  or  securities  are 
ordered  to  be  deposited,  and  the  date  of  filing  the  same,  or  of  such  report 
or  receipt  as  herein  mentioned.  For  failure  to  comply  with  any  pro- 
vision of  this  section  a county  clerk  shall  be  liable  to  a penalty  of  two 
hundred  and  fifty  dollars,  to  be  recovered  by  the  comptroller  of  the 


COUNTY  CLERK. 


135 


Dom.  Rel.  Law,  § 20;  Penal  Law,  §§  1860,  1861,  1862,  1869. 

state  in  an  action  brought  in  his  name  as  such  comptroller  and  all 
money  recovered  in  any  such  action  or  actions  shall  be  paid  to  the  people 
of  the  state  of  New  York.  [County  Law,  § 168,  as  amended  by  L. 
1910,  ch.  160,  and  L.  1917,  ch.  366;  B.  C.  & G.  Cons.  L.,  p.  796.] 

§ 10a.  RECORDS  TO  BE  KEPT  BY  THE  COUNTY  CLERK. 

The  county  clerk  of  each  county  except  the  counties  included  within 
the  city  of  New  York  shall  keep  a copy  and  index  in  a book  kept  in  his 
office  for  that  purpose  of  each  statement,  affidavit,  consent  and.  license, 
together  with  a copy  of  the  certificate  thereto  attached  showing  the  per- 
formance of  the  marriage  ceremony,  filed  in  his  office.  During  the  first 
twenty  days  of  the  months  of  January,  April,  July  and  October  of  each 
year  the  county  clerk  shall  transmit  to  the  state  department  of  health  at 
Albany,  New  York,  all  original  affidavits,  statements,  consents  and  li- 
censes with  certificates  attached  filed  in  his  office  during  the  three 
months  preceding  the  date  of  such  report,  also  all  original  contracts  of 
marriage  made  and  recorded  in  his  office  during  such  period  entered  into 
in  accordance  with  subdivision  four  of  section  eleven  of  this  chapter, 
which  record  and  certificate  shall  be  kept  on  file  and  properly  indexed 
by  the  state  department  of  health.  Whenever  it  is  claimed  that  a mis- 
take has  been  made  through  inadvertence  in  any  of  the  statements, 
affidavits  or  other  papers  required  by  this  section  to  be  filed  with  the 
state  department  of  health,  the  state  commissioner  of  health  may  file 
with  the  same,  affidavits  upon  the  part  of  the  person  claiming  to  be 
aggrieved  by  such  mistake,  showing  the  true  facts  and  the  reason  for 
the  mistake  and  may  make  a note  upon  such  original  paper,  statement 
or  affidavit  showing  that  a mistake  is  claimed  to  have  been  made  and 
the  nature  thereof.  The  services  rendered  by  the  county  clerk  in  carry- 
ing out  the  provisions  of  this  article  shall  be  a county  charge  except  in 
counties  where  the  county  clerk  is  a salaried  officer  in  which  case  they 
shall  be  a part  of  the  duties  of  his  office.  [Domestic  Belations  Law,  § 
20,  as  added  by  L.  1917,  ch.  245.] 

§ 11.  FALSE  CERTIFICATES  BY  CLERK,  ETC.;  PENALTY  FOR  RE- 
CORDING INSTRUMENT  WITHOUT  ACKNOWLEDGMENT  AT- 
TACHED. 

An  officer  authorized  by  law  to  record  a conveyance  of  real  property,  or  of  any 
other  instrument,  which  by  law  may  be  recorded,  who  knowingly  and  falsely  certi- 
fies that  such  a conveyance  or  instrument  has  been  recorded,  is  guilty  of  a felony. 
[Penal  Law,  § 1860;  B.  C.  & G.  Cons.  L.,  p.  4050.] 

A public  officer  who,  being  authorized  by  law  to  make  or  give  a certificate  or  other 
writing,  knowingly  makes  and  delivers  as  true  such  a certificate  or  writing,  con- 
taining any  statement  which  he  knows  to  be  false,  in  a case  where  the  punishment 
thereof  is  not  expressly  provided  by  law,  is  guilty  of  a misdemeanor.  [Idem,  § 
1861;  B.  C.  & G.  Cons.  L.,  p.  4050.] 

A public  officer  authorized  to  file  or  record  any  instrument  or  conveyance  of,  or 
affecting  property  which  is  duly  proved  or  acknowledged,  who  knowingly  files  or 
records  any  such  instrument  or  conveyance  which  is  not  accompanied  by  a certifi- 
cate according  to  law,  of  the  proof  or  acknowledgment,  is  guilty  of  a misdemeanor. 
[Idem,  § 1862;  B.  C.  & G.  Cons.  L.,  p.  4050.] 

§ 12.  COUNTY  CLERK  OMITTING  TO  PUBLISH  STATEMENT  RE- 
QUIRED BY  LAW. 

A county  clerk  who  willfully  omits  to  publish  any  statement  required  by  law, 
within  the  time  prescribed,  is  guilty  of  a misdemeanor,  punishable  by  a fine  of  one 
hundred  dollars,  or  imprisonment  for  six  months,  or  both.  [Penal  Law,  § 1869; 
B.  C.  & G.  Cons.  L.,  p.  4052.] 


136 


COUNTY  OFFICERS;  JAILS. 


Explanatory  note. 


CHAPTER  X. 

DISTRICT  ATTORNEYS,  COUNTY  ATTORNEYS,  COUNTY  JUDGES  AND 

SURROGATES. 

EXPLANATORY  NOTE. 

Office  of  District  Attorney ; Duties. 

The  office  of  district  attorney  is  a constitutional  office.  The  constitu- 
tion provides  for  the  election  of  a district  attorney  in  each  county  for  a 
term  of  three  years.  The  term  being  so  fixed  the  legislature  may  not 
prescribe  a different  term.  The  board  of  supervisors  may  fix  the  salary 
of  the  district  attorney,  and  prescribe  the  number,  mode  of  appointment 
and  pay  of  the  clerks  and  employes  in  his  office. 

The  district  attorney  is  the  prosecuting  attorney  of  the  county.  It  is 
his  duty  to  prosecute  all  crimes  cognizable  by  the  courts  of  his  county. 
He  has  charge  of  indictments  by  the  grand  jury  of  persons  charged 
with  the  commission  of  crime  in  the  county,  and  he  must  conduct  the 
trial  of  indictments  so  found.  It  is  not  the  purpose  of  this  chapter  to 
treat  of  the  duties  of  district  attorneys  in  the  prosecution  of  crimes. 

He  is  required  to  report  and  account  for  all  moneys  received  by  him 
by  virtue  of  his  office.  Such  report  and  account  must  be  filed  in  the 
office  of  the  county  treasurer.  He  must  pay  over  to  the  county  treasurer 
all  moneys  received  by  him  as  fines,  penalties  and  forfeitures. 

In  the  case  of  a murder  or  other  important  crime  he  may  employ 
counsel,  with  the  approval  of  the  county  judge,  to  assist  him  in  the 
trial  of  the  indictment,  and  the  cost  is  chargeable  against  the  county. 

If  the  district  attorney  is  incapacitated  by  sickness  or  other  cause  the 
court  may  designate  an  attorney  to  act  as  special  district  attorney  for  a 
term  of  court,  and  the  board  of  supervisors  must  pay  a reasonable  com- 
pensation to  such  attorney. 

County  Attorneys. 

Prior  to  L.  1907,  ch.  280,  the  district  attorney  or  some  other  attorney 
designated  by  the  board  of  supervisors  acted  as  attorney  for  such  board. 
By  that  act,  as  consolidated  in  § 210  of  the  County  Law,  a board  of 
supervisors  is  authorized  to  appoint  a county  attorney  to  advise  the  board 


DISTRICT  ATTORNEY,  COUNTY  JUDGE  AND  SURROGATE. 


13? 


County  Law,  § 200. 

and  county  and  town  officers.  The  board  may  prescribe  the  duties  of 
such  officer,  and  fix  bis  salary. 

County  Judges  and  Surrogates. 

The  constitution  (Art.  VI,  §§  14-16)  provides  for  the  election  of  a 
county  judge  and  surrogate  for  terms  of  six  years.  In  counties  of 
40,000  or  less,  the  two  offices  are  to  be  held  by  the  same  person.  In  other 
counties  the  legislature  may  provide  for  separate  offices.  The  com- 
pensation of  such  officers  is  fixed  by  the  County  Law,  § 232,  post.  The 
constitution  provides  that  such  compensation  shall  not  be  changed  dur- 
ing the  terms  of  office  of  such  officers.  The  county  judge  presides  over 
the  county  court,  and  has  the  jurisdiction  and  performs  the  duties  pre- 
scribed by  law.  The  surrogate  has  to  do  with  the  estates  of  decedents 
and  of  infants,  and  the  jurisdiction  of  bis  court  is  controlled  by  the 
Code  of  Civil  Procedure  and  other  statutes. 


Section  1.  Election,  appointment,  term  of  office  and  undertaking  of  district 
attorney. 

Report  of  district  attorneys  of  moneys  received. 

Board  of  supervisors  may  authorize  district  attorneys  to  appoint 
assistant;  powers  of  assistant. 

Appointment  of  assistants  in  Erie,  Monroe,  Onondaga  and  Rens- 
selaer counties;  district  attorneys  in  Erie  and  Monroe  entitled 
to  costs;  payment  of  expenses  of  district  attorneys  in  Albany, 
Rensselaer  and  Monroe  counties. 

Employment  of  counsel  by  district  attorney. 

Special  district  attorney. 

Expense  of  transfered  trial  of  an  indictment. 

Expense  of  transferred  trial  of  an  indictment. 

Appointment,  term  of  office  and  duties  of  county  attorneys. 

Election,  appointment  and  term  of  office  of  county  judge,  surro- 
gate, special  county  judge  and  special  surrogate. 

Board  of  supervisors  to  create  office  of  surrogate  in  certain  counties; 
undertaking  of  surrogate. 

12.  Compensation  of  county  judges  and  surrogates. 

13.  Salaries  of  surrogates  and  county  judges,  how  paid;  compensa- 
tion of  county  judge  serving  in  another  county. 


5. 

6. 

7. 

8. 

9. 

10. 

11. 


§ 1.  ELECTION,  APPOINTMENT,  TERM  OF  OFFICE  AND  UNDER- 
TAKING OF  DISTRICT  ATTORNEY. 

There  shall  continue,  1 

1.  To  be  elected  in  each  of  the  counties,  a district  attorney,  who  shall 
hold  his  office  for  three  years  from  and  including  the  first  day  of  Janu- 
ary succeeding  his  election ; 

2.  To  be  appointed  by  the  governor,  a district  attorney,  when  a va- 
cancy shall  occur  in  such  office,  and  the  person  so  appointed  shall  hold 


138 


COUNTY  OFFICERS;  JAILS. 
County  Law,  § 200. 


the  office  until  and  including  the  last  day  of  December  succeeding  the 
first  annual  election  thereafter  at  which  such  vacancy  can  be  lawfully 
filled. 

3.  Except  in  the  county  of  Kings,  every  person  elected  or  appointed 
to  the  office  of  district  attorney,  shall,  before  he  enters  upon  the  duties 
of  his  office,  and  if  appointed,  within  fifteen  days  after  notice  thereof, 
execute  and  deliver,  to  the  county  clerk  of  his  county,  a joint  and  several 
undertaking  to  the  county,  approved  by  the  county  judge,  with  two  or 
more  sufficient  sureties,  being  resident  freeholders,  and  in  such  sum  as 
the  board  of  supervisors  of  the  county  shall  direct,  to  the  effect  that  he 
will  faithfully  account  for  and  pay  over  according  to  law,  or  as  the 
court  may  direct,  all  moneys  that  may  come  into  his  hands  as  such  dis- 
trict attorney. 

4.  It  shall  be  the  duty  of  every  district  attorney  to  conduct  all  prose- 
cutions for  crimes  and  offenses  cognizable  by  the  courts  of  the  county 
for  which  he  shall  have  been  elected  or  appointed ; except  when  the  place 
of  trial  of  an  indictment  is  changed  from  one  county  to  another,  it  shall 
be  the  duty  of  the  district  attorney  of  the  county  where  the  indictment 
is  found  to  conduct  the  trial  of  the  indictment  so  removed,  and  it  shall 
be  the  duty  of  the  district  attorney  of  the  county  to  which  such  trial  is 


1.  References.  Reference  may  also  be  made  to  the  following  provisions 
of  law,  relating  directly  or  indirectly  to  the  office  of  district  attorney.  (Se^ 
Schedule  of  Laws,  after  the  table  of  Contents  for  the  places  in  this  Manual 
where  the  sections  referred  to  may  be  found.) 

Term  of  office  of  district  attorney  is  fixed  by  the  constitution  at  three 
years.  Constitution,  art.  X,  sec.  1. 

Removal.  The  district  attorney  is  removable  by  the  governor.  Consti- 
tution, art.  X,  sec.  1.  Proceedings  for  his  removal  are  prescribed  by  Public 
Officers  Law,  secs.  33-35,  post.  The  expense  thereof  are  a county  charge.  County 
Law,  sec.  240,  sub.  16,  ante. 

Undertaking,  further  provisions  respecting.  County  Lew,  sec.  247,  post. 
Public  Officers  Law,  sec.  11,  post.  Effect  of  failure  to  execute.  Public  Officers 
Law,  sec.  13,  post.  Validation  of  official  acts  before  executing.  Public  Officers 
Law,  sec.  15,  post.  Vacancy  in  office  created  by  failure  to  execute.  Public 
Officers  Law,  sec.  30,  sub.  7,  post. 

Vacancies,  how  created.  Public  Officers  Law,  sec.  30,  post. 

Resignation  of  district  attorneys  to  be  made  to  the  governor.  Public  Officers 
Law,  sec.  31. 

Official  oath  to  be  taken.  Co.unty  Law,  sec.  246,  post.  Effect  of  failure  to  take. 
Public  Officers  Law,  sec.  13,  post.  Vacancy  created  by  failure  to  take.  Public 
Officers  Law,  sec.  30,  post. 

Bribery,  failure  to  prosecute  for,  a ground  for  removal.  Constitution,  art, 
13,  sec.  6. 

Displaced  temporarily  by  attorney -general,  when  ordered  by  the  governor.  Execu- 
tive Law,  sec.  62,  sub.  2,  as  amended  by  L.  1911,  eh.  14. 

Salary  of  district  attorney  fixed  by  board  of  supervisors.  County  Law,  sec.  12, 
subd.  5,  ante. 


DISTRICT  ATTORNEY,  COUNTY  JUDGE  AND  SURROGATE.  139 
County  Law,  § 201. 

■changed  to  assist  in  such  trial  upon  the  request  of  the  district  attorney  of 
the  county  where  the  indictment  was  found.2  [County  Law,  § 200,  as 
amended  by  L.  1914,  ch.  62;  B.  C.  & G.  Cons.  L.,  p.  807.] 

§ 2.  REPORT  OF  DISTRICT  ATTORNEYS  OF  MONEYS  RECEIVED. 

1.  Every  district  attorney  shall,  on  or  before  the  first  Tuesday  in  October, 
annually  file  in  the  office  of  the  county  treasurer  a written  account  verified 
by  his  oath  to  be  true,  of  all  moneys  received  by  him  by  virtue  of  his  office 
during  the  preceding  year  and  shall,  at  the  same  time,  pay  over  any  bal- 
ances thereof  to  the  county  treasurer.  If  he  shall  refuse  or  neglect  to  ac- 
count for  and  pay  over  such  moneys  as  so  required  of  him,  the  county  treas-- 
urer  shall  prosecute  him  and  his  sureties  for  the  same,  in  the  name  of  and 
for  the  benefit  of  his  county. 

2.  Within  thirty  days  after  a district  attorney  receives  or  collects  money 
upon  a recognizance  or  for  a penalty  or  forfeiture,  belonging  to  the  county, 
he  must  pay  it  to  the  county  treasurer  of  his  county,  deducting  only  his 
necessary  disbursements ; except  that,  where  he  does  not  receive,  as  his  com- 
pensation, a salary  fixed  pursuant  to  law,  the  county  court  may,  by  an  order 
entered  in  its  minutes,  allow  him  to  retain  also  a sum,  specified  in  the  order, 
for  his  reasonable  costs  and  expenses,  and  a reasonable  counsel  fee. 

3.  Each  district  attorney  must  render  to  the  first  term  of  the  county 
court  of  his  county,  held  in  each  calendar  year,  a written  account,  verified 
by  his  affidavit,  of  all  actions  brought  by  him  upon  recognizances,  or  for 
penalties  or  forfeitures  belonging  to  the  county,  or  to  the  state;  of  all  his 
proceedings  therein;  of  all  judgments  recovered  by  him  therein;  and  of  all 
money,  collected  by  him  from  any  person,  belonging  to  the  county  or  to  the 
state.  This  subdivision  applies  to  a district  attorney  who  has  gone  out  of 
office,  during  the  preceding  calendar  year.3 4 


2.  Duties  as  to  prosecutions.  The  duty  of  the  district  attorney  to  conduct  prose- 
cutions embraces  whatever  is  essential  to  bring  a criminal  to  trial  as  well  as  the 
proceedings  of  the  trial;  so  he  may  cause  the  arrest  of  a fugitive  in  a foreign  juris- 
diction, and  the  expense  thereof  is  a proper  county  charge.  People  ex  rel.  Gardenier 
v.  Supervisors,  134  N.  Y.  1. 

Institution  of  proceedings  to  compel  rescinding  of  parole.  It  is  a part  of  the 
prosecution  for  crime,  within  the  statutory  duty  of  the  district  attorney,  to  institute 
ana  enforce  in  the  courts  any  proceeding  or  means  authorized  by  law  for  the 
restoration  and  enforcement  of  a judgment  of  conviction  obtained  by  him.  Where 
the  board  of  parole  paroled  a prisoner  contrary  to  the  provisions  of  the  statute  the 
law  imposes  upon  the  district  attorney  the  duty  to  preserve  and  defend  the  integrity 
and  effect  of  the  judgment.  Matter  of  Lewis  v.  Carter,  220  N.  Y.  8,  revg.  175  App. 
Div.  501,  160  N.  if.  Supp.  1136. 

3.  For  form  of  report  of  moneys  received  by  district  attorney  see  Form  No.  9, 
post. 

4.  Action  for  breach  of  an  undertaking  given  upon  conviction  of  a husband  for 
abandonment  of  his  wife  may  be  prosecuted  in  the  name  of  the  overseer  of  the  poor. 
Lutes  v.  Shelley,  24  Wk.  Dig.  117. 

After  forfeiture  the  recognizance  will  not  be  discharged  on  giving  new  bail  until 
there  has  been  a trial,  but  proceedings  on  the  forfeiture  will  be  stayed.  People  v. 
Coman,  5 Daly,  527;  People  v.  Abrahams,  6 Daly,  120. 

Where  the  recognizance  is  for  appearance  on  a day  named  “ and  from  time  to 
ume  as  directed  by  the  justice,”  and  the  proceedings  are  adjourned  when  the  defend- 
ant is  not  present,  there  cannot  be  a forfiture  at  a subsequent  adjourned  day.  Peo- 
ple v.  Scott,  67  N.  Y.  585. 


140 


COUNTY  OFFICERS;  JAILS. 


County  Law,  §§  202,  203. 

4.  Where  a recognizance  to  the  people  is  forfeited,  the  district  attorney  of 
the  county  in  which  it  was  taken,  must,  unless  the  court  otherwise  directs, 
forthwith  bring  an  action  to  recover  the  penalty  thereof.4 

5.  Subdivisions  two,  three,  and  four  of  this  section  shall  also  apply  to  the 
county  of  New  York.  [County  Law,  § 201;  B.  C.  & G.  Cons.  L.,  p.  808.] 

§ 3.  BOARD  OF  SUPERVISORS  MAY  AUTHORIZE  DISTRICT  AT- 
TORNEYS TO  APPOINT  ASSISTANT;  POWERS  OF  ASSIST- 
ANT. 

In  any  county  having,  according  to  the  last  preceding  federal  or  state 
enumeration,  more  than  sixty-five  thousand  inhabitants,  the  district  attorney 
may,  when  authorized  by  the  board  of  supervisors,  appoint  a suitable  person, 
who  must  be  a counselor-at-law,  in  this  state,  and  a citizen  and  resident  of  the 
county,  to  be  his  assistant.  Every  appointment  of  an  assistant  district  attorney 
shall  be  in  writing,  under  the  hand  and  seal  of  the  district  attorney,  and  filed 
in  the  office  of  the  county  clerk;  and  the  person  so  appointed,  shall  take  and 
file  with  the  clerk  the  constitutional  oath  of  office,  before  entering  upon  his 
duties  as  such  assistant  district  attorney.  Every  such  appointment  may  be 
revoked  by  the  district  attorney  making  the  same,  which  revocation  shall  be 
in  writing  and  filed  in  the  clerk’s  office.  Such  assistant  district  attorney  may 
attend  all  criminal  courts,  and  discharge  any  duties  imposed  by  law  upon,  or 
required  of  the  district  attorney  by  whom  he  was  appointed.  And  in  any  such 
county  the  district  attorney  may  in  like  manner  appoint  any  additional  assistant 
district  attorneys  or  detectives  or  stenographers  or  interpreters  for  his  office 
whenever  he  is  authorized  so  to  do  by  the  board  of  supervisors  of  any  such 
county.  The  qualifications,  regulations  and  powers  of  any  such  additional 
assistant  district  attorneys  shall  be  the  same  as  prescribed  in  this  section  in 
relation  to  an  assistant  district  attorney.  The  salaries  of  any  such  officers  so 
authorized  to  be  appointed  by  the  district  attorney  shall  be  fixed  by  such  board 
of  supervisors.  [County  Law,  § 202;  B.  C.  & G.  Cons.  L.,  p.  810.] 

§ 4.  APPOINTMENT  OF  ASSISTANTS  IN  ERIE,  MONROE,  ONON- 
DAGA, RENSSELAER,  NIAGARA  AND  WESTCHESTER  COUN- 
TIES; DISTRICT  ATTORNEYS  IN  ERIE  AND  MONROE  EN- 
TITLED TO  COSTS;  PAYMENT  OF  EXPENSES  OF  DISTRICT 
ATTORNEYS  IN  ALBANY,  RENSSELAER  AND  MONROE 
COUNTIES. 

The  district  attorney  of  Erie  county  may  appoint  in  and  for  the 
county  of  Erie,  in  the  manner  provided  in  the  last  section,  and  with  like 
powers,  such  number  of  assistants  as  shall  be  fixed  and  determined  bv 
resolution  of  the  board  of  supervisors  of  Erie  county.  All  of  the  per- 
sons so  appointed  shall  be  called  assistant  district  attorneys.  Each  of 
said  assistant  district  attorneys  shall  receive  such  salary  as  shall  be  fixed 
and  determined  by  said  board  of  supervisors.  The  district  attorney 
shall  designate  in  the  order  appointing  such  assistants  the  salary  which 
each  of  such  assistants  shall  receive,  subject  however  to  the  limitations 
prescribed  by  such  resolution  of  the  board  of  supervisors.  The  three  as- 
sistant district  attorneys  and  the  two  deputy  assistant  district  attorneys 
now  in  office  shall  continue  to  receive  the  same  salaries  that  are  now  paid 
them  until  the  board  of  supervisors  shall  by  resolution  fix  and  determine 
the  salaries  which  such  assistants  and  deputies  shall  receive  pursuant  to 


DISTRICT  ATTORNEY,  COUNTY  JUDGE  AND  SURROGATE.  141 
County  Law,  § 203. 

the  provisions  of  this  section.  Said  assistants  shall  severally  take  the 
constitutional  oath  of  office  before  entering  upon  the  duties  thereof ; and 
the  district  attorney  shall  be  responsible  for  their  acts.  Said  district  at- 
torney may  designate,  in  writing  to  be  filed  in  the  office  of  the  clerk  of 
said  county,  one  of  his  said  assistants  to  be  the  acting  district  attorney 
in  the  absence  from  said  county  or  other  inability  of  said  district  attor- 
ney; and  the  assistant  so  designated  shall  during  such  absence  or  ina- 
bility of  said  district  attorney  perform  the  duties  of  the  office.  Such 
designation  may  be  revoked  by  said  district  attorney  in  writing,  to  be 
filed  in  said  county  clerk’s  office. 

The  district  attorney  of  Monroe  county  may  appoint,  in  and  for  the 
county  of  Monroe,  in  the  manner  provided  in  the  last  section,  and  with 
like  powers,  three  assistants,  to  be  called  respectively  the  first,  second 
and  third  assistant  district  attorneys,  and  two  deputy  assistants,  to  be 
called  respectively  the  first  and  second  deputy  assistant  district  attor- 
neys, who  shall  severally  take  the  constitutional  oath  of  office  before  en- 
tering upon  the  duties  thereof,  and  the  district  attorney  shall  be  respon- 
sible for  their  acts.  In  Monroe  county,  the  salaries  of  the  assistant  dis- 
trict attorneys  and  the  deputy  assistant  district  attorneys  shall  be  fixed 
by  the  board  of  supervisors  as  follows  : The  salary  of  the  first  assistant 
district  attorney  shall  not  be  less  than  two  thousand  dollars  per  year, 
payable  monthly ; the  salary  of  the  second  assistant  district  attorney 
shall  not  be  less  than  eighteen  hundred  dollars  per  year,  payable 
monthly ; the  salary  of  the  third  assistant  district  attorney  shall  not  be 
less  than  sixteen  hundred  dollars  per  year,  payable  monthly ; the  salary 
of  the  first  deputy  assistant  district  attorney  shall  not  be  less  than  twelve 
hundred  dollars  per  year,  payable  monthly ; the  salary  of  the  second 
deputy  assistant  district  attorney  shall  not  be  less  than  seven  hundred 
and  twenty  dollars  per  year,  payable  monthly;  and  until  the  salaries  of 
said  officials  are  so  fixed  by  the  board  of  supervisors,  they  shall  be  as 
above  stated.  The  district  attorney  of  Monroe  county  and  his  assistants 
and  such  deputy  assistants  shall  conduct,  on  the  part  of  the  people,  all 
preliminary  examinations  in  the  police  court  of  the  city  of  Rochester, 
and,  subject  to  the  right  of  a claimant  to  appear  personally  or  by  attor- 
ney, all  other  prosecutions  for  crime  therein ; and  may  conduct  prosecu- 
tions therein  for  violations  of  the  penal  ordinances  of  the  said  city,  and 
appeals  therefrom,  and  in  such  event  one-half  of  the  salary  of  such  first 
deputy  shall  be  a charge  upon  the  city  of  Rochester  and  assessed  back 
upon  said  city  by  the  board  of  supervisors  of  Monroe  county;  but  the 
corporation  counsel  of  the  said  city  shall  have  the  power  to  prosecute 
any  person  for  the  violation  of  an  ordinance  and  to  conduct  proceedings 
therefor  or  an  appeal  therefrom.  The  district  attorney  of  Onondaga 
county  may  appoint  in  and  for  said  county,  in  the  manner  provided  in 
the  last  section,  and  with  like  powers,  two  assistants,  to  be  called  respec- 
tively the  first  and  second  assistant  district  attorneys,  each  of  whom 
shall  take  the  constitutional  oath  of  office  before  entering  upon  the  duties 
thereof ; and  the  district  attorney  of  said  county  shall  be  responsible  for 


142 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 203. 

their  acts.  The  district  attorney  of  Westchester  county  may  appoint  in 
and  for  the  county  of  Westchester,  in  the  manner  provided  in  the  last 
section,  and  with  like  powers,  two  assistants,  to  be  called  respectively  the 
first  and  second  assistant  district  attorney,  who  shall  severally  take  the 
constitutional  oath  of  office  before  entering  upon  the  duties  thereot ; and 
the  district  attorney  shall  be  responsible  for  their  acts ; and  the  salary  of 
each  shall  be  fixed  by  the  board  of  supervisors.  The  district  attorneys  of 
the  counties  of  Erie,  Onondaga  and  Monroe  may  also  appoint  a person 
to  act  as  interpreter  at  all  sessions  of  the  grand  juries  of  such  counties 
and  of  the  city  of  Buffalo,  whose  compensation  shall  be  fixed  by  the  court 
in  and  for  which  such  grand  jury  may  be  empaneled.  The  district  at- 
torneys of  the  counties  of  Erie  and  Monroe  shall  each  be  entitled  to  re- 
ceive, in  addition  to  their  salary,  all  costs  collected  by  them  in  actions 
and  proceedings  prosecuted  and  defended  by  them.  The  county  judge, 
or  the  special  county  judge,  of  the  county  of  Monroe,  or  any  supreme 
court  judge,  shall  have  power,  on  the  application  of  the  district  attorney 
of  Monroe  county,  to  order  and  direct  the  county  treasurer  of  Monroe 
county  to  pay  to  the  district  attorney  any  sum  of  money  expended  or  in- 
curred by  him  in  the  performance  of  his  duties  in  his  office,  and  the 
county  judge  of  the  county  of  Rensselaer,  or  any  supreme  court  judge, 
shall  have  power,  on  the  application  of  the  district  attorney  of  Rensselaer 
county,  to  order  and  direct  the  county  treasurer  of  Rensselaer  county  to 
pay  to  the  district  attorney  any  sum  of  money  expended  or  incurred  bv 
him  in  the  performance  of  his  duties  in  his  office,  and  the  county  judge 
of  the  county  of  Albany,  or  any  supreme  court  judge,  shall  have  power, 
on  the  application  of  the  district  attorney  of  Albany  county,  to  order  and 
direct  the  county  treasurer  of  Albany  county  to  pay  to  the  district  attor- 
ney of  such  county  any  sum  of  money  expended  or  incurred  by  him  in 
the  performance  of  his  duties  in  his  office,  and  the  county  judge  of 
Columbia  county,  or  any  judge  of  the  supreme  court,  shall  have  power, 
on  the  application  of  the  district  attorney  of  Columbia  county,  to  order 
and  direct  the  county  treasurer  of  Columbia  county  to  pay  to  the  district 
attorney  of  such  county  any  sum  of  money  expended  or  incurred  by  him 
in  the  performance  of  his  duties  in  office.  The  district  attorney  of 
Niagara  county  shall  have  charge  of  and  conduct  on  the  part  of  the 
people  all  preliminary  examinations  in  the  police  courts  of  the  cities  of 
Lockport,  North  Tonawanda  and  Niagara  Falls,  either  in  person  or  by 
his  assistant.  In  lieu  of  the  necessary  traveling  expenses  and  other  dis- 
bursements incurred  in  the  performance  of  these  additional  duties, 
either  by  himself  or  his  assistant  or  stenographer,  the  district  attorney  of 
Niagara  county  shall  receive  an  amount  to  be  fixed  by  the  board  of 
supervisors  of  Niagara  county  at  not  less  than  one  thousand  two  hun- 
dred dollars  per  annum,  payable  monthly  by  the  county  treasurer  of 
Niagara  county,  and  the  assistant  district  attorney  shall  receive  an 
amount  to  be  fixed  by  the  board  of  supervisors  of  Niagara  county,  at  not 
less  than  five  hundred  dollars  per  annum,  payable  monthly  by  the  county 
treasurer  of  Niagara  county,  and  the  district  attorney’s  stenographer 
shall  receive  an  amount  to  be  fixed  by  the  board  of  supervisors  of  Ni- 
agara county  at  not  less  than  four  hundred  dollars  per  annum,  payable 
monthly  by  the  county  treasurer  of  Niagara  county.  Until  such  amount 


DISTRICT  ATTORNEY,  COUNTY  JUDGE  AND  SURROGATE. 


143 


County  Law,  §§  204,  205,  244. 


is  so  fixed  by  the  board  of  supervisors  it  shall  be  as  above  stated. 
[County  Law,  § 203,  as  amended  by  L.  1911,  ch.  95;  L.  1912,  ch.  544, 
and  L.  1915,  ch.  140 ; B.  C.  & G.  Cons.  L.,  p.  810.] 

§ 5.  EMPLOYMENT  OF  COUNSEL  BY  DISTRICT  ATTORNEY; 

TRANSFER  OF  TRIAL. 

The  district  attorney  of  any  county  in  which  an  indictment  has  been 
found  for  a capital  or  other  important  crime,  with  the  approval  in 
writing  of  the  county  judge  of  such  county,  which  shall  be  filed  in  the 
office  of  the  county  clerk,  may  employ  counsel  to  assist  him  on  the  trial 
of  such  indictment;  and  the  costs  and  expenses  thereof,  to  be  certified 
by  the  judge  presiding  at  the  trial,  shall  be  a charge  upon  the  county.5 
[County  Law,  § 204;  B.  C.  & G.  Cons.  L.,  p.  812.] 

§ 6.  SPECIAL  DISTRICT  ATTORNEY. 

Whenever  there  is  a vacancy  or  the  district  attorney  of  any  county  and 
his  assistant,  if  he  has  one,  shall  not  be  in  attendance  at  a term  of  any 
court  of  record,  which  he  is  by  law  required  to  attend,  or  shall  be  unable 
by  sickness,  or  by  being  disqualified  from  acting  in  a particular  case,  to 
discharge  his  duties  at  any  such  term,  the  court  may,  by  an  order  entered 
in  its  minutes,  appoint  some  attorney  at  law  residing  in  the  county,  to 
act  as  special  district  attorney  during  the  absence,  inability  or  disquali- 
fication of  the  district  attorney  and  his  assistant ; but  such  appointment 
shall  not  be  made  for  a period  beyond  the  adjournment  of  the  term  at 
which  made.  The  special  district  attorney  so  appointed  shall  possess  the 
powers  and  discharge  the  duties  of  the  district  attorney  during  the  period 
for  which  he  shall  be  appointed.  The  board  of  supervisors  of  the  county 
shall  pay  the  necessary  disbursements  of,  and  a reasonable  compensation 
for  the  services  of  the  person  so  appointed  and  acting.53,  [County  Law, 
§ 205 ; B.  C.  & G.  Cons.  L.,  p.  812] 

§ 7.  RECOVERY  AND  DISPOSITION  OF  MONEYS. 

The  district  attorney  shall  sue  for  and  recover,  in  behalf  of,  and  in 

5.  Must  be  employed  by  district  attorney  of  county  where  case  tried. 
This  section  is  the  only  source  of  authority  for  any  district  attorney  to  employ 
counsel,  and  a compliance  with  its  terms  is  necessary  in  order  to  confer  juris- 
diction upon  the  court  to  make  an  order  fixing  the  compensation  of  such  counsel ; 
and  where  such  special  counsel  was  employed  by  the  district  attorney  in  the 
county  where  the  indictment  was  found,  and  the  prosecution  was  subsequently 
removed  to  another  county,  such  counsel  is  not  entitled  to  have  an  application  for 
compensation  granted  unless  he  be  likewise  employed  by  the  district  attorney  of 
the  county  where  the  action  was  tried.  Matter  of  Knight,  191  N.  Y.  286,  affg.  People 
v.  Neff,  121  App.  Div.  44,  106  N.  Y.  Supp.  559. 

Certificate  of  judge  authorizing  the  employment  of  counsel  on  a second  trial 
of  a criminal  case  does  not  authorize  payment  of  services  in  the  same  case  prior 
to  such  trial.  People  ex  rel.  Peck  v.  Supervisors  of  Genesee,  61  App.  Div.  545.  70 
N.  Y.  Supp.  578. 

Governor  may  designate  deputy  attorney-general  as  special  district  attorney. 
Executive  L.,  sec.  62,  as  amended  by  L.  1911,  ch.  14,  and  L.  1917,  ch.  595,  and  sec.  67. 

5-a.  The  governor  may  require  the  attorney-general  to  designate  a special  deputy 
attorney-general  to  prosecute  special  criminal  offenses,  and  the  expense  thereof  is 
a county  charge.  The  board  of  supervisors  may  not  be  compelled  to  pay  the  com- 
pensation of  such  special  deputy  until  the  compensation  has  been  fixed  by  the 
attorney-general.  See  People  ex  rel.  Osborne  v.  Westchester  County,  108  App.  Div. 
765,  154  N.  Y.  Supp.  266. 


144 


COUNTY  OFFICERS;  JAILS. 


County  Law,  §§  210,  248. 

the  name  of,  his  county,  the  money  received  by  any  officer  for,  or  on  ac- 
count of,  his  county,  or  any  town  or  city  therein,  and  not  paid  to  the 
county  treasurer,  as  herein  required.  All  moneys  belonging  to  any  town 
or  city  in  such  county,  which  shall  be  received  by  the  county  treasurer, 
shall  be  distributed  to  the  several  towns  or  cities  entitled  to  the  same,  by 
resolution  of  the  board  of  supervisors,  which  shall  be  entered  in  the 
minutes  of  its  proceedings.  [County  Law,  § 244;  B.  C.  & G.  Cons.  L., 
p.  831.] 

§ 8.  EXPENSE  OF  TRANSFERRED  TRIAL  OF  AN  INDICTMENT. 

1.  Whenever  the  trial  of  an  indictment  has  been  transferred  from  the 
county  in  which  such  indictment  was  found  to  some  other  county  the  cost 
and  expense  of  such  trial  shall  be  a charge  upon  the  county  in  which  such 
indictment  is  found. 

2.  Whenever,  under  the  order  of  any  court  of  competent  jurisdiction, 
the  pleadings  and  issue  in  any  prosecution  for  any  crime  or  misdemeanor, 
other  than  indictment,  shall  have  been  sent  down  to  any  county  in  this 
state  for  trial  therein,  in  consequence  of  any  inability  to  obtain  an  unpreju- 
diced or  impartial  jury  in  the  county  in  which  the  venue  was  originally 
laid,  the  expenses  of  the  trial  of  said  prosecution  shall  be  a charge  upon 
the  county  from  which  the  same  was  transferred. 

3.  In  case  the  expenses  of  the  trial  of  said  indictment  or  prosecution 
shall  have  been  assessed  on  any  county  in  which  any  such  issue  shall  have 
been  determined,  the  same,  with  interest  thereon,  shall  be  reimbursed  to 
the  treasury  of  such  county  by  the  county  treasurer  in  the  county  from 
which  such  proceedings  have  been  sent  down,  and  the  board  of  supervisors 
of  the  county  liable  to  pay  such  expenses  as  aforesaid  are  hereby  authorized 
to  include  the  same  in  their  annual  levy  of  taxes. 

4.  This  section  also  applies  to  the  county  of  New  York.  [County  Law, 
§ 248;  B.  C.  & G.  Cons.  L.,  p.  832.] 

§ 9.  APPOINTMENT,  TERM  OF  OFFICE  AND  DUTIES  OF  COUNTY 
ATTORNEYS. 

The  board  of  supervisors  in  any  county  may  appoint  a county  attorney 
who  shall  be  removable  at  its  pleasure.  The  term  of  office  of  a county  at- 
torney so  appointed  shall  be  two  years,  unless  sooner  removed,  and  his 
salary  shall  be  fixed  by  the  board  of  supervisors  and  be  a county  charge. 
The  board  of  supervisors  may,  by  local  law,  prescribe  the  duties  of  the 
county  attorney,  which  duties  may  include  the  services  to  town  boards  and 
town  officials  when  not  in  conflict  with  the  interests  of  the  county.  [Coun- 
ty Law,  § 210;  B.  C.  & G.  Cons.  L.,  p.  814.] 


DISTRICT  ATTORNEY,  COUNTY  JUDGE  AND  SURROGATE. 


145 


County  Law,  § 230. 

§ 10.  ELECTION  APPOINTMENT  AND  TERM  OF  OFFICE  OF 
COUNTY  JUDGE,  SURROGATE,  SPECIAL  COUNTY  JUDGE 
AND  SPECIAL  SURROGATE. 

There  shall  continue  to  be  elected  in  each  of  the  counties  now  having 
such  offices, 

1.  A county  judge  and  a surrogate,  who  shall  severally  hold  the  office 
for  six  years  from  and  including  the  first  day  of  January  succeeding  his 
election. 

2.  A special  county  judge  and  a special  surrogate,  pursuant  to  the 
several  acts  of  the  legislature  creating  and  respectively  defining  the  terms 
and  duties  thereof. 

3.  There  shall  continue  to  be  appointed  by  the  governor,  by  and  with 
the  consent  of  the  senate,  if  in  session,  a county  judge,  surrogate,  special 
county  judge  or  special  surrogate,  when  a vacancy  shall  occur  in  either  of 
such  offices,  and  the  person  so  appointed  shall  hold  the  office  until  and  in- 
cluding the  last  day  of  December  succeeding  the  first  annual  election  there- 
after at  which  such  vacancy  can  be  lawfully  filled.6  [County  Law,  § 230; 
B.  C.  & G.  Cons.  L.,  p.  817.] 


6.  Constitutional  provisions.  By  section  14  of  art.  6 of  the  constitu- 
tion the  existing  county  courts  are  continued.  The  successors  of  the  several 
county  judges  in  office  when  the  constitution  was  adopted  are  to  be  chosen 
by  the  electors  of  the  counties  for  the  term  of  six  years.  Each  county  judge 
is  required  to  perform  such  duties  as  may  be  required  by  law.  His  salary 
is  established  by  law,  payable  out  of  the  county  treasury.  The  county 
judge  of  any  county  may  hold  county  courts  in  any  other  county  when 
requested  by  the  judge  of  such  other  county. 

By  section  15  of  art.  6 of  the  constitution  existing  surrogates’  courts  are 
continued  and  the  successors  of  the  surrogates  in  office  at  that  time  are  to  be 
chosen  by  the  electors  of  the  respective  counties,  and  their  terms  of  office 
shall  be  six  years.  Such  section  also  provides  that:  “ The  county  judge 
shall  be  surrogate  of  his  county,  except  when  a separate  surrogate  has  been 
or  shall  be  elected.  In  counties  having  a population  exceeding,  40,000,  wherein 
there  is  no  separate  surrogate,  the  legislature  may  provide  for  the  election 
of  a separate  officer  to  be  surrogate,  whose  term  of  office  shall  be  six  years. 
When  the  surrogate  shall  be  elected  as  a separate  officer  his  salary  shall  be 
established  by  law,  payable  out  of  the  county  treasury.  No  county  judge  or 
surrogate  shall  hold  office  longer  than  until  and  including  the  last  day  of 
December  next  after  he  shall  be  seventy  years  of  age.  Vacancies  occurring 
in  the  office  of  county  judge  or  surrogate  shall  be  filled  in  the  same  manner 
as  like  vacancies  occurring  in  the  Supreme  Court.  The  compensation  of  any 
county  judge  or  surrogate  shall  not  be  increased  or  diminished  during  his  term 
of  office.  For  the  relief  of  Surrogates’  Courts  the  legislature  may  confer  upon 
the  Supreme  Court,  in  any  county  having  a population  exceeding  400,000,  the 
powers  and  jurisdiction  of  surrogates,  with  authority  to  try  issues  of  fact  by 
jury  in  probate  cases.” 


146 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 231. 


§11.  BOARD  OF  SUPERVISORS  TO  CREATE  OFFICE  OF  SURRO- 
GATE IN  CERTAIN  COUNTIES;  UNDERTAKING  OF  SURRO- 
GATE. 

The  board  of  supervisors  of  any  county,  except  Kings,  having  a popula- 
tion exceeding  forty  thousand,  may,  by  resolution  at  a meeting  thereof, 


It  is  also  provided  by  section  16  of  art.  6 of  the  Constitution,  “ The  legislature 
may,  on  application  of  the  board  of  supervisors,  provide  for  the  election  of  local 
officers,  not  to  exceed  two  in  any  county,  to  discharge  the  duties  of  county  judge 
and  of  surrogate,  in  cases  of  their  inability  or  of  a vacancy,  and  in  such  other  cases 
as  may  be  provided  by  law,  and  to  exercise  such  other  powers  in  special  cases  as  are 
or  may  be  provided  by  law.” 

Surrogate’s  clerk.  Board  of  supervisors  may  authorize  surrogate  to  appoint  addi- 
tional clerks,  their  compensation  and  that  of  the  clerks  to  be  fixed  by  the  board. 
Code  Civ.  Proc.,  § 2491,  as  amended  by  L.  1914,  ch.  443;  L.  1917,  ch.  47,  and  L.  1918, 
ch.  310.  The  powers  of  the  clerk  of  the  surrogate  are  prescribed  by  Code  Civ.  Proc., 
§ 2502,  as  amended  by  L.  1914,  ch.  443,  and  L.  1917,  ch.  10,  and  § 2503,  as  amended 
by  L.  1914,  ch.  443. 

Temporary  surrogate.  Where,  in  any  county,  except  New  York,  the  office 
of  surrogate  is  vacant;  or  the  surrogate  is  disabled  by  reason  of  sickness,  ab- 
sence or  lunacy,  or  is  disqualified  in  a particular  matter,  and  special  provision 
is  not  made  by  law  for  the  discharge  of  the  duties  of  his  office  in  that  con- 
tingency; the  duties  of  his  office  must  be  discharged,  until  the  vacancy  is  filled 
or  the  disability  ceases,  as  follows: 

1.  By  the  special  surrogate. 

2.  If  there  is  no  special  surrogate,  or  he  is  in  like  manner  disabled,  or  is 
precluded  or  disqualified,  by  the  special  county  judge. 

3.  If  there  is  no  special  county  judge,  or  he  is  in  like  manner  disabled,  or 
is  precluded  or  disqualified,  by  the  county  judge. 

4.  If  there  is  no  county  judge,  or  he  is  in  like  manner  disabled,  or  is  pre- 
cluded or  disqualified,  by  the  district  attorney. 

But  before  an  officer  is  entitled  to  act  as  prescribed  in  this  section,  proof 
of  his  authority  to  act  as  prescribed  in  section  2481  of  this  chapter  must  be 
made. 

In  any  proceeding  in  the  Surrogate’s  Court  of  the  county  of  Kings,  before 
either  of  the  officers  authorized  in  this  section  to  discharge  the  duties  of  the 
office  of  surrogate  of  such  county  for  the  time  being,  if  an  issue  is  joined  or  a 
contest  arises  either  on  the  facts  or  the  law,  such  officer,  in  his  discretion, 
may,  by  order,  transfer  such  case  to  the  Supreme  Court  to  be  heard  and  decided 
at  a special  term  thereof,  held  in  such  county,  which  order  shall  be  recorded 
in  the  surrogate’s  office.  A certified  copy  of  such  order,  together  with  the 
appropriate  certificate  or  certificates  of  the  authority  of  the  officer  to  act  as 
surrogate,  shall  be  sufficient  and  conclusive  evidence  of  the  jurisdiction  and 
authority  of  the  Supreme  Court  in  such  matter  or  cause.  After  a final  order 
or  decree  is  made  in  the  matter  or  cause  so  transferred  to  the  Supreme  Court, 
the  court  shall  direct  the  papers  to  be  returned  and  filed,  and  transcripts  of 
all  orders  and  decrees  made  therein  to  be  recorded  in  the  surrogate’s  office 
of  such  county;  and  when  so  filed  and  recorded,  they  shall  have  the  same  effect 
as  if  they  were  filed  and  recorded  in  a case  pending  in  the  Surrogate’s  Court 
of  such  county.  (Code  Civ.  Proc.,  § 2478,  as  amended  by  L.  1893,  ch.  686,  and 
L.  1914,  ch.  443.) 


DISTRICT  ATTORNEY,  COUNTY  JUDGE  AND  SURROGATE.  147 
County  Law,  § 232. 

determine  that  the  office  of  surrogate  therein  shall  be  a separate  office, 
and  provide  for  the  election  of  such  officer  therein.  The  clerk  of  the  board 
shall  immediately  deliver  the  resolution  to  the  county  clerk,  who  shall  file 
the  same  in  his  office  and,  within  ten  days  thereafter,  transmit  a certified 
copy  thereof  to  the  secretary  of  state;  and  thereafter  a surrogate  shall  be 
elected  for  such  county.  Every  person  elected  or  appointed  to  the  office 
of  surrogate  or  county  judge,  where  there  is  no  separate  office  of  surrogate, 
shall,  before  he  enters  upon  the  duties  of  his  office,  and  if  appointed, 
within  fifteen  days  after  notice  thereof,  execute  and  deliver  to  the  county 
clerk  of  his  county  a joint  and  several  undertaking,  with  two  or  more 
sureties  being  resident  freeholders,  to  be  approved  by  such  clerk,  to  the 
effect  that  he  will  faithfully  perform  his  duties  as  such  surrogate,  and 
apply  and  pay  over  all  moneys  and  effects  that  may  come  into  his  hands 
as  such  surrogate  in  the  execution  of  his  office;  which  undertaking  shall 
be  immediately  filed  in  the  office  of  such  county  clerk.  [County  Law,  § 
231;  B.  C.  & G.  Cons.  L.,  p.  817.] 

§ 12.  COMPENSATION  OF  COUNTY  JUDGES  AND  SURROGATES. 

The  annual  salaries  of  county  judges  and  surrogates  in  the  several 
counties  are  fixed  at  the  sums  respectively  set  opposite  the  names  of  each 
county  in  the  following  schedule,  to  wit: 


Where  the  surrogate  of  any  county,  except  New  York,  is  precluded  or  dis- 
qualified from  acting  with  respect  to  any  particular  matter,  his  powers  with 
respect  to  that  matter,  or  if  he  be  temporarily  absent,  his  powers  with  respect 
to  all  matters,  shall  be  discharged  by  the  several  officers  designated  in  the  last 
section  in  the  order  therein  provided.  If  there  is  no  such  officer  qualified  to 
act  therein,  the  surrogate  may  file  in  his  office  a certificate,  stating  that  fact; 
specifying  the  reason  why  he  is  disqualified  or  precluded;  and  designating  the 
surrogate  of  any  county,  other  than  New  York,  to  act  in  his  place  in  the  par- 
ticular matter  or  during  his  absence.  The  surrogate  so  designated  has,  with 
respect  to  that  matter,  or  generally  when  the  designation  is  made  on  account 
of  absence  of  the  surrogate,  all  the  powers  of  the  surrogate  making  the  designa- 
tion, and  may  exercise  the  same  in  either  county.  (Code  Civ.  Proc.,  2479,  as 
amended  by  L.  1914,  ch.  443.) 

Board  of  supervisors  may  appoint  person  to  act  as  surrogate.  In  any  county, 
except  New  York,  if  the  surrogate  is  disabled,  by  reason  of  sickness,  and  there 
is  no  special  surrogate,  or  special  county  judge  of  the  county,  the  board  of 
supervisors,  or  in  the  counties  embraced  within  the  city  of  New  York,  the 
board  of  aldermen,  may,  in  its  discretion,  appoint  a suitable  person  to  act  as 
surrogate  until  the  surrogate’s  disability  ceases,  or  until  a special  surrogate 
or  a special  county  judge  is  elected  or  appointed.  A person  so  appointed 
must,  before  entering  on  the  execution  of  the  duties  of  his  office,  take  and  file 


148  COUNTY  OFFICERS;  JAILS. 

County  Law,  § 232. 


Salary  of 

Salary  of 

Sub. 

Name  of  County. 

county  judge. 

surrogate. 

1 

Albany 

$7,000.007 

$6,500.00 

2 

Allegany.  . 

2,750.00 

3 

Broome 

5,000.00 

4 

Cattaraugus 

1,500.00 

1,500.00 

5 

Cayuga 

2,000.00 

2,000.00 

6 

Chautauqua 

2,500.00 

2,500.007a 

7 

Chemung 

5,000.00 

8 

Chenango 

4,000.007b 

9 

Clinton 

1,200.00 

1,800.00 

10 

Columbia 

2,000.00 

2,500.00 

11 

Cortland 

3,500.007c 

12 

Delaware 

3,000.00 

13 

Dutchess 

3,000.00 

3,000.00 

14 

Erie 

7,500.008 

7,500.00 

15 

Essex 

2,500.00 

an  oath  of  office  and  give  an  official  bond  as  prescribed  by  law  with  respect  to  a 
person  elected  to  the  office  of  surrogate.  (Code  Civ.  Proc.,  § 2484,  as  amended  by 
L.  1893,  eh.  686,  and  L.  1914,  ch.  443.) 

Compensation  of  temporary  surrogate.  An  officer,  or  person  appointed  by  the 
board  of  supervisors,  or  board  of  aldermen,  who  acts  as  surrogate  of  any  county  dur- 
ing a vacancy  in  the  office,  or  in  consequence  of  disability,  as  prescribed  in  this  title 
must  be  paid  for  the  time  during  which  he  so  acts,  a compensation  equal  pro  rata 
to  the  salary  of  the  surrogate;  or,  in  a county  where  the  county  judge  is  also  a 
surrogate,  to  the  salary  of  the  county  judge.  The  amount  of  his  compensation  must 
be  audited  and  paid  in  like  manner  as  the  salary  of  the  surrogate,  or  of  the  county 
judge,  as  the  case  may  be.  Where  an  officer  of  the  county  performs  the  duties  of 
the  surrogate,  with  respect  to  a particular  matter  wherein  the  surrogate  is  dis- 
qualified or  precluded  from  acting,  the  supervisors  of  the  county,  or  board  of  alder- 
men, must  allow  him  a compensation  equal  pro  rata  to  the  salary  of  the  surrogate 
to  be  audited  and  collected  in  the  same  manner.  (Code  Civ.  Proc.,  § 2485,  as 
amended  by  L.  1914,  ch.  443.) 

Fees  received  by  clerk  of  surrogate’s  court.  The  board  of  supervisors  may  fix  the 
rate  of  fees  and  may  require  the  clerk  to  keep  an  account  of  all  such  fees  and  make 
a report  thereof  whenever  requested  by  such  board.  See  Code  Civ.  Proc.,  § 2499,  as 
amended  by  L.  1914,  ch.  443. 

7.  By  L.  1912,  ch.  549",  the  salaries  of  the  county  judge  and  surrogate  of  Albany 
county  were  fixed  at  $7,000  and  $6,500,  respectively. 

7a.  Amended  by  L.  1918,  ch.  234. 

7b.  Amended  by  L.  1918,  ch.  234. 

7c.  Amended  by  L.  1917,  ch.  34. 

8.  Amended  by  L.  1912,  ch.  37. 


DISTRICT  ATTORNEY,  COUNTY  JUDGE  AND  SURROGATE. 


County  Law,  § 232. 


Salary  of 

Sub.  Name  of  County.  county  judge. 

16  Franklin 3,200.009 

IT  Fulton 2,000.00 

18  Genesee.  2,500.00 

19  Greene 4,000.009b 

20  Hamilton l,200.009c 

21  Herkimer 3,000.00 

22  Jefferson 3,000.0010 

23  Kings 10,000.00 

24  Lewis 2,400.00 

25  Livingston 3,000.00 

26  Madison 4,000. 00lla 

27  Monroe 7,000.0012 

28  Montgomery 1,400.00 

29  Nassau 5,000.0013 

30  Niagara 5,000.00 

31  Oneida 5,000.0014 

32  Onondaga 5,000.00 

33  Ontario 2,000.00 

34  Orange 3,000.00 

35  Orleans 2,000.00 

36  Oswego 2,500.00 

37  Otsego 1,800.00 

38  Putnam 2,000.00 

39  Queens 10,000.00 

40  Rensselaer 5,000.00 

41  Richmond 5,000. 0015 


9.  Amended  by  L.  1913,  ch.  436. 

9a.  Amended  by  L.  1918,  ch.  216. 

9b.  Amended  by  L.  1918,  ch.  234. 

9c.  Amended  by  L.  1918,  ch.  234. 

10.  Amended  by  L.  1010,  ch.  281,  and  L.  1918,  ch.  224. 

11.  Amended  by  L.  1911,  ch.  413. 

11a.  Amended  by  L.  1918,  ch.  234. 

12.  Amended  by  L.  1912,  ch.  549. 

13.  Amended  by  L.  1910,  ch.  300,  and  L.  1916,  ch.  382. 

14.  Amended  by  L.  1911,  ch.  203,  and  L.  1916,  ch.  86. 
14a.  Amended  by  L.  1916,  ch.  252. 

14b.  Amended  by  L.  1918,  ch.  219. 

15.  Amended  by  L.  1911,  ch.  413. 


149 


Salary  of 
surrogate. 

2,200.009a 


3,000.0010 

lO^OO.OO* 11 


7.000. 00 
1,600.00 

5.000.  0013 

1.500.00 

5.000. 0014 

5.000. 00 

2.000. 0014a 

3.500.00 

2,000. 0014b 

1.500.00 

10,000.00 

5,000.00 


150 


COUNTY  OFFICERS. 


County  Law,  § 232. 


1. 

Name  of  County. 

Salary  of 
county  judge. 

Salary  of 
surrogate. 

42 

Rockland 

3,600.00 

43 

St.  Lawrence 

1,750.00 

1,750.00 

44 

Saratoga 

2,000.00 

2,500  & 500 

45 

Schenectady 

4,000.00 

for  clerk  hire. 
4,000.00 

46 

Schoharie 

2,500.00 

47 

Schuyler 

1,500.00 

48 

Seneca 

2,500.0015a 

49 

Steuben 

2,500.0015b 

2,500.0015b 

50 

Suffolk 

3,500.0015c 

4,000.0015c 

51 

Sullivan 

1,200.00 

52 

Tioga 

2,500.00 

53 

Tompkins 

3,500.00 

54 

Ulster 

3,000.00 

3,000.00 

55 

Warren 

5,000.0016 

56 

Washington 

2,000.0017 

2,500.00" 

57 

Wayne 

3,000.00 

58 

Westchester 

10,000.00 

lO^OO.OO1’ 

59 

Wyoming 

3,500.00" 

60 

Yates 

2,000.002° 

61.  The  Salaries  provided  in  the  preceding  subdivision  of  this  sec- 
tion for  the  county  judge  and  surrogate  of  each  of  the  counties  of  Onon- 
daga, Queens,  Rensselaer  and  Tompkins  shall  take  effect  upon  the 
expiration  of  the  terms  of  the  incumbents  in  office  on  February  seven- 
teenth, nineteen  hundred  and  nine,  respectively,  and  until  the  expira- 
tion of  said  terms  such  officers  shall  receive  the  salaries  authorized  by 
law  on  January  first,  nineteen  hundred  and  nine.  The  salaries  pro- 
vided in  subdivision  twenty-nine  of  this  section  for  the  county  judge 
and  surrogate  of  the  county  of  Nassau  shall  take  effect  upon  and  after 
January  first,  nineteen  hundred  and  seventeen,  and  until  that  date  the 

15a.  Amended  by  L.  1918,  ch.  136. 

15b.  Amended  by  L.  1915,  ch.  255. 

15c.  Amended  by  L.  1918,  ch.  234. 

16.  Amended  by  L.  1916,  ch.  132. 

17.  Amended  by  L.  1917,  ch.  192. 

18.  Amended  by  L.  1912,  ch.  549. 

19.  Amended  by  L.  1918,  ch.  30. 

20.  Amended  by  L.  1918,  ch.  234. 


DISTRICT  ATTORNEY,  COUNTY  JUDGE  AND  SURROGATE. 


151 


County  Law,  § 233. 

county  judge  of  the  county  of  Nassau  shall  receive  the  salary  authorized 
by  law  on  January  first,  nineteen  hundred  and  sixteen.  [Subd. 
amended  by  L.  1910,  ch.  300,  and  L.  1916,  ch.  382.] 

62.  The  salary  provided  in  subdivision  twenty-three  of  this  section 
for  the  surrogate  of  the  county  of  Kings  shall  take  effect  upon  the  ex- 
piration of  the  term  of  the  present  incumbent,  and  until  the  expiration 
of  said  term  such  surrogate  shall  receive  the  salary  authorized  by  law 
on  January  first,  nineteen  hundred  and  eleven.  [Subd.  added  by  L. 
1911,  ch.  413.] 

63.  The  salary  provided  in  subdivision  forty-one  of  this  section  for 
the  county  judge  of  the  county  of  Richmond  shall  take  effect  upon  the 
expiration  of  the  term  of  said  office,  expiring  December  thirty-first, 
nineteen  hundred  and  eleven.  [Subd.  added  by  L.  1911,  ch.  413.] 

64.  The  salaries  provided  in  subdivision  fourteen  of  this  section  for 
the  county  judge  and  surrogate  of  the  county  of  Erie  shall  take  effect 
upon  the  expiration  of  the  term  of  the  present  incumbents,  respectively, 
and  until  the  expiration  of  said  terms  such  officers  shall  receive  the  sal- 
aries authorized  by  law  on  January  first,  nineteen  hundred  and  nine. 
[Subd.  added  by  L.  1912,  ch.  37,  in  effect  March  13,  1912.] 

64.  In  addition  to  the  salary  herein  provided  to  be  paid  to  the  surro- 
gate of  Chautauqua  county,  he  shall  be  entitled  to  receive  his  necessary 
expenses  while  holding  court  in  said  county  at  places  other  than  the 
county  seat  at  Mayville.  Such  expense  account  shall  be  audited  by  the 
board  of  supervisors  of  said  county  and  shall  not  exceed  the  sum  of  five 
hundred  dollars  per  annum.  [Subd.  added  by  L.  1912,  ch.  92,  in  effect 
April  3,  1912.] 

65.  The  salaries  provided  in  subdivisions  one,  twenty-seven  and  fifty- 
eight  for  the  county  judge  and  surrogate  of  the  county  of  Albany,  for 
the  county  judge  and  surrogate  of  the  county  of  Monroe,  and  for  the 
surrogate  of  the  county  of  Westchester,  shall  take  effect  upon  the  expira- 
tion of  the  terms  of  the  present  incumbents  respectively,  and  until  the 
expiration  of  such  terms  such  county  judges  and  surrogates  shall  re- 
ceive the  salaries  authorized  by  law  on  January  first,  nineteen  hundred 
and  twelve.  [Subd.  added  by  L.  1912,  ch.  549.] 

66.  The  salary  provided  in  subdivision  sixteen  of  this  section  for  the 
county  judge  of  the  county  of  Franklin  shall  take  effect  upon  the  ex- 
piration of  the  term  of  the  present  incumbent  and  until  the  expiration 
of  said  term  such  officer  shall  receive  the  salary  authorized  by  law  on 
January  first,  nineteen  hundred  and  thirteen.  [Subd.  added  by  L. 
1913,  ch.  436.] 


151a 


COUNTY  OFFICERS. 


County  Law,  § 233. 

67.  The  salary  provided  in  subdivision  fifty-five  of  this  section  for 
the  county  judge  and  surrogate  of  the  county  of  Warren  shall  take  effect 
upon  the  expiration  of  the  term  of  the  present  incumbent,  and  until  the 
expiration  of  such  term  such  officer  shall  receive  the  salary  authorized 
by  law  on  January  first,  nineteen  hundred  and  eleven.  [Subd.  added 
by  L.  1916,  ch.  132.  County  Law,  § 232 ; B.  C.  & G.  Cons.  L.,  p.  819.] 

68.  The  salary  provided  in  subdivision  eleven  of  this  section  for  the 
county  judge  and  surrogate  of  the  county  of  Cortland  shall  take  effect 
upon  the  expiration  of  the  term  of  the  present  incumbent,  and  until 
the  expiration  of  such  term  such  officer  shall  receive  the  salary  author- 
ized by  law  on  January  first,  nineteen  hundred  and  fourteen.  [Subd. 
added  by  L.  1917,  ch.  34.] 

69.  The  salaries  provided  for  in  subdivision  fifty-six  of  this  section 
for  the  county  judge  and  the  surrogate  of  the  county  of  Washington 
shall  take  effect  upon  the  expiration  of  the  terms  of  the  present  in- 
cumbents, respectively,  and  until  the  expiration  of  such  terms  such 
officers  shall  receive  the  salaries  authorized  by  law  on  January  first, 
nineteen  hundred  and  seventeen.  [Subd.  added  by  L.  1917,  ch.  192, 
as  subd.  68,  and  renumbered  subd.  69  by  L.  1918,  ch.  30.] 

70.  The  salary  provided  in  subdivision  fifty-nine  of  this  section  for 
the  county  judge  and  surrogate  of  the  county  of  Wyoming  shall  take 
effect  upon  the  expiration  of  the  term  of  the  present  incumbent,  and 
until  the  expiration  of  such  term  such  officer  shall  receive  the  salary 
authorized  by  law  on  January  first,  nineteen  hundred  and  eighteen. 
[Subd.  added  by  L.  1918,  ch.  30.] 

71.  The  salary  provided  in  subdivision  forty-eight  of  this  section  for 
the  county  judge  and  surrogate  of  the  county  of  Seneca  shall  take  effect 
upon  the  expiration  of  the  term  of  the  present  incumbent,  and  until  the 
expiration  of  such  term  such  officer  shall  receive  the  salary  authorized 
by  law  on  January  first,  nineteen  hundred  and  eighteen.  [Subd. 
71,  added  by  L.  1918,  ch.  136.] 

71.  The  salary  provided  in  subdivision  thirty-six  of  this  section  for 
the  county  judge  and  for  the  surrogate  of  the  county  of  Oswego  shall 
take  effect  upon  the  expiration  of  the  term  of  the  present  incumbents 
and  until  the  expiration  of  said  term  such  officers  shall  receive  the 
salary  authoribed  by  law  on  the  first  day  of  January,  nineteen  hundred 
and  fourteen.  [Subd.  71,  added  by  L.  1918,  ch.  216.] 


DISTRICT  ATTORNEY,  COUNTY  JUDGE  AND  SURROGATE. 


151b 


County  Law,  § 233. 

§ 13.  SALARIES  OF  SURROGATES  AND  COUNTY  JUDGES,  HOW 

PAID;  COMPENSATION  OF  COUNTY  JUDGE  SERVING  IN 
ANOTHER  COUNTY. 

Such  salaries,  except  in  the  counties  of  Kings,  Broome  and  West- 
chester, shall  be  paid  quarterly,  by  the  county  treasurer  of  the  respective 
counties.  In  the  counties  of  Broome  and  Westchester  such  salaries  shall 
be  paid  monthly  by  the  county  treasurer.  When  a county  judge  of  one 
county  shall  hold  a county  court,  or  preside  at  a court  of  sessions,  in  any 
other  county,  he  shall  be  paid  the  sum  of  ten  dollars  per  day,  except  in 
the  county  of  Kings  where  the  compensation  shall  be  twenty  dollars 
per  day,  for  his  expenses  in  going  to,  and  from,  and  holding  or  presiding 
at  such  court,  which  shall  be  paid  by  the  county  treasurer  of  such  other 
county,  on  the  presentation  of  the  certificate  of  the  clerk  of  such  court 
of  the  number  of  days.  [County  Law,  § 233,  as  amended  by  L.  1909, 
chs.  122,  228,  and  L.  1914,  ch.  70 ; B.  C.  & G.  Cons.  L.,  p.  819.] 


152 


COUNTY  OFFICERS;  JAILS. 


Explanatory  note. 

CHAPTER  XL 

SHERIFF  AND  CORONERS;  POWERS  AND  DUTIES, 

EXPLANATORY  NOTE. 

Office  of  Sheriff. 

The  office  of  sheriff  is  created  by  the  constitution.  The  term  is  three 
years  and  a sheriff  is  ineligible  for  the  term  following  that  for  which  he 
was  elected.  The  constitution  also  provides  that  a county  shall  not  be 
liable  for  the  acts  of  a sheriff. 

The  office  of  sheriff  is  perhaps  the  most  important  in  the  county.  He 
has  many  administrative  duties  to  perform,  and  is  also  clothed  with 
the  power  of  preserving  order  and  enforcing  the  law  in  his  county.  It 
is  his  duty  to  execute  processes  and  mandates  issuing  from  the  courts. 
He  or  one  of  his  deputies  must  attend  trial  terms  of  the  Supreme  Court 
and  terms  of  the  Appellate  division.  He  has  certain  other  duties  to  per- 
form as  an  officer  of  the  courts  held  in  his  county.  He  is  the  custodian 
of  county  buildings,  unless  otherwise  specified  by  statute,  and  must  see 
that  court  rooms  and  other  parts  of  the  court-house  are  kept  in  proper 
condition.  He  is  responsible  for  the  safe  keeping  of  prisoners  in  jails, 
and  has  many  duties  relative  to  the  apprehension,  custody  and  trial  of 
criminals.  It  would  be  impossible,  within  the  scope  of  this  work  to 
give  the  law  relating  to  all  the  powers  and  duties  of  a sheriff.  It  will 
only  be  attempted  to  set  forth  the  law  relating  to  his  administration  of 
county  affairs. 

The  sheriff  was  formerly  paid  by  fees  allowed  for  the  service  of  proc- 
esses, both  civil  and  criminal,  the  boarding  of  prisoners,  and  for  services 
rendered  in  respect  to  criminals.  In  nearly  all  the  counties,  at  the 
present  time,  the  sheriff  is  paid  a salary  and  the  fees  are  all  turned  into 
the  county  treasury. 

Office  of  Coroner. 

The  office  of  coroner  is  not  a constitutional  office.  The  statute  pro- 
vides that  there  shall  be  four  coroners  in  counties  of  over  100,000  popu- 
lation, and  in  other  counties  such  number  not  exceeding  four  as  may 
be  determined  by  the  board  of  supervisors. 


SHERIFF  AND  CORONERS. 


153 


Explanatory  note. 

One  of  the  coroners,  designated  by  the  county  judge  acts  as  sheriff 
when  that  office  is  vacant  or  the  sheriff  is  incapacitated,  and  there  is 
no  under-sheriff,  pending  an  appointment  to  fill  the  vacancy.  The  usual 
duties  of  coroner  pertain  to  the  ascertainment  of  the  cause  of  death  of 
any  person  who  has  died  under  circumstances  leading  to  the  belief  that 
his  death  was  the  result  of  a crime,  or  that  he  has  committed  suicide.  In 
all  such  cases  the  coroner  is  required  to  summon  a jury  and  conduct 
an  inquest.  If  it  appears  that  a crime  has  been  committed  the  coroner 
may  issue  a warrant  for  the  arrest  of  the  person  chargeable  therewith. 
See  Code  of  Criminal  Procedure,  §§  773-787. 


Section  1. 


2. 


3. 


4. 

5. 

6. 


7. 


8. 

9. 

10. 

11. 

12. 

13. 

14. 


15. 


16.  I 
17. 


18. 


19. 

20. 
21. 


Election,  appointment  and  term  of  office  of  sheriffs  and  coroners, 
and  the  undertakings  of  sheriffs. 

Sheriffs  to  appoint  under-sheriffs;  duties  of  under-sheriff;  mal- 
feasance of  under-sheriffs. 

Deputy  sheriffs  to  be  appointed  by  sheriff;  appointment  to  be  in 
writing. 

Sheriff’s  office;  notice  of  place  to  be  filed;  when  to  be  kept  open; 
papers  served  on  sheriff. 

Fees  for  services  for  the  state;  accounts,  how  audited. 

Sheriff  to  be  removed  for  non-payment  of  moneys. 

When  coroner  to  act  as  sheriff;  county  judge  to  designate  coroner; 
undertaking. 

When  other  coroner  to  be  designated;  when  coroner  to  execute 
duties  of  office  of  sheriff. 

County  judge  may  appoint  a person  other  than  a coroner  in  cer- 
tain cases. 

Coroners  to  execute  duties  of  office  until  vacancy  is  filled;  duties 
and  liabilities  of  incumbent. 

Board  of  supervisors  may  fix  salary  of  coroner. 

Fees  allowed  coroners  for  services  on  inqj.etts,  etc. 

Employment  of  stenographer  and  surgeons. 

Duties  of  sheriff  in  respect  to  services  of  mandates  in  civil  actions; 

copy  of  process  to  be  delivered;  return  of  sheriff. 

Liability  of  sheriff  for  neglect  in  serving  process  in  special  pro- 
ceeding. 

3owers  of  sheriff  in  case  of  resistance  to  the  service  of  mandate; 
names  of  resisters  to  be  certified  to  court;  sheriff  may  ask  as- 
sistance; governor  may  order  out  militia. 

Attendance  of  sheriff  and  deputies  upon  terms  of  court;  duties  in 
respect  to  appellate  division. 

Trial  by  sheriff  of  claim  of  title  to  property  seized  by  him;  jurors, 
how  summoned;  examination  of  witnesses;  payment  of  fees. 
Proceedings  on  new  sheriff  assuming  office. 

Injury  to  records  and  misappropriation  by  ministerial  officers. 
Sheriffs  and  others  permitting  escapes  or  refusing  to  receive 
prisoners. 


154 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 180. 

§ 1.  ELECTION,  APPOINTMENT  AND  TERM  OF  OFFICE  OF  SHER- 
IFFS AND  CORONERS,  AND  THE  UNDERTAKINGS  OF 
SHERIFFS. 

There  shall  continue, 

1.  To  be  elected  in  each  of  the  counties  a sheriff,  and  in  each  of  the  counties  con- 
taining a population  of  one  hundred  thousand  and  over,  except  in  Nassau  county, 
four  coroners,  and  in  all  other  counties  such  number  of  coroners,  not  more  than  four, 
as  shall  be  fixed  by  the  board  of  supervisors,  who  shall  respectively  hold  their  offices 
for  three  years  from  and  including  the  first  day  of  January  succeeding  their  election. 
The  board  of  supervisors  of  a county  containing  a population  of  less  than  one  hun- 
dred thousand,  and  having  more  than  one  coroner,  may,  by  resolution,  determine 
that  after  the  first  day  of  January  of  a year  to  be  specified  in  such  resolution,  the 
number  of  coroners  in  such  county  shall  be  reduced  to  a specified  number  not  less 
than  one,  and  may  by  such  resolution  fix  the  terms  of  coroners  to  be  thereafter 
elected  in  such  county  so  that  the  terms  of  all  the  coroners  therein  will  expire  on  the 
first  day  of  January  of  the  year  specified  in  the  resolution.  [Subd.  amended  by  L. 
1912,  ch.  91,  and  L.  1916,  ch.  87.] 

2.  To  be  appointed  by  the  governor,  a sheriff,  or  a coroner,  when  a vacancy  shall 
occur  in  either  of  such  offices,  and  the  person  so  appointed  shall  hold  the  office  until 
and  including  the  last  day  of  December  succeeding  the  first  annual  election  there- 
after, at  which  such  vacancy  can  be  lawfully  filled.i 

Every  person  elected  or  appointed  to  the  office  of  sheriff  shall,  before  he  enters 
upon  the  duties  of  his  office,  and  if  appointed,  within  fifteen  days  after  notice 
thereof,  execute  and  deliver  to  the  county  clerk  of  his  county,  a joint  and  several 
undertaking  to  the  county,  approved  by  such  clerk,  to  the  effect  that  such  sheriff 
will,  in  all  things,  perform  and  execute  the  office  of  sheriff  of  his  county  during  his 
continuance  therein,  without  fraud  or  deceit.  Such  undertaking  shall  be  filed  in  the 
office  of  the  county  clerk;  and  the  clerk  shall,  at  the  time  of  his  approval  thereof. 


1.  A sheriff  appointed  by  the  Governor  to  fill  a vacancy  holds  office  only  to  the 
commencement  of  the  political  year  next  succeeding  the  first  annual  election  after 
the  happening  of  the  vacancy.  Rept.  of  Atty.  Genl.  (1911),  vol.  2,  p.  594. 

Special  election.  Where  a vacancy  occurs  in  the  office  of  sheriff  between  the 
fifteenth  of  October  and  the  general  election  day  in  November  following,  it  cannot 
be  filled  at  that  election,  but  a special  election  should  be  called  for  that  purpose,  of 
which  not  less  than  thirty  or  more  than  forty  days’  notice  must  be  given.  Matter 
of  Mitchell  v.  Boyle  (1916),  219  N.  Y.  242,  114  N.  E.  382,  revg.  (1916),  175  App. 
Div.  905,  161  N.  Y.  Supp.  1135. 

A person  elected  to  fill  a vacancy  in  the  office  of  coroner  is  entitled  to  hold  the 

office  for  a full  term  of  three  years.  Rept.  of  Atty.  Genl.  (1911),  vol.  2,  p.  578. 

Term  of  office  of  sheriffs  is  fixed  by  the  constitution  at  three  years;  and  sheriffs 
phall  hold  no  other  office  and  be  ineligible  for  the  next  term  after  the  termination  of 
their  offies.  Constitution,  art.  X,  sec.  1. 

References.  Reference  may  be  made  to  the  following  provisions  of  law  relating 
directly  or  indirectly  to  the  offices  of  sheriffs  and  coroners: 

Term  of  person  appointed  to  fill  vacancy.  Subdivision  2 of  this  section  is  contrary 
to  the  constitutional  provision  (State  Const.,  art.  X,  § 5)  that  no  person  appointed 
to  fill  a vacancy  in  an  elective  office  shall  hold  his  office  “ longer  than  the  commence- 
ment of  the  political  year  next  succeeding  the  first  annual  election  after  the  hap- 
pening of  the  vacancy,”  and  the  governor  cannot  appoint  a sheriff  to  fill  a vacancy 
caused  by  death  after  October  fifteenth  preceding  a general  election  to  hold  for  a 
term  beyond  the  first  of  the  next  January.  People  ex  rel.  Conklin  v.  Boyle  (1917), 
98  Misc.  364,  163  N.  Y.  Supp.  72. 

Acts  of  sheriff,  county  not  responsible  for.  Constitution,  art.  X,  sec.  1. 

Undertaking.  Sheriffs  may  be  required  by  law  to  renew  their  security,  and  in 
default  of  giving  such  new  security  their  offices  shall  be  deemed  vacant.  Constitu- 
tion, art.  X,  sec.  1.  Further  provisions  respecting  undertaking.  County  Law,  sec. 
247,  post.  Public  Officers  Law,  sec.  11,  post.  Effect  of  failure  to  execute  under- 
taking. Public  Officers  Law,  sec.  13,  post.  Validation  of  official  acts  before  execut- 
ing undertaking.  Public  Officers  Law,  sec.  15,  post.  Vacancy  in  office  created  by 
failure  to  execute  undertaking.  Public  Officers  Law,  sec.  30,  subd.  7,  post. 


SHERIFFS  AND  CORONERS. 


155 


County  Law,  § 180. 

examine  each  surety  thereto  under  oath;  and  he  shall  not  approve  of  such  under- 
takings, unless  it  shall  appear  on  such  examination  that  such  sureties  are  jointly 
worth  at  least  fifteen  thousand  dollars  over  and  above  all  debts  whatever;  which 
examination,  subscribed  by  the  sureties,  shall  be  indorsed  on  or  attached  to  the 
undertaking;  but  the  clerk  shall  determine  the  sufficiency  of  each  surety.  In  the 
same  manner  the  security  shall  be  renewed  within  twenty  days  after  the  first  Mon- 
day of  January  in  each  year  subsequent  to  that  in  which  he  shall  have  entered  upon 
the  duties  of  his  office.  [County  Law,  § 180;  B.  C.  & G.  Cons.  L.,  p.  797.] 

Removal  of  sheriffs.  The  sheriff  is  removable  by  the  governor.  Constitution, 
art.  X,  sec.  1.  The  procedure  for  removal  is  prescribed  by  Public  Officers  Law,  secs. 
33-35,  post.  The  expenses  of  such  removal  are  a county  charge.  County  Law,  sec. 
240,  sub.  16,  ante. 

Official  oaths  of  sheriffs  and  coroners,  to  be  taken  and  filed.  County  Law,  sec. 
246,  post.  Effect  of  failure  to  take  oath.  Public  Officers  Law,  sec.  30,  post. 

Vacancies  in  offices  of  sheriff  and  coroners.  Public  Officers  Law,  sec.  30,  post. 

Resignations  of  sheriffs  and  coroners  are  to  be  made  to  the  governor.  Public  - 
Officers  Law,  sec.  31. 

Forms  of  official  oaths  and  undertakings.  See  Forms  Nos.  20,  21,  22. 

Fees  of  sheriff  and  coroner.  See  chapter  on  “ Fees,”  post. 

Collection  Of  taxes,  duties  of  sheriff  relating  to.  Tax  Law,  secs.  76,  77,  87,  post. 

Undertaking.  Sheriff  does  not  forfeit  office  by  failing  to  execute  bond 
within  time  specified;  the  statute  is  directory  merely  and  does  not  impose  an 
absolure  limitation  upon  him.  People  v.  Holley,  12  Wend.  481.  A sheriff’s  bond 
is  broken  if  he  be  guilty  of  any  default  of  misconduct  in  his  office.  People  v. 
Brush,  6 Wend.  454. 

The  condition  of  a sheriff’s  bond  does  not  extend  beyond  nonfeasance  or  mis- 
feasance in  respect  to  his  official  acts;  and  the  plaintiff  must  show  same  affirma- 
tively. Ex  parte  Reed,  41  Hill,  572. 

Special  acts  making  office  of  sheriff  salaried  in  the  several  counties.  In  a 
great  many  of  the  counties  the  office  of  sheriff  is  made  salaried  by  special  act  of 
the  legislature.  These  acts  vary  in  their  nature,  and  it  would  be  impracticable 
in  a work  of  this  character  to  attempt  to  include  such  acts  in  full.  The  follow- 
ing list  is  made  from  a careful  examination  of  the  statutes.  It  \vill  be 
noticed  that  during  recent  years  the  tendency  has  been  to  declare  such  offices 
salaried,  and  ultimately  all  the  counties  will  probably  be  put  upon  the  seme 
basis  in  this  respect: 

Albany  county,  L.  1884,  ch.  218,  as  amended  by  L.  1886,  ch.  598,  L.  1897, 
ch.  20,  and  L.  1901,  ch.  344,  L.  1904,  ch.  336,  L.  1905,  ch.  41,  and  L.  1909,  ch.  530. 

Alleghany  county,  L.  1897,  ch.  539. 

Broome  county,  L.  1902,  ch.  51,  as  amended  by  L.  1910,  ch.  132. 

Bronx  county,  L.  1912,  ch.  548,  as  amended  by  L.  1913,  ch.  266. 

Cattaraugus  county,  L.  1900,  ch.  142,  as  amended  by  L.  1909,  ch.  512. 

Cayuga  county,  L.  1906,  ch.  24,  as  amended  by  L.  1908,  ch.  26. 

Chautauqua  county,  L.  1901,  ch.  255,  superseded  by  County  Law,  § 12,  sub.  17. 

Chemung  County,  L.  1900,  ch.  249. 

Chenango  county,  L.  1898,  ch.  288. 

Clinton  county,  L.  1903,  ch.  36. 

Columbia  county,  L.  1891,  ch.  268,  as  amended  by  L.  1911,  ch.  44. 

Cortland  county,  L.  1906,  ch.  42. 

Delaware  county,  L.  1901,  ch.  461,  as  amended  by  L.  1904,  ch.  154,  and  L.  1910, 
ch.  167. 

Dutchess  county,  L.  1903-  ch.  82. 

Erie  county,  L.  1891,  ch.  108,  as  amended  by  L.  1896,  ch.  104,  and  L.  1902, 
ch.  345. 

Essex  county,  L.  1903,  ch.  26. 

Franklin  county,  L.  1902,  ch.  29,  as  amended  by  L.  1907,  ch.  12,  L.  1908,  ch.  317, 
and  L.  1910,  chs.  29,  689. 


156 


COUNTY  OFFICERS;  JAILS. 
County  Law,  § 181. 


§ 2.  SHERIFFS  TO  APPOINT  UNDER-SHERIFFS;  DUTIES  OF  UNDER- 
SHERIFF; MALFEASANCE  OF  UNDER-SHERIFFS. 

Each  sheriff  shall,  within  ten  days  after  he  enters  on  the  duties  of  his 

office,  appoint  some  proper  person  under-sheriff  of  his  county,  to  hold 

during  his  pleasure.  When  a vacancy  shall  occur  in  the  office  of  sheriff, 
the  under-sheriff  shall,  in  all  things,  execute  the  duties  of  the  office  of 
sheriff,  until  a sheriff  shall  be  elected  or  appointed  and  duly  qualified; 
and  any  default  or  misfeasance  in  the  office  of  such  under-sheriff  in  the 
meantime,  as  well  as  before  shall  be  deemed  to  be  a breach  of  the  under- 
taking given  by  the  sheriff  who  appointed  him  and  also  a breach  of  the 


Fulton  county,  L.  1904,  ch.  154. 

Genesee  county,  L.  1911,  ch.  94. 

Greene  county,  L.  1900,  ch.  84,  as  amended  by  L.  1910,  ch.  354. 

Herkimer  county,  L.  1903,  ch.  319,  as  amended  by  L.  1904,  ch.  681,  L.  1907, 
ch.  376,  and  L.  1915,  ch.  409. 

Kings  county,  L.  1901,  ch.  705,  as  amended  by  L.  1903,  ch.  464;  L.  1908,  ch.  484, 
and  L.  1917,  ch.  271. 

Livingston  county,  L.  1903,  ch.  260,  as  amended  by  L.  1905,  ch.  177. 

Madison  county,  L.  1891,  ch.  29. 

Monroe  county,  L.  1902,  ch.  490,  as  amended  by  L.  1903,  ch.  100;  L.  1906,  ch.  500; 
L.  1907,  ch.  35,  and  L.  1916,  ch.  67. 

Montgomery  county,  L.  1898,  ch.  42,  as  amended  by  L.  1901,  ch.  341. 

Nassau  county,  L.  1898,  ch.  588,  as  amended  by  L.  1899,  ch.  658,  L.  1900,  chs. 

38,  178,  and  L.  1901,  ch.  337. 

Niagara  county,  L.  1894,  ch.  160. 

New  York  county,  L.  1890,  ch.  523,  as  amended  by  L.  1891,  ch.  315,  L.  1892, 
ch.  418,  L.  1894,  ch.  477,  L.  1897,  ch.  636,  L.  1911,  ch.  761,  L.  1912,  ch.  500,  L.  1913, 
eh.  373,  and  L.  1916,  ch  525. 

Oneida  county,  L.  1898,  ch.  321,  as  amended  by  L.  1901,  ch.  666,  L.  1907,  chs. 

39,  702,  and  L.  1913,  ch.  298. 

Onondaga  county,  L.  1909,  ch.  216. 

Ontario  county,  L.  1902,  ch.  380. 

Orange  county,  L.  1904,  ch.  214,  as  amended  by  L.  1909,  ch.  577. 

Orleans  county,  L.  1904,  ch.  294,  as  amended  by  L.  1907,  ch.  348. 

Oswego  county,  L.  1909,  ch.  242,  as  amended  by  L.  1911,  ch.  61. 

Putnam  county,  L.  1903,  ch.  280. 

Queens  county,  L.  1909,  ch.  502. 

Rensselaer  county,  L.  1903,  ch.  9,  as  amended  by  L.  1904,  ch.  4,  and  L.  1910, 
ch.  243. 

Richmond  county,  L.  1896,  ch.  392,  as  amended  by  L.  1911,  ch.  701,  L.  1916,  ch.  83, 
and  L.  1917,  ch.  473. 

Rockland  county,  L.  1905,  ch.  265,  as  amended  by  L.  1913,  ch.  396. 

St.  Lawrence  county,  L.  1900,  ch.  324,  as  amended  by  L.  1910,  ch.  686,  and  L. 
1913,  ch.  383. 

Saratoga  county,  L.  1898,  ch.  44,  as  amended  by  L.  1901,  ch.  582,  and  L.  1904, 
ch.  103. 

Schenectady  county,  L.  1905,  ch.  153,  as  amended  by  L.  1911,  ch.  168. 

Schuyler  county,  L.  1902,  ch.  8 

Seneca  county,  L.  1899,  ch.  547,  as  amended  by  L.  1915,  ch.  143. 

Steuben  county,  L.  1898,  ch.  445. 

Suffolk  county,  L.  1902,  ch.  131,  as  amended  by  L.  1910,  ch.  687,  L.  1916,  ch. 
583,  and  L.  1917,  ch.  338. 

Sullivan  county,  L.  1897,  ch.  505,  as  amended  by  L.  1898,  ch.  323,  L.  1902,  ch.  215, 
L.  1904,  ch.  434,  and  L.  1906,  ch.  399.  ' 

Tioga  county,  L.  1898,  ch.  9. 

Tompkins  county,  L.  1909,  ch.  297. 

Ulster  county,  L.  1906,  ch.  65,  as  amended  by  L.  1910,  ch.  688,  and  L.  1917,  ch.  21. 
Warren  county,  L.  1906,  ch.  66,  as  amended  by  L.  1907,  ch.  443. 

Washington  county,  L.  1897,  ch.  117,  as  amended  by  L.  1899,  ch.  229,  and  by 
L.  1907,  ch.  79. 

Wayne  county,  L.  1891,  ch.  30. 

Westchester  county,  L.  1894,  ch.  687,  as  amended  by  L.  1895,  ch.  420,  L.  1899, 
ch.  310,  and  L.  1901,  ch.  537,  L.  1903,  ch.  550,  L.  1905,  ch.  88,  and  L.  1909,  ch.  500. 

Yates  county,  L.  1897,  ch.  362,  as  amended  by  L.  1906,  ch.  245,  L.  1909,  ch.  86, 
and  L.  1915,  ch.  67. 


SHERIFF  AND  CORONERS. 


157 


County  Law,  § 182. 

undertaking  executed  by  such  under-sheriff,  to  the  sheriff  by  whom  he 
was  appointed.2  [County  Law,  § 181 ; B.  C.  & G.  Cons.  L.,  p.  798.] 

§ 3.  DEPUTY  SHERIFFS  TO  BE  APPOINTED  BY  SHERIFF;  AP- 
POINTMENT TO  BE  IN  WRITING. 

Such  sheriff  may  appoint  such  and  so  many  deputies  as  he  may  deem 
proper,  not  exceeding  one  for  every  three  thousand  inhabitants  of  the 
county;  any  person  may  also  be  deputed  by  any  sheriff  or  under-sheriff  by 
written  instrument,  to  do  particular  acts.  Every  appointment  of  an 
under-sheriff  or  of  a deputy  sheriff  shall  be  in  writing  under  the  hand  and 
seal  of  the  sheriff  and  filed  and  recorded  in  the  office  of  the  clerk  of  the 
county;  and  every  such  under-sheriff  or  deputy  sheriff  shall,  before  he 
enters  upon  the  execution  of  the  duties  of  his  office,  take  the  constitutional 
oath  of  office;  but  this  last  provision  shall  not  extend  to  any  person  who 
may  be  deputed  by  any  sheriff  or  under-sheriff  to  do  a particular  act  only.3 
[County  Law,  § 182;  B.  C.  & G.  Cons.  L.,  p.  799.] 


2.  Under-sheriffs.  An  action  will  not  lie  against  an  under-sheriff  for  breach 
of  duty.  Paddock  v.  Cameron,  8 Cow.  212.  See  also  Tuttle  v.  Love,  7 Johns. 
470.  Though  at  common  law  the  powers  of  the  under-sheriff  cease  upon  the 
death  of  the  sheriff,  yet  by  statute  his  power  is  continued  for  the  benefit  of  all 
the  parties  interested.  Ward  v.  Storey,  18  Johns.  120. 

The  under-sheriff  has  no  right  to  keep  the  money  for  which  sheriff  is  liable 
until  he  is  assured  that  the  sheriff  will  pay  it  over  to  party  entitled  thereto. 
Stegman  v.  Hollingsworth,  39  N.  Y.  St.  Rep.  18,  14  N.  Y.  Supp.  465. 

Death  or  resignation  of  sheriff.  A person  while  acting  as  sheriff  is 
responsible  for  the  acts  of  one  acting  as  his  late  under-sheriff;  but  on  the  death 
of  the  principal  the  under-sheriff  becomes  substituted  in  his  place  and  assumes 
all  his  duties  and  liabilities  in  respect  to  process  not  fully  executed  and  is 
personally  responsible  for  his  acts,  the  sureties  of  the  deceased  late  sheriff  being 
sureties  for  the  acts  of  the  late  under-sheriff.  Newman  v.  Beckwith,  61  N.  Y. 
205,  revg.  5 Lans.  80. 

3.  Vacancy  in  office  of  sheriff;  appointment  of  deputies.  In  case  of  a 
vacancy  in  the  office  of  sheriff,  the  duties  of  his  office  devolve  upon  his  under- 
sheriff, but  the  deputies  do  not  continue  in  office.  A new  appointment  as  deputy 
of  the  under-sheriff  is  necssary;  nevertheless,  if  the  deputy  continues  to  act 
under  the  under-sheriff  with  his  assent,  without  a formal  appointment,  he  may 
be  regarded  as  his  deputy  de  facto.  Boardman  v.  Halliday,  10  Paige,  223. 

A promise  by  a sheriff  to  appoint  a certain  person  a deputy  sheriff,  even 
though  for  a valuable  consideration,  is  void  as  against  public  policy.  Hager  v. 
Catlin,  18  Hun,  448.  The  only  way  the  appointment  of  a deputy  sheriff  can  be 
proved  is  by  production  of  the  original  appointment  in  writing  under  the  hand 
and  seal  of  the  sheriff,  and  due  proof  of  its  execution.  Von  Beil  v.  Reilly,  14 
Wk.  Dig.  443.  See  also  Crowley  v.  Conner,  1 Robt.  C.  C.  162. 

Number  of  deputies.  The  statute  authorizes  the  sheriff  to  appoint  as  many 
deputies  as  he  may  deem  proper,  provided  he  does  not  exceed  the  statutory 


158 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 184. 

§ 4.  SHERIFF’S  OFFICE;  NOTICE  OF  PLACE  TO  RE  FILED;  WHEN 
TO  BE  KEPT  OPEN;  PAPERS  SERVED  ON  SHERIFF. 

Every  sheriff  shall  keep  an  office  in  some  proper  place  in  the  city  or 
village  in  which  the  county  courts  of  his  county  are  held,  of  which  he 


limit.  People  ex  rel.  Andrus  v.  Town  Auditors,  33  App.  Div.  277;  53  N.  Y.  Supp. 
739. 

Compensation  of  under  sheriffs  and  deputies  not  to  he  included  as  part  of  dis- 
bursements of  sheriff.  Matter  of  Beck,  31  App.  Div.  361,  364,  53  N.  Y.  Supp.  156, 
note. 

Power  of  deputy.  A deputy  sheriff  has  full  power  and  authority  to  perform 
all  necessary  ministerial  acts  required  in  the  service  and  execution  of  legal 
process  addressed  to  the  sheriff.  Gibson  v.  National  Park  Bank,  98  N.  Y.  87. 
And  where  the  sheriff  is  directed  to  summon  jurors  they  may  be  lawfully 
summoned  by  his  deputy,  under  his  direction.  People  v.  McGeery,  6 Park  Cr.  R. 
653. 

The  authority  of  the  deputy  continues  as  long  as  that  of  his  principal, 
provided  he  have  a continuance  of  authority  derived  from  the  principal. 
Ferguson  v.  Lee,  9 Wend.  258. 

A sheriff  who  has  goods  in  his  custody  under  a process,  has  a special 
property  therein  which  gives  him  an  insurable  interest,  and  his  deputy,  as 
such,  without  special  power,  is  authorized  to  insure  in  the  name  and  behalf 
of  his  principal.  White  v.  Madison,  26  N.  Y.  117. 

The  duty  of  the  sheriff  is  to  execute  process  according  to  command  of  the 
writ  in  pursuance  of  the  established  rules  of  law;  and  if  he  deviates  therefrom 
by  direction  of  the  plaintiff  in  the  suit,  he  ceases  to  be  the  sheriff’s  agent  and 
becomes  that  of  such  plaintiff.  Acker  v.  Ledyard,  8 Barb.  514. 

An  execution  in  a sheriff’s  hands  when  he  goes  out  of  office  may  be  executed  by 
him  thereafter  personally  or  by  deputy.  Jackson  v.  Collins,  3 Cow.  89. 

A sheriff  may  lawfully  arrest  without  showing  the  warrant,  but  a deputy  must 
show  authority  if  required;  this  is  on  the  presumption  that  within  his  county  the 
sheriff  is  a known  public  officer.  Sheldon  v.  Van  Buskirk,  2 N.  Y.  473. 

A deputy  sheriff  selling  land  on  execution,  may  authorize  another  person  to 
compute  amount  necessary  to  be  paid  to  redeem  and  may  direct  that  redemption 
money  be  deposited  with  such  person  as  his  agent.  Hall  v.  Fisher,  9 Barb.  17. 

Undertaking  of  deputy.  The  deputy’s  undertaking  is  for  the  benefit  of 
the  sheriff.  He  himself  is  responsible  for  the  acts  of  his  deputy  and  may 
properly  require  an  undertaking  to  be  given  by  each  deputy  appointed  by 
him,  conditioned  for  the  faithful  performance  of  the  deputy’s  duties.  Reiley 
v.  Dodge,  38  N.  Y.  St.  Rep.  352;  14  N.  Y.  Supp.  129;  affd.  131  N.  Y.  153. 

It  is  a breach  of  the  deputy’s  bond  if  he  fail  to  pay  over  to  the  sheriff 
money  collected  by  him,  even  if  the  sheriff  should  never  be  sued  or  made  to 
pay  the  amount.  The  deputy’s  liability  depends  solely  upon  his  own  omission 
to  pay  the  sheriff  and  not  in  any  manner  upon  what  becomes  of  the  money 
after  the  sheriff  receives  it,  or  who  is  entitled  to  it.  Willet  v.  Stuart,  43  Barb.  98. 

Where  a deputy’s  bond  was  conditioned  to  indemnify  the  sheriff  from  all 
costs,  damages,  etc.,  concerning  the  return  and  execution  of  process  and  con- 
cerning the  not  executing  or  wrongful  execution,  etc.,  of  process,  it  was  held 
that  it  did  not  embrace  costs  in  suits  wrongfully  instituted;  but  that  some 


SHERIFF  AND  CORONERS. 


159 


County  Law,  § 184. 

shall  file  a notice  in  the  office  of  the  county  clerk.  If  there  be  more 
than  one  place  of  holding  such  courts,  the  notice  shall  specify  in  which 


act  or  omission  of  the  deputy  must  be  shown,  of  such  a character  that  the 
sheriff  would  legally  be  bound  to  answer  for  it  in  damages.  The  language 
of  the  bond  should  be  explicit  in  order  to  render  the  deputy  liable  for  costs 
in  an  unfounded  suit  against  him.  Franklin  v.  Hunt,  2 Hill,  671. 

To  give  the  sheriff  a cause  of  action  on  the  bond  of  his  deputy  there  must  not 
only  be  a technical  breach  of  duty,  but  pecuniary  damage  resulting  therefrom  to 
the  sheriff.  Rowe  v.  Richardson,  5 Barb.  385.  The  sureties  on  the  bond  of  a 
deputy  sheriff  are  only  responsible  for  his  official  acts  as  a general  deputy;  and 
the  deputy  is  not  accountable  to  his  principal  in  that  character  when  acting 
under  his  special  direction  and  authority  in  a given  case.  Tuttle  v.  Cook,  15 
Wend.  274. 

A sheriff  may  recover  by  action  upon  his  deputy’s  official  bond  conditioned 
to  indemnify  him  against  liability  to  third  parties  because  of  acts  or  omis- 
sions of  the  deputy,  the  amount  for  which  he  has  been  rendered  liable  to  the 
plaintiff  in  an  attachment  suit  by  reason  of  the  deputy’s  falsely  informing 
him  that  a check  received  by  the  deputy  from  the  claimant  of  the  attached 
property,  on  releasing  the  property  under  a written  stipulation  between  the 
attachment  plaintiff’s  attorney  and  the  claimant,  that  the  proceeds  of  the 
check  were  to  be  held  by  the  sheriff  until  the  final  judgment  as  security  after 
the  plaintiff’s  demand  in  the  attachment  suit,  was  received  simply  in  lieu  of 
the  property  released.  Flack  v.  Brassel,  153  N.  Y.  621;  47  N.  E.  807. 

A deputy  sheriff  is  an  officer  within  the  meaning  of  the  statute  and  may 
resign  his  office;  upon  his  resignation  his  sureties  are  not  responsible  for  any 
acts  done  thereafter.  Gilbert  v.  Luce,  11  Barb.  91. 

Revocation  of  authority.  The  authority  of  a deputy  ceases  upon  ser- 
vice on  him  of  a written  revocation  of  his  appointment,  signed  by  the  sheriff. 

The  formality  of  a seal  is  not  indispensable.  The  common  law,  that  an 
instrument  under  seal  cannot  be  discharged  except  by  a similar,  instrument 
under  seal,  does  not  apply  to  the  case.  This  is  an  administrative  arrange- 
ment, and  is  to  be  regulated  by  the  statute.  Edmunds  v.  Barton,  31  N.  Y. 
495. 

Sheriff  must  notify  constables  and  deputies  to  attend  terms.  The  Sheriff 
of  each  county,  except  New  York  and  Kings,  must  within  a reasonable  time 
before  the  sitting,  in  his  county,  of  any  term  of  court,  notify,  in  writing  or 
personally,  as  many  constables  or  deputy  sheriff’s  of  his  county,  as  he  deems 
necessary,  to  appear  and  attend  upon  the  term  during  its  sitting.  Judiciary  Law, 
§ 403. 

Number.  In  any  county  where  the  compensation  of  such  attendants  is 
now  fixed  by  statute  at  the  sum  of  three  dollars  per  day  and  mileage,  the 
number  of  attendants  to  be  appointed  for  any  one  term  of  court,  pursuant 
to  the  last  preceding  section,  shall  not  exceed  eighteen.  Judiciary  Law,  § 343. 

Penalty  for  neglect  of  officer  to  attend  court.  Each  constable  or  deputy 
sheriff,  seasonably  notified,  as  prescribed  in  the  last  two  sections,  must  attend 
the  term  accordingly;  and  for  each  day’s  neglect  he  may  be  fined  by  the  court, 
at  the  term  which  he  was  notified  to  attend,  a sum  not  exceeding  five  dollars. 
Judiciary  Law,  § 407. 


160 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 185. 

place  his  office  shall  be  kept,  or  it  may  be  specified  that  an  office  will  be 
kept  in  all  such  places.  Every  sheriffs  office,  except  in  the  counties  of 
Kings  and  New  York,  as  hereinafter  provided,  shall  be  kept  open,  except 
Sundays  and  other  days  and  half  days  declared  by  law  to  be  holidays 
or  half  holidays,  from  nine  o’clock  in  the  morning  until  five  o’clock  in 
the  afternoon,  during  the  months  of  November,  December,  January,  Feb- 
ruary and  March  of  each  year,  and  from  eight  o’clock  in  the  morning 
until  six  o’clock  in  the  afternoon  during  the  other  months  in  each  year.4 

Every  notice  or  other  paper  required  to  be  served  on  any  sheriff  may 
be  served  by  leaving  the  same  at  the  office  designated  by  him  in  such  notice 
during  the  days  and  hours  for  which  he  is  required  to  keep  such  office 
open,  but  if  there  be  any  person  belonging  to  such  office  therein,  such  notice 
or  paper  shall  be  delivered  to  such  person,  and  every  such  service  shall  be 
deemed  equivalent  to  a personal  service  on  such  sheriff.5  In  the  counties 
of  Kings  and  New  York  said  offices  shall  remain  open  during  the  entire 
year  from  nine  o’clock  in  the  forenoon  to  four  o’clock  in  the  afternoon, 
except  Sundays  and  other  days  and  half  days  declared  by  law  to  be  holi- 
days or  half  holidays.  [County  Law,  § 184;  B.  C.  & G.  Cons.  L.,  p.  800.] 

$ 5.  FEES  FOR  SERVICES  FOR  THE  STATE;  ACCOUNTS,  HOW 
AUDITED. 

When  a sheriff  shall  be  required  by  any  statute  to  perform  any  service 
in  behalf  of  the  people  of  this  state,  and  for  their  benefit,  which  shall 


4.  Office  hours  of  sheriff.  Holidays  and  half-holidays  are  specified  in  the 
General  Construction  Law,  sec.  24,  as  amended  by  L.  1909,  ch.  112.  See  note 
to  County  Law,  sec.  165,  ante,  p.  132. 

By  section  62  of  the  Public  Officers  Law  it  is  provided  that,  “ holidays  and 
half-holidays  shall  be  considered  as  Sunday  for  all  purposes  relating  to  the 
transaction  of  business  in  the  public  offices  of  the  state,  and  of  each  county.” 

Business  with  sheriffs,  unlike  that  with  county  clerks,  may  be  trans- 
acted at  other  places  besides  their  offices,  and  outside  of  office  hours.  France  v. 
Hamilton,  26  How.  Pr.  180.  The  sheriff’s  office  not  being  required  to  be  kept 
open  Sunday,  when  the  last  day  for  redemption  falls  on  that  day,  it  may  be  made 
on  Monday.  Porter  v.  Pierce,  120  N.  Y.  217. 

5.  Service  of  papers.  The  papers  and  notices  which  may  be  served  upon 
the  sheriff  by  leaving  the  same  at  his  office,  with  his  clerk  or  deputy,  refer 
to  the  large  class  of  papers  and  notices  which  are  required  by  law  to  be 
served  on  the  sheriff  as  such,  by  virtue  of  his  office,  and  which  do  not  con- 
cern him  personally.  A summons  in  a civil  action  against  the  sheriff  cannot 
be  served  upon  him  by  leaving  the  same  at  his  office,  or  otherwise  than  by 
delivering  the  same  to  him  personally.  Sherman  v.  Conner,  16  Abb.  N.  S. 
396. 

Notice  by  surety  on  bond  of  deputy  of  his  withdrawal  is  not  a paper  that  can 
be  so  served.  Reilly  v.  Dodge,  131  N.  Y.  153. 


SHERIFF  AND  CORONERS. 


161 


County  Law,  §§  186,  187. 

not  be  made  chargeable  by  law  to  his  county,  or  to  some  officer,  body  or 
person,  his  account  for  such  services  shall  be  audited  by  the  comptroller 
and  paid  out  of  the  state  treasury.* * * * 6  [County  Law,  § 185;  B.  C.  & G. 
Cons.  L.,  p.  801.] 

§ 6.  SHERIFF  TO  BE  REMOVED  FOR  NON-PAYMENT  OF  MONEYS. 

When  a sheriff  shall  be  committed  to  the  custody  of  any  other  sheriff, 
or  to  any  coroner  by  virtue  of  an  execution  or  attachment  for  the  non- 
payment of  moneys  received  by  him  by  virtue  of  his  office,  and  shall  re- 
main so  committed  for  the  space  of  thirty  days  successively,  such  facts 
shall  be  presented  to  the  governor  by  the  officer  in  whose  custody  such 
sheriff  may  be,  to  the  end  that  such  sheriff  may  be  removed  from  office.7 
[County  Law,  § 186;  B.  C.  & G.  Cons.  L.,  p.  802.] 

§ 7.  WHEN  CORONER  TO  ACT  AS  SHERIFF;  COUNTY  JUDGE  TO 
DESIGNATE  CORONER;  UNDERTAKING. 

When  a vacancy  shall  occur  in  the  office  of  sheriff,  and  there  shall  be 
no  under-sheriff  of  the  county  then  in  office,  or  the  office  of  such  under- 
sheriff shall  become  vacant,  or  he  become  incapable  of  executing  the  duties 
of  the  same  before  another  sheriff  of  the  same  county  shall  be  elected 
or  appointed  and  qualified,  and  there  shall  be  more  than  one  coroner  of 
such  county  then  in  office,  the  county  judge  of  such  county  shall  forth- 
with designate  one  of  such  coroners  to  execute  the  duties  of  the  office  of 
sheriff  of  the  county  until  a sheriff  thereof  shall  be  elected  or  appointed  and 
qualified.  Such  designation  shall  be  by  a written  instrument,  signed  by 
the  judge,  and  filed  in  the  office  of  the  clerk  of  the  county,  and  the  clerk 
shall  immediately  give  notice  thereof  to  such  coroner.  Within  six  days 
after  receiving  such  notice,  such  coroner  shall  execute  a joint  and  several 


While  a delivery  of  an  execution  to  a deputy  in  person  is  a delivery  to  the 

sheriff,  yet  leaving  it  in  some  undescribed  place  in  the  meat  market  of  the 

deputy  is  not  a good  delivery.  Burrell  v.  Hollands,  78  Hun,  583,  29  N.  Y.  Supp. 

515. 

6.  Fees  of  sheriffs  generally.  See  Code  Civ.  Proc.,  sec.  3307,  as  amended  by 
L.  1907,  ch.  253;  L.  1915,  ch.  565,  and  L.  1917,  ch.  265.  See  Note  1,  in  this  chapter, 
for  list  of  counties  in  which  the  office  of  sheriff  is  salaried. 

7.  Duties  of  coroner  as  to  arrest  and  confinement  of  sheriff.  When  a mandate, 
requiring  the  arrest  of  a sheriff  is  directed  to  the  coroner  he  must  execute  the  same 
in  the  same  manner  as  a similar  mandate  directed  to  a sheriff.  His  duties  in  respect 
to  the  confinement  of  the  sheriff  are  the  same  as  those  of  the  sheriff  in  respect  to 
the  confinement  of  any  other  civil  prisoner.  See  Code  Cov.  Proc.,  secs.  172-181. 

Removal  of  sheriff.  For  procedure  for  the  removal  of  county  officers  by  the  gov- 
ernor, see  Public  Officers  Law,  secs.  33-35,  post. 


162 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 188,  189. 

undertaking,  with  the  same  number  of  sureties,  to  be  approved  in  the 
same  manner  and  be  subject  in  all  respects  to  the  same  regulations  as  the 
security  required  by  law  from  the  sheriff  of  such  county.  After  the 
execution  and  filing  of  such  undertaking  in  the  clerk’s  office,  such  coroner 
shall  execute  the  duties  of  the  office  of  sheriff  of  the  same  county  until  a 
sheriff  shall  be  duly  elected  or  appointed  and  qualified.  [County  Law, 
§ 187;  B.  C.  & G.  Cons.  L.,  p.  802.] 

§ 8.  WHEN  OTHER  CORONER  TO  BE  DESIGNATED;  WHEN  COR- 
ONER TO  EXECUTE  DUTIES  OF  OFFICE  OF  SHERIFF. 

When  the  coroner  so  designated  shall  not,  within  the  time  specified, 
give  the  security  required  of  him,  the  county  judge  shall,  in  like  manner, 
designate  another  coroner  of  the  county  to  assume  the  office  of  sheriff, 
and,  if  necessary,  he  shall  make  successive  designation  until  all  the  cor- 
oners of  the  county  shall  have  been  designated  to  assume  such  office; 
and  all  the  provisions  contained  in  the  last  preceding  section  shall  apply 
to  every  such  designation  and  to  the  coroner  named  therein.  If  such 
vacancy  shall  occur  when  there  shall  be  but  one  coroner  of  the  county 
then  in  office,  he  shall  be  entitled  to  execute  the  duties  of  the  office  of 
sheriff  therein  until  a sheriff  shall  be  duly  elected  or  appointed  and 
qualified;  but  before  he  enters  upon  the  duties  of  such  office,  and  within 
ten  days  after  the  happening  of  the  last  vacancy  in  the  office  of  the 
sheriff  and  under-sheriff,  he  shall  execute  with  sureties  a joint  and  several 
undertaking,  the  same  as  is  required  by  law  from  a sheriff;  and  such 
undertaking  shall  be  subject  in  all  respects  to  the  same  regulations  as  the 
security  required  from  the  sheriff.  [County  Law,  § 188;  B.  C.  & G.  Cons. 
L.,  p.  802.] 

§ 9.  COUNTY  JUDGE  MAY  APPOINT  A PERSON  OTHER  THAN  A 
CORONER  IN  CERTAIN  CASES. 

If  such  coroner  so  in  office  on  the  happening  of  such  vacancies  shall 
neglect  or  refuse  to  execute  such  undertaking  within  the  time  required, 
or  if  all  the  coroners,  where  there  are  more  than  one  in  office  in  such 
event,  shall  successively  neglect  or  refuse  to  execute  the  undertaking  within 
the  time  required,  the  county  judge  shall  appoint  some  suitable  person  to 
execute  the  duties  of  the  office  of  sheriff  in  his  county  until  a sheriff  therein 
shall  be  duly  elected  or  appointed  and  qualified.  Such  appointment  shall 
be  made  and  filed  in  the  same  manner  as  the  above  designations  are  made 
and  filed,  and  the  clerk  shall  forthwith  give  notice  thereof  to  the  person 
so  appointed,  who  shall,  within  six  days  thereafter,  and  before  he  enters 
upon  the  duties  of  his  office,  give  such  security  as  is  required  by  law  of 
sheriffs,  and  subject  to  the  same  regulations;  and  thereupon  such  person 


SHERIFF  AND  CORONERS. 


163 


County  Law,  §§  190,  191,  192. 

shall  execute  the  duties  of  the  office  of  sheriff  of  the  county  until  a sheriff 
shall  be  duly  elected  or  appointed,  and  qualified.  [County  Law,  § 189;  B. 
C.  & G.  Cons.  L.,  p.  803.] 

§ 10.  CORONERS  TO  EXECUTE  DUTIES  OF  OFFICE  UNTIL  VAC- 
ANCY IS  FILLED;  DUTIES  AND  LIABILITIES  OF  INCUM- 
BENT. 

Until  some  coroner  designated  or  some  person  appointed  by  the  judge 
shall  have  executed  the  security  above  required,  or  until  a sheriff  of  the 
county  shall  have  been  duly  elected  or  appointed,  and  qualified,  the  cor- 
oner or  coroners  of  the  county  in  which  such  vacancies  shall  exist  shall 
execute  the  duties  of  the  office  of  sheriff  therein;  and  when  any  under- 
sheriff, coroner,  coroners  or  other  person  shall  execute  the  duties  of  the 
office  of  sheriff,  pursuant  to  either  of  the  foregoing  provisions,  the  person 
so  executing  the  same  shall  be  subject  to  all  the  duties,  liabilities  and  pen- 
alties imposed  by  law  upon  the  sheriff  duly  elected  and  qualified,  and  he 
shall  be  entitled  to  the  same  compensation.  [County  Law,  § 190;  B.  C. 
& G.  Cons.  L.,  p.  803.] 

§11.  BOARD  OF  SUPERVISORS  MAY  FIX  SALARY  OF  CORONER. 

The  board  of  supervisors  of  any  county  shall  have  power  to  prescribe 
that  coroners  in  said  county  shall  receive  a salary,  instead  of  fees,  and 
to  fix  the  amount  of  such  salary;  and  thereafter  coroners  in  said  county 
shall  receive  for  their  services  only  the  salary  so  fixed  and  shall  not  be 
entitled  to  any  fees  whatever,  except  when  performing  the  duties  of  a 
sheriff,  in  which  last  named  case  the  coroner  so  acting,  shall  have  the 
same  compensation  as  the  sheriff,  whose  duties  he  performs,  would  have 
had.  [County  Law,  § 191 ; B.  C.  & G.  Cons.  L.,  p.  803.] 

§ 12.  FEES  ALLOWED  CORONERS  FOR  SERVICES  ON  INQUESTS, 
ETC. 

Coroners  in  and  for  the  state  of  New  York,  except  in  the  county  of 
Kings  and  except  in  such  other  counties  as  have  prescribed  or  shall  here- 
after prescribe,  different  compensation,  shall  be  entitled  to  receive  the 
following  compensation  for  services  performed:  Mileage  to  the  place  of 

inquest  and  return,  ten  cents  per  mile.  Viewing  bodies,  five  dollars.  Ser- 
vice of  subpoena,  ten  cents  per  mile  traveled.  Swearing  each  witness, 
fifteen  cents.  Drawing  decision,  one  dollar.  Copying  decision  for  record, 
per  folio,  twenty-five  cents,  but  such  officers  shall  receive  pay  for  one 
copy  only.  For  making  and  transmitting  statements  to  the  board  of  super- 
visors, each  decision  fifty  cents.  For  warrants  of  commitment,  one  dollar. 
For  arrest  and  examination  of  offenders,  fees  shall  be  the  same  as  justices 


164 


COUNTY  OFFICERS;  JAILS. 

County  Law,  §§  193,  194;  Code  Civ.  Proc.,  §§  100,  101. 


of  the  peace  in  like  cases.  When  required  to  perform  the  duties  of  sheriff 
shall  be  entitled  to  and  receive  the  same  fees  as  sheriffs  for  the  perform- 
ance of  like  duties.  Shall  be  reimbursed  for  all  moneys  paid  out  actually 
and  necessarily  by  him  in  the  discharge  of  official  duties  as  shall  be 
allowed  by  the  board  of  supervisors.  Shall  receive  for  each  and  every  day 
and  fractional  parts  thereof  spent  in  taking  an  inquisition,  three  dollars. 
For  performing  the  requirements  of  law  in  regard  to  wrecked  vessels,  shall 
receive  three  dollars  per  day  and  fractional  parts  thereof,  and  a measure- 
able  compensation  for  all  official  acts  performed,  and  mileage  to  and  from 
such  wrecked  vessels,  ten  cents  per  mile.  For  taking  ante-mortem  state- 
ment shall  be  entitled  to  the  same  rates  of  mileage  as  before  mentioned, 
and  three  dollars  per  day  and  fractional  parts  thereof,  and  for  taking 
deposition  of  injured  person  in  extremis,  one  dollar.1 2  [County  Law,  § 
192 ; B.  C.  & G.  Cons.  L.,  p.  804.] 

Whenever,  in  consequence  of  the  performance  of  his  official  duties,  a 
coroner  becomes  a witness  in  a criminal  proceeding,  he  shall  be  entitled 
to  receive  mileage  to  and  from  his  place  of  residence,  ten  cents  per  mile, 
and  three  dollars  per  day  for  each  day,  or  fractional  parts  thereof,  actu- 
ally detained  as  such  witness.  This  section  also  applies  to  the  county  of 
New  York.  [County  Law,  § 193;  B.  C.  & G.  Cons.  L.,  p.  804.] 

§ 13.  EMPLOYMENT  OF  STENOGRAPHER  AND  SURGEONS. 

A coroner  shall  have  power,  when  necessary,  to  employ  not  more  than  two  compe- 
tent surgeans  to  make  post-mortem  examinations  and  dissections  and  to  testify  to 
the  same  and  in  counties  where  coroners  are  paid  in  fees,  to  employ  a stenographer  i 
to  take  and  reduce  to  writing  the  testimony  of  witnesses  examined  before  the  coro- 
ner, the  compensation  therefor  to  be  a county  charge.  This  section  also  applies  to 
the  county  of  New  York.2  [County  Law,  § 194,  as  amended  by  L.  1910,  ch.  158; 
B.  C.  & G.  Cons.  L.,  p.  804.] 

§ 14.  DUTIES  OF  SHERIFF  IN  RESPECT  TO  SERVICES  OF  MAN- 
DATES IN  CIVIL  ACTIONS;  COPY  OF  PROCESS  TO  BE  DE- 
LIVERED; RETURN  OF  SHERIFF. 

A sheriff,  to  whom  a mandate  of  any  description,  is  delivered  to  be  executed,  must, 
without  compensation,  give  to  the  person  delivering  the  same,  if  required,  a minute 
in  writing,  signed  by  the  sheriff,  specifying  the  names  of  the  parties,  the  general 
nature  of  the  mandate  and  the  day  and  hour  of  receiving  the  same.  [Code  Civ.  Proc., 
§ 100] 

A sheriff  or  other  officer,  serving  a mandate,  must,  upon  the  request  of  the  per- 
son, served,  deliver  to  him  a copy  thereof,  without  compensation.  [Idem,  § 101.] 


1.  Fees  and  compensation  of  coroner. — A coroner  is  entitled  to  fees  where  an 
inquest  is  held,  but  is  not  entitled  to  disbursements  in  addition  thereto.  Where  no 
inquest  is  held  he  is  entitled  to  actual  and  necessary  disbursements,  but  no  fee. 
Kept,  of  Atty.  Genl.,  March  3,  1911. 

Expenses. — Coroner,  whose  salary  is  fixed,  is  not  entitled  to  compensation  for  his 
expenses.  Kept,  of  Atty.  Genl.  (1901),  186.  But  it  has  been  ruled  that  a coroner 
receiving  a salary  instead  of  fees  is  entitled  to  reimbursement  for  expenses  actually 
and  necessarily  incurred  by  him  in  the  discharge  of  his  duties.  Opinion  of  State 
Comptroller  (1916),  10  State  Dept.  Rep.  550. 

2.  The  appointment  of  a coroner’s  physician  is  personal  to  each  coroner  and  the 
term  of  office  of  each  physician  is  coterminous  with  that  of  the  coroner  who  appoints 
him  unless  he  has  been  sooner  removed.  Matter  of  Naumack,  145  App.  Div.  289. 


SHERIFF  AND  CORONERS. 


165 


Code  Civ.  Proc.,  §§  102,  103. 

A sheriff  or  other  officer,  to  whom  a mandate  is  directed  and  delivered, 
must  execute  the  same  according  to  the  command  thereof,  and  make  return 
thereon  of  his  proceedings,  under  his  hand.  For  a violation  of  this  pro- 
vision, he  is  liable  to  the  party  aggrieved,  for  the  damages  sustained  by  him, 
in  addition  to  any  fine,  or  other  punishment  or  proceeding,  authorized 
by  law.  A mandate  directed  and  delivered  to  a sheriff  may  be  returned, 
by  depositing  the  same  in  the  post-office  properly  inclosed  in  a postpaid 
wrapper  addressed  to  the  clerk  at  the  place  where  his  office  is  situated; 
unless  the  officer  making  the  return  in  the  name  of  the  sheriff  resides 
in  the  place  where  the  clerk’s  office  is  situated.8  [Idem,  § 102.] 

§15.  LIABILITY  OF  SHERIFF  FOR  NEGLECT  IN  SERVING  PRO- 
CESS IN  SPECIAL  PROCEEDING. 

A sheriff  or  other  officer  to  whom  is  delivered  for  service  or  execution 
a mandate  authorized  by  law  to  be  issued  by  a judge  or  other  officer,  in 


8.  Duty  as  to  service  and  return.  It  is  the  duty  of  the  sheriff  to  use 
reasonable  efforts  to  execute  process,  and  he  cannot  rely  upon  mere  casual 
information.  Hinman  v.  Borden,  10  Wend.  367. 

A party  in  whose  favor  process  is  issued  may  give  such  directions  to  the 
sheriff  as  will  not  only  excuse  the  sheriff  from  his  general  duty  but  bind  him 
to  the  performance  of  what  is  required  of  him.  Gregg  v.  Murphy,  73  Hun, 
389;  28  N.  Y.  Supp.  556.  He  is  subject  at  all  times  to  the  direction  of  the 
party  in  whose  favor  process  is  issued.  Root  v.  Wagoner,  30  N.  Y.  19.  See, 
also,  Douglas  v.  Haberstro,  88  N.  Y.  611;  Crouse  v.  Bailey,  2 N.  Y.  St.  Rep. 
395;  Corning  v.  Southerland,  3 Hill,  502. 

Liability  of  sheriff;  damages.  Prima  facie  where  a sheriff  fails  to  return 
an  execution  within  the  required  time  he  is  liable  for  the  amount  of  the  debt,  but 
he  may  show  in  mitigation  of  damages  that  the  defendant  therein  had  no 
property  on  which  the  execution  could  be  levied.  Pach  v.  Gilbert,  17  Civ. 
Proc.  R.  39;  7 N.  Y.  Supp  336;  affd.  124  N.  Y.  612. 

On  the  failure  to  return  an  execution  the  sheriff  is  only  liable  for  the 
damages  sustained,  and  if  it  appears  that  there  was  only  a small  amount  of 
leviable  property,  it  is  error  to  direct  a verdict  for  the  full  amount  of  the 
execution.  The  sheriff  is  not  bound  to  levy  on  property  pointed  out  by  the 
plaintiff  though  an  indemnity  is  offered  him,  provided  he  acts  in  good  faith 
and  shows  that  the  property  did  not  belong  to  the  defendant.  Dolson  v.  Sax- 
ton, 11  Hun,  565. 

In  an  action  against  a sheriff,  for  neglecting  to  collect  and  return  an  exe- 
cution against  the  property,  the  plaintiff  must  show  a valid  judgment;  but 
the  sheriff  cannot  take  advantage  of  a mere  irregularity  making  the  judgment 
only  voidable.  Forsyth  v.  Campbell,  15  Hun,  235;  Dunford  v.  Weaver,  84  N. 
Y.  445.  A sheriff  cannot,  in  an  action  for  damages,  attack  the  form  of  the 
mandate  given  him  for  enforcement  unless  it  is  absolutely  void.  McDonald 
v.  Kieferdorf,  22  Civ.  Proc.  R.  105;  18  N.  Y.  Supp.  763. 

An  officer  to  whom  an  execution  is  delivered  who  extends  the  judgment 
debtor’s  time  for  payment  of  the  judgment  debt  beyond  the  time  fixed  for 


166 


COUNTY  OFFICERS;  JAILS. 


Judiciary  Law,  §§  400,  401. 

a special  proceeding,  who  wilfully  neglects  to  execute  the  same,  may  be 
fined  by  the  judge,  in  a sum  not  exceeding  twenty-five  dollars,  and  is  liable 
to  the  party  aggrieved  for  his  damages  sustained  thereby.  [Code  of  Civ. 
Proc.  § 103.] 

§ 16.  POWERS  or  SHERIFF  IN  CASE  OF  RESISTANCE  TO  THE 
SERVICE  OF  MANDATE;  NAMES  OF  RESISTERS  TO  BE 
CERTIFIED  TO  COURT;  SHERIFF  MAY  ASK  ASSISTANCE; 
GOVERNOR  MAY  ORDER  OUT  MILITIA. 

If  a sheriff,  to  whom  a mandate  is  directed  and  delivered,  finds,  or  has 
reason  to  apprehend,  that  resistance  will  be  made  to  the  execution  thereof, 
he  may  command  all  the  male  persons  in  his  county,  or  as  many  as  he 
thinks  proper,  and  with  such  arms  as  he  directs,  including  any  military 
organization  armed  and  equipped,  to  assist  him  in  overcoming  the  resis- 
tance, and,  if  necessary,  in  arresting  and  confining  the  resisters,  their 
aiders  and  abettors,  to  be  dealt  with  according  to  law.* * * 9  [Judiciary  Law, 
§ 400 ; B.  C.  & G.  Cons.  L.,  p.  2804.] 

The  sheriff  must  certify  to  the  court,  from  which  or  by  whose  authority 
the  mandate  was  issued,  the  names  of  the  resisters,  their  aiders  and 
abettors,  as  far  as  he  can  ascertain  the  same,  to  the  end  that  they  may 
be  punished  for  their  contempt  of  the  court.  [Idem,  § 401 ; B.  C.  & G. 
Cons.  L.,  p.  2805.] 


the  return  of  the  execution,  and,  without  consultation  with  the  judgment 

creditor  or  her  attorney,  procures  the  renewal  of  the  execution,  is  liable  for 

damages  sustained  by  the  subsequent  disappearance  of  the  judgment  debtor. 

9.  Sheriff  may  call  for  assistance.  The  fact  that  an  officer  had  not,  at 
the  time  of  summoning  the  power  of  the  county,  a sufficient  cause  for  sum- 
moning them,  does  not  affect  the  duty  of  the  persons  summoned,  if,  when 
they  come  together,  resistance  is  offered  to  his  executing  the  process;  nor 
does  it  affect  the  liability  of  those  who  make  or  cause  resistance  except  as  to 
damages.  Slater  v.  Wood,  9 Bosw.  15.  The  sheriff  may  call  on  others  to 
assist  him  and  leave  them  to  watch  while  he  goes  for  further  assistance.  He 
is  deemed  constructively  present  so  as  to  justify  the  others  making  an  arrest. 
Coyles  v.  Hurtin,  10  Johns.  85. 

One  who,  being  called  upon  by  an  officer  to  assist  him,  does  so,  acts  at  his 
own  peril;  if  the  officer  has  authority  to  do  the  act  in  which  the  person  is 
called  upon  to  assist,  such  person  is  bound  to  obey,  and  if  he  neglects  or  re- 
fuses, he  is  guilty  of  a misdemeanor;  but  if  the  officer  is  not  so  authorized, 
the  person  who  obeys  him  is  a trespasser.  Elder  v.  Morrison,  10  Wend. 
128. 

Liability  of  sheriff.  Where  property  is  attached  by  the  sheriff  and  afterward 
is  wrongfully  taken  from  his  possession,  it  is  his  duty  to  retake  it  by  force 
from  any  person  wTho  has  so  removed  it.  He  is  guilty  of  neglect  if  he  does  not 
use  the  power  conferred  by  this  section  in  retaking  such  property.  Matter  of 
Wood  v.  Bodine,  32  Hun,  354.  See  also  Delaney  v.  Piepgrass,  141  N.  Y.  88,  96. 


SHERIFF  AND  CORONERS. 


167 


Penal  Law,  § 1848;  Military  Law,  § 115;  Judiciary  Law,  §§  402-405. 

A person,  who,  after  having  been  lawfully  commanded  to  aid  an  officer 
in  arresting  any  person,  or  in  re-taking  any  person  who  has  escaped  from 
legal  custody,  or  in  executing  any  legal  process,  wilfully  neglects  or  refuses 
to  aid  such  officer  is  guilty  of  a misdemeanor.  [Penal  Law,  § 1848 ; B.  C. 
& G.  Cons.  L.,  p.  4047.] 

If  it  appear  to  the  governor  that  the  power  of  the  county  be  not  sufficient 
to  enable  the  sheriff  to  preserve  the  peace  and  protect  the  lives  and  prop- 
erty of  the  peaceful  residents  of  this  county,  or  to  overcome  the  resistance 
to  process  of  this  state,  the  governor  must,  on  the  application  of  the 
sheriff,  order  out  such  military  force  from  any  other  county  or  counties, 
as  is  necessary.  [Military  Law,  § 115,  in  part;  as  amended  by  L.  1916,  ch. 
355;  B.  C.  & G.  Cons.  L.,  p.  3526.] 

§ 17.  ATTENDANCE  OF  SHERIFF  AND  DEPUTIES  UPON  TERMS  OF 
COURT;  DUTIES  IN  RESPECT  TO  APPELLATE  DIVISION. 

A term  of  the  appellate  division  of  the  supreme  court  must  be  attended 
by  the  sheriff  of  the  county  in  which  it  is  held,  his  under-sheriff,  or  one  of 
his  deputies,  each  of  whom  must  act  under  the  direction  of  the  court  or 
of  the  presiding  justice.  The  sheriff  of  the  county  must  cause  the  room 
in  which  a term  of  the  appellate  division  is  held  to  be  properly  heated, 
ventilated,  lighted,  and  kept  comfortably  clean  and  in  order.  The  sheriff 
must  also  provide  the  court  with  all  necessary  stationery  and  minute  books, 
upon  the  written  requisition  of  the  court  or  of  the  justice  presiding  at 
the  term,  and  shall  defray  the  necessary  expense  of  telegraphing  the  day 
calendar  to  such  county  clerks  as  the  court  shall  direct;  also  the  necessary 
expense  of  transmitting  printed  cases  and  papers  to  the  reporter;  to  the 
various  libraries  and  to  the  justices  of  the  appellate  division.  The  fees 
of  the  sheriff  for  attending  a term  of  the  appellate  division  and  all  ex- 
penses incurred  by  a sheriff  in  obedience  to  this  section  must  be  audited 
by  the  comptroller  and  paid  out  of  the  treasury  of  the  state.  [Judiciary 
Law,  § 402 ; B.  C.  & G.  Cons.  L.,  p.  2805.] 

The  sheriff  of  each  county,  except  New  York  and  Kings,  must  within  a 
reasonable  time  before  the  sitting,  in  his  county,  of  any  term  of  court, 
notify,  in  writing  or  personally,  as  many  constables  or  deputy  sheriffs  of 
Iris  county,  as  he  deems  necessary,  to  appear  and  attend  upon  the  term 
during  its  sitting.  [Idem,  § 403;  B.  C.  & G.  Cons.  L.,  p.  2806.] 

Where  a special  term  of  the  supreme  court  is  adjourned  to  the  cham- 
bers of  a justice  of  the  court,  pursuant  to  section  one  hundred  and  forty- 
eight  of  this  chapter,  the  attendance  of  the  sheriff  or  a constable  is  not 
required  unless  the  justice  directs  them  to  attend.  [Idem,  § 404 ; B.  C. 
& G.  Cons.  L.,  p.  2806.] 

The  sheriff  of  the  county  of  Erie  shall  not  be  required  to  attend  or 
designate  any  officer  to  attend  at  justices’  chambers  or  at  special  terms  of 


168 


COUNTY  OFFICERS;  JAILS. 
Judiciary  Law,  §§  406-409;  Code  Civ.  Proc.,  § 108. 


the  supreme  court,  or  at  any  term  of  the  county  court  and  surrogate’s 
court  held  in  said  county  of  Erie  unless  requested  so  to  do  by  the  justice, 
judge  or  surrogate  presiding  thereat.  [Idem,  § 405;  B.  C.  & G.  Cons.  L., 
p.  2807.] 

A sheriff,  deputy  sheriff,  or  constable,  attending  a term  of  a court  of 
record,  must,  when  required  by  the  court,  act  as  crier  therein;  and  he 
is  not  entitled  to  any  additional  compensation  for  that  service.  [Idem, 
§ 106;  B.  C.  & G.  Cons.  L.,  p.  2807.] 

Each  constable  or  deputy  sheriff,  seasonably  notified,  as  prescribed  in 
section  four  hundred  and  three  of  this  chapter,  must  attend  the  term  ac- 
cordingly ; and  for  each  day’s  neglect  he  may  be  fined  by  the  court,  at  the 
term  at  which  he  was  notified  to  attend,  a sum  not  exceeding  five  dollars. 
[Idem,  § 407;  B.  C.  & G.  Cons.  L.,  p.  2807.] 

The  sheriff  of  Queens  county  shall  not  notify,  or  designate  any  deputy 
sheriffs  to  attend  at  a term  of  court  in  said  county  held  with  or  without 
a jury  except  by  an  order  of  the  justice,  or  judge,  presiding  thereat,  to 
be  entered  upon  the  minutes.  [Idem,  § 408;  B.  C.  & G.  Cons.  L.,  p.  2807.] 

The  sheriff  of  the  county  of  Monroe  is  hereby  authorized  by  and  with 
the  consent  and  approval  of  the  justices  of  the  supreme  court  of  the  seventh 
judicial  district,  residing  in  the  county  of  Monroe,  and  the  county  judge 
and  special  county  judge  of  Monroe  county,  respectively,  to  appoint  and 
with  the  consent  of  said  justices  and  judges  at  pleasure,  to  remove,  such 
attendants  from  the  supreme  court  and  the  county  court,  respectively,  held 
in  and  for  the  county  of  Monroe,  as  such  justices  and  judges  shall  deem 
necessary.  [Idem,  § 409 ; B.  C.  & G.  Cons.  L.,  p.  2808.] 

§18.  TRIAL  BY  SHERIFF  OF  CLAIM  OF  TITLE  TO  PROPERTY 
SEIZED  BY  HIM;  JURORS,  HOW  SUMMONED;  EXAMINA- 
TION OF  WITNESSES;  PAYMENT  OF  FEES. 

Where  it  is  specially  prescribed  by  law,  that  a sheriff  must,  or  may, 
in  his  discretion,  empanel  a jury  to  try  the  validity  of  a claim  of  title  to, 
or  of  the  right  of  possession  of  goods  or  effects  seized  by  him  by  virtue 
of  a mandate  in  an  action,  interposed  by  a person  not  a party  to  the 
action,  the  trial  must  be  conducted  in  the  following  manner,  except  as 
otherwise  specially  prescribed  by  law: 

1.  The  sheriff  must,  from  time  to  time,  notify  as  many  persons  to 
attend,  as  it  is  necessary,  in  order  to  form  a jury  of  twelve  persons, 
qualified  to  serve  as  trial  jurors  in  the  county  court  of  the  county,  or,  in 
the  city  and  county  of  New  York,  in  the  Supreme  Court,  to  try  the 
validity  of  the  claim. 

2.  Upon  the  trial,  witnesses  may  be  examined,  in  behalf  of  the  claimant, 
and  of  the  party,  at  whose  instance  the  property  claimed  was  taken  bv 
the  sheriff.  For  the  purpose  of  compelling  a witness  to  attend  and 


SHERIFF  AND  CORONERS. 

Code  Civ.  Proc.,  § 109;  County  Law,  § 195. 


169 


testify,  the  sheriff,  upon  the  application  of  either  party  to  the  inquisition, 
must  issue  a subpoena,  as  prescribed  in  section  eight  hundred  and  fifty- 
four  of  this  act,  and  with  like  effect;  except  that  a warrant  to  apprehend 
or  commit  a witness,  in  a case  specified  in  section  eight  hundred  and 
fifty-five  or  section  eight  hundred  and  fifty-six  of  this  act,  may  be  issued 
by  a judge  of  the  court  in  which  the  action  is  brought,  or  by  the  county 
judge. 

3.  The  sheriff  or  under-sheriff  must  preside  upon  the  trial.  A witness, 
produced  by  either  party,  m(ust  be  sworn  by  the  presiding  officer,  and 
examined  orally  in  the  presence  of  the  jury.  A witness,  who  testifies 
falsely  upon  such  an  examination,  is  guilty  of  perjury  in  a like  case,  and 
is  punishable  in  like  manner,  as  upon  the  trial  of  a civil  action.  [Code 
Civ.  Proc.  § 108.] 

Upon  such  a trial  there  are  no  costs;  but  the  fees  of  the  sheriff,  jurors, 
and  witnesses  must  be  taxed,  by  a judge  of  the  court,  or  the  county  judge 
of  the  county,  and  must  be  paid  as  follows: 

1.  If  the  jury,  by  their  verdict,  find  the  title,  or  the  right  of  possession 
to  the  property  claimed,  to  be  in  the  claimant;  by  the  party  at  whose 
instance  the  property  was  taken  by  the  sheriff. 

2.  If  they  find  adversely  to  the  claimant,  with  respect  to  all  the  prop- 
erty claimed ; by  the  claimant. 

3.  If  they  find  the  title,  or  the  right  of  possession  to  only  a part  of 
the  property  claimed,  to  be  in  the  claimant ; each  party  must  pay  his 
own  witnesses’  fees;  and  the  sheriff’s  and  jurors’  fees  must  be  paid,  one- 
half  by  each  party  to  the  inquisition. 

Before  notifying  the  jurors,  the  sheriff  may,  in  his  discretion,  require 
each  of  the  parties  to  the  controversy  to  deposit  with  him  such  reasonable 
sum,  as  may  be  necessary  to  cover  his  legal  fees,  and  the  jurors’  fees.  The 
sheriff  must  return  to  each  party  the  balance  of  the  sum  so  deposited  by 
him,  after  deducting  his  fees,  lawfully  chargeable  to  that  party,  as  pre- 
scribed in  this  section.  [Idem,  § 109.] 

§ 19.  PROCEEDINGS  ON  NEW  SHERIFF  ASSUMING  OFFICE. 

1.  Where  a new  sheriff  has  been  elected  or  appointed,  and  has  qualified 
and  given  the  security  required  by  law,  the  clerk  of  the  county  must  furnish 
to  the  new  sheriff  a certificate,  under  his  hand  and  official  seal,  stating  that 
the  person  so  appointed  or  elected,  has  so  qualified  and  given  security. 

2.  Upon  the  commencement  of  the  new  sheriff’s  term  of  office,  and  the 
service  of  the  certificate  on  the  former  sheriff,  the  latter’s  powers  as 
sheriff  cease,  except  as  otherwise  expressly  prescribed  by  law.10 


10.  Meaning  of  section.  Section  182  of  the  Code  from  which  subd.  1 wah 
derived,  was  interpreted  by  the  old  supreme  court  to  mean  that  until  the 


170 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 195. 

3.  Within  ten  -days  after  the  service  of  the  certificate,  upon  the  former 
sheriff,  he  must  deliver  to  his  successor: 

(1.)  The  jail,  or  if  there  are  two  or  more,  the  jails  of  the  county,  with 
all  their  appurtenances,  and  the  property  of  the  county  therein. 

(2.)  All  the  prisoners  then  confined  in  the  jail  or  jails.* 11 

(3.)  All  process,  orders,  commitments,  and  all  other  papers  and  docu- 
ments, authorizing,  or  relating  to  the  confinement  or  custody  of  a prisoner, 
or,  if  such  a process,  order,  or  commitment  has  been  returned,  a statement 
in  writing  of  the  contents  thereof,  and  when  and  where  it  was  returned. 


certificate  of  the  clerk  was  served  upon  the  old  sheriff,  he  had  authority  to 
execute  process  placed  in  his  hands  as  sheriff,  and  that  the  powers  of  the  old 
sheriff  did  not  cease  until  the  powers  of  the  new  sheriff  became  complete. 
Curtis  v.  Kimball,  12  Wend.  275. 

The  outgoing  sheriff,  while  retaining  possession  of  the  office  awa:ting  advent 
of  the  new  sheriff,  is  to  be  considered  as  his  agent  in  receiving  such  process  as 
comes  into  his  hands,  until  the  transfer  of  the. office  is  complete.  Littlejohn 
v.  Leffingwell,  34  App.  Div.  185,  54  N.  Y.  Supp.  536. 

Qualifying.  A sheriff  does  not  lose  his  office  by  neglecting  to  give  his  bond 
within  twenty  days  after  receiving  notice  of  his  election,  if  he  execute  and  file  it 
within  fifteen  days  after  the  commencement  of  his  term.  People  v.  Holley,  12 
Wend.  481.  “ Qualified  ” means  taken  the  oath  of  office.  Curtis  v.  Kimball, 

12  Wend.  275. 

11.  Delivery  of  prisoner.  The  power  of  the  outgoing  sheriff  ceases  after  ten 
days  and  the  new  one  has  no  power  unless  the  prisoner  is  assigned  to  him. 
Matter  of  Irving,  3 How.  Pr.  (N.  S.)  236;  Hinds  v.  Doubleday,  21  Wend.  223. 

The  power  of  the  outgoing  sheriff  as  to  prisoners  is  unchanged  until  the  certifi- 
cate is  served  upon  him  by  the  incoming  sheriff.  Feerick  v.  Conner,  12  Wk.  Dig. 
43. 

A prisoner  on  his  jail  limits  not  assigned  to  the  incoming  sheriff  by  the  out- 
going sheriff  cannot  be  deemed  to  be  imprisoned.  Matter  of  Irving,  3 How.  Pr. 
(N.  S.)  236. 

An  outgoing  sheriff  neglecting  to  deliver  a prisoner  to  his  successor  is  liable  to 
plaintiff  in  the  execution.  French  v.  Willet,  10  Abb.  Pr.  99. 

If  a new  sheriff  regularly  receives  a prisoner  he  is  answerable,  though  there 
had  been  a previous  voluntary  escape;  but  plaintiff  may  elect  which  sheriff  he 
will  hold,  but  he  cannot  hold  both.  Radson  v.  Turner,  4 Johns.  469. 

A new  sheriff  is  not  liable  for  the  escape  of  a prisoner  who  is  on  the  limits  on 
bond  and  has  not  been  assigned  to  him  by  his  predecessor.  Partridge  v.  Wester- 
velt,  13  Wend.  500.  So  where  the  sheriff  dies  and  the  under-sheriff  neglects 
to  assign  such  prisoner  to  the  new  sheriff.  Ridgway  v.  Barnard,  28  Barb.  613. 

Where  outgoing  sheriff  assigned  to  the  incoming  one  a prisoner  under  mesne 
process,  but  himself  returned  the  writ,  and  the  new  sheriff  subsequently  took  bail, 
and  after  judgment  the  prisoner  escaped,  the  new  sheriff  was  held  not  liable 
therefor  because  of  the  irregularity  of  the  assignment  in  that  he  never  had  the 
writ.  Richard  v.  Porter,  7 Johns.  137. 

As  to  information  necessary  to  be  given  with  a prisoner  delivered  to  sheriff’s 
successor,  see  Tallmadge  v.  Richmond,  9 Johns.  85,  revd.  on  another  point, 
16  Johns.  307. 


SHERIFFS  AND  CORONERS. 


171 


County  Law,  § 195. 

(4.)  All  mandates,  then  in  his  hands,  except  such  as  he  has  fully 
executed,  or  has  begun  to  execute,  by  the  collection  of  money  thereon,  or 
by  a seizure  or  of  levy  on  money  or  other  property,  in  pursuance  thereof. 
At  the  time  of  the  delivery,  the  former  sheriff  must  execute  an  instrument, 
reciting  the  property,  documents,  and  prisoners  delivered,  specifying  par- 
ticularly the  process  or  other  authority,  by  which  each  prisoner  was  com- 
mitted and  is  detained,  and  whether  the  same  has  been  returned  or  is 
delivered  to  the  new  sheriff.  The  instrument  must  be  delivered  to  the 
new  sheriff,  who  must  acknowledge,  in  writing,  upon  a duplicate  thereof, 
the  receipt  of  the  property,  documents  and  prisoners,  therein  specified; 
and  deliver  such  duplicate  and  acknowledgment  to  the  former  sheriff. 

4.  Notwithstanding  the  election  or  appointment  of  a new  sheriff,  the' 
former  sheriff  must  return,  in  his  own  name,  each  mandate  which  he  has 
fully  executed;  and  must  proceed  with  and  complete  the  execution  of  each 
mandate  which  he  has  begun  to  execute,  in  the  manner  specified  in  para- 
graph fourth  of  subdivision  three  of  this  section,  except  that  all  mandates 
issued  against  the  wages,  debts,  earnings,  salary,  income  from  trust  funds 
or  profits  of  a judgment  debtor,  shall  be  delivered  over  to  the  new  sheriff, 
who  shall  proceed  with  and  complete  the  execution  of  the  same.12 
[Amended  by  L.  1910,  ch.  418.] 

5.  When  a person,  arrested  by  virtue  of  an  order  of  arrest,  is  confined, 
either  in  jail,  or  to  the  liberties  thereof,  at  the  time  of  assigning  and 
delivering  the  jail  to  the  new  sheriff,  the  order,  if  it  is  not  then  returnable, 
must  be  delivered  to  the  new  sheriff,  and  be  returned  by  him  at  the  return 


12.  Authority  of  former  sheriff.  Where  a sheriff  prior  to  the  expiration  of 
his  term  of  office  under  a judgment  of  foreclosure  advertised  the  premises  for 
sale  upon  a day  after  his  term  had  expired,  he  had  authority  and  was  hound  to 
proceed  with  and  complete  the  sale.  Union  Dime  Savings  Inst’n  v.  Andariese,  83 
N.  Y.  174. 

A sheriff  may  complete  the  execution  of  a fieri  facias  after  he  has  gone  out  of 
office.  Wood  v.  Colvin,  5 Hill,  228.  So  he  may  sell  and  convey.  Averill  v. 
Wilson,  2 Barb.  180.  As  to  return,  see  Richards  v.  Porter,  7 Johns.  137. 

Decree.  Where  sheriff  appointed  to  sell  property  in  foreclosure  has  advertised 
the  same  for  sale  before  receiving  his  successor’s  certificate,  he  is  not  required  to 
deliver  the  decree  to  his  successor,  since  by  the  advertisement  the  seizure  be- 
came complete  and  rendered  the  property  subject  to  the  decree.  Union  Dime 
Savings  Inst’n  v.  Andariese,  83  N.  Y.  174. 

Executions  not  levied  should  be  turned  over,  and  where  the  new  sheriff  has 
received  such  an  execution  an  order  will  issue  requiring  him  to  make  return 
thereon  or  that  attachment  will  issue  against  him.  Holmes  B.  & H.  v.  Rogers,  50 
Hun  600,  2 N.  Y.  Supp.  501,  18  N.  Y.  St.  Rep.  652,  2 N.  Y.  Supp.  501. 

Property  seized.  A sheriff  cannot  be  compelled  to  deliver  to  his  successor 
property  seized  by  him  by  virtue  of  an  attachment.  McKay  v.  Harrower,  27 
Barb.  463. 


172 


COUNTY  OFFICERS;  JAILS. 


Penal  Law,  §§  1838,  1839. 

day  thereof,  with  the  proceedings  of  the  former  sheriff  and  of  the  new 
sheriff  thereon. 

G.  If  the  former  sheriff  neglects  or  refuses  to  deliver  to  his  successor, 
the  jail,  or  any  of  the  property,  documents  or  prisoners  in  his  charge,  as 
prescribed  in  this  section,  his  successor  must,  notwithstanding,  take  posses- 
sion of  the  jail,  and  of  the  property  of  the  county  therein,  and  the  custody 
of  the  prisoners  therein  confined,  and  proceed  to  compel  the  delivery  of  the 
documents  withheld,  as  prescribed  by  law. 

7.  If,  at  the  time  when  a new  sheriff  qualifies,  and  gives  the  security 
required  by  law,  the  office  of  the  former  sheriff  is  executed  by  his  under- 
sheriff,  or  by  a coroner  of  the  county,  or  a person  specially  authorized  for 
that  purpose,  he  must  comply  with  the  provisions  of  this  section,  and  per- 
form the  duties  thereby  required  of  the  former  sheriff.13 

8.  The  provisions  of  this  section  shall  also  apply  to  the  county  of 
New  York.  [County  Law,  § 195;  B.  C.  & G.  Cons.  L.,  p.  805.] 

§ 20.  INJURY  TO  RECORDS  AND  MISAPPROPRIATION  BY  MINIS- 
TERIAL OFFICERS. 

A sheriff,  coroner,  clerk  of  a court,  constable  or  other  ministerial  officer, 
and  every  deputy  or  subordinate  of  any  ministerial  officer,  who : 

1.  Mutilates,  destroys,  conceals,  erases,  obliterates  or  falsifies  any  record 
or  paper  appertaining  to  his  office;  or, 

2.  Fraudulently  appropriates  to  his  own  use  or  to  the  use  of  another 
person,  or  secretes  with  intent  to  appropriate  to  such  use,  any  money, 
evidence  of  debt  or  other  property  intrusted  to  him  in  virtue  of  his  office, 
is  guilty  of  felony.  [Penal  Law,  § 1838;  B.  C.  & G.  Cons.  L.,  p.  4044.] 

§ 21.  SHERIFFS  AND  OTHERS  PERMITTING  ESCAPES  OR  RE- 
FUSING TO  RECEIVE  PRISONERS. 

A sheriff,  coroner,  clerk  of  a court,  constable  or  other  ministerial  officer 
and  every  deputy  or  subordinate  of  any  ministerial  officer,  who : 

1.  Receives  any  gratuity  or  reward,  or  any  security  or  promise  of  one, 


13.  Liability  of  under-sheriff.  Where  a sheriff  dies,  who,  at  the  expiration 
of  his  term,  has  process  not  fully  executed,  his  late  under-sheriff  is  substituted 
for  him,  assumes  all  his  duties  and  liabilities,  and  is  personally  liable,  although 
the  sureties  of  the  late  sheriff  may  be  also  liable.  Newman  v.  Beckwith,  61 
N.  Y.  205. 

A bond  given  by  an  under-sheriff  to  the  sheriff  covers  moneys  received  by  the 
former  after  the  latter’s  final  term  has  expired;  he  is  bound  to  pay  over  to  the  ex- 
sheriff. Stegman  v.  Hollingsworth,  39  N.  Y.  St.  Rep.  18,  14  N.  Y.  Supp.  465. 

Appointment  of  special  person  to  execute  a deed  where  sheriff  died  and  there 
was  no  under-sheriff.  Sickles  v.  Hogeboom,  10  Wend.  562. 


SHERIFFS  AND  CORONERS. 


173 


Penal  Law,  §§  1839,  1840. 

to  procure,  assist,  connive  at,  or  permit  any  prisoner  in  his  custody  to 
escape,  whether  such  escape  is  attempted  or  not;  or, 

2.  Commits  any  unlawful  act  tending  to  hinder  justice,  is  guilty  of 
a misdemieanor. 

A conviction  of  a sheriff  or  other  officer  also  operates  as  a forfeiture  of 
his  office,  and  disqualifies  him  forever  thereafter  from  holding  the  same. 
The  governor  shall,  upon  application,  grant  a hearing  to  a person  convicted 
under  this  section  and  if  he  be  satisfied  that  the  facts  warrant  it,  he  may, 
by  order,  relieve  such  person  from  such  disqualification.  [Penal  Law, 
§ 1839,  as  amended  by  L.  1917,  ch.  226;  B.  C.  & G.  Cons.  L.,  p.  4045.] 

An  officer  who,  in  violation  of  a duty  imposed  upon  him  by  law  to  receive 
a person  into  his  official  custody,  or  into  a prison  under  his  charge,  wilfully 
neglects  or  refuses  so  to  do,  is  guilty  of  a misdemeanor.  [Idem,  § 1840.] 


174 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 183. 


CHAPTER  XII 

COUNTY  JAILS. 


Section 


1.  Sheriffs  to  have  custody  of  jails. 

2.  Use  of  county  jails. 

3.  Either  of  several  jails  may  be  used. 

4.  Number  of  rooms  in  county  jail. 

5.  Custody  and  control  of  prisoners;  civil  prisoners  to  he  kept 

separate;  women  not  to  be  kept  in  same  room  with  men;  com- 
munication with  counsel,  etc. 

6.  Prisoners  to  be  furnished  with  wholesome  food;  employment  of 

prisoners. 

7.  Prisoners  to  be  furnished  with  reading  matter;  divine  service. 

8.  Record  of  commitments  and  discharges,  what  to  state. 

9.  United  States  prisoners  to  be  received. 

10.  Calendars  of  names  of  prisoners,  etc.,  to  be  presented  to  court. 

11.  Prisoners  to  be  discharged  if  not  indicted. 

12.  Suspension  of  habeas  corpus  during  term  of  court. 

13.  Prisoner  to  be  discharged  if  unable  to  pay  fine. 

14.  Houses  of  detention  for  women,  children  and  witnesses. 

15.  Boards  of  supervisors  may  establish  and  maintain  county  work- 

houses. 

16.  Who  may  visit  jails  and  workhouses. 

17.  Board  of  supervisors  to  appoint  jail  physican. 

18.  Sale  of  liquors  in  jails;  permit  for  use  of  liquors;  penalties. 

19.  Service  of  papers  in  civil  action  to  be  made  on  prisoner  in  jail. 

20.  Removal  of  prisoner  in  case  of  an  emergency. 

21.  Designation  of  jail  of  other  county  or  other  place  in  same  county 

as  a county  jail;  modification  or  revocation  of  designation; 
copy  of  designation  to  be  served. 

22.  Jail  liberties,  when  designation  is  made. 

23.  Revocation  of  designation. 


§ 1.  SHERIFFS  TO  HAVE  CUSTODY  OF  JAILS. 

Each  sheriff  shall  have  the  custody  of  the  jails  of  his  county  and  the 
prisoners  therein  and  such  jails  shall  be  kept  by  him,  or  by  keepers  ap- 
pointed by  him,  for  whose  acts  he  shall  be  responsible.1  [County  Law,  § 
183;  B.  C.  & G.  Cons.  L.,  p.  800.] 


1.  Duties  of  state  commissioners  of  prisons  as  to  jails.  The  state  commis- 
sion of  prisons  was  created  by  L.  1895,  ch.  1026,  pursuant  to  the  authority  con- 


COUNTY  JAILS. 


175 


County  Law,  § 90. 

§ 2.  USE  OF  COUNTY  JAILS. 

Each  county  jail  shall  be  used, 

1.  For  the  detention  of  persons  duly  committed  to  secure  their  attendance  as 
witnesses  in  any  criminal  ease; 

2.  For  the  detention  of  persons  charged  with  crime,  and  committed  for  trial 
or  examination; 


ferred  upon  the  legislature  by  section  11  of  art.  8 of  the  Constitution,  which 
authorizes  the  legislature  to  provide  for  a “ state  commission  of  prisons,  which 
shall  visit  and  inspect  all  institutions  used  for  the  detention  of  sane  adults  charged 
with  or  convicted  of  crime,  or  detained  as  witnesses  or  debtors.  This  act  was 
repealed  by  L.  1907,  ch.  381,  and  both  acts  were  repealed  by  the  Prison  Law,  which 
continues  the  state  commission  of  prisons.  Sections  46-53  (sec.  46.  as  amended  by 
L.  1914,  ch.  379;  sec.  50,  as  amended  by  L.  1916,  ch.  118;  sec.  52,  as  amended  by 
L.  1918,  ch.  364),  of  the  Prison  Law  have  reference  to  the  duties  of  such  commission 
in  connection  with  county  jails  and  are  here  inserted  in  full. 

General  powers  and  duties  of  commission  of  prisons.  The  state  commission  of 
prisons  shall  visit  and  inspect  all  institutions  used  for  the  detention  of  sane  adults 
charged  with  or  convicted  of  crime,  or  detained  as  witnesses  or  debtors,  excepting 
such  reformatories  as  are  subject  to  the  visitation  and  inspection  of  the  state 
board  of  charities;  and  shall; 

1.  Aid  in  securing  the  just,  humane  and  economic  administration  of  all  institutions 
subject  to  its  supervision. 

2.  Advise  the  officers  of  such  institutions  or  in  control  thereof  in  the  performance 
of  their  official  duties. 

3.  Aid  in  securing  the  erection  of  suitable  buildings  for  the  accommodation  of 
the  inmates  of  such  insttiutions,  and  approve  or  reject  plans  for  their  construction 
or  improvement. 

4.  Investigate  the  management  of  all  institutions  made  subject  to  the  visitation 
of  the  commission,  and  the  conduct  and  efficiency  of  the  officers  or  persons  charged 
with  their  management. 

5.  Secure  the  best  sanitary  conditions  of  the  buildings  and  grounds  of  all  such 
institutions,  and  protect  and  preserve  the  health  of  the  inmates. 

6.  Coileco  statistical  information  in  respect  to  the  property,  receipts  and  expendi- 
tures of  said  institutions  and  of  any  department  of  the  state  or  any  subdivision 
thereof  in  charge  of  the  same,  and  the  number  and  condition  of  the  inmates  thereof. 

7.  Ascertain  and  recommend  such  system  of  employing  said  inmates  as  may,  in 
the  opinion  of  said  commission,  be  for  the  best  interest  of  the  public  and  of  said 
inmates  and  not  in  conflict  with  the  provisions  of  the  constitution  relating  to  the 
employment  of  prisoners.  Prison  Law,  § 46,  as  amended  by  L.  1914,  ch.  379. 

8.  Close  any  city  jail  or  police  station,  town  or  village  jail  or  lockup  which 
is  unsanitary  or  inadequate  to  provide  for  the  separation  and  classification  of 
prisoners  required  by  law.  The  powers  and  duties  of  the  commission  under 
this  subdivision  shall  be  exercised  in  the  following  manner:  The  commission 
shall  cause  a citation  to  be  mailed  to  the  mayor  and  the  city  clerk,  in  the  case 
of  a city  jail  or  police  station;  to  the  supervisor  and  town  clerk-  in  the  case  of 
a town  jail  or  lockup,  and  to  a trustee  and  village  clerk,  in  the  case  of  a village 
jail  or  lockup,  at  least  twenty  days  before  the  return  day  thereof,  directing  the 
authorities  of  the  city,  town  or  village  designated  to  appear  before  such  com- 
mission at  the  time  and  place  set  forth  in  the  citation,  and  show  cause  why 
such  city  jail  or  police  station,  or  town  jail  or  lockup,  or  village  jail  or  lockup, 
shall  not  be  closed.  After  a hearing  thereon  or  upon  the  faiure  to  appear,  such 
commission  is  empowered  to  order  the  city  jail  or  police  station,  town  jail  or 
lockup,  village  jail  or  lockup  designated  in  the  citation  closed  within  ninety 
days,  during  which  time  the  city,  town  or  village  may  review  such  order  by 
writ  of  certiorari,  in  the  supreme  court.  Ninety  days  after  the  order  to  close 
has  been  served  by  registered  letter  upon  the  mayor  and  city  clerk,  in  case  of 
a city  jail  or  police  station,  upon  the  supervisor  and  town  clerk,  in  case  of  a 
town  jail  or  lockup,  and  upon  a village  trustee  and  clerk  in  case  of  a village 
jail  or  lockup,  if  no  court  review  has  been  taken,  and  ninety  days  after  the 
order  of  such  commission  has  been  confirmed  by  the  court,  in  case  of  court 
review,  the  city  jail  or  police  station,  town  jail  or  lockup  and  village  jail  or 
lockup  designated  in  the  order  shall  be  closed,  and  it  shall  be  unlawful  to 
confine  or  detain  any  person  therein  and  any  officer  confining  or  detaining  any 
person  therein  shall  be  guilty  of  a misdemeanor.  [Sub.  8,  added  by  L.  1914, 
ch.  379.1 

Visitation  and  inspection  of  institutions.  The  institutions  subject  to  tho 


176 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 90. 

3.  For  the  confinement  of  persons  duly  committed  for  any  contempt,  or  upon* 
civil  process; 

4.  For  the  confinement  of  persons  convicted  of  any  offense,  other  than  a 
felony,  and  sentenced  to  imprisonment  therein,  or  awaiting  transportation 
under  sentence  to  imprisonment  in  another  county. 

visitations  of  said  commission  may  be  visited  and  inspected  by  it  or  by  any 
member  thereof  or  by  its  secretary,  when  authorized,  or  by  any  officer  or 
inspector  duly  appointed  by  it  for  that  purpose-  at  any  and  all  times.  Such 
commission  or  any  member  thereof  may  take  proof  and  hear  testimony  relating 
to  any  matter  before  it,  or  before  such  member,  upon  any  such  visit  or  inspec- 
tion. Any  member  or  the  secretary  of  such  commission,  when  authorized,  or  any 
officer  or  inspector  duly  appointed  by  it,  shall  have  full  access  to  the  grounds, 
buildings,  books  and  papers  relating  to  any  such  institution,  and  may  require 
from  the  officers  and  persons  in  charge  or  control  thereof  any  information  he 
may  deem  necessary  in  the  discharge  of  his  duties.  Said  commission  may 
prepare  regulations  according  to  which,  and  provide  blanks  and  forms  upon 
which,  such  information  shall  be  furnished,  in  a clear,  uniform  and  prompt 
manner,  for  the  use  of  the  commission.  Any  superintendent,  commissioner, 
officer,  or  employee  of  such  institution,  or  in  charge  or  control  thereof, 
who  shall  refuse  or  cause  admission  to  be  refused  to  any  member,  officer  or 
inspector  of  the  commission,  for  the  purpose  of  visitation  and  inspection,  or 
who  shall  refuse  or  neglect  to  furnish,  or  to  cause  to  be  furnished,  the 
information  required  by  the  commission  or  by  any  of  its  members,  officers  or 
inspectors,  shall  be  guilty  of  a misdemeanor.  Idem,  sec.  47. 

Orders  of  the  commission  directed  to  institutions  or  officers  in  charge 
thereof.  If  it  shall  appear,  after  any  such  investigation,  that  the  laws  relating 
to  the  construction,  management  and  affairs  of  any  such  institution  and  the 
care,  treatment  and  discipline  of  its  inmates,  are  being  violated,  or  that 
inmates  of  any  such  institution  are  cruelly,  negligently  or  improperly  treated, 
or  inadequate  provision  is  made  for  their  sustenance,  clothing,  care,  supervision,, 
or  other  condition  necessary  to  their  suitable  and  proper  well  being,  said 
board  may  apply  for  an  order  of  the  supreme  court,  directed  to  the  proper 
superintendent,  commissioner,  agent  and  warden,  manager,  keeper  or  other 
officer  of  such  institution  or  in  control  thereof,  requiring  him  to  modify  such 
treatment  or  apply  such  remedy,  or  both,  as  shall  therein  be  specified.  The 
application  for  such  order  shall  be  made  as  prescribed  in  section  fifty-two  of  this 
chapter,  and  the  court  may  thereupon  make  such  order  as  may  be  just;  a failure 
to  comply  with  the  terms  of  such  order  shall  be  a contempt  of  court  and 
punishable  as  such.  Any  person  to  whom  such  an  order  is  directed  who  shall 
wilfully  refuse  to  obey  the  same,  shall  likewise,  upon  conviction,  be  adjudged 
guilty  of  a misdemeanor.  Idem,  sec.  48. 

Reports  of  commission.  The  state  commission  of  prisons  shall  annually" 
report  to  the  legislature,  in  January  of  each  year,  its  acts  and  proceedings 
for  the  preceding  year,  with  results  and  recommendations,  which  report  shall 
include  the  information  obtained  in  its  enquiries  and  investigations,  and  such 
other  matters  relating  to  the  institutions  subject  to  its  visitations  as  it  may 
deem  necessary  or  proper.  It  may,  in  its  discretion,  and  shall,  when  required 
by  the  governor,  or  either  house  of  the  legislature,  make  other  and  special 
reports.  Idem,  sec.  49. 

Reports  of  wardens,  et  cetera.  The  agent  and  warden  of  every  prison,  the 
superintendent  or  manager  of  every  penitentiary,  the  keeper  of  every  jail  or 
other  institution  used  for  the  detention  of  sane  adults  charged  with  or  con- 
victed of  crime  or  detained  as  witnesses  or  debtors,  subject  to  the  visitation 
of  the  commission,  shall,  besides  such  information  as  may  from  time  to  time 
be  required  of  him  by  the  state  commission  of  prisons  pursuant  to  the  powers, 
hereinbefore  conferred,  on  or  before  the  first  day  of  August  in  each  and 


COUNTY  JAILS. 


177 


County  Law,  § 90. 

5.  The  buildings,  now  used  as  the  jails  of  the  counties  of  the  state, 
shall  continue  to  he  the  jails  of  those  counties  respectively,  until  other 
buildings  have  been  designated  or  erected  for  that  purpose,  according  to 
law.  [County  Law,  § 90 ; B.  C.  & G.  Cons.  L.,  p.  762.] 


every  year,  report  to  said  commission  tlie  number  of  male  and  female  persons 
charged  with  crime  and  aAvaiting  trial,  the  number  convicted  of  crime,  the  number 
detained  as  witnesses  and  as  debtors  in  his  custody  on  the  first  day  of  July  last 
past,  together  with  a statistical  exhibit  of  the  number  of  admissions,  discharges 
and  deaths  which  have  occurred  within  the  past  year,  the  nature  of  the  charge, 
the  period  of  detention  or  sentence,  and  such  other  facts  and  information  as  the 
commission  may  require.  Idem,  sec.  50,  as  amended  by  L.  1916,  ch.  118. 

Estimates  to  be  furnished  by  certain  officers.  The  said  commission  shall 
have  the  further  duty  and  authority  to  require  the  proper  officials  of  the  state 
and  the  political  divisions  thereof,  and  of  all  public  institutions  of  the  state,  and 
political  divisions  thereof,  supported  wholly  or  in  part  by  the  state,  or  any 
political  division  thereof,  to  furnish  to  said  commission,  annually,  estimates 
for  each  ensuing  year  of  the  articles  which  may  be  manufactured  in  penal 
institutions,  required  for  the  use  of  the  state  or  such  political  divisions,  or 
said  institutions  in  their  charge  or  under  their  management.  Idem,  sec.  51. 

Enforcement  of  rights  and  powers  of  commission.  Duties  of  the  attorney-general 
and  district  attorneys.  The  rights  and  powers  conferred  by  this  article  upon  the 
state  commission  of  prisons,  its  members,  officers  and  inspectors  and  each  of  them, 
may  be  enforced  by  an  order  of  the  supreme  court,  or  by  indictment  by  the  grand 
jury  of  the  county,  or  both.  The  application  of  such  order  shall  be  to  a special 
term  or  to  the  appellate  division  of  the  supreme  court  of  the  judicial  district 
or  department,  respectively,  in  which  the  institution  complained  of  is  situated 
after  at  least  twenty  days  notice  to  the  officer  or  board  having  charge  of 
such  institution,  of  the  time  and  place  of  making  such  application.  A 
copy  of  all  the  papers  upon  which  the  application  is  based  shall  be  served 
with  the  notice  of  such  application.  On  such  hearing  the  court  may  make  such 
order  as  may  be  just,  and  a failure  to  comply  with  the  terms  thereof  shall  be  a 
contempt  of  court  and  punishable  as  such.  During  the  pendency  of  such  an  applica- 
tion and  prior  to  the  hearing  thereof  before  the  appellate  division,  such  commis- 
sion may,  by  order  to  show  cause,  obtain  a stay  upon  application  to  a special  term 
or  to  a justice  of  the  supreme  court  in  chambers  restraining  any  municipal  officers 
from  proceeding  contrary  to  the  determinations  of  the  commission.  Such  stay 
may  be,  in  the  discretion  of  the  appellate  division,  continued  pending  the  determina- 
tion of  the  original  application.  If,  in  the  opinion  of  the  commission,  any  matter 
in  regard  to  the  management  or  affairs  of  any  such  institution,  or  any  inmate  or 
person  in  any  way  connected  therewith,  require  legal  investigation  or  action  of 
any  kind,  notice  thereof  may  be  given  by  the  commission,  to  the  attorney-general, 
or  to  the  district  attorney  of  the  county,  or  both,  and  he  or  they  shall  thereupon 
make  inquiry  and  take  .4uch  proceeding  in  the  premises  as  he  or  they  may  deem 
necesasry  and  proper.  It  shall  be  the  duty  of  the  attorney-general  and  of  every 
district  attorney  when  so  required  to  furnish  such  legal  assistance,  counsel  or 
advice  as  the  commission  may  require  in  the  discharge  of  its  duties.  Idem,  sec.  52, 
as  amended  by  L.  1918,  ch.  364. 

Misdemeanor.  Except  as  in  this  article  otherwise  expressly  provided,  any  person 
who  wilfully  violates  any  of  the  provisions  of  this  article  shall  be  guilty  of  a mis- 
demeanor. Idem,  sec.  53. 

Erection  of  jails.  The  board  of  supervisors  may  borrow  money  for  the 
erection  of  county  buildings  and  for  the  purchase  of  sites  therefor,  and  may 
acquire,  by  purchase  or  otherwise,  necessary  real  property  for  ocunty  jails, 
and  may  erect  on  such  real  property  necessary  buildings  for  the  use  of  a jail. 
See  County  Law,  sec.  12,  subds.  6,  13,  ante,  pp.  46,  49.  If  the  county  owns  a 


178 


COUNTY  OFFICERS;  JAILS. 


Prison  Law,  § 347;  County  Law,  §§  91,  92. 

§ 3.  EITHER  OF  SEVERAL  JAILS  MAY  BE  USED. 

The  sheriff  of  a county,  in  which  there  is  more  than  one  jail,  may 
confine  a civil *  * and  criminal  prisoner  in  either;  and  may  remove  him 
from  one  jail  to  another,  within  the  county,  whenever  he  deems  it  neces- 
sary for  his  safe-keeping,  or  for  his  appearance  at  court.  [Prison  Law, 
§ 347;  B.  C.  & G.  Cons.  L.,  p.  4370.] 


§ 4.  NUMBER  OF  ROOMS  IN  COUNTY  JAIL. 

Each  county  jail  shall  contain, 

1.  A sufficient  number  of  rooms  for  the  confinement  of  persons  com- 
mited  on  criminal  process,  or  detained  for  trial,  or  examination  as  witnesses 
in  a criminal  case,  separately  from  prisoners  under  sentence; 

2.  A sufficient  number  of  rooms  for  the  separate  confinement  of  persons 
committed  on  civil  process,  or  for  contempt; 

3.  A sufficient  number  of  rooms  for  the  solitary  confinement  of  pris- 
oners under  sentence.  [County  Law,  § 91;  B.  C.  & G.  Cons.  L.,  p.  763.] 

§ 5.  CUSTODY  AND  CONTROL  OF  PRISONERS;  CIVIL  PRISONERS 
TO  BE  KEPT  SEPARATE;  WOMEN  NOT  TO  BE  KEPT  IN 
SAME  ROOM  WITH  MEN;  COMMUNICATION  WITH  COUNSEL, 
ETC. 

Each  sheriff  shall  receive  and  safely  keep,  in  the  county  jails  of  his 
county,  every  person  lawfully  committed  to  his  custody  for  safe-keeping, 
examination  or  trial,  or  as  a witness,  or  committed  or  sentenced  to 
imprisonment  therein,  or  committed  for  contempt.  He  shall  not,  without 
lawful  authority,  let  any  such  person  out  of  jail.  Persons  in  custody  on 
civil  process,  or  committed  for  contempt,  or  detained  as  witnesses,  shall 
not  be  put  or  kept  in  the  same  room  with  persons  detained  for  trial  or 
examination  upon  a criminal  charge,  or  with  convicts  under  sentence.  Per- 
sons detained  for  trial  or  examination  upon  a criminal  charge  shall  not 
be  put  or  kept  in  the  same  room  with  convicts  under  sentence.  Minors 
shall  not  be  put  or  kept  in  the  same  room  with  adult  prisoners.  A woman 
detained  in  any  county  jail  or  penitentiary  upon  a criminal  charge,  or  as 
a convict  under  sentence,  shall  not  be  kept  in  the  same  room  with  a man; 


site  with  a building  thereon,  it  may  appropriate  a part  of  such  building  as  a 
jail.  Roach  v.  O’Dell,  33  Hun,  320;  aff’d  99  N.  Y.  635.  The  board  of  super- 
visors has  authority  to  direct  the  purchase  of  such  articles  of  furniture  as  are 
necessary  to  properly  equip  and  furnish  the  county  jail,  and  an  account  for 
articles  so  purchased  is  a proper  county  charge.  Schenck  v.  Mayor,  etc.,  of  New 
York,  67  N.  Y.  44. 


* So  in  original. 


COUNTY  JAILS. 


179 


County  Law,  § 92. 

and  if  detained  on  civil  process,  or  for  contempt,  or  as  a witness,  she 
shall  not  be  put  or  kept  in  the  same  room  with  a man,  except  with  her 
husband,  in  a room  in  which  there  are  no  other  prisoners.  If  a woman 
committed  to  any  county  jail  or  penitentiary  is  then  the  mother  of  a 
nursing  child  in  her  care,  under  one  year  of  age,  or  if  a child  be  born  to 
such  woman  after  her  said  commitment,  such  child  may  accompany  its 
mother  to  and  remain  in  such  institution  until  it  is  two  years  of  age  or  until 
the  mother’s  discharge  from  custody  before  the  child  reaches  that  age.  The 
sheriff,  superintendent  or  other  officer  in  charge  of  any  county  jail  or 
penitentiary  shall  cause  such  child,  when  it  attains  the  age  of  two  years, 
while  its  mother  is  still  in  custody,  or  at  the  expiration  of  the  extension 
of  such  tim'e  hereinafter  mentioned,  to  be  placed  in  an  asylum  for  children 
in  this  state,  or  may  commit  such  child  to  the  care  and  custody  of  some 
relative  or  proper  person  willing  to  assume  such  care;  provided,  however, 
that  the  said  child  shall  continue  to  remain  with  its  said  mother  in  such 
jail  or  pentitentiary  after  it  becomes  two  years  of  age  for  such  a period  as  the 
physician  employed  to  treat  and  visit  prisoners  in  said  jail  or  penitentiary 
certifies  in  writing  to  be  necessary  or  advisable.  If  such  woman  at  the 
time  of  such  commitment  shall  be  the  mother  of,  and  have  in  her 
exclusive  care,  a child  more  than  one  year  of  age  which  mjight  otherwise 
be  left  without  care  or  guardianship,  the  justice  or  magistrate  commiting 
such  woman  shall  cause  such  child  to  be  committed  to  such  an  asylum  as  may 
be  provided  for  such  purposes,  or  to  the  care  and  custody  of  some  relative 
or  proper  person  willing  to  assume  such  care.  All  persons  confined  in  a 
county  jail  or  penitentiary  shall,  as  far  as  practicable,  be  kept  separate 
from  each  other,  and  shall  be  allowed  to  converse  with  their  counsel  or 
religious  adviser,  under  such  reasonable  regulations  and  restrictions  as 
the  keeper  of  the  jail  may  fix.2  Convicts  under  sentence  shall  not  be 
allowed  to  converse  with  any  other  person,  except  in  the  presence  of  a 
keeper.  The  keeper  may  prevent  all  other  conversation  by  any  other  pris- 
oner in  the  jail  when  he  shall  deem  it  necessary  and  proper.  [County  Law, 
§ 92;  B.  C.  & G.  Cons.  L.,  p.  763.] 


2.  Separation  of  prisoners.  Section  345  of  the  Prison  Law,  provides  that: 
“ A prisoner,  arrested  in  a civil  cause,  must  not  he  kept  in  a room  in  which 
any  prisoner,  detained  on  a criminal  charge  or  conviction  is  confined.”  Section 
346  provides  that:  “Male  and  female  prisoners  must  not  be  put  in  the  same 
room;  except  that  a husband  and  his  wife  may  be  put  or  kept  together,  in  a 
room  wherein  there  are  no  other  prisoners.”  And  in  section  1875  of  the  Penal 
Law  it  is  provided  that:  “A  sheriff  or  other  officer,  who  wilfully  violates  any 
of  the  foregoing  provisions  of  sections  one  hundred  and  ten  and  one  hundred 
and  eleven  of  the  code  of  Civil  Procedure;  or  sections  three  hundred  and  forty, 
three  hundred  and  forty-one,  three  hundred  and  forty-two,  three  hundred  and 
forty-three,  three  hundred  and  forty-four,  three  hundred  and  forty-five,  and 


180 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 93. 

§ 6.  PRISONERS  TO  BE  FURNISHED  WITH  WHOLESOME  FOOD; 

EMPLOYMENT  OF  PRISONERS. 

Prisoners  detained  for  trial,  and  those  under  sentence,  shall  be  provided 
with  a sufficient  quantity  of  plain  but  wholesome  food,  at  the  expense  of  the 
county;3  such  food  shall  be  purchased  in  the  manner  and  subject  to  the  regu- 
lations provided  in  section  two  hundred  and  thirty-eight  of  this  chapter; 
but  prisoners  detained  for  trial  may,  at  their  own  expense,  and  under  the 
direction  of  the  keeper,  be  supplied  with  any  other  proper  articles  of  food. 
Such  keeper  shall  cause  each  prisoner  committed  to  his  jail  for  imprison- 
ment under  sentence,  to  be  constantly  employed  at  hard  labor  when  prac- 
ticable, during  every  day,  except  Sunday,  and  the  board  of  supervisors  of 
the  county,  or  judge  of  the  county,  may  prescribe  the  kind  of  labor  at 
which  such  prisoner  shall  be  employed;  and  the  keeper  shall  account,  at 
least  annually,  with  the  board  of  supervisors  of  the  county,  for  the  proceeds 
of  such  labor.  Such  keeper  may,  with  the  consent  of  the  board  of  super- 
visors of  the  county,  or  the  county  judge,  from  time  to  time,  cause  such  of 
the  convicts  under  his  charge  as  are  capable  of  hard  labor,  to  be  employed 
outside  of  the  jail  in  the  same,  or  in  an  adjoining  county,  upon  such  terms 
as  may  be  agreed  upon  between  the  keepers  and  the  officers,  or  persons, 
under  whose  directions  such  convicts  shall  be  placed  subject  to  such  regula- 
tions as  the  board  or  judge  may  prescribe;  and  the  board  of  supervisors 
of  the  several  counties  are  authorized  to  employ  convicts  under  sentence 
to  confinement  in  the  county  jails,  in  building  and  repairing  penal  institu- 
tions of  the  county  and  in  building  and  repairing  the  highways  in  their  re- 
spective counties  or  in  preparing  the  materials  for  such  highways  for  sale 
to  and  for  the  use  of  such  counties  or  towns,  villages  and  cities  therein ; and 
to  make  rules  and  regulations  for  their  employment;  and  the  said  board 
of  supervisors  are  hereby  authoirzed  to  cause  money  to  be  raised  by  taxa- 
tion for  the  purpose  of  furnishing  materials  and  carrying  this  provision 


three  hundred  and  forty-six  of  the  prison  law,  forfeits  to  the  person  aggrieved, 
treble  damages.  He  is  also  guilty  of  a misdemeanor,  and  shall  be  punished 
accordingly.  A conviction  also  operates  as  a forfeiture  of  his  office.” 

Liability  of  sheriff  for  injuries  to  prisoner.  The  case  of  Gunther  v.  Johnson, 
36  App.  Div.  437;  55  N.  Y.  Supp.  869,  was  where  a prisoner,  while  confined  in  the 
county  jail  to  await  the  action  of  the  grand  jury  under  a charge  of  grand  larceny, 
and,  while  in  the  custody  of  the  sheriff  of  the  county,  had  an  altercation  with  a 
prisoner  who  had  been  committed  to  the  jail  as  a vagrant;  on  the  following 
morning  when  the  prisoners  were  allowed  the  liberty  of  the  corridor  of  the 
jail,  no  keeper  being  present,  the  quarrel  was  resumed,  and  the  plaintiff’s 
intestate  struck  the  prisoner  who  ran  after  and  stabbed  him  with  a pocket 
knife  which  such  prisoner  owned  and  used  in  shaving.  It  was  held,  in  the 
absence  of  evidence  that  the  sheriff  knew  of  any  trouble  in  the  jail,  negligence 
could  not  be  predicated  upon  his  failure  to  anticipate  the  attack  of  the 
plaintiff’s  intestate  upon  the  prisoner,  or  the  subsequent  felonious  assault  by 
such  prisoner. 

3.  Board  of  prisoners.  Boards  of  supervisors  are  authorized  to  contract  at 


COUNTY  JAILS. 


181 


County  Law,  §§  94,  95. 

into  effect;  and  the  courts  of  this  state  are  hereby  authorized  to  sentence 
convicts  committed  to  detention  in  the  county  jails  to  such  hard  labor  as 
may  be  provided  for  them  by  the  board  of  supervisors.  This  section  as 
amended  shall  not  affect  a county  wholly  included  within  a city.  [County 
Law,  § 93,  as  amended  by  L.  1917,  ch.  352;  B.  C.  & G.  Cons.  L.,  p.  764.] 

§ 7.  PRISONERS  TO  BE  FURNISHED  WITH  READING  MATTER; 
DIVINE  SERVICE. 

Each  keeper  shall  provide  a bible  to  be  kept  in  each  room  of  the  jail  in 
his  charge,  and  he  shall  permit  the  persons  therein  confined,  to  be  sup- 
plied with  other  suitable  and  proper  books  and  papers,  and  if  practicable, 
he  shall  cause  divine  service  to  be  conducted  for  the  benefit  of  the  prisoners, 
at  least  once  each  Sunday,  if  there  shall  be  room  in  the  prison  that  may  be 
safely  used  for  that  purpose.  [County  Law,  § 94;  B.  C.  & G.  Cons.  L., 
p.  76-5.] 

§ 8.  RECORD  OF  COMMITMENTS  AND  DISCHARGES,  WHAT  TO 
STATE. 

Each  keeper  shall  keep  in  a book,  to  be  provided  at  the  expense  of  the 
county,  a daily  record  of  the  commitments  and  discharges  of  all  prisoners 
delivered  to  his  charge,  which  shall  contain  the  date  of  entrance,  name, 
offense,  term  of  sentence,  fine,  age,  sex,  place  of  birth,  color,  social  relations, 
education,  secular  and  religious,  for  what  and  by  whom  committed,  how  and 
when  discharged,  trade  or  occupation,  whether  so  employed  when  arrested, 
number  of  previous  convictions.* * * 4 

The  book  containing  such  record  shall  be  a public  record,  and  shall  be 
delivered  by  each  sheriff  to  his  successor,  and  kept  on  file  in  the  office  of 
the  sheriff  or  keeper.  [County  Law,  § 95;  B.  C.  & G.  Cons.  L.,  p.  766.] 


such  times  and  on  such  terms  as  the  board  may  by  resolution  determine,  with 
the  sheriff  of  the  county,  when  he  is  not  by  law  in  receipt  of  a salary  as  such 

sheriff,  for  the  board,  maintenance  and  care  and  custody  of  prisoners  committed 

to  the  county  jail.  See  County  Law,  sec.  12,  sub.  5,  ante.  As  to  contracts  for 
the  support  of  civil  prisoners,  see  County  Law,  § 12,  subd.  22,  ante,  pp.  . 

4.  Commitments  to  county  jails.  It  is  provided  in  section  2181  of  the 
Penal  Law  that:  “Wlhere  a person  is  convicted  of  a crime,  for  which  the 

punishment  inflicted  is  imprisonment  for  a term  of  less  than  one  year,  the 
imprisonment  must  be  inflicted  by  confinement  in  the  county  jail  or  place  of 
confinement  designated  by  law  to  be  used  as  the  jail  of  the  county,  except 
when  otherwise  specially  prescribed  by  statute.”  Where  a minor  under  the 
age  of  sixteen  is  convicted  of  a crime  he  may,  instead  of  being  sentenced  to 
fine  or  imprisonment,  be  placed  in  charge  of  any  suitable  person  or  institu- 
tion willing  to  receive  him.  A child  under  the  age  of  sixteen  years  who  is 
committed  for  misdemeanor  must  be  committed  to  some  reformatory,  char- 


182  COUNTY  OFFICERS;  JAILS. 

County  Law,  §§  96,  97;  Code  Crim.  Proc.,  §§  25,  222-d. 

§ 9.  UNITED  STATES  PRISONERS  TO  BE  RECEIVED. 

Such  keeper  shall  receive  and  keep  in  his  jail  every  person  duly  com- 
mitted thereto,  for  any  offense  against  the  United  States,  by  any  court  or 
officer  of  the  United  States,  until  he  shall  be  duly  discharged;  the  United 
States  supporting  such  person  during  his  confinement ; and  the  provisions 
of  this  article,  relative  to  the  mode  of  confining  prisoners  and  convicts, 
shall  apply  to  all  persons  so  committed  by  any  court  or  officer  of  the  United 
States.  [County  Law,  § 96;  B.  C.  & G.  Cons.  L.,  p.  766.] 

§ 10.  CALENDARS  OF  NAMES  OF  PRISONERS,  ETC.,  TO  BE  PRE- 
SENTED TO  COURT. 

Such  keeper  shall  present  to  the  court  at  the  opening  of  every  term  of 
the  supreme  court,  and  at  every  term  of  the  county  court,  having  a grand 
jury,  to  be  held  in  his  county,  a calendar  stating: 

1.  The  name  of  every  prisoner  then  detained  in  such  jail. 

2.  The  time  when  he  was  committed,  and  by  virtue  of  what  precept. 

3.  The  cause  of  his  detention.* * * * * 6  [County  Law,  § 97;  B.  C.  & G.  Cons. 
L.,  p.  766.] 

§11.  PRISONERS  TO  BE  DISCHARGED  IF  NOT  INDICTED. 

Within  twenty-four  hours  after  the  discharge  of  any  grand  jury  by 
any  supreme  or  county  court,  the  court  shall  cause  every  person  con- 
fined in  jail  on  a criminal  charge,  who  shall  not  have  been  indicted,  to 
be  discharged  without  bail,  unless  satisfactory  cause  shall  be  shown  for 
his  further  detention,  or  if  the  case  may  require,  upon  bail  until 
the  meeting  of  the  next  grand  jury  in  the  county.  [Code  Crim.  Proc., 
sec.  222d.] 

§ 12.  SUSPENSION  OF  HABEAS  CORPUS  DURING  TERM  OF  COURT. 

During  the  session  of  the  supreme  court  in  any  county,  no  person  de- 


itable  or  other  institution  authorized  by  law  to  receive  and  take  charge  of 

minors.  See  Penal  Law,  sec.  2194. 

Sentences  to  penitentiaries.  Where  a board  of  supervisors  has  contracted 
with  another  county  for  the  custody  of  prisoners  in  a penitentiary,  it  is  the 

duty  of  a committing  magistrate  to  sentence  prisoners  for  terms  of  sixty  days 

or  more  to  such  penitentiary.  If  the  term  imposed  is  less  than  sixty  days, 
the  sentence  should  be  to  the  county  jail.  See  Prison  Law,  sec.  320. 

6.  Disorderly  persons.  It  is  provided  in  section  908  of  the  Code  of  Crim- 
inal Procedure  that:  “ The  keeper  of  every  prison  to  which  disorderly  per- 

sons may  be  committed  must  return  to  the  County  Court  of  the  county  on 
the  first  day  of  each  term,  a list  of  the  persons  so  committed  and  then  in  his 
custody  with  the  nature  of  the  offense  of  each,  the  name  of  the  magistrate 


COUNTY  JAILS. 


183 


County  Law,  §§  98,  99. 

tained  in  a county  jail  of  such  county,  upon  a criminal  charge,  shall  be 
removed  therefrom  by  writ  of  habeas  corpus,  unless  such  writ  shall  have 
been  issued  by  or  shall  be  made  returnable  before  such  court.* * * * * 7  [Code 
Crim.  Proc.,  sec.  25.] 

§13.  PRISONER  TO  BE  DISCHARGED  IF  UNABLE  TO  PAY  FINE. 

When  any  person  shall  be  confined  in  a jail  for  the  nonpayment  of  a 
fine,  not  exceeding  two  hundred  and  fifty  dollars,  imposed  for  any  criminal 
offense,  and  against  whom  no  other  cause  of  detention  shall  exist,  on 
satisfactory  proof  being  made  to  the  County  Court  of  the  county  in  which 
such  prisoner  may  be  confined,  that  he  is  unable,  and  has  been  ever  since 
his  conviction,  to  pay  such  fine,  the  court  may,  in  its  discretion,  order  his 
discharge.8  [County  Law,  § 98;  B.  C.  & G.  Cons.  L.,  p.  766.] 


§ 14.  HOUSES  OF  DETENTION  FOR  WOMEN,  CHILDREN  AND  WIT- 
NESSES. 

The  board  of  supervisors  of  any  county,  except  the  county  of  Kings, 
may  procure,  by  lease  or  purchase,  a suitable  place  or  places,  other  than 
the  jail,  for  the  safe  and  proper  keeping  and  care  of  women  and  children 
charged  with  crime  not  punishable  by  death  or  imprisonment  in  state 
prison  for  a term  exceeding  five  years  or  with  second  offense,  and  persons 
detained  as  witnesses,  to  be  termed  houses  of  detention;  and  when  so 
provided,  any  magistrate  in  the  county  shall  commit  women  and  girls,  and 
boys  under  sixteen  years  of  age,  and  all  persons  held  as  witnesses  thereto 
instead  of  the  jail.  The  sheriff  shall  have  the  same  charge  and  control 
of  such  house,  and  shall  be  entitled  to  the  same  compensation  for  the  care 
and  keeping  of  prisoners  therein,  as  in  the  county  jail.  [County  Law, 
§ 99;  B.  C.  & G.  Cons.  L.,  p.  766.] 


by  whom  he  was  committed,  and  the  term  of  his  imprisonment.”  The  persons 

here  referred  to  are  persons  committed  as  disorderly  persons  on  failure  to  give 

security  as  provided  in  sec.  997  of  the  Code  of  Criminal  Procedure. 

For  form  of  calendar  to  be  presented  to  criminal  courts  as  required  in  the 

above  section,  see  Form  No.  10,  post. 

7.  Suspension  of  writ  of  habeas  corpus.  The  session  of  a court  con- 
tinues for  the  purpose  of  a suspension  of  habeas  corpus  until  the  grand  jury 
is  actually  discharged  from  its  work;  the  absence  of  the  judge  and  the  trial 
of  the  jury  is  not  a termination  of  the  court  within  the  meaning  of  the  statute. 
See  Matter  of  Taylor,  8 Misc.  159;  People  v.  Sullivan,  115  N.  Y.  185;  21  N.  E. 
1039;  People  v.  Barrett,  56  Hun,  351,  9 N.  Y.  Supp.  321. 

8.  Remission  of  fines.  It  is  provided  in  sec.  484  of  the  Code  of  Criminal 

Procedure  that:  “Any  court  of  record,  except  an  inferior  court  of  local 

jurisdiction,  which  has  imposed  a fine  for  any  criminal  offense,  or  the  pre- 


184 


COUNTY  OFFICERS;  JAILS. 
County  Law,  §§  100,  101. 


§ 15.  BOARDS  OF  SUPERVISORS  MAY  ESTABLISH  AND  MAINTAIN 
COUNTY  WORKHOUSES. 

The  board  of  supervisors  of  any  county  may  establish  and  maintain  a 
workhouse  for  the  confinement  of  persons  convicted  within  the  county  of 
crimes  and  criminal  offenses,  the  punishment  for  which  is  imprison- 
ment in  the  county  jail,  and  may  provide  for  the  imprisonment 
and  employment  therein  of  all  persons  sentenced  thereto,  and  any  court 
or  judicial  officer  may  sentence  such  person  to  such  workhouse  instead 
of  to  the  county  jail.9  [County  Law,  § 100;  B.  C.  & G.  Cons.  L.,  p.  707.] 

§ 16.  WHO  MAY  VISIT  JAILS  AND  WORKHOUSES. 

The  following  persons  may  visit  at  pleasure  all  county  jails  and  work- 
houses:  The  governor  and  lieutenant-governor,  secretary  of  state,  comp- 

troller and  attorney-general,  members  of  the  legislature,  judges  of  the  court 
of  appeals,  justices  of  the  supreme  court  and  county  judges,  district  at- 
torneys and  every  minister  of  the  gospel  having  charge  of  a congregation 
in  the  town  in  which  such  jail  or  workhouse  is  located.  No  other  person  not 
otherwise  authorized  by  law  shall  be  permitted  to  enter  the  rooms  of  a 
county  jail  or  workhouse  in  which  convicts  are  confined,  unless  under  such 
regulations  as  the  sheriff  of  the  county  shall  prescribe.10  [County  Law,, 
§ 101;  B.  C.  & G.  Cons.  L.,  p.  767.] 


siding  judge  thereof,  or  any  judge  authorized  to  preside  therein,  shall  have 
power  in  his  discretion,  on  five  days’  notice  to  the  district  attorney  of  the 
county  in  which  such  fine  was  imposed,  to  remit  such  fine,  or  any  portion 
thereof.  In  case  of  a fine  imposed  by  a court  not  of  record  or  by  any  in- 
ferior court  of  local  jurisdiction,  for  any  criminal  offense  whatever,  the 
county  judge  of  the  county  in  which  the  fine  was  imposed,  and  in  case  of  a 
fine  imposed  by  such  a court  in  the  city  of  New  York  the  Court  of  General 
Sessions,  or  any  judge  thereof,  upon  five  days’  notice  to  the  district  attorney 
of  the  county  in  which  such  fine  was  imposed,  shall  have  the  same  power.”  . 

9.  Penitentiaries  are  of  the  same  nature  as  workhouses,  and  it  is  proba- 
ble that  under  the  above  section  boards  of  supervisors  may  establish  and 
maintain  penitentiaries. 

10.  Visitation  of  jails  and  workhouses.  Any  member  of  the  state  com- 
mission of  prisons  or  its  secretary  or  other  authorized  agent  shall  be  admitted 
into  the  jails  for  the  purpose  of  visitation  or  inspection.  Prison  Law,  § 47, 
ante,  p 171.  Members  of  the  executive  committee  of  the  prison  association 
of  New  York  or  such  committees  as  they  shall  from  time  to  time  appoint, 
have  the  power  of  visitation  of  county  jails  upon  an  order  granted  by  one 
of  the  judges  of  the  Supreme  Court.  See  L.  1846,  ch.  163,  sec.  6.  Members 
of  the  grand  jury  are  entitled  to  free  access  at  all  reasonable  times  to  county 
jails.  See  Code  Crim.  Proc.,  sec.  261. 

Penal  provisions  as  to  communications  with  prisioners.  Section  1691  of  the 

Penal  Law,  is  as  follows: 


COUNTY  JAILS. 


185 


Prison  Law,  §§  348,  349;  Penal  Law,  § 1791. 

§ 17.  BOARD  OF  SUPERVISORS  TO  APPOINT  JAIL  PHYSICIAN. 

The  board  of  supervisors  of  each  county,  except  New  York,  must 
appoint  some  reputable  physician,  duly  authorized  to  practice  medicine, 
as  the  physician  to  the  jail  of  the  county,  if  there  is  more  than  one  jail 
they  must  appoint  a physician  to  each.  The  physician  to  a jail  holds  his 
office  at  the  pleasure  of  the  board  which  appointed  him,  except  in  the  county 
of  Kings.  In  that  county,  the  term  of  his  office  is  three  years.  [Prison 
Law,  sec.  348;  B.  C.  & G.  Cons.  L.,  p.  4370.] 

§ 18.  SALE  OF  LIQUORS  IN  JAILS;  PERMIT  FOR  USE  OF  LIQUORS; 

PENALTIES. 

Strong,  spirituous,  or  fermented  liquor,  or  wine,  shall  not,  on  any 
pretence,  be  sold  within  a building  used  and  established  as  a jail.  Spirit- 
uous, fermented  or  other  liquors,  except  cider,  and  that  quality  of  beer 
called  table-beer,  shall  not  be  brought  into  a jail  for  the  use  of  a person 
confined  therein,  without  a written  permit  by  the  physician  to  the  jail, 
which  must  be  delivered  to  and  kept  by  the  keeper  thereof,  specifying  the 
quantity  and  kind  of  liquor  which  may  be  furnished,  the  name  of  the 
civil  prisoner  for  whom,  and  the  time  during  which  the  same  may  be 
furnished.  [Prison  Law,  § 349;  B.  C.  & G.  Cons.  L.,  p.  4370.] 

A permit  by  a jail  physician  as  specified  in  the  last  section  shall  not  be 
granted,  unless  the  physician  is  satisfied,  that  the  liquor  allowed  to  be 
furnished,  is  necessary  for  the  health  of  the  civil  prisoner,  for  whose  use 
it  is  permitted;  and  that  fact  must  be  stated  in  the  permit.  [Idem,  § 350.] 
A person  who  brings  into  or  sells  in  a jail,  strong,  spirituous,  fermented, 
or  other  liquor,  or  wine,  contrary  to  the  provisions  of  sections  three  hundred 
and  forty-nine  or  three  hundred  and  fifty  of  the  prison  law;  or  a sheriff, 
keeper  of  a jail,  assistant  keeper,  or  officer,  or  person  employed  in  or 
about  a jail,  who  knowingly  suffers  liquor  or  wine  to  be  sold  or  used 
therein,  contrary  to  either  of  said  sections,  is  guilty  of  a misdemeanor, 
and  shall  be  punished  accordingly.  A conviction  also  operates  as  a for- 
feiture of  his  office.  [Penal  Law,  § 1791;  B.  C.  & G.  Cons.  L.,  p.  4039.] 


“ A person  who: 

“ 1.  Not  being  authorized  by  law  visits  any  state  prison,  reformatory,  peni- 
tentiary, county  jail  or  other  place  for  the  detention  of  persons  convicted  of 
crime  or  communicates  with  any  prisoner  therein  without  the  consent  of  the 
agent  or  warden,  superintendent,  keeper,  sheriff  or  other  person  having  charge 
thereof  or  without  such  consent  brings  into  or  conveys  out  of  a state  prison, 
reformatory,  penitentiary,  county  jail  or  other  place  for  the  detention  of 
persons  convicted  of  crime,  any  letter,  information  or  writing  to  or  from  any 
prisoner;  or, 

“ 2.  Conveys  in  or  takes  from  such  prison,  reformatory,  penitentiary,  county 
jail  or  other  place  for  the  detention  of  persons  convicted  of  crime,  or  who 


186 


COUNTY  OFFICERS  : JAILS. 


Code  Civ.  Proc.,  §§  131,  132;  Prison  Law,  §§  351,  354. 

§ 19.  SERVICE  OF  PAPERS  IN  CIVIL  ACTION  TO  BE  MADE  ON 
PRISONER  IN  JAIL. 

A sheriff  or  jailer,  upon  whom  a paper  in  an  action  or  special  proceeding, 
directed  to  a prisoner  in  his  custody,  is  lawfully  served,  or  to  whom 
such  a paper  is  delivered  for  a prisoner,  must,  within  two  days  thereafter, 
deliver  the  same  to  the  prisoner,  with  a note  thereon  of  the  time  of  the 
service  thereof  upon,  or  the  receipt  thereof  by  him.* 11 

For  a neglect  or  violation  of  this  section  the  sheriff  or  jailer,  guilty 
thereof,  is  liable  to  the  prisoner  for  all  damages  occasioned  thereby.  [Code 
Civ.  Proc.,  § 131.] 

Subject  to  reasonable  regulations,  which  the  sheriff  may  establish  for 
that  purpose,  a sheriff,  jailer  or  other  officer,  who  has  the  custody  of  a 
prisoner,  must  permit  such  access  to  him  as  is  necessary,  for  the  personal 
service  of  a paper  in  an  action  or  special  proceeding,  to  which  the  prisoner 
is  a party,  and  which  must  be  personally  served.  [Idem,  § 132.] 

§ 20.  REMOVAL  OF  PRISONERS  IN  CASE  OF  AN  EMERGENCY. 

If,  by  reason  of  a jail,  or  a building  near  a jail,  being  on  fire,  there 
is  reason  to  apprehend  that  some  or  all  of  the  prisoners  confined  in  the  jail, 
may  be  injured,  or  may  escape,  the  sheriff  or  keeper  of  the  jail  may,  in 
his  discretion,  remove  them  to  some  safe  and  convenient  place,  and  there 
confine  them,  until  they  can  be  safely  returned  to  the  jail;  or,  if  the  jail 
is  destroyed,  or  so  injured,  that  it  is  unfit  or  unsafe  for  the  confinement  of 
the  prisoners,  until  a designation  is  made,  as  prescribed  in  section  three 
hundred  and  fifty-one  of  this  article.  [Prison  Law,  § 354;  B.  C.  & G. 
Cons.  L.,  p.  4371.] 

§ 21.  DESIGNATION  OF  JAIL  OF  OTHER  COUNTY  OR  OTHER 
PLACE  IN  SAME  COUNTY  AS  A COUNTY  JAIL;  MODIFICA- 
TION OR  REVOCATION  OF  DESIGNATION;  COPY  OF  DESIG- 
NATION TO  BE  SERVED. 

If  there  is  no  jail  in  a county;  or  the  jail  becomes  unfit  or  unsafe  for 
the  confinement  of  some  or  all  of  the  prisoners,  civil  or  criminal,  or  is 
destroyed  by  fire  or  otherwise;  or  if  a pestilential  disease  breaks  out  in 
the  jail,  or  in  the  vicinity  of  the  jail,  and  the  physician  to  the  jail 


personally  or  through  any  other  person  or  persons  gives,  sells,  furnishes  or 
otherwise  delivers  to  any  prisoner  or  prisoners  in  custody  any  drug,  liquor 
or  any  article  prohibited  by  law  or  by  the  rules  of  the  superintendent,  keeper, 
sheriff,  board  of  managers  or  other  person,  or  official  having  charge  or  control 
thereof;  is  guilty  of  a misdemeanor.” 

11.  An  execution  against  a person  is  not  a paper  within  the  meaning  of 
this  section.  See  Matter  of  Johnson,  21  Abb.  N.  C.  172. 


COUNTY  JAILS. 


187 


Prison  Law,  §§  352,  353,  356;  Code  Civ.  Proc.,  §§  138,  139. 

certifies  that  it  is  likely  to  endanger  the  health  of  any  or  all  of  the  prisoners 
in  the  jail;  the  county  judge,  or,  in  the  city  and  county  of  New  York, 
the  presiding  justice  of  the  Appellate  Division  of  the  Supreme  Court  of 
the  first  department,  must,  by  an  instrument  in  writing,  filed  with  the 
clerk  of  the  county,  designate  another  suitable  place  within  the  county, 
or  the  jail  of  a contiguous  county,  for  the  confinement  of  some  or  all  of  the 
prisoners,  as  the  case  requires.  The  place  so  designated  thereupon  becomes, 
to  all  intents  and  purposes,  except  as  otherwise  prescribed  in  this  article, 
the  jail  of  the  county  for  which  it  has  been  so  designated,  and  for  the 
purposes  expressed  in  the  instrument  designating  the  same.  [Prison  Law, 
§351;  B.  C.  & G.  Cons.  L.,  p.  4370.] 

The  designation  may  be  modified  or  revoked,  by  the  judge  making 
the  same,  by  a like  instrument  in  writing,  filed  with  the  clerk  of  the 
county.  [Idem,  § 352.] 

The  county  clerk  must  serve  a copy  of  the  designation,  duly  certified 
by  him,  under  his  official  seal,  on  the  sheriff  and  keeper  of  the  jail  of 
a contiguous  county  so  designated.  The  sheriff  of  that  county  must, 
upon  the  delivery  of  the  sheriff  of  the  county  for  which  the  designation 
is  made,  receive  into  his  jail,  and  there  safely  keep,  all  persons  who  may 
be  lawfully  confined  therein,  pursuant  to  this  article;  and  he  is  responsible 
for  their  safe  keeping,  as  if  he  was  the  sheriff  of  the  county  for  which  the 
designation  is  made.  [Idem,  § 353.] 

If  the  county  judge,  or  the  presiding  judge  of  the  appellate  division 
of  the  supreme  court  of  the  first  department,  is  absent  or  unable  to  act, 
or  his  office  is  vacant,  a designation,  or  the  revocation  or  modification  there- 
of, as  prescribed  in  this  article,  may  be  made,  in  any  county,  except  New 
York,  by  the  special  county  judge  or  the  district  attorney,  or,  in  the  city 
and  county  of  New  York,  by  any  justice  of  the  appellate  division.  [Idem, 
§ 356.] 

§ 22.  JAIL  LIBERTIES,  WHEN  DESIGNATION  IS  MADE. 

If  a prisoner  has  been  admitted  to  the  liberties  of  the  jail  of  the  county, 
for  which  the  designation  is  made,  pursuant  to  section  three  hundred  and 
fifty-one  of  the  prison  law,  he  must,  notwithstanding,  remain  within 
those  liberties;  but  he  may  be  removed  by  the  sheriff,  to  whom  he  has 
given  bond  for  the  liberties,  to  the  jail  or  other  place  so  designated,  and 
confined  therein,  in  a case  where  the  sheriff  might  confine  him  in  the  jail 
of  his  own  county.  [Code  Civ.  Proc.,  § 138.] 

If  a person,  who  is  arrested,  before  or  after  the  designation,  by  the 
sheriff  of  the  county  for  which  the  designation  is  made,  becomes  entitled, 
after  the  designation,  and  before  his  removal,  to  the  liberties  of  the  jail, 
he  must  be  admitted  to  the  liberties  of  the  jail  of  that  county,  as  if  the 
designation  had  not  been  made;  but  he  may  be  removed  by  the  sheriff 


188 


COUNTY  OFFICERS;  JAILS. 
Code  Civ.  Proc.,  §§  140-142. 


to  the  jail,  or  other  place,  so  designated,  and  confined  therein,  in  a case 
where  the  sheriff  might  confine  him  in  the  jail  of  his  own  county.  [Idem, 
§ 139.] 

If  a person  confined  in  or  removed  to  the  jail  of  a contiguous  county, 
designated  as  prescribed  in  article  thirteen  of  the  Penal  Law,  becomes 
entitled  to  the  liberties  of  the  jail,  the  sheriff  of  that  county  must  admit 
him  to  the  jail  liberties,  as  if  he  had  been  originally  arrested  by  that 
sheriff,  on  a mandate  directed  to  him.  [Idem,  § 140.] 

§ 23.  REVOCATION  OF  DESIGNATION. 

When  a jail  is  erected  for  the  county,  for  whose  use  the  designation 
pursuant  to  section  three  hundred  and  fifty-one  of  the  prison  law  was 
made,  or  its  jail  is  rendered  fit  and  safe  for  the  confinement  of  prisoners, 
or  the  reason  for  the  designation  of  another  jail  or  place  has  otherwise 
ceased  to  be  operative,  the  designation  must  be  revoked,  as  prescribed  in 
this  article,  and  section  three  hundred  and  fifty-two  of  the  prison  law. 
[Code  Civ.  Proc.,  § 141.] 

The  county  clerk  must  immediately  serve  a copy  of  the  revocation,  duly 
Certified  by  him  under  his  official  seal,  upon  the  sheriff  of  the  same 
county;  who  must  remove  the  prisoners  belonging  to  his  custody,  and 
confined  without  his  county,  to  his  proper  jail.  If  a prisoner  has  been 
admitted  to  the  jail  liberties  in  the  other  county,  he  must  also  be  removed ; 
and  he  is  entitled  to  the  liberties  of  the  jail  of  the  county,  to  which  he  is 
removed,  without  a new  bond,  as  if  he  had  been  originally  admitted  to  the 
jail  liberties  in  that  county;  and  the  bond  given  by  him  applies  accord- 
ingly to  those  liberties.  [Idem,  § 142.] 


CIVIL  PRISONERS;  JAIL  LIBERTIES. 

Code  Civ.  Proc.,  §§  110,  111. 


183 


CHAPTER  XIII. 

CIVIL  PRISONERS;  JAIL  LIBERTIES. 


Section  1.  Civil  prisoners,  when  arrested;  how  long  imprisoned. 

2.  Support  of  civil  prisoners;  sheriff  not  to  charge  for  food  nor 

keeping  prisoners  out  of  jail;  support  of  civil  prisoners  out 
of  jail;  sheriff  not  to  receive  room  rent. 

3.  Prisoner  conveyed  through  other  counties. 

4.  Civil  prisoners  by  virtue  of  process  of  United  States  courts;  sheriff 

or  jailer  may  receive  compensation  for  services. 

5.  Civil  prisoner,  when  sick  may  be  removed. 

6.  Jail  limits,  how  established;  copy  of  resolution  of  board  of  super- 

visors to  be  served  on  jailer. 

7.  Boundaries  of  jail  limits,  how  designated. 

8.  Civil  prisoner,  when  entitled  to  jail  liberties;  undertaking,  how 

executed;  effect  of  undertaking. 

9.  Surrender  of  civil  prisoner  upon  jail  limits. 

10.  Escape  of  civil  prisoner,  what  constitutes. 

11.  Liability  of  sheriff  for  escape. 

12.  When  sheriff  to  produce  civil  prisoner  who  has  been  indicted. 

13.  Confinement  of  prisoner  committed  for  contempt. 


§ 1.  CIVIL  PRISONERS,  WHEN  ARRESTED;  HOW  LONG  IMPRIS- 
ONED. 

A person  arrested,  by  virtue  of  an  order  of  arrest,  in  an  action  or  special 
proceeding  brought  in  a court  of  record;  or  of  an  execution  issued  upon 
a judgment  rendered  in  a court  of  record;  or  surrendered  in  exoneration  of 
his  bail ; must  be  safely  kept  in  custody,  in  the  manner  prescribed  by  law, 
and,  except  as  otherwise  prescribed  in  the  next  section  and  in  subdivision 
nineteen  of  section  two  hundred  and  forty  of  the  county  law,  at  his  own 
expense,  until  he  satisfies  the  judgment  rendered  against  him,  or  is  dis- 
charged according  to  law.  [Code,  Civ.  Proc.,  § 110.] 

No  person  shall  be  imprisoned  within  the  prison  walls  of  any  jail 
for  a longer  period  than  three  months  under  an  execution  or  any  other 
mandate  against  the  person  to  enforce  the  recovery  of  a sum  of  money 
less  than  five  hundred  dollars  in  amount  or  under  a commitment  upon 
a fine  for  contempt  of  court  in  the  nonpayment  of  alimony  or  counsel  fees 
in  a divorce  case  where  the  amount  so  to  be  paid  is  less  than  the  sum  of 
five  hundred  dollars;  and  where  the  amount  in  either  of  said  cases  is  five 


190 


COUNTY  OFFICERS;  COUNTY  JAILS. 


Code  Civ.  Proc.,  § 111. 

hundred  dollars  or  over,  such  imprisonment  shall  not  continue  for  a longer 
period  than  six  months.  It  shall  be  the  duty  of  the  sheriff  in  whose 
custody  any  such  person  is  held  to  discharge  such  person  at  the  expira- 
tion of  said  respective  periods  without  any  formal  application  being  made 
therefor.  No  person  shall  be  imprisoned  within  the  jail  liberties  of  any 
jail  for  a longer  period  than  six  months  upon  any  execution  or  other  man- 
date against  the  person,  and  no  action  shall  be  commenced  against  the 
sheriff  upon  a bond  given  for  the  jail  liberties  by  such  person  to  secure 
the  benefit  of  such  liberties,  as  provided  in  articles  fourth  and  fifth  of 
this  title  for  an  escape  made  after  the  expiration  of  six  months’  imprison- 
ment as  aforesaid.  Notwithstanding  such  a discharge  in  either  of  the 
above  cases,  the  judgment  creditor  in  the  execution,  or  the  person  at  whose 
instance  the  said  mandate  was  issued,  has  the  same  remedy  against  the 
property  of  the  person  imprisoned  which  he  had  before  such  execution  or 
mandate  was  issued;  but  the  prisoner  shall  not  be  again  imprisoned  upon 
a like  process  issued  in  the  same  action  or  arrested  in  any  action  upon 
any  judgment  under  which  the  same  may  have  been  granted.  Except  in 
a case  hereinbefore  specified  nothing  in  this  section  shall  effect  a commit- 
ment for  contempt  of  court.1  [Idem,  § 111.] 


1.  Application  of  section.  This  section  refers  only  to  a final  process 
or  mandate  after  an  adjudication  fixing  the  amount  due;  it  does  not  include 
orders  of  arrest  issued  at  the  time  of  the  commencement  of  an  action  or  be- 
fore any  recovery.  Levy  v.  Salomon,  105  N.  Y.  529;  12  N.  E.  53,  19  Abb.  N. 
C.  52;  In  re  Coyne,  18  Civ.  Proc.  R.  397;  13  N.  Y.  Supp.  797.  It  has  refer- 
ence to  that  class  of  defendants  who  are  actually  confined  in  jail  or  within 
the  jail  liberties.  Wright  v.  Grant,  11  Civ.  Proc.  R.  407;  18  Abb.  N.  C.  451. 
But  an  imprisonment  of  the  defendant  for  contempt  on  an  interlocutory  order 
before  judgment  will  not  prevent  his  subsequent  imprisonment  for  disobedi- 
ence to  a final  judgment  in  the  same  action.  Reese  v.  Reese,  46  App.  Div. 
156;  61  N.  Y.  Supp.  760. 

The  object  of  the  section  is  to  limit  the  period  of  imprisonment  to  three 
months  in  case  of  actual  confinement,  and  to  six  months  in  case  of  imprison- 
ment within  the  jail  liberties.  In  computing  the  term  to  which  the  im- 
prisonment is  limited,  for  contempt  of  court  in  the  non-payment  of  alimony, 
the  time  during  which  the  person  against  whom  the  process  runs  is  out  of 
jail,  in  the  custody  of  his  counsel  pending  habeas  corpus  proceedings,  is  not 
to  be  included.  People  ex  rel.  Clark  v.  Grant,  111  N.  Y.  584;  19  N.  E.  281. 

Not  to  be  ag’ain  imprisoned  upon  a like  process  in  same  action.  Where 
a defendant  has  been  arrested  and  imprisoned  for  the  non-payment  of  alimony 
previously  directed  to  be  paid  by  the  judgment,  and  remains  in  prison  under 
the  commitment,  because  of  such  default  of  payment,  for  the  full  term  for 
which  he  could  be  imprisoned,  he  is  not  thereafter  liable  to  arrest  and  imprison- 
ment because  of  the  non-payment  of  alimony  subsequently  becoming  payable, 
as  the  above  section  prohibits  the  imprisonment  of  the  party  upon  a like 
process,  not  for  the  non-payment  of  the  same  sum  of  money,  but  under  a like 


CIVIL  PRISONERS;  JAIL  LIBERTIES. 


191 


Prison  Law,  §§  340-344. 

§ 2.  SUPPORT  OF  CIVIL  PRISONERS;  SHERIFF  NOT  TO  CHARGE 
FOR  FOOD  NOR  KEEPING  PRISONERS  OUT  OF  JAIL;  SUP- 
PORT OF  CIVIL  PRISONERS  OUT  OF  JAIL;  SHERIFF  NOT  TO 
RECEIVE  ROOM  RENT. 

In  any  county,  if  a prisoner,  actually  confined  in  jail,  makes  oath  before 
the  sheriff,  jailer,  or  deputy  jailer,  that  he  is  unable  to  support  himself 
during  his  imprisonment,  his  support  is  a county  charge.  This  subdivision 
shall  also  apply  to  the  county  of  New  York.  [County  Law,  § 240,  sub.  19; 
B.  C.  & G.  Cons.  L.,  p.  827.] 

A sheriff  or  other  officer  shall  not  charge  a civil  prisoner,  with  any 
sum  of  money,  or  demand,  or  receive  from  him  money,  or  any  valuable 
thing,  for  any  drink,  victuals  or  other  thing,  furnished  or  provided 
for  the  officer,  or  for  the  prisoner,  at  any  tavern,  alehouse,  or  public 
victualing  or  drinking  house.  [Prison  Law,  § 340;  B.  C.  & G.  Cons. 
L.,  p.  4368.] 

A sheriff  or  other  officer  shall  not  demand  or  receive  from  a civil  pris- 
oner, while  in  his  custody,  a gratuity  or  reward,  upon  any  pretence,  for 
keeping  the  prisoner  out  of  jail;  for  going  with  him  or  waiting  for  him 
to  find  bail,  or  to  agree  with  his  adversary;  or  for  any  other  purpose. 
[Idem,  § 341.] 

If  a person  arrested  in  a civil  cause  is  kept  in  a house,  other  than  the  jail 
of  the  county,  the  officer  arresting  him,  or  the  person  in  whose  custody 
he  is,  shall  not  demand  or  receive  from  him  any  greater  sum,  for  lodging, 
drink,  victuals,  or  any  other  thing,  than  has  been  theretofore  prescribed 
by  the  Court  of  Sessions  or  county  court  of  the  county ; or,  if  no  rate  has 
been  prescribed  by  the  Court  of  Sessions  or  county  court,  than  is  allowed 
by  a justice  of  the  peace  of  the  same  town  or  city,  upon  proof  that  the 
lodging  or  other  thing  was  actually  furnished,  at  the  request  of  the 
prisoner.  And  such  an  officer  or  person  shall  not,  in  any  case  or  upon  any 
pretext,  demand  or  receive  compensation  for  strong,  spirituous,  or  fermented 
liquor,  or  wine,  sold  or  delivered  to  the  prisoner.  [Idem,  § 342.] 

A civil  prisoner  arrested  and  kept  in  a house,  other  than  the  jail  of  the 
county,  may  send  for  and  have  beer,  ale,  cider,  tea,  coffee,  milk,  and  neces- 
sary food  and  such  bedding,  linen  and  other  necessary  things,  as  he 
thinks  fit,  from  whom  he  pleases,  without  detention  of  tiie  same  or  any  part 
thereof  by,  or  paying  for  the  same,  or  any  part  thereof  to,  the  officer 
arresting  him,  or  the  person  in  whose  custody  he  is.  [Idem,  § 343.] 

A sheriff,  jailer,  or  other  officer,  shall  not  demand  or  receive  money,  or 
any  valuable  thing,  for  chamber  rent  in  a jail ; or  any  fee,  compensation, 


process  issued  in  the  same  action.  Winton  v.  Winton,  53  Hun,  4;  5 N.  Y.  Supp. 
537;  affd.  117  N.  Y.  623. 

2.  As  to  contracts  with  sheriff  made  by  the  board  of  supervisors  for  the 
support  and  maintenance  of  civil  prisoners,  see  County  Law,  § 12,  subd.  22,  ante. 


192 


COUNTY  OFFICERS;  COUNTY  JAILS. 


Code  Ciy.  Proc.,  §§  118,  133,  134;  Civ.  Rights  Law,  § 22. 

or  reward,  for  the  commitment,  detaining  in  custody,  release,  or  discharge 
of  a civil  prisoner,  other  than  the  fees  expressly  allowed  therefor  by  law. 
[Idem,  § 344.] 

§ 3.  PRISONER  CONVEYED  THROUGH  OTHER  COUNTIES. 

A sheriff  or  other  officer,  who  has  lawfully  arrested  a prisoner,  may 
convey  his  prisoner  through  one  or  more  other  counties,  in  the  ordinary 
route  of  travel,  from  the  place  where  the  prisoner  was  arrested,  to  the  place 
where  he  is  to  be  delivered  or  confined.  [Code  Civ.  Proc.,  § 118.] 

A prisoner  conveyed  to  jail  through  another  county  pursuant  to  section 
one  hundred  and  eighteen  of  the  code  of  civil  procedure,  or  the  officer 
having  him  in  custody,  is  not  liable  to  arrest  in  any  civil  action  or 
special  proceeding,  while  passing  through  another  county.  [Civil  Rights 
Law,  § 22 ; B.  C.  & G.  Cons.  L.,  p.  632.] 

§ 4.  CIVIL  PRISONERS  BY  VIRTUE  OF  PROCESS  OF  UNITED 
STATES  COURTS;  SHERIFF  OR  JAILOR  MAY  RECEIVE  COM- 
SATION  FOR  SERVICES. 

A sheriff  must  receive  into  his  jail  and  keep  a prisoner,  committed  to 
the  same,  by  virtue  of  civil  process  issued  by  a court  of  record,  instituted 
under  the  authority  of  the  United  States,  until  he  is  discharged  by  the 
due  course  of  the  laws  of  the  United  States,  in  the  same  manner  as  if 
he  was  committed  by  virtue  of  a mandate  in  a civil  action,  issued  from 
a court  of  the  state.  The  sheriff  may  receive,  to  his  own  use,  the  money 

payable  by  the  United  States  for  the  use  of  the  jail.  [Code  Civ.  Proc., 

§ 133.] 

A sheriff,  or  jailer,  to  whose  jail  a prisoner  is  committed,  as  prescribed 
in  the  last  section,  is  answerable  for  his  safe  keeping,  in  the  courts  of 
the  United  States,  according  to  the  laws  thereof.  [Idem,  § 134.] 

§ 5.  CIVIL  PRISONER,  WHEN  SICK  MAY  BE  REMOVED. 

If  the  physician  to  a jail,  or,  in  case  of  a vacancy,  a physician  acting  as 
such,  and  the  warden  or  jailer,  certifying  in  wrriting,  that  a prisoner,  con- 
fined in  the  jail  in  a civil  cause,  is  in  such  a state  of  bodily  health,  that  his 
life  will  be  endangered,  unless  he  is  removed  to  a hospital  for  treatment, 
the  county  judge,  or,  in  the  city  and  county  of  New  York,  one  of  the 

justices  of  the  Supreme  Court,  must,  upon  application,  make  an  order, 

directing  the  removal  of  the  prisoner  to  a hospital  within  the  county,  desig- 
nated by  the  judge ; or,  if  there  is  none,  to  such  nearest  hospital  as  the 
judge  directs;  that  the  prisoner  be  kept  in  the  custody  of  the  chief  officer 
of  the  hospital,  until  he  has  sufficiently  recovered  from  his  illness,  to  be 
safely  returned  to  the  jail;  that  the  chief  officer  of  the  hospital  then  notify 


CIVIL  PRISONERS ; JAIL  LIBERTIES. 


193 


Prison  Law,  §§  357,  358,  360;  Code  Civ.  Proc.,  § 127;  L.  1899,  ch.  443. 

the  warden  or  jailor,  and  that  the  latter  thereupon  resume  custody  of 
the  prisoner.  [Prison  Law,  § 355  ; B.  C.  & G.  Cons.  L.,  p.  4371.] 

If  the  prisoner  actually  escapes,  while  going  to,  remaining  at,  or  re- 
turning from  a hospital  to  which  he  has  been  ordered  removed  pursuant 
to  section  three  hundred  and  fifty-five  of  the  prison  law,  a new  execution 
may  be  issued  against  his  person,  if  he  was  in  custody  by  virtue  of  an 
execution ; or  if  he  was  in  custody  by  virtue  of  an  order  of  arrest,  a 
new  order  of  arrest  may  be  granted,  upon  proof  by  affidavit  of  the  facts 
specified  in  this  section,  without  other  proof,  and  without  an  undertak- 
ing. [Code  Civ.  Proc.,  § 127,  as  amended  by  L.  1909,  ch.  65.] 

§ 6.  JAIL  LIMITS,  HOW  ESTABLISHED;  COPY  OF  RESOLUTION  OF 
BOARD  OF  SUPERVISORS  TO  BE  SERVED  ON  JAILOR. 

The  following  are  the  liberties  of  the  jail  for  each  of  the  counties 
specified,  to  wit : 

For  the  county  of  New  York,  the  whole  of  said  county ; 

For  the  county  of  the  Bronx,  the  whole  of  said  county; 2a 
For  the  county  of  Onondaga,  the  whole  of  the  city  of  Syracuse ; 

For  the  county  of  Monroe,  the  whole  of  the  city  of  Rochester ; 

For  the  county  of  Erie,  the  whole  of  the  city  of  Buffalo ; 

For  the  county  of  Dutchess,  the  whole  of  the  city  of  Poughkeepsie; 
For  the  county  of  Kings,  the  whole  of  that  county ; 

For  the  county  of  Albany,  the  whole  of  the  city  of  Albany; 

For  the  county  of  Schenectady,  the  whole  of  the  city  of  Schenectady ; 

For  the  county  of  Jefferson,  the  whole  of  the  city  of  Watertown; 

For  the  county  of  Herkimer,  the  whole  of  the  village  of  Herkimer; 

For  the  county  of  Rensselaer,  the  whole  of  the  city  of  Troy ; 

For  the  county  of  Niagara,  the  whole  of  the  city  of  Lockport; 

For  the  county  of  Steuben,  the  whole  of  the  village  of  Bath ; 

For  the  cbunty  of  Nassau,  the  whole  of  the  town  of  Hempstead; 

For  the  county  of  Broome,  the  whole  of  the  city  of  Binghamton ; 

For  the  county  of  Genesee,  the  whole  of  the  village  of  Batavia. 

[Prison  Law,  § 357,  as  amended  by  L.  1911,  ch.  174,  L.  1915,  ch.  62,  and 
L.  1917,  ch.  122;  B.  C.  & G.  Cons.  L.,  p.  4372.] 

The  liberties  of  the  jail  in  each  of  the  other  counties  of  the  state,  as 
heretofore  established,  shall  continue  to  be  the  liberties  thereof,  until 
they  are  altered,  or  new  liberties  are  established,  as  prescribed  by  law.* * 3 
[Idem,  § 358.] 

The  liberties  of  the  jail  in  and  for  the  county  of  Queens  shall,  and  the 
same  are  hereby  declared  to  be  the  whole  of  the  county  of  Queens.  [L. 
1899,  ch.  443,  in  effect  April  26,  1899.] 

The  county  clerk  must,  within  one  week  after  a resolution  of  the  board 
of  supervisors,  establishing  or  altering  jail  liberties,  has  been  filed  in 


2a.  Prior  to  the  amendment  of  1915,  it  was  held  that  the  jail  liberties  of  the 
county  of  Bronx  consisted  of  the  whole  of  New  York  county.  See  Rosenzwig  v.  U.  S. 

Fidelity  & (i.  Co.,  151  N.  Y.  Supp.  237. 

3.  The  jail  liberties  for  the  county  of  Cayuga  are  the  city  limits  of  the  city  of 
Auburn.  See  L.  1882,  ch.  12.  The  jail  liberties  of  the  county  of  Ulster  are  the 
whole  of  the  city  of  Kingston.  See  L.  1881,  ch.  299. 


194 


COUNTY  OFFICERS;  COUNTY  JAILS. 


Prison  Law,  §§  359,  360;  Code  Civ.  Proc.,  § 149. 

his  office,  deliver  an  exemplified  copy  thereof  to  the  keeper  of  the  jail, 
who  must  keep  the  same  exposed  to  public  view,  in  an  open  and  public  part 
of  the  jail,  and  exhibit  it  to  each  person  admitted  to  the  liberties  of  the 
jail,  at  the  time  of  his  executing  a bond  for  that  purpose.4  [Prison  Law, 
§ 360,  B.  C.  & G.  Cons.  L.,  p.  4373.] 


§ 7.  BOUNDARIES  OF  JAIL  LIMITS,  HOW  DESIGNATED. 

Where  the  liberties  of  a jail  are  altered  or  established,  by  resolution 
of  the  board  of  supervisors,  as  prescribed  by  law,  a space  of  ground,  adjacent 
to  the  jail,  and  not  exceeding  five  hundred  acres  in  quantity,  must  be  laid 
out  as  the  jail  liberties,  in  a square  or  rectangle  as  nearly  as  may  be;  but 
a stream  of  water,  canal,  street  or  highway,  may  be  adopted  as  an  exterior 
line,  notwithstanding  it  is  not  in  a straight  line,  or  is  not  at  right  angles 
with  the  other  exterior  lines  of  the  liberties.  A resolution  establishing 
or  altering  jail  liberties,  must  contain  a particular  description  of  their 
boundaries;  and  as  soon  as  may  be  after  its  adoption,  the  boundaries  must 
be  designated  by  monuments,  inclosures,  posts  or  other  visible  and  per- 
manent marks,  at  the  expense  of  the  county.5  [Prison  Law,  § 359; 
B.  C.  & G.  Cons.  L.,  p.  4373.] 

§ 8.  CIVIL  PRISONER,  WHEN  ENTITLED  TO  JAIL  LIBERTIES;  UN- 
DERTAKING, HOW  EXECUTED;  EFFECT  OF  UNDERTAKING. 

A person  in  the  custody  of  a sheriff  by  virtue  of  an  order  of  arrest;  or 
of  an  execution  in  a civil  action;  or  in  consequence  of  a surrender  in 
exoneration  of  his  bail;  is  entitled  to  be  admitted  to  the  liberties  of  the 
jail,  upon  delivering  to  the  sheriff  an  approved  undertaking  as  prescribed 
in  the  next  section.6  [Code  Civ.  Proc.,  § 149.] 


4.  Powers  of  board  of  supervisors.  The  above  section  would  seem  to 
imply  that  the  board  of  supervisors  had  power  to  adopt  a resolution  altering  and 
establishing  jail  liberties.  L.  1875,  ch.  484,  sec.  1,  sub.  18,  which  was  repealed 
by  the  County  Law  and  not  re-enacted,  gave  to  boards  of  supervisors  the  power 
of  adopting  such  a resolution,  on  the  recommendation  of  the  County  Court. 
The  repeal  of  such  provision  without  the  enactment  of  a substitute  therefor  has 
perhaps  deprived  the  board  of  supervisors  of  such  power. 

5.  A board  of  supervisors  in  exercising  its  powers  under  this  section  is 
subject  to  the  limitations  contained  therein.  Roach  v.  O’Dell,  33  Hun,  320.  In 
this  case  it  was  held  that  under  ch.  482,  Laws  of  1875,  boards  of  supervisors 
could  establish  jail  liberties  of  500  acres  in  extent,  as  provided  in  the  above 
section.  The  act  of  1875,  ch.  482,  was  repealed  in  toto  by  the  County  Law  (L. 
1892,  ch.  686)  and  the  powers  of  boards  of  supervisors  as  to  jail  liberties  are  now 
only  conferred  by  the  above  section. 

6.  Who  entitled  to  jail  liberties.  This  section  extends  the  liberties  of 


CIVIL  PRISONERS;  JAIL  LIBERTIES. 


195 


Code  Civ.  Proc.,  § 150. 

The  undertaking  must  be  executed  by  the  prisoner  and  one  or  more 
sufficient  sureties,  residents  and  householders  or  freeholders  of  the  county, 
in  a penalty  at  least  twice  the  sum  in  which  the  sheriff  was  required  to 
hold  the  defendant  to  bail,  if  he  is  in  custody  under  an  order  of  arrest, 
or  has  been  surrendered  in  exoneration  of  his  bail  before  judgment;  or 
directed  to  be  collected  by  the  execution,  if  he  is  in  custody  under  an 
execution;  or  remaining  uncollected  upon  a judgment  against  him  if 
he  has  been  surrendered  after  judgment;  conditioned  that  the  person  so 
in  custody  shall  remain  a prisoner,  and  shall  not,  at  any  time  or  in  any 
manner,  escape  or  go  without  the  liberties  of  the  jail,  until  discharged 
by  due  course  of  law. 

Upon  the  giving  and  the  approval  by  a court  or  a judge  thereof,  or  a. 
county  judge,  of  such  an  undertaking,  the  prisoner  shall  be  released  from 
the  custody  of  the  sheriff  and  the  sheriff  shall  thereupon  be  exonerated  from 
liability.  But  after  the  allowance  of  the  undertaking  as  hereinafter  pre- 
scribed, the  same  must  be  delivered  by  the  clerk,  on  request,  to  the  party  at 
whose  instance  the  prisoner  was  in  custody.  Within  two  days  after  the  ap- 
proval by  the  court,  judge,  or  county  judge,  the  undertaking  must  be  filed  by 
the  sheriff  with  the  clerk,  and  a copy  delivered  to  the  party  at  whose 
instance  the  prisoner  was  in  custody,  or  to  his  attorney,  who  shall  within 
three  days  thereafter  serve  upon  the  surety  or  sureties,  or  the  attorney 
for  the  prisoner,  a notice  that  he  does  not  accept  him,  or  them,  as  bail; 
otherwise  he  is  deemed  to  have  accepted  them.  Within  three  days  after 
the  receipt  of  such  notice,  the  surety  or  sureties,  or  the  attorney  for  the 
prisoner,  may  serve  upon  the  party,  or  attorney  for  the  party,  at  whose 
instance  the  prisoner  was  in  custody,  notice  of  justification  of  the  same 
or  other  bail  before  the  court  or  a judge  thereof,  or  a county  judge,  at  a 
specified  time  and  place;  the  time  to  be  not  less  than  five  days  nor  more 
than  ten  days  thereafter,  and  the  place  to  be  within  the  county  where  one 
of  the  bail  resides  or  where  the  defendant  was  arrested.  Except  as  other- 
wise expressly  prescribed  in  this  article,  the  provisions  regulating  the 
substitution  of  new  sureties  or  a new  undertaking,  and  the  examination 
and  qualification  of  the  new  sureties,  and  the  allowance  of  the  under- 
taking after  justification,  contained  in  article  third  of  title  first  of  chapter 
seventh  of  this  act,  shall  govern.  If  the  bail  shall  not  be  allowed,  the 
court,  judge  or  county  judge  shall  remand  the  prisoner  to  the  custody 
of  the  sheriff.  [Idem,  § 150.] 


the  jail  to  defendants  in  custody  under  orders  of  arrest  as  well  as  under  final 
process.  See  Levy  v.  Kaim,  55  How.  Pr.  136;  Horowitz  v.  Olenick,  62  App. 
Div.  283;  70  N.  Y.  Supp.  1116.  A defendant  arrested  in  an  action  brought 
to  recover  chattels  wrongfully  concealed  and  disposed  of  may  he  admitted  to 
the  liberties  of  the  jail  upon  the  ordinary  limit  bond.  Dougan  v.  Cohen,  13 


196 


COUNTY  OFFICERS;  COUNTY  JAILS. 


Code  Civ.  Proc.,  §§  151-155. 

An  undertaking  so  taken  is  held  for  the  indemnity  of  the  party  at 
whose  instance  the  prisoner  executing  it  is  confined.  [Idem,  § 151.] 

If  the  party  at  whose  instance  the  prisoner  is  in  custody  discovers  that  a 
surety  therein  is  insufficient,  he  may,  upon  proof  of  the  fact,  by  affidavit 
or  otherwise,  apply  to  the  court  or  to  a judge  thereof,  on  whose  process 
or  mandate  such  prisoner  is  in  custody,  or  to  the  county  judge  of  the 
county  where  such  prisoner  is  confined,  and  the  court  or  a judge  thereof, 
or  such  county  judge  may  make  an  order  committing  such  prisoner  to 
close  confinement  in  the  jail  until  another  undertaking,  with  good  and 
sufficient  sureties,  is  offered.* * * 7  [Idem,  § 152.] 

§ 9.  SURRENDER  OF  CIVIL  PRISONER  UPON  JAIL  LIMITS. 

One  or  more  of  the  sureties,  in  an  undertaking  given  for  the  liberties 
of  a jail,  may  surrender  the  principal,  at  any  time  before  judgment  is  ren- 
dered against  them  in  an  action  on  the  undertaking,  but  they  are  not 
exonerated  thereby  from  a liability  incurred  before  making  the  surrender. 
[Code  Civ.  Proc.,  § 153.] 

The  surrender  must  be  made  as  follows : The  surety  or  sureties  making 
it  must  take  the  principal  to  the  keeper  of  the  jail,  who  must,  upon  his 
or  their  written  requisition  to  that  effect,  take  the  principal  into  his  custody, 
and  indorse  upon  the  undertaking  given  for  the  liberties,  an  acknowledg- 
ment of  the  surrender,  and  also,  if  required,  give  the  surety  or  sureties  a 
certificate,  acknowledging  the  surrender.  [Idem,  § 154.] 

§ 10.  ESCAPE  OF  CIVIL  PRISONER,  WHAT  CONSTITUTES. 

The  going  at  large,  within  the  liberties  of  the  jail  in  which  he  is  in 
custody,  of  a prisoner  who  has  executed  such  an  undertaking,  or  of  a 
prisoner  who  would  be  entitled  to  the  liberties  upon  executing  such  an 
undertaking,-  is  not  an  escape.  But  the  going  at  large,  beyond  the  liberties, 
by  a prisoner,  without  the  assent  of  the  party  at  whose  instance  he  is  in 
custody,  is  an  escape;  and  the  sheriff  in  whose  custody  he  was,  or  his 
sureties,  has  the  same  authority  to  pursue  and  retake  him,  as  if  he  had 
escaped  from  the  jail.  Such  an  escape  forfeits  the  undertaking  for  the 


Civ.  Proc.  R.  295.  But  in  a divorce  case,  where  the  defendant  has  been  com- 

mitted to  jail  for  non-payment  of  counsel  fees  and  alimony  pendente  lite,  he  is 

not  entitled  to  the  liberties  of  the  jail.  Allen  v.  Allen,  58  How.  Pr.  381. 

7.  When  bond  is  insufficient.  If  the  sheriff  who  has  taken  a bond  for 
the  limits  discovers  that  the  sureties  are  insufficient,  he  may  commit  the  prisoner 
who  executed  it  to  close  confinement  until  another  bond  with  good  and  sufficient 
sureties  is  offered,  and  the  prisoner  may  give  a new  bond  in  lieu  of  the  one 
on  which  the  sureties  failed  to  justify.  Dougan  v.  Cohen,  13  Civ.  Proc.  R.  295. 


CIVIL  PRISONERS;  JAIL  LIBERTIES. 


197 


Code  Civ.  Proc.,  § 158. 

liberties,  if  any;  subject  to  the  provisions  of  the  next  article  of  this  title.8 
[Code  Civ.  Proc.,  § 155.] 

§ 11.  LIABILITY  OF  SHERIFF  FOR  ESCAPE. 

Where  a prisoner,  in  a sheriff’s  custody,  goes  or  is  at  large  beyond  the 
liberties  of  the  jail,  without  the  assent  of  the  party  at  whose  instance  he 
is  in  custody,  the  sheriff  is  answerable  therefor,  until  an  undertaking  pro- 
vided for  in  section  one  hundred  and  fifty  of  this  article  has  been  given 
and  approved,  as  follows : 

1.  If  the  prisoner  was  in  custody  by  virtue  of  an  order  of  arrest,  or 
in  consequence  of  a surrender  in  exoneration  of  his  bail,  before  judgment, 
the  sheriff  is  answerable  to  the  extent  of  the  damages  sustained  by  the 
plaintiff. 

2.  If  the  prisoner  was  in  custody  by  virtue  of  any  other  mandate,  or 
in  consequence  of  a surrender,  in  exoneration  of  his  bail,  after  judgment,, 
the  sheriff  is  answerable  for  the  debt,  damages,  or  sum  of  money,  for 
which  the  prisoner  was  committed. 

3.  Upon  the  giving  and  approval  of  the  undertaking  in  this  article 
mentioned,  no  action  for  an  escape  shall  be  maintained  against  the  sheriff. 
[Code  of  Civ.  Proc.,  § 158.] 


8.  What  constitutes  an  escape.  It  is  an  escape  for  a sheriff  to  permit 
a defendant  held  in  execution  to  be  taken  from  his  custody  upon  the  warrant 
of  a police  justice.  Eads  v.  Wynne,  79  Hun,  463;  29  N.  Y.  Supp.  983.  The 
suffering  of  a prisoner  to  go  at  large  is  in  any  event  an  escape.  Loosey  v. 
Orser,  4 Bosw.  391. 

Where,  after  a voluntary  escape,  the  prisoner  is  arrested  on  criminal  pro- 
cess so  that  the  officer  cannot  re-take  him,  he  is  liable  for  the  escape. 
Olmstead  v.  Raymond,  6 Johns.  62.  So  where  a prisoner  allowed  the  liberties 
of  the  jail  under  a final  process,  was  arrested  and  taken  to  another  county, 
it  was  held  to  be  an  escape.  It  was  the  officer’s  duty  to  prevent  a rescue  from 
the  limits  as  much  as  it  would  have  been  from  the  jail,  if  he  had  been  in  close 
confinement.  Brown  v.  Tracy,  9 How.  Pr.  23. 

The  overstepping  of  undefined  limits  is  a voluntary  escape.  Dole  v.  Moul- 
ten,  20  Johns.  Cas.  205.  So  going  beyond  the  liberties  without  necessity  is 
an  escape,  though  it  is  inadvertent  and  arises  from  the  boundaries  being 
badly  defined.  Bissell  v.  Kip,  5 Johns.  89. 

Actions  for  escape.  The  plaintiff  in  an  action  for  an  escape  must  show 
that  the  judgment  debtor  was  taken  into  custody  before  the  alleged  escape. 
Jackson  v.  Comisky,  30  Misc.  622;  62  N.  Y.  Supp.  705.  If,  after  a negligent 
escape,  the  prisoner  returns  or  is  retaken  so  as  to  be  in  custody  before  the 
suit  is  begun  by  actual  service  of  process  against  the  sheriff,  it  is  a defense. 
Middle  District  Bank  v.  Deyo,  6 Coll.  732. 

Tn  an  action  for  escape  the  sheriff  may  set  up  as  a defense  that  the  execu- 
tion under  which  the  prisoner  was  held  was  illegally  issued,  and  that  the  ar- 
rest was  unauthorized  and  void.  Goodwin  v.  Griffis,  88  N.  Y.  630;  Carpentier 


198  COUNTY  OFFICERS;  COUNTY  JAILS. 

Penal  Law,  § 1839;  Code  Civ.  Proc.,  §<§  156,  157. 

A sheriff,  coroner,  clerk  of  a court,  constable,  or  other  ministerial  officer, 
and  every  deputy  or  subordinate  of  any  ministerial  officer  who: 

1.  Receives  any  gratuity  or  reward,  or  any  security  or  promise  of  one, 
to  procure,  assist,  connive  or  permit  any  prisoner  in  his  custody  to  escape, 
whether  such  escape  is  attempted  or  not;  or 

2.  Commits  any  unlawful  act  tending  to  hinder  justice,  is  guilty  of  a 
misdemeanor. 

A conviction  of  a sheriff  or  other  officer  also  operates  as  a forfeiture  of 
his  office  and  disqualifies  him  forever  thereafter  from  holding  the  same. 
The  governor  shall,  upon  application,  grant  a hearing  to  a person  convicted 
under  this  section,  and  if  he  be  satisfied  that  the  facts  warrant  it,  he  may, 
by  order,  relieve  such  person  from  such  disqualification.  [Penal  Law,  § 
1839,  as  amended  by  L.  1917,  ch.  226;  B.  C.  & G.  Cons.  L.,  p.  4045.] 

§ 12.  WHEN  SHERIFF  TO  PRODUCE  CIVIL  PRISONER  WHO  HAS 
BEEN  INDICTED. 

Where  a person,  who  has  been  indicted  for  a criminal  offense,  is  held  by 
a sheriff,  by  virtue  of  a mandate  in  a civil  action  or  special  proceeding,  the 
court,  in  which  the  indictment  is  pending,  may  make  an  order,  requiring 
the  sheriff  to  bring  him  before  the  court;  whereupon  the  court  may  make 
such  disposition  of  the  prisoner,  as  to  it  seems  proper.  The  sheriff’s  fees 
and  expenses,  in  so  doing  are  a county  charge  of  the  county  wherein  the 
court  is  sitting.  [Code  Civ.  Proc.,  § 156.] 


§ 13.  CONFINEMENT  OF  PRISONER  COMMITTED  FOR  CONTEMPT. 

A prisoner,  committed  to  jail  upon  process  for  contempt,  or  committed 
for  misconduct  in  a case  prescribed  by  law,  must  be  actually  confined  and 
detained  within  the  jail,  until  he  is  discharged  by  due  course  of  law, 
or  is  removed  to  another  jail  or  place  of  confinement,  in  a case  prescribed 
by  law.  A sheriff  or  keeper  of  a jail,  who  suffers  such  a prisoner  to  go 
or  be  at  large  out  of  his  jail;  except  by  virtue  of  a writ  of  habeas  corpus, 
or  by  the  special  direction  of  the  court  committing  him,  or  in  a case 
specially  prescribed  by  law;  is  liable  to  the  party  aggrieved,  for  his 
damages  sustained  thereby,  and  is  guilty  of  a misdemeanor.  If  the  com- 
mitment was  for  the  non-payment  of  a sum  of  money,  the  amount  thereof, 
with  interest,  is  the  measure  of  damages.  [Code  Civ.  Proc.,  § 157.] 


v.  Willett,  1 Abb.  Ct.  App.  Dec.  312;  1 Keyes,  510.  But  if  the  process  is 
merely  voidable,  it  is  no  defense.  Dunford  v.  Weaver,  84  N.  Y.  445.  Nor 
is  a mere  irregularity  in  the  process  or  judgment  a defense  to  the  sheriff. 
Wesson  v.  Chamberlain,  3 N.  Y.  331;  Hutchinson  v.  Brand,  9 N.  Y.  208;  Lathan  v. 
Westervelt,  16  Barb.  421. 

Liability  of  surety  on  judgment  debtor’s  bond  may  be  enforced  although 
the  debtor  was  insolvent.  Flyn  v.  Union  Surety  Co.,  61  App.  Div.  170,  70  N. 
Y.  Supp.  403,  aff’d  170  N.  Y.  145. 


CORONER’S  INQUEST. 


199 


Code  Crim.  Proc.,  § 773. 


CHAPTER  XIY. 

CORONER’S  INQUEST. 


Section  1.  In  what  cases  coroner  to  summon  a jury;  number  of  jurors  to  he 
summoned;  coroner,  when  disqualified. 

2.  Witnesses  to  be  subpoenaed;  compelling  attendance. 

3.  Verdict  of  jury,  what  to  contain. 

4.  Testimony  to  be  in  writing  and  filed;  when  defendant  is  arrested 

before  inquisition,  testimony  to  be  delivered  to  magistrate. 

5.  Warrant  for  arrest  of  party  charged  by  verdict;  form  of  warrant. 

6.  Execution  of  warrant. 

7.  Proceedings  of  magistrate  or  coroner  on  defendants  being  brought 

before  him. 

8.  Disposition  of  money  or  property  found  on  deceased. 

9.  Coroner  to  give  statement  to  board  of  supervisors  before  his  ac- 

counts are  audited;  compensation. 

10.  Witnesses  and  jurors;  report  of  coroner. 

11.  Justices  of  the  peace,  when  to  act  as  coroners. 


§ 1.  IN  WHAT  CASES  CORONER  TO  SUMMON  A JURY;  NUMBER  OF 
JURORS  TO  BE  SUMMONED;  CORONER,  WHEN  DISQUALI- 
FIED. 

Whenever  a coroner  is  informed  that  a person  has  been  killed  or  dan- 
gerously wounded  by  another,  or  has  suddenly  died  under  such  circum- 
stances as  to  afford  a reasonable  ground  to  suspect  that  his  death  has  been 
occasioned  by  the  act  of  another  by  criminal  means,  or  has  committed 
suicide,  he  must  go  to  the  place  where  the  person  is  and  forthwith  inquire 
into  the  cause  of  the  death,  or  wounding,  and  in  case  such  death,  or  wound- 
ing, occurred  in  a county  in  which  is  situated  in  whole,  or  in  part,  a city 
having  a population  of  more  than  five  hundred  thousand  as  appears  by 
the  last  state  enumeration,  but  not  otherwise,  summon  not  less  than  nine, 
nor  more  than  fifteen  persons,  qualified  by  law  to  serve  as  jurors,  to  appear 
before  him  forthwith,  at  a specified  place,  to  inquire  into  the  cause  of  the 
death  or  wound,  and  if  it  shall  appear  from  the  sworn  examination  of  the 
informant,  or  complainant,  or  if  it  shall  appear  from  the  evidence  taken 
on,  or  during,  the  inquisition,  or  hearing,  that  any  person,  or  persons,  are 
chargeable  with  the  killing  or  wounding,  or  that  there  is  probable  cause 
to  believe  that  any  person  or  persons  are  chargeable  therewith,  and  if  such 
person  or  persons  be  not  in  custody  he  must  forthwith  issue  a warrant  for 


COUNTY  OFFICERS;  JAILS. 


.^00 


Code  Crim.  Proc.,  §§  775-777. 

the  arrest  of  the  person  or  persons  charged  with  such  killing  or  wounding; 
and  upon  the  arrest  of  any  person,  or  persons,  chargeable  therewith,  he 
must  be  arraigned  before  the  coroner  for  examination,  and  the  said  coroner 
shall  have  power  to  commit  the  person  or  persons  so  arrested  to  await  the 
result  of  the  inquisition  or  decision. 

Any  coroner  shall  be  disqualified  from  acting  as  such  in  any  case 
where  the  person  killed,  or  dangerously  wounded,  or  dying  suddenly,  as 
aforesaid,  is  a co-employe  with  said  coroner,  of  any  person,  or  persons, 
association,  or  corporation,  or  where  it  appears  that  the  killing  or  wound- 
ing has  been  occasioned,  directly  or  indirectly,  by  the  employer  of  said 
coroner.  [Code  Crim.  Proc.,  § 773.] 


§ 2.  WITNESSES  TO  BE  SUBPOENAED;  COMPELLING  ATTENDANCE. 

The  coroner  may  issue  subpoenas  for  witnesses,  returnable  forthwith,  or 
at  such  time  and  place  as  he  may  appoint.  He  must  summon  and  ex- 
amine as  witnesses,  every  person  who,  in  his  opinion,  or  that  of  any  of 
the  jury,  has  any  knowledge  of  the  facts;  and  he  must  summon  as  a 
witness  a surgeon  or  physician,  who  must,  in  the  presence  of  the  jury, 
inspect  the  body,  and  give  a professional  opinion  as  to  the  cause  of  the 
death  or  wounding.1 2  [Code  Crim.  Proc.,  § 775.] 

A witness  served  with  a subpoena  may  be  compelled  to  attend  and  testify, 
or  punished  by  the  coroner  for  disobedience,  as  upon  a subpoena  issued  by 
a magistrate,  as  provided  in  this  code.  [Idem,  § 776.] 


ss 


m 


■ 


§ 3.  VERDICT  OF  JURY,  WHAT  TO  CONTAIN. 

After  inspecting  the  body  and  hearing  the  testimony,  the  coroner  must 
render  his  decision,  or  if  in  a county  where  a jury  is  summoned  as  pro- 
vided in  section  seven  hundred  and  seventy-three,  the  jury  must  render 
their  verdict,  and  certify  it  by  an  inquisition  or  decision  in  writing,  signed 
by  him  or  them  as  the  case  may  be,  and  setting  forth  who  the  person  killed 
or  wounded  is,  and  when,  where  and  by  what  means  he  came  to  his  death, 
or  was  wounded;  and  if  he  were  killed,  or  wounded,  or  his  death  were 
occasioned  by  the  act  of  another,  by  criminal  means,  who  is  guilty  thereof, 


1.  Publicity  of  proceedings.  A coroner’s  inquest  is  a judicial  proceeding 
within  the  statute  declaring  that  the  sittings  of  any  court  shall  be  public  and 
every  citizen  may  freely  attend  the  same;  a post  mortem  examination  con- 
ducted by  surgeons  employed  by  the  coroner  is  not  a part  of  the  inquest,  which, 
like  sittings  of  any  court  of  the  state,  any  citizen  has  a right  to  attend. 
Crisfield  v.  Perine,  15  Hun,  200;  affd.  81  N.  Y.  622. 

2.  Examination  of  witnesses.  A prisoner  has  no  right  to  cross-examine 
witnesses  before  the  coroner  or  to  produce  witnesses  in  his  own  behalf.  People 
v.  Collins,  20  How.  Pr.  Ill;  11  Abb.  Pr.  406. 


CORONER’S  INQUEST. 


201 


Code  Crim.  Proc.,  §§  778-781. 

in  so  far  as  by  such  inquisition  he  or  such  jury  has  been  able  to  ascertain. 
(Code  Crim.  Proc.,  § 777.] 

§ 4.  TESTIMONY  TO  BE  IN  WRITING  AND  FILED;  WHEN  DEFEND- 
ANT IS  ARRESTED  BEFORE  INQUISITION,  TESTIMONY  TO 
BE  DELIVERED  TO  MAGISTRATE. 

The  testimony  of  the  witnesses  examined  before  the  coroner  or  the 
jury  must  be  reduced  to  writing  by  the  coroner  or  under  his  direction  and 
must  forthwith  by  him,  with  the  inquisition  or  decision  filed  in  the  office 
of  the  clerk  of  the  county  court  of  the  county  or  of  a city  court  having 
power  to  inquire  into  the  offense  by  the  intervention  of  a grand  jury. 
[Code  Crim.  Proc.,  § 778.] 

If,  however,  the  defendant  be  arrested  before  the  inquisition  can  be 
filed,  the  coroner  must  deliver  it  with  the  testimony,  to  the  magistrate 
before  whom  the  defendant  is  brought,  as  provided  in  section  781,  who 
must  return  it  with  the  depositions  and  statement  taken  before  him,  in  the 
manner  prescribed  in  section  221.  [Idem,  § 779.] 

If  the  coroner  or  jury,  where  a jury  is  summoned  finds  that  the  person 
was  killed  or  wounded  by  another,  under  circumstances  not  excusable, 
or  justifiable,  by  law,  or  that  his  death  was  occasioned  by  the  act  of  another, 
by  criminal  means,  and  the  party  committing  the  act  be  ascertained  by 
the  inquisition  or  decision,  and  be  not  in  custody,  the  coroner  must  issue 
a warrant,  signed  by  him  writh  his  name  of  office,  into  one  or  more  counties, 
as  may  be  necessary,  for  the  arrest  of  the  person  charged.  [Idem,  § 780.] 

§ 5.  WARRANT  FOR  ARREST  OF  PARTY  CHARGED  BY  VERDICT; 
FORM  OF  WARRANT. 

The  coroner’s  warrant  must  be  in  substantially  the  following  form : 
County  of  Albany  (or  as  the  case  may  be).  In  the  name  of  the  people 
of  the  state  of  New  York,  to  any  sheriff,  constable,  marshal  or  policeman 
in  this  county:  An  inquisition  having  been  this  day  found  by  a coroner’s 

jury  before  me,  (or  a decision  having  been  made  by  me  stating  that  A P> 
has  come  to  his  death  by  the  act  of  C D by  criminal  means  (or  as  the 
case  may  be),  as  found  by  the  inquisition  (or  decision)  ; or  information 
having  been  this  day  laid  before  me  that  A B has  been  killed  or  dangerously 
wounded  by  C I)  by  criminal  means  (or  as  the  case  may  be),  yoii  are 
hereby  commanded  forthwith  to  arrest  the  above  named  C D and  bring 
him  before  me,  or  in  the  case  of  my  absence  or  inability  to  act,  before 
the  nearest  or  most  acessible  coroner  in  this  county. 

Dated  at  the  city  of  Albany  (or  as  the  case  may  be),  this 

day  of 

E.  F. 

Coroner  of  the  county  of  Albany  (or  as  the  case  may  be).  [Code  Crim. 
Proc.,  § 781.] 


202 


COUNTY  OFFICERS;  JAILS. 


Code  Crim.  Proc.,  §§  782-787. 

§ 6.  EXECUTION  OF  WARRANT. 

The  coroner’s  warrant  may  be  served  in  any  county;  and  the  officer 
serving  it  must  proceed  thereon,  in  all  respects,  as  upon  a warrant  of 
arrest  on  an  information;  except,  that  when  served  in  another  county,  it 
need  not  be  indorsed  by  a magistrate  of  that  county.3  [Code  Crim.  Proc., 
§ 782.] 


§ 7.  PROCEEDINGS  OF  MAGISTRATE  OR  CORONER  ON  DEFEND- 
ANTS BEING  BROUGHT  BEFORE  HIM. 

The  magistrate  or  coroner,  when  the  defendant  is  brought  before  him, 
must  proceed  to  examine  the  charge  contained  in  the  inquisition  or  infor- 
mation, and  hold  the  defendant  to  answer  or  discharge  him  therefrom  in 
the  same  manner,  in  all  respects,  as  upon  a warrant  of  arrest  on  an  in- 
formation. [Code  Crim.  Proc.,  § 783.] 

Upon  the  arrest  of  the  defendant,  the  clerk  with  whom  the  inquisition 
is  tiled,  must,  without  delay,  furnish  to  fhe  magistrate  or  coroner  before 
whom  the  defendant  is  brought,  a certified  copy  of  the  inquisition  and  of 
the  testimony  returned  therewth.  [Idem,  § 784.] 


§ 8.  DISPOSITION  OF  MONEY  OR  PROPERTY  FOUND  ON  DE- 
CEASED. 

The  coroner  must,  within  thirty  days  after  an  inquest  upon  a dead 
body,  deliver  to  the  county  treasurer  any  money  or  other  property  which 
may  be  found  upon  the  body,  unless  claimed  in  the  mean  time  by  the 
legal  representatives  of  the  deceased.  If  he  fail  to  do  so,  the  treasurer 
may  proceed  against  him  for  its  recovery,  by  a civil  action  in  the  name  of 
the  county.  [Code  Crim.  Proc.,  § 785.] 

Upon  the  delivery  of  money  to  the  treasurer  he  must  place  it  to  the 
credit  of  the  county.  If  it  be  other  property,  he  must,  within  30  days, 
sell  it  at  public  auction,  upon  reasonable  public  notice;  and  must,  in  like 
manner,  place  the  proceeds  to  the  credit  of  the  county.  [Idem,  § 786.] 

If  the  money  in  the  treasury  be  demanded  within  six  years,  by  the 
legal  representatives  of  the  deceased,  the  treasurer  must  pay  it  to  them, 
after  deducting  the  fees  and  expenses  of  the  coroner  and  of  the  county, 
in  relation  to  the  matter,  or  it  may  be  so  paid  at  any  time  thereafter,  upon 
the  order  of  the  board  of  supervisors.  [Idem,  § 787.] 


3.  Hearing  on  arrest.  A prisoner  against  whom  an  inquisition  has  been 
found  by  a coroner’s  jury,  whether  arrested  before,  on  or  after  the  filing  of 
such  inquisition,  is  entitled  to  a hearing  before  a magistrate,  in  the  same 


CORONER’S  INQUEST. 


203 


Code  Crim.  Proc.,  §§  788-789-a;  County  Law,  § 192. 

§ 9.  CORONER  TO  GIVE  STATEMENT  TO  BOARD  OF  SUPERVISORS 
BEFORE  HIS  ACCOUNTS  ARE  AUDITED;  COMPENSATION. 

Before  auditing  and  allowing  the  account  of  the  coroner,  the  board  of 
supervisors  must  require  from  him  a statement  in  writing,  of  any  money 
or  other  property  found  upon  persons  on  whom  inquests  have  been  held 
by  him,  verified  by  his  oath,  to  the  effect  that  the  statement  is  true,  and  that 
the  money  or  property  mentioned  in  it  has  been  delivered  to  the  legal  repre- 
sentatives of  the  deceased,  or  to  the  county  treasurer.  [Code  Crim.  Proc., 
§ 788.] 

The  coroner  is  entitled,  for  his  services  in  holding  inquests  and  per- 
forming any  other  duty  incidental  thereto,  to  such  compensation  as 
defined  by  special  statutes.  [Idem,  § 790.] 

§ 10.  FEES  OF  WITNESSES  AND  JURORS;  REPORT  OF  CORONER. 

Whenever,  in  consequence  of  the  performance  of  his  official  duties,  a 
coroner  becomes  a witness  in  a criminal  proceeding,  he  shall  be  entitled 
to  receive  mileage  to  and  from  his  place  of  residence,  ten  cents  per  mile, 
and  three  dollars  per  day  for  each  day,  or  fractional  parts  thereof,  actually 
detained  as  such  witness.  [See  County  Law,  § 192;  B.  C.  & G.  Cons.  L., 
p.  804.] 

The  fees  of  jurors  necessarily  summoned  upon  any  coroner’s  inquest 
shall  be  not  to  exceed  one  dollar  for  each  day’s  service,  shall  be  a county 
charge  and  shall  be  audited  and  allowed  by  the  board  of  supervisors  in 
the  same  manner  as  other  fees  and  charges  mentioned  in  this  title.  But 
the  coroner  holding  such  inquest  and  summoning  said  jurors,  shall  make 
report  to  the  next  succeeding  board  of  supervisors  after  every  such  inquest 
of  the  names  of  such  jurors  and  the  term  of  service  of  each,  and  upon  what 
inquest  rendered,  on  or  before  the  third  day  of  the  annual  session  in  each 
year.  [Code  Crim.  Proc.,  § 774.] 

§11.  JUSTICES  OF  THE  PEACE,  WHEN  TO  ACT  AS  CORONERS. 

Any  justice  of  the  peace,  in  each  of  the  several  towns  and  cities  of 
this  state,  is  hereby  authorized  and  empowered,  in  case  the  attendance  of 
a coroner  cannot  be  procured  within  twelve  hours  after  the  discovery  of  a 
dead  body,  upon  which  an  inquest  is  now  by  law  required  to  be  held,  to  hold 
an  inquest  thereon  in  the  same  manner  and  with  the  like  force  and  effect 
as  coroners. 


manner  as  if  he  had  been  arrested  upon  an  ordinary  information,  as  defined 
by  sec.  145  of  the  Code  of  Criminal  Procedure.  Matter  of  Ramscar,  10  Abb. 
N.  C.  442;  G3  How.  Pr.  255. 


COUNTY  OFFICERS;  JAILS. 


204 


Code  Crim.  Proc.  § 789a. 

Post-mortem  examinations.  In  all  cases  in  which  the  cause  of  death  is 
not  apparent,  it  shall  be  the  duty  of  the  justice  to  associate  with  himself 
a regularly  licensed  physician,  to  make  a suitable  examination  for  the  dis- 
covery of  said  cause. 

Fees.  Each  justice  of  the  peace  who  shall  hold  inquests  by  virtue  of  this 
act,  shall  receive  the  same  fees  as  are  now  allowed  by  law  to  coroners. 
[Code  Crim.  Proc.,  § 789-a.] 


UNITED  STATES  DEPOSIT  FUND. 


205 


Explanatory  note. 


CHAPTER  XV. 

UNITED  STATES  DEPOSIT  FUND;  LOAN  COMMISSIONERS. 

EXPLANATORY  NOTE. 

United  States  Deposit  Fund. 

This  fund  was  derived  from  proceeds  of  the  sale  of  public  lands  be- 
longing to  the  United  States,  which  were  apportioned  among  the  States 
by  Act  of  Congress,  passed  June  23,  1836.  This  act  declared  that  the 
income  of  such  proceeds  should  he  used  by  the  states  for  educational 
purposes.  In  pursuance  of  this  act  the  legislature  enacted  L.  1837,  ch. 
150  which  provided  a scheme  for  loaning  the  money  belonging  to  the 
fund  on  mortgages  throughout  the  state,  and  created  the  office  of  loan 
commissioner  in  the  several  counties. 

The  revision  of  the  State  Finance  law  in  1897  materially  changed 
the  law  relating  to  the  care  and  disposition  of  the  United  States  deposit 
fund.  Loan  commissioners  were  by  the  revision  deprived  of  their  power 
to  loan  the  money  belonging  to  this  fund.  They  retained  the  power 
to  enforce  the  collection  of  loans,  hut  upon  receipt  of  the  money  by  them 
they  were  required  to  return  it  to  the  comptroller  who  was  then  author- 
ized to  re-invest  it  in  the  same  manner  as  other  funds  of  the  state.  This 
arrangement  was  evidently  not  satisfactory,  as  the  legislature  at  its  suc- 
ceeding session  amended  the  law  by  the  enactment  of  L.  1898,  ch.  360, 
and  the  power  to  loan  money  belonging  to  the  United  States  deposit 
fund  was  again  conferred  upon  the  loan  commissioners.  Many  of  the 
provisions  of  the  original  United  States  Loan  Deposit  Act  of  1837,  ch. 
150,  were  re-enacted  and  incorporated  in  the  State  Finance  Law.  These 
provisions  were  retained  in  the  State  Finance  Law  as  consolidatd  in 
1909.  The  law  was  again  amended  by  L.  1911,  ch.  634,  which  deprived 
the  loan  commissioners  of  the  power  to  loan  moneys  belonging  to  the 
fund  and  vested  the  same  in  the  state  comptroller.  We  have  inserted  in 
this  chapter  the  sections  of  the  State  Finance  Law  relating  to  the 
United  States  deposit  fund  and  the  powers  and  duties  of  United  States 
loan  commissioners  and  boards  of  supervisors  in  respect  thereto. 


206 


COUNTY  OFFICERS;  JAILS. 


State  Finance  Law,  § 82. 


Section  l.  The  United  States  deposit  fund. 

2.  Discharge  and  cancellation  of  mortgages. 

3.  Books  and  records. 

4.  Supervision  of  existing  United  States  deposit  fund  mortgages. 

5.  Investments. 

6.  Release  of  part  of  mortgage  of  premises. 

7.  Power  of  comptroller  to  maintain  actions. 

8.  Foreclosure  of  United  States  deposit  fund  mortgages. 

9.  Disposition  of  surplus  moneys,  principal  to  be  deposited. 

10.  Supervision  of  lands. 

11.  Audit  of  loan  commissioners’  accounts. 

12.  Certified  copy  of  original  mortgage. 

13.  Duties  of  loan  commissioners;  office  abolished. 

§ 1.  THE  UNITED  STATES  DEPOSIT  FUND. 

The  part  of  the  United  States  deposit  fund  received  out  of  the  sur- 
plus money  of  the  treasury  of  the  United  States,  under  the  thirteenth 
section  of  the  act  of  congress,  entitled  “An  act  to  regulate  the  deposits 
of  the  public  money,”  passed  June  twenty- third,  eighteen  hundred  and 
thirty-six,  is  held  by  the  state  on  the  terms,  conditions  and  provisions 
specified  in  such  act  of  congress,  and  the  faith  of  the  state  is  inviolably 
pledged  for  the  safe  keeping  and  repayment  of  all  moneys  thus  received 
from  time  to  time,  whenever  the  same  shall  be  required  by  the  secretary 
of  the  treasury  of  the  United  States,  under  the  provisions  of  such  act. 
The  comptroller  and  the  treasurer  of  the  state  shall  keep  the  accounts  of 
the  moneys  belonging  to  the  United  States  deposit  fund  in  the  books  of 
their  respective  offices,  separate  and  distinct  from  the  state  funds,  and 
in  such  manner  as  to  show  the  amount  of  principal,  of  the  fund,  the 
amount  received  from  the  interest,  the  amount  paid  from  the  annual  rev- 
enue and  the  objects  to  which  the  same  have  been  applied.  If  there  shall 
be  any  loss  in  the  loans  of  the  moneys  belonging  to  the  United  States  de- 
posit fund,  it  shall  be  a charge  on  the  interest  derived  from  the  loan  of 
such  moneys,  and  none  of  the  interest  moneys  shall  be  paid  out  for  any 
purpose  until  such  loss  has  been  made  good  thereon.  The  comptroller 
shall  have  full  charge  and  control  over  the  United  States  deposit  fund, 
including  that  part  of  such  fund  now  invested  in  mortgages  in  the  dif- 
ferent counties  of  the  state.  [State  Finance  Law,  § 82,  as  amended  by 
L.  1911,  ch.  634,  in  effect  Aug.  10,  1911 ; B.  C.  & G.  Cons.  L.,  p.  5516.] 


UNITED  STATES  DEPOSIT  FUND. 


207 


State  Finance  Law,  §§  83,  84,  85. 


§ 2.  DISCHARGE  AND  CANCELLATION  OF  MORTGAGES. 

The  comptroller  may  cancel  and  discharge  any  mortgage,  on  satis- 
factory proof  that  the  moneys  loaned  and  secured  by  such  mortgage 
have  been  fully  paid  to  the  officers  authorized  by  law  to  receive  the  same 
if  the  mortgage  remains  uncanceled  and  undischarged  of  record.  ['State 
Finance  Law,  § 83,  as  amended  by  L.  1911,  ch.  634;  B.  C.  & G.  Cons. 
L.,  p.  5517.] 

§ 3.  BOOKS  AND  RECORDS. 

The  book  or  books  of  mortgages  executed  to  the  loan  commissioners 
shall  remain  in  the  clerk’s  office  of  the  county,  and  in  the  city  and 
county  of  New  York  in  the  office  of  the  register.  During  office  hours 
any  person  may  search  and  examine  any  book  required  to  be  kept  by 
this  article.  [State  Finance  Law,  § 84,  as  amended  by  L.  1911,  ch. 
634;  B.  C.  & G.  Cons.  L.,  p.  5517.] 

§ 4.  SUPERVISION  OF  EXISTING  UNITED  STATES  DEPOSIT  FUND 
MORTGAGES 

The  comptroller  shall  have  charge  of  the  mortgages  heretofore  exe- 
cuted to  the  commissioners  for  loaning  certain  moneys  of  the  United 
States  on  lands  in  the  several  counties  of  the  state,  which  mortgages 
shall  continue  with  the  same  force  and  effect  as  if  this  chapter  were  not 
enacted.  The  rate  of  interest  on  such  mortgages  shall  be  five  per  centum 
per  annum,  and  shall  be  due  annually  on  the  first  Tuesday  of  October. 
The  comptroller  shall  collect  and  receive  the  interest  arising  on  every 
such  mortgage.  In  case  of  failure  to  pay  such  interest  before  the  first 
day  of  November  next  following  the  date  when  the  same  became  due, 
the  comptroller  shall  report  such  failure  to  the  attorney-general  within 
fifteen  days  after  the  said  first  day  of  November.  The  comptroller 
shall  receive  payment  of  the  principal  or  any  part  thereof  of  any  such 
mortgage  on  lands  when  tendered  and  immediately  pay  the  same  into 
the  state  treasury,  and  shall  satisfy  and  discharge  the  same  by  the  exe- 
cution and  acknowledgment  of  a satisfaction  piece  in  the  usual  form, 
which  shall  be  recorded  by  the  county  clerk,  who  shall  thereupon  write 
upon  the  margin  of  such  mortgage,  in  the  book  containing  the  same  in 
his  office,  a statement  to  the  effect  that  the  same  has  been  discharged  and 
satisfied  by  the  comptroller,  giving  the  date  thereof.  Such  mortgages 


208 


COUNTY  OFFICERS;  JAILS. 


State  Finance  Law,  §§  81,  86. 

may  be  assigned  by  the  said  comptroller  on  such  terms  and  on  sucb  con- 
ditions as  may  be  satisfactory  to  the  comptroller.  [State  Finance  Law,. 
§ 85,  as  amended  by  L.  1910,  cb.  201,  and  L.  1911,  cb.  634;  B.  C.  & G. 
Cons.  L.,  p.  5518.] 


§ 5.  INVESTMENTS. 

The  comptroller  shall  invest  and  keep  invested  all  moneys  belonging 
to  the  common  school,  literature  and  United  States  deposit  funds  in  the 
stocks  and  bonds  of  the  United  States  and  of  this  state,  or  for  the  pay- 
ment of  which  the  faith  and  credit  of  the  Lmited  States  or  of  this  state 
are  pledged,  or  in  the  judgments  or  awards  of  the  court  of  claims  of  the 
state,  or  in  the  stocks  or  bonds  of  any  county,  town,  city,  village  or  school 
district  of  the  state  authorized  to  be  issued  by  law.  The  comptroller, 
whenever  he  deems  it  for  the  best  interest  of  such  funds,  or  either  of 
them,  may  dispose  of  any  of  the  securities  therein  or  investments  there- 
for, in  making  other  investments  authorized  by  law,  and  he  may  ex- 
change any  such  securities  for  those  held  in  any  other  of  such  funds,  and 
the  comptroller  may  draw  his  warrant  upon  the  treasurer  for  the  amount 
required  for  such  investments  and  exchanges.  The  care  and  disposition 
of  all  lands  belonging  to  the  literature  fund  and  the  common  school  fund 
shall  be  vested  in  the  commissioners  of  the  land  office.  [State  Finance 
Law,  § 81,  as  amended  by  L.  1910,  ch.  201,  and  L.  1911,  ch.  634;  B. 
C.  & G.  Cons.  L.,  p.  5515.] 

§ 6 RELEASE  OF  PART  OF  MORTGAGED  PREMISES. 

If  the  owner  of  mortgaged  premises  sell  a part  thereof,  the  comp- 
troller, on  application  and  with  the  consent  of  the  mortgagor  or  such 
owner  may  release  the  part  of  the  mortgaged  premises  sold  from  the  lien 
of  the  mortgage.  Such  release,  however,  shall  not  be  given  unless  a sum 
approved  by  the  comptroller  shall  be  first  paid  upon  the  mortgage  and 
unless  the  part  of  the  mortgaged  premises  remaining  unsold,  exclusive 
of  buildings  and  prior  liens,  is  worth  double  the  residue  of  the  mort- 
gage debt.  The  comptroller  shall  execute  such  release  in  the  usual  form, 
which,  when  acknowledged,  shall  be  recorded  by  the  county  clerk  and  a 
minute  thereof  made  upon  a margin  of  the  mortgage.  [State  Finance- 
Law,  § 86,  as  amended  by  L.  1911,  ch.  634;  B.  C.  & G.  Cons.  L.,  p„ 
5519.] 


UNITED  STATES  DEPOSIT  FUND. 


209 


State  Finance  Law,  §§  87,  80,  89. 

§ 7,  POWER  OF  COMPTROLLER  TO  MAINTAIN  ACTIONS. 

The  comptroller  may,  at  any  time  before  the  sale  of  the  mortgaged 
premises,  bring  an  action  to  restrain  the  commission  of  waste  by  any 
person  upon  the  mortgaged  premises,  or  to  correct  any  mistake  or  omis- 
sion in  the  description  thereof,  or  to  recover  the  amount  due  on  a mort- 
gage. At  any  time  before  payment  and  discharge  of  mortgage  or  before 
sale,  if  any  person  cuts  or  removes  or  injures  the  timber,  fences,  build- 
ings or  other  fixtures  belonging  to  such  mortgaged  premises,  or  threatens 
so  to  do,  the  comptroller  may  maintain  a like  action  for  damages  or  an 
injunction.  [State  Finance  Law,  § 87,  as  amended  by  L.  1911,  ch. 
634;  B.  C.  & G.  Cons.  L.,  p.  5519.] 


§ 8 FORECLOSURE  OF  UNITED  STATES  DEPOSIT  FUND  MORT- 
GAGES. 

If  the  interest  due  on  any  such  mortgage  shall  not  be  paid  on  the  first 
Tuesday  of  October  of  any  year,  or  before  the  first  day  of  November 
next  following,  or  the  principal  or  any  part  thereof  shall  not  be  paid 
when  due,  the  comptroller  shall  cause  all  such  mortgages  upon  which 
default  is  made  in  the  payment  of  principal  or  interest  to  be  foreclosed, 
whenever,  in  his  judgment,  it  may  be  necessary  or  best  for  the  protec- 
tion of  the  interest  of  the  state.  All  actions  or  proceedings  for  that  pur- 
pose shall  be  prosecuted  or  conducted  by  the  attorney-general,  in  the 
supreme  court  or  in  the  county  court  of  the  county  where  the  mortgaged 
premises  are  located,  and  in  conformity  with  the  practice  in  such  case 
made  and  provided.  [State  Finance  Law,  § 88,  as  amended  by  L.  1910, 
ch.  201,  and  L.  1911,  ch.  634;  B.  C.  & G.  'Cons.  L.,  p.  5520.] 


§ 9 DISPOSITION  OF  SURPLUS  MONEYS;  PRINCIPAL  TO  BE  DE- 
POSITED. 

The  comptroller  shall,  within  twenty  days  after  receiving  the  mone;y 
arising  from  the  sale  of  the  mortgaged  premises  as  provided  in  the  pre- 
ceding section,  pay  into  the  county  treasury  the  surplus  exceeding  the 
sum  due  and  to  become  due  on  the  mortgage  and  the  costs  and  expenses 
of  the  foreclosure,  and  shall,  within  such  time,  pay  over  the  residue  of 
the  sum  arising  from  the  sale  of  such  mortgaged  premises,  less  the 
amount  which  he  is  entitled  to  retain  for  his  costs,  disbursements  and 
expenses,  to  the  state  treasury.  The  provisions  of  the  Code  of  Civil  Pro- 


210 


COUNTY  OFFICERS;  JAILS. 


State  Finance  Law,  §§  90,  91. 


cedure  relating  to  the  disposition  of  the  surplus  money  arising  from  the 
foreclosure  of  mortgages  are  hereby  made  applicable  to  the  surplus 
arising  from  the  sale  of  mortgaged  premises  as  prescribed  in  the  pre- 
ceding section.1  [State  Finance  Law,  § 89,  as  amended  by  L.  1910,  eh. 
201,  and  L.  1911,  ch.  634;  E.  C.  & G.  Cons.  L.,  p.  5522.] 


§ 10  SUPERVISION  OF  LANDS 

The  comptroller  shall  exercise  supervision  and  care  over  property 
acquired  by  the  state  through  the  foreclosure  of  United  States  deposit 
fund  mortgages  and  may  lease  such  property  until  it  is  disposed  of  ac- 
cording to  law.  The  comptroller  shall  not  be  directly  or  indirectly  in- 
terested in  the  purchase  of  any  mortgaged  premises ; if  so  interested 
such  sale  shall  be  void.  [State  Finance  Law,  § 90,  as  amended  by  L. 
1909,  ch.  520,  and  L.  1911,  ch.  634;  B.  C.  & G.  Cons.  L.,  p.  5523.] 


§11  AUDIT  OF  LOAN  COMMISSIONERS’  ACCOUNTS. 

At  any  time  within  one  year  from  the  rendition  of  any  loan  com- 
misisoner’s  report,  the  comptroller  shall  audit  and  adjust  the  account  of 
any  such  commissioner  for  the  moneys  received,  paid  out  or  retained  by 
him  under  this  article,  and  fix  and  determine  the  amount  due  the  state 
on  account  thereof,  and  make  a certificate  to  that  effect,  which  shall  be 
presumptive  evidence  of  the  amount  due  the  state  in  any  action  or  pro- 
ceeding against  such  commissioner  or  the  sureties  on  his  undertaking. 
[State  Finance  Law,  § 91,  as  amended  by  L.  1911,  ch.  634;  B.  C.  & G. 
Cons.  L.,  p.  5524.] 


1.  Loan  commissioners  to  pay  into  the  state  treasury  all  moneys  now  in 
their  hands.  The  loan  commissioners  of  the  several  counties  of  the  state  of 
New  York  are  hereby  directed  to  pay  into  the  state  treasury,  within  thirty 
days  after  the  passage  of  this  act,  all  moneys  in  their  hands  belonging  to  the 
United  States  deposit  fund.  L.  1910,  ch.  201,  § 2. 


UNITED  STATES  DEPOSIT  FUND. 


211-215 


State  Finance  Law,  § 92. 


§ 12.  CERTIFIED  COPY  OF  ORIGINAL  MORTGAGE 

On  the  application  of  any  person  interested,  the  comptroller  shall  fur- 
nish a certified  copy  of  any  original  mortgage  which  has  been  delivered 
to  him  pursuant  to  law,  and  the  same  may  be  recorded  in  the  office  of 
the  clerk  of  the  county  where  the  mortgaged  premises  are  situated. 
[State  Finance  Law,  § 92,  as  amended  by  L.  1911,  ch.  634;  B.  C.  & G. 
Cons.  L.,  p.  5525.] 

§ 13.  DUTIES  OF  LOAN  COMMISSIONERS;  OFFICE  ABOLISHED, 

The  loan  commissioners  shall  within  thirty  days  after  the  passage 
of  this  act  make  a special  report  to  the  comptroller  showing  all  their 
transactions  under  this  title  from  December  thirty-first,  nineteen  hun- 
dred and  ten,  to  the  date  of  such  report  and  of  all  moneys  collected  by 
them  as  principal,  interest  or  rent  during  such  period ; and  they  shall 
immediately  after  making  such  report  transmit  to  the  state  treasurer  all 
moneys  in  their  possession  collected  as  principal,  interest  or  rent;  and 
thereafter  they  shall  not  accept  or  receive  any  moneys  belonging  to  such 
fund;  and  they  shall  within  thirty  days  after  the  passage  of  this  act 
deliver  to  the  comptroller  all  books,  papers,  records  and  documents  in 
their  possession  or  custody  relating  to  the  United  States  deposit  fund. 
Upon  making  and  filing  such  report  with  the  comptroller,  and  delivery 
to  the  comptroller  of  all  of  said  records,  the  comptroller  may  allow  and 
pay,  to  the  loan  commissioners,  from  the  revenue  of  said  fund,  such 
sum  as  he  shall  deem  equitable  in  full  payment  for  their  services  under 
article  five  of  the  state  finance  law  to  the  thirtieth  day  after  the  passage 
of  this  act.  [L.  1911,  ch.  634,  § 2,  in  effect  July  10,  1911.] 

The  terms  of  office  of  all  the. present  loan  commissioners  shall  cease 
and  terminate  and  the  office  of  all  “ commissioners  for  loaning  certain 
moneys  of  the  United  States  of  the  county  of  ” shall  be  abolished  on 
the  thirtieth  day  after  the  passage  of  this  act.  [Idem,  § 3.] 


t 


216 


COUNTY  OFFICERS;  JAILS, 
County  Law,  § 45. 


CHAPTER  XVL 

COUNTY  HOSPITAL  FOR  TUBERCULOSIS. 


Section  1.  Establishment  of  county  hospital  for  tuberculosis. 

2.  Appointment  and  terms  of  office  of  managers. 

3.  General  powers  and  duties  of  managers. 

4.  General  powers  and  duties  of  superintendent. 

5.  Admission  of  patients  for  county  in  which  hospital  is  situated. 

6.  Maintenance  of  patients  in  the  county  in  which  hospital  is  situated. 

7.  Admission  of  patients  for  counties  not  having  a hospital. 

8.  Maintenance  of  patients  for  counties  not  having  a hospital. 

9.  Visitation  and  inspection. 

10.  Hospitals  at  almshouses. 

g 1.  ESTABLISHMENT  OF  COUNTY  HOSPITAL  FOR  TUBERCULOSIS. 

The  board  of  supervisors  of  every  county  in  the  state  containing  a popu- 
lation of  thirty-five  thousand  or  more,  as  determined  by  the  latest  state 
census,  shall  establish,  as  hereinafter  provided,  a county  hospital  for  the 
care  and  treatment  of  persons  suffering  from  the  disease  known  as  tubercu- 
losis, unless  there  already  exists  in  such  county  a hospital  or  institution  pro- 
vided by  the  county  or  other  authority  and  caring  for  persons  suffering 
from  tuberculosis,  which  is  approved  by  the  state  commissioner  of  health,  or 
the  board  of  supervisors  of  such  county  shall  enter  into  a contract  prior  to 
November  first,  nineteen  hundred  and  eighteen,  for  the  care  of  its  tubercu- 
losis patients  with  an  adjoining  county  having  such  county  hospital  or  with 
a private  sanatorium  within  its  county  or  shall  join  with  one  or  more  other 
counties  in  the  establishment  and  maintenance  of  such  county  hospital  as 
hereinafter  provided.  Such  county  hospital,  except  a hospital  established 
and  maintained  by  two  or  more  counties,  shall  be  availabe  for  patients  on  or 
before  the  first  day  of  July,  nineteen  hundred  and  eighteen.  If  the  board 
of  supervisors  of  any  such  county  shall  have  failed  to  secure  a site  for  a 
county  tuberculosis  hospital,  and  to  have  awarded  contracts  for  the  erection 


COUNTY  HOSPITAL  FOR  TUBERCULOSIS. 


217 


County  Law,  § 45. 

of  suitable  buildings  thereon  by  the  first  day  of  January,  nineteen  hundred 
and  eighteen,  it  shall  be  the  duty  of  the  state  commissioner  of  health  forth- 
with to  proceed  to  locate,  construct  and  place  in  operation  a tuberculosis  hos- 
pital in  and  for  such  county,  the  capacity  of  which  shall  not  exceed  the  aver- 
age number  of  deaths  per  annum  from  tuberculosis  in  such  county  during 
the  past  five  years.  For  such  purposes  the  state  commissioner  of  health 
shall  possess,  and  it  shall  be  his  duty  to  exercise  all  the  powers  which  would 
have  been  possessed  by  the  board  of  supervisors  of  such  county,  had  such 
hospital  been  established  and  placed  in  operation  by  the  board  of  super- 
visors thereof.  All  expenditures  incurred  by  the  state  commissioner  of 
health  for  and  in  connection  with  the  location,  construction  and  operation 
of  such  hospital,  shall  be  a charge  upon  the  county,  and  provision  shall  be 
made  for  the  payment  therefor  by  the  board  of  supervisors  of  such  county 
in  the  same  manner  as  in  the  case  of  other  charges  against  the  county.  At 
any  time  after  such  hospital  has  been  in  operation,  the  board  of  supervisors 
in  such  county  may  appoint  a board  of  managers  for  such  hospital,  pur- 
suant to  the  provisions  of  this  act  and  thirty  days  after  the  appointment  of 
such  board  of  managers  by  such  board  of  supervisors,  such  hospital  shall  be 
transferred  to  such  board  of  managers,  and  such  board  of  managers  shall 
thereafter  possess  and  exercise  all  the  powers  of  the  board  of  managers  of  a 
county  hospital  for  tuberculosis  under  this  act,  and  the  state  commissioner 
of  health  shall  be  relieved  from  any  responsibility  therefor  except  such  re- 
sponsibility as  he  exercises  in  regard  to  all  county  tuberculosis  hospitals 
under  the  provisions  of  this  act. 

When  deemed  advisable  by  the  board  of  supervisors  and  approved  by  the 
state  commissioner  of  health,  any  such  county  may  maintain  more  than  one 
county  hospital  for  the  care  and  treatment  of  persons  suffering  from  tuber- 
culosis. The  board  of  supervisors  of  any  other  county  shall  have  power  by 
a majority  vote  to  establish  a county  hospital  for  the  care  and  treatment  of 
persons  suffering  from  the  disease  known  as  tuberculosis;  or  it  may  submit 
the  question  of  establishing  such  a hospital  to  the  voters  of  the  county  at 
any  general  election,  and  in  any  county  in  which  town  meetings  at  which  all 
the  voters  of  the  county  may  vote  are  held  in  the  spring  of  the  year,  the 
board  of  supervisors  of  such  a county  shall  have  authority  also  to  submit 
the  question  of  establishing  such  a hospital  at  said  town  meetings  to  the 
electors  of  the  county  who  are  qualified  to  vote  at  a general  election.  The 
board  of  supervisors  shall  fix  the  sum  of  money  deemed  necessary  for  the 
establishment  of  said  hospital.  The  form  of  the  proposition  submitted  shall 
read  as  follows : “ Shall  the  county  of appropriate  the 


218 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 45. 

sum  of dollars  for  the  establishment  of  a tuberculosis 

hospital  ? 99  The  clerk  of  the  board  of  supervisors,  immediately  upon  the 
adoption  of  such  resolution,  shall  forward  to  the  duly  constituted  election 
authorities  of  the  county  a certified  copy  of  said  resolution  providing  for 
the  submission  of  the  proposition.  The  election  notices  shall  state  that  the 
proposition  will  be  voted  upon  and  in  the  form  set  forth  above.  Such 
proposition  shall  be  submitted  on  a distinct  and  separate  ballot  without  any 
other  question  being  printed  thereon,  any  general  or  special  law  to  the  con- 
trary notwithstanding.  Provision  for  taking  such  vote  and  for  the  can- 
vassing and  returning  of  the  result  shall  be  made  by  the  duly  constituted 
election  authorities. 

If  a majority  of  the  voters  voting  on  such  proposition  shall  vote  in  favor 
thereof  then  such  hospital  shall  be  established  hereunder  and  the  sum  of 
money  named  in  the  said  proposition  shall  be  deemed  appropriated,  and  it 
shall  be  the  duty  of  the  board  of  supervisors  to  proceed  forthwith  to  exer- 
cise the  powers  and  authority  conferred  upon  it  in  this  section. 

When  the  board  of  supervisors  of  any  county  shall  have  voted  to  estab- 
lish such  hospital,  or  when  a referendum  on  the  proposition  of  establishing 
such  a hospital  in  a county,  as  authorized  above,  shall  have  been  carried, 
the  board  of  supervisors  shall : 

1.  Purchase  or  lease  real  property  therefor,  or  acquire  such  real  property, 
and  easements  therein,  by  condemnation  proceedings,  in  the  manner  pre- 
scribed by  the  condemnation  law,  in  any  town,  city  or  village  in  the  county. 
After  the  presentation  of  the  petition  in  such  proceeding  prescribed  in  sec- 
tion three  thousand  three  hundred  and  sixty  of  the  code  of  civil  procedure 
and  the  filing  of  the  notice  of  pendency  of  action  prescribed  in  section  three 
thousand  three  hundred  and  eighty-one  thereof,  said  board  of  supervisors 
shall  be  and  become  seized  of  the  whole  or  such  part  of  the  real  property 
described  in  said  petition  to  be  so  acquired  for  carrying  into -effect  the  pro- 
visions of  this  act,  as  such  board  may,  by  resolution  adopted  at  a regular  or 
special  session,  determine  to  be  necessary  for  the  immediate  use,  and  such 
board  for  and  in  the  name  of  such  county  may  enter  upon,  occupy  and  use 
such  real  property  so  described  and  required  for  such  purposes.  Such  reso- 
lution shall  contain  a description  of  the  real  property  of  which  possession 
is  to  be  taken  and  the  day  upon  which  possession  will  be  taken.  Said  board 
of  supervisors  shall  cause  a copy  of  such  resolution  to  be  filed  in  the  county 
clerk’s  office  of  the  county  in  which  such  property  is  situate,  and  notice  of 
the  adoption  thereof,  with  a copy  of  the  resolution  and  of  its  intention  to 
take  possession  of  the  premises  therein  described  on  a day  certain,  also 
therein  named,  to  be  served,  either  personally  or  by  mail,  upon  the  owner  or 


COUNTY  HOSPITAL  FOR  TUBERCULOSIS. 


218a 


County  Law’,  § 45. 

owners  of,  and  persons  interested  in  such  real  property,  at  least  five  days 
prior  to  the  day  fixed  in  such  resolution  for  taking  possession.  From  the 
time  of  the  service  of  such  notice,  the  entry  upon  and  appropriation  by  the 
eounty  of  the  real  property  therein  described  for  the  purposes  provided  for 
by  this  act,  shall  be  deemed  complete,  and  such  notice  so  served  shall  be 
conclusive  evidence  of  such  entry  and  appropriation  and  of  the  quantity  and 
boundaries  of  the  lands  appropriated.  The  board  of  supervisors  may  cause 
a duplicate  copy  of  such  papers  so  served,  with  an  affidavit  of  due  service 
thereof  on  such  owner  or  person  interested,  to  be  recorded  in  the  books  used 
for  recording  deeds  in  the  office  of  the  county  clerk  of  its  county,  and  the 
record  of  such  notice  and  such  proof  of  service  shall  be  prima  facie  evi- 
dence of  the  due  service  thereof.  Compensation  for  property  thus  acquired 
shall  be  made  in  such  condemnation  proceedings. 

2.  Erect  all  necessary  buildings  and  alter  any  buildings  on  the  property 
when  acquired  for  the  use  of  said  hospital,  provided  that  the  location  of  the 
buildings  and  the  plans  and  such  part  of  the  specifications  as  shall  be 
required  by  the  state  commissioner  of  health  for  such  erection  or  alteration 
together  with  the  initial  equipment  shall  first  be  approved  by  the  state  com- 
missioner of  health.  Any  changes  in  such  location  or  plans  shall  also  be 
first  approved  by  the  state  commissioner  of  health  and  the  state  commis- 
sioner of  health  and  his  duly  authorized  representatives  shall  have  the 
power  to  inspect  such  county  hospitals  during  the  course  of  their  construc- 
tion for  the  purpose  of  seeing  that  such  plans  are  complied  with. 

3.  Cause  to  be  assessed,  levied  and  collected  such  sums  of  money  as  it 
shall  deem  necessary  for  suitable  lands,  buildings  and  improvements  for 
said  hospital,  and  for  the  maintenance  thereof,  and  for  all  other  necessary 
expenditures  therefor ; and  to  borrow  money  for  the  erection  of  such  hospital 
and  for  the  purchase  of  a site  therefor  on  the  credit  of  the  county,  and  issue 
county  obligations  therefor,  in  such  manner  as  it  may  do  for  other  county 
purposes. 

4.  Appoint  a board  of  managers  for  said  hospital  as  hereinafter  provided. 

5.  Accept  and  hold  in  trust  for  the  county,  any  grant  or  devise  of  land, 
or  any  gift  or  bequest  of  money  or  other  personal  property,  or  any  donation 
to  be  applied,  principal  or  income,  or  both,  for  the  benefit  of  said  hospital, 
and  apply  the  same  in  accordance  with  the  terms  of  the  gift. 

6.  Whenever  it  shall  deem  it  in  the  public  interest  so  to  do,  and  notwith- 
standing the  provisions  of  any  other  general  or  special  act,  change  the  loca- 
tion of  such  hospital  and  acquire  a new  site  by  purchase,  lease  or  condemna- 
tion, as  provided  in  this  section,  and  establish  the  hospital  thereon.  The 
board  of  supervisors  of  any  county  of  the  state,  including  a county  in  which 


218b 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 45. 

the  provisions  of  this  chapter  are  not  mandatory,  subject  to  the  approval 
of  the  state  commissioner  of  health,  may  enter  into  a contract  prior  to 
November  first,  nineteen  hundred  and  eighteen,  for  the  care  of  its  tubercu- 
losis patients  with  the  board  of  supervisors  of  an  adjoining  county  having 
such  county  hospital  or  with  a private  sanatorium  within  its  county,  or 
may,  subject  to  like  approval,  jointly  with  the  boards  of  supervisors  of  one 
ore  more  other  adjoining  counties,  establish  prior  to  November  first,  nine- 
teen hundred  and  eighteen,  and  thereafter  maintain  such  county  hospital. 
In  the  establishment  and  maintenance  of  such  joint  county  hospital,  the 
boards  of  supervisors  so  uniting,  in  accordance  with  such  rules  and  regula- 
tions as  may  be  prescribed  by  the  state  commissioner  of  health,  shall  have 
jointly,  except  as  provided  in  this  section,  all  the  power  and  authority  con- 
ferred and  obligations  imposed  upon  boards  of  supervisors  by  this  chapter 
for  the  establishment  and  maintenance  of  such  county  hospital  in  a single 
county  and,  for  that  purpose,  each  board  of  supervisors  in  such  county 
shall  appoint  severally  three  of  its  members,  who  collectively  shall  be  a 
commission,  to  select  a site  for  such  joint  county  hospital  in  any  town,  city 
or  village  in  one  of  such  counties  and,  when  the  necessary  real  property  so 
selected  by  such  commission  shall  have  been  acquired,  purchased  or  leased 
as  herein  provided,  to  erect  all  necessary  buildings,  and  alter  any  buildings, 
on  such  property  for  the  use  of  such  joint  hospital.  Such  commission  shall 
have  all  the  powers  and  duties  conferred  or  imposed  upon  boards  of  super- 
visors by  sections  forty-five  to  forty-nine  inclusive  of  this  chapter,  except  as 
in  this  section  expressly  otherwise  provided.  Every  such  joint  county  hospi- 
tal shall  be  completed  and  ready  for  occupancy  prior  to  July  first,  nineteen 
hundred  and  nineteen.  When  completed,  each  board  of  supervisors  in  such 
counties  shall  appoint  severally  three  citizens  of  its  county,  of  whom  at  least 
one  shall  be  a practicing  physician,  who  collectively  shall  constitute  a board 
of  managers  of  such  joint  county  hospital  and  shall  exercise  the  functions 
and  powers  granted  and  be  subject,  so  far  as  practicable,  to  the  provisions 
of  this  chapter  applicable  to  boards  of  managers  of  a county  hospital  estab- 
lished under  this  chapter  in  a single  county  and  said  board  of  managers 
shall  appoint  at  least  one  nurse  in  each  county  for  the  discovery,  visitation 
and  care  of  persons  affected  with  tuberculosis  and  may  appoint  such  addi- 
tional nurse  or  nurses  as  it  may  deem  necessary.  The  representation  and 
voting  power  of  each  manager  in  such  joint  board  shall  be  upon  the  basis 
and  at  the  rate  of  one  vote  for  each  one  thousand  and  major  fraction  of  the 
population  of  the  county  from  which  such  manager  shall  be  chosen  as  deter- 
mined by  the  latest  state  census.  The  superintendent  appointed  by  such 
board  shall  have  the  powers  and  perform  the  duties  which  are  prescribed  in 


COUNTY  HOSPITAL  FOR  TUBERCULOSIS 


'219 


County  Law,  § 45. 

this  chapter  for  superintendents  of  hospitals  in  a single  county  and  the 
other  employees  of  such  board  shall  perform  such  duties  as  the  board  shall 
prescribe.  The  expense  of  the  establishment  and  maintenance  of  a joint 
county  hospital  as  herein  provided  shall  be  paid  by  such  counties  in  propor- 
tion to  the  assessed  value  of  the  taxable  property  of  each  such  county  as  it 
appears  by  the  assessment  rolls  of  such  counties  on  the  last  assessment  for 
state  or  county  taxes  prior  to  the  incurring  of  such  expense  and  the  board 
of  supervisors  of  each  county  so  combining,  is  hereby  authorized  to  borrow 
money  to  defray  its  share,  estimated  as  herein  provided,  for  the  erection  of 
such  hospital  and  for  the  purchase  of  a site  therefor  on  the  credit  of  the 
county  and  issue  county  obligations  therefor  in  such  manner  as  it  may  do 
for  other  county  purposes.  All  provisions  of  sections  forty-five  to  forty-nine 
inclusive  of  this  chapter  not  in  conflict  with  the  provisions  of  this  section 
shall  apply  to  such  joint  hospital,  its  establishment,  maintenance  and  opera- 
tion, except  that  for  the  purpose  of  the  admission  of  patients  to  such  hospi- 
tal each  of  the  counties  so  combining  shall  be  considered  the  county  in 
which  the  hospital  is  situated.1  [County  Law,  § 45,  as  added  by  L.  1909, 
ch.  341,  and  amended  by  L.  1913,  chs.  166,  379,  L.  1914,  ch.  323,  L.  1915, 
ch.  132,  L.  1917,  ch.  469,  and  L.  1918,  ch.  268;  Subd.  6,  added  by  L.  1915, 
ch.  427;  B.  C.  & G.  Cons.  L.,  p.  742.] 

§ 2.  APPOINTMENT  AND  TERMS  OF  OFFICE  OF  MANAGERS. 

When  the  board  of  supervisors  shall  have  determined  to  establish  a hospi- 
tal for  the  care  and  treatment  of  persons  suffering  from  tuberculosis,  and 
shall  have  acquired  a site  therefor,  and  shall  have  awarded  contracts  for  the 
necessary  buildings  and  improvements  thereon,  it  shall  appoint  five  citizens 
of  the  county,  of  whom  at  least  two  shall  be  practicing  physicians,  who 
shall  constitute  a board  of  managers  of  the  said  hospital.  The  term  of 
office  of  each  member  of  said  board  shall  be  five  years,  and  the  term  of  one 
of  such  managers  shall  expire  annually;  the  first  appointments  shall  be 
made  for  the  respective  terms  of  five,  four,  three,  two  and  one  years.  Ap- 
pointments of  successors  shall  be  for  the  full  term  of  five  years,  except  that 
appointment  of  persons  to  fill  vacancies  occurring  by  death,  resignation  or 
other  cause  shall  be  made  for  the  unexpired  term.  Failure  of  any  manager 
to  attend  three  consecutive  meetings  of  the  board  shall  cause  a vacancy  in 
his  office,  unless  said  absence  is  excused  by  formal  action  of  the  board  of 
managers.  The  managers  shall  receive  no  compensation  for  their  services, 

1.  The  amendments  made  by  this  act  shall  not  apply  to  counties  in  which  a site 
for  a tuberculosis  hospital  has  been  selected  by  any  county  and  a petition  for  the 
approval  of  such  site  has  been  presented  to  the  state  board  of  health  pursuant  to 
the  provisions  of  this  chapter.  L.  1918,  ch.  268,  § 2. 


219a 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 46. 

but  shall  be  allowed  their  actual  and  necessary  traveling  and  other  expenses, 
to  be  audited  and  paid,  in  the  same  manner  as  the  other  expenses  of  the  hos- 
pital, by  the  board  of  supervisors.  Any  manager  may  at  any  time  be 
removed  from  office  by  the  board  of  supervisors  of  the  county,  for  cause 
after  an  opportunity  to  be  heard.  [County  Law,  § 46,  as  added  by  L.  1909, 
ch.  341;  B.  C.  & G.  Cons.  L.,  p.  743.] 

§ 3.  GENERAL  POWERS  AND  DUTIES  OF  MANAGERS. 

The  board  of  managers. 

1.  Shall  elect  from  among  its  members,  a president  and  one  or  more 
vice-presidents.  It  shall  appoint  a superintendent  of  the  hospital  who 
shall  be  also  the  treasurer  and  secretary  of  the  board,  and  it  may  remove 
him  for  cause  stated  in  writing  and  after  an  opportunity  to  be  heard  thereon 
after  due  notice;  and  may  suspend  him  from  duty  pending  the  disposition 
of  such  charges.  Said  superintendent  shall  not  be  a member  of  the  board 
of  managers,  and,  except  in  the  county  of  Monroe,  shall  be  a graduate  of 
an  incorporated  medical  college,  with  an  experience  of  at  least  three  years 
in  the  actual  practice  of  his  profession.  [Subd.  amended  by  L.  1915,  ch. 
132,  and  by  L.  1917,  ch.  701.] 

2.  Shall  fix  the  salaries  of  the  superintendent  and  all  other  officers  and 
employees  within  the  limits  of  the  appropriation  made  therefor  by  the 
board  of  supervisors,  and  such  salaries  shall  be  compensation  in  full  for  all 
services  rendered.  The  board  of  managers  shall  determine  the  amount  of 
time  required  to  be  spent  at  the  hospital  by  said  superintendent  in  the  dis- 
charge of  his  duties. 

3.  Shall  have  the  general  superintendence,  management  and  control  of 
the  said  hospital,  of  the  grounds,  buildings,  officers  and  employees  thereof ; 
of  the  inmates  therein,  and  of  all  matters  relating  to  the  government, 
discipline,  contracts,  and  fiscal  concerns  thereof;  and  make  such  rules  and 
regulations  as  may  seem  to  them  necessary  for  carrying  out  the  purposes  of 
such  hospital. 

4.  Shall  maintain  an  effective  inspection  of  said  hospital,  and  keep  itself 
informed  of  the  affairs  and  management  thereof ; shall  meet  at  the  hospital 
at  least  once  in  every  month,  and  at  such  other  times  as  may  be  prescribed 
by  the  by-laws ; and  shall  hold  its  annual  meeting  at  least  three  weeks  prior 
to  the  meeting  of  the  board  of  supervisors  at  which  appropriations  for  the 
ensuing  year  are  to  be  considered. 

5.  Shall  keep  in  a book  provided  for  that  purpose,  a proper  record  of  its 
proceedings  which  shall  be  open  at  all  times  to  the  inspection  of  its  mem- 


COUNTY  HOSPITAL  FOR  TUBERCULOSIS. 


219b 


County  Law,  § 46. 


bers,  to  the  members  of  the  board  of  supervisors  of  the  county,  and  to  duly 
authorized  representatives  of  the  state  board  of  charities. 

6.  Shall  certify  all  bills  and  accounts  including  salaries  and  wages  and 
transmit  them  to  the  board  of  supervisors  of  the  county,  who  shall  provide 
for  their  payment  in  the  same  manner  as  other  charges  against  the  county 
are  paid.2  The  board  of  supervisors  of  a county  not  having  a purchasing 
agent  or  auditing  commission  may  make  an  appropriation  for  the  mainten- 
ance of  such  hospital  and  direct  the  county  treasurer  to  pay  all  bills, 
accounts,  salaries  and  wages,  which  are  approved  by  the  board  of  managers, 
within  the  amount  of  such  appropriation,  subject  to  such  regulations  as  to 
the  payment  and  audit  thereof  as  the  board  of  supervisors  may  deem 
proper.  [Subd.  amended  by  L.  1913,  ch.  40.] 

7.  Shall  make  to  the  board  of  supervisors  of  the  county  annually,  at  such 
time  as  said  supervisors  shall  direct,  a detailed  report  of  the  operations  of 
the  hospital  during  the  year,  the  number  of  patients  received,  the  methods 
and  results  of  their  treatment,  together  with  suitable  recommendations  and 
such  other  matter  as  may  be  required  of  them,  and  full  and  detailed  esti- 
mates of  the  appropriations  required  during  the  ensuing  year  for  all  pur- 
poses including  maintenance,  the  erection  of  buildings,  repairs,  renewals, 
extensions,  improvements,  betterments  or  other  necessary  purposes. 

8.  Shall  notwithstanding  any  other  general  or  special  law  erect  all  addi- 
tional buildings  found  necessary  after  the  hospital  has  been  placed  in  opera- 
tion and  make  all  necessary  improvements  and  repairs  within  the  limits  of 
the  appropriations  made  therefor  by  the  board  of  supervisors,  provided  that 
the  location  of  the  buildings  and  the  plans  and  such  part  of  the  specifica- 
tions as  shall  be  required  by  the  state  commissioner  of  health  for  such  addi- 
tional buildings,  improvements  or  repairs  shall  first  be  approved  by  the 
state  commissioner  of  health.  Any  change  in  such  location  or  plans  shall 
also  be  first  approved  by  the  state  commissioner  of  health  and  the  state 
commissioner  of  health  and  his  duly  authorized  representatives  shall  have 
the  power  to  inspect  such  county  hospitals  during  the  course  of  the  con- 
struction of  such  additional  building  for  the  purpose  of  seeing  that  such 
plans  are  complied  with.  [Subd.  added  by  L.  1913,  ch.  379,  and  amended 
by  L.  1917,  ch.  469.] 

9.  Shall  employ  a county  nurse  or  an  additional  nurse  or  nurses  if  it 
deems  necessary,  for  the  discovery  of  tuberculosis  cases  and  for  the  visitation 

2.  Bills  for  equipment  of  a county  tuberculosis  hospital  audited  by  the  super- 
intendent and  board  of  managers  should  also  be  audited  by  the  board  of  supervisors 
or  the  county  auditor  before  they  may  be  legally  paid  by  the  treasurer.  Opinion 
of  State  Comptroller  (1916),  10  State  Dept.  Rep.  532. 


219c 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 47. 

of  such  cases  and  of  patients  discharged  from  the  hospital  and  for  such 
other  duties  as  may  seem  appropriate;  and  shall  cause  to  be  examined  by 
the  superintendent  or  one  of  his  medical  staff  suspected  cases  of  tuberculosis 
reported  to  it  by  the  county  nurse,  or  nurses,  or  by  physicians,  teachers, 
employers,  heads  of  families  or  others ; and  it  may  take  such  other  steps  for 
the  care,  treatment  and  prevention  of  tuberculosis  as  it  may  from  time  to 
time  deem  wise.  In  cases,  however,  where  it  is  not  mandatory  to  establish 
a county  tuberculosis  hospital  and  no  board  of  managers  has  been  provided, 
the  board  of  supervisors  shall  have  the  power  to  appoint  and  employ  such 
nurse  or  additional  nurse  or  nurses,  and  appointments  heretofore  made  by 
boards  of  supervisors  in  such  cases  are  hereby  ratified,  confirmed  and  legal- 
ized. [Subd.  added  by  L.  1914,  ch.  323,  amended  by  L.  1917,  ch.  469,  and 
by  L.  1918,  ch.  284.  County  Law,  § 47,  as  added  by  L.  1909,  ch.  341 ; B.  C. 
& G.  Cons.  L.,  p.  744.] 

§ 4.  GENERAL  POWERS  AND  DUTIES  OF  SUPERINTENDENT. 

The  superintendent  shall  be  the  chief  executive  officer  of  the  hospital  and 
subject  to  the  by-laws,  rules  and  regulations  thereof,  and  to  the  powers  of 
the  board  of  managers : 

1.  Shall  equip  the  hospital  with  all  necessary  furniture,  appliances,  fix- 
tures and  other  needed  facilities  for  the  care  and  treatment  of  patients  and 
for  the  use  of  officers  and  employees  thereof,  and  shall  in  counties  where 
there  is  no  purchasing  agent  purchase  all  necessary  supplies. 

2.  Shall  have  general  supervision  and  control  of  the  records,  accounts, 
and  buildings  of  the  hospital  and  all  internal  affairs,  and  maintain  dis- 
cipline therein,  and  enforce  compliance  with,  and  obedience  to  all  rules,  by- 
laws and  regulations  adopted  by  the  board  of  managers  for  the  government, 
discipline  and  management  of  said  hospital,  and  the  employees  and  inmates 
thereof.  He  shall  make  such  further  rules,  regulations  and  orders  as  he 
may  deem  necessary,  not  inconsistent  with  law,  or  with  the  rules,  regulations 
and  directions  of  the  board  of  managers. 

3.  Shall  appoint  such  resident  officers  and  such  employees  as  he  may 
think  proper  and  necessary  for  the  efficient  performance  of  the  business 
of  the  hospital,  and  prescribe  their  duties ; and  for  cause  stated  in  writing, 
after  an  opportunity  to  be  heard,  discharge  any  such  officer  or  employee  at 
his  discretion. 

4.  Shall  cause  proper  accounts  and  records  of  the  business  and  operations 
of  the  hospital  to  be  kept  regularly  from  day  to  day,  in  books  and  on  records 
provided  for  that  purpose;  and  see  that  such  accounts  and  records  are  cor- 
rectly made  up  for  the  annual  report  to  the  board  of  supervisors,  as  required 
by  subdivision  seven  of  section  forty-seven  of  this  chapter,  and  present  the 


COUNTY  HOSPITAL  FOR  TUBERCULOSIS. 


219d 


County  Law,  § 48. 

same  to  the  board  of  managers,  who  shall  incorporate  them  in  their  report 
to  the  said  supervisors. 

5.  Shall  receive  into  the  hospital  in  the  order  of  application  any  person 
found  to  be  suffering  from  tuberculosis  in  any  form  who  is  entitled  to  admis- 
sion thereto  under  the  provisions  of  this  chapter,  excepting  that  if  at  any 
time  there  be  more  applications  for  admission  to  said  hospital  than  there  are 
vacant  beds  therein,  said  superintendent  shall  give  preference  in  the  admis- 
sion of  patients  to  those  who  in  his  judgment,  after  an  inquiry  as  to  the 
facts  and  circumstances,  are  more  likely  to  infect  members  of  their  house- 
holds and  others,  in  each  instance  signing  and  placing  among  the  permanent 
records  of  the  hospital  a statement  of  the  facts  and  circumstances  upon 
which  he  bases  his  judgment  as  to  the  likelihood  of  transmitting  infection, 
and  reporting  each  instance  at  the  next  meeting  of  the  board  of  managers ; 
and  shall  also  receive  persons  from  other  counties  as  hereinafter  provided. 
Said  superintendent  shall  cause  to  be  kept  proper  accounts  and  records  of 
the  admission  of  all  patients,  their  name,  age,  sex,  color,  marital  condition, 
residence,  occupation  and  place  of  last  employment.  [Subd.  amended  by 
L.  1912,  chs.  149  and  239,  L.  1913,  ch.  379,  and  L.  1915,  ch.  132.] 

6.  Shall  cause  a careful  examination  to  be  made  of  the  physical  condition 
of  all  persons  admitted  to  the  hospital  and  provide  for  the  treatment  of 
each  such  patient  according  to  his  need ; and  shall  cause  a record  to  be  kept 
of  the  condition  of  each  patient  when  admitted,  and  from  time  to  time 
thereafter. 

7.  Shall  discharge  from  said  hospital  any  patient  who  shall  wilfully  or 
habitually  violate  the  rules  thereof;  or  who  is  found  not  to  have  tubercu- 
losis ; or  who  is  found  to  have  recovered  therefrom ; or  who  for  any  other 
reason  is  no  longer  a suitable  patient  for  treatment  therein;  and  shall 
make  a full  report  thereof  at  the  next  meeting  of  the  board  of  managers. 

8.  Shall  collect  and  receive  all  moneys  due  the  hospital,  keep  an  accurate 
account  of  the  same,  report  the  same  at  the  monthly  meeting  of  the  board 
of  managers,  and  transmit  the  same  to  the  treasurer  of  the  county  within 
ten  days  after  such  meeting. 

9.  Shall  before  entering  upon  the  discharge  of  his  duties,  give  a bond 
in  such  sum  as  the  board  of  managers  may  determine,  to  secure  the  faithful 
performance  of  such  duties. 

10.  May  attend  such  courses  in  the  diagnosis  and  treatment  of  tubercu- 
losis and  in  hospital  administration  at  the  state  hospital  for  the  treatment 
of  incipient  pulmonary  tuberculosis  at  Raybrook  as  may  be  established  and 
which  he  may  be  authorized  to  attend  by  the  board  of  managers  of  his  hos- 
pital. The  necessary  expenses  in  traveling  to  and  from  the  said  state  hospi- 
tal for  the  treatment  of  incipient  pumonary  tuberculosis  at  Raybrook  for 


220 


COUNTY  OFFICERS;  JAILS. 


County  Law,  §§  49,  49a. 

the  purpose  of  taking  such  courses  shall  be  a county  charge.  [Subd.  10 
added  by  L.  1917,  ch.  469.  County  Law,  § 48,  as  added  by  L.  1909,  ch. 
341 ; B.  C.  & G.  Cons.  L.,  p.  744.] 

§ 5.  ADMISSION  OF  PATIENTS  FROM  COUNTY  IN  WHICH  HOS- 
PITAL IS  SITUATED. 

Any  resident  of  the  county  in  which  the  hospital  is  situated  desiring 
treatment  in  such  hospital,  may  apply  in  person  to  the  superintendent  or  to 
any  reputable  physician  for  examination,  and  such  physician,  if  he  find 
that  said  person  is  suffering  from  tuberculosis  in  any  form,  may  apply 
to  the  superintendent  of  the  hospital  for  his  admission.  Blank  forms  for 
such  applications  shall  be  provided  by  the  hospital,  and  shall  be  for- 
warded by  the  superintendent  thereof  gratuitously  to  any  reputable  phy- 
sician in  the  county,  upon  request.  So  far  as  practicable,  applications  for 
admission  to  the  hospital  shall  be  made  upon  such  forms.  The  superin- 
tendent of  the  hospital,  upon  the  receipt  of  such  application,  if  it  appears 
therefrom  that  the  patient  is  suffering  from  tuberculosis,  and  if  there  be 
a vacancy  in  the  said  hospital,  shall  notify  the  person  named  in  such  appli- 
cation to  appear  in  person  at  the  hospital.  If,  upon  personal  examination 
of  such  patient,  or  of  any  patient  applying  in  person  for  admission,  the 
superintendent  is  satisfied  that  such  person  is  suffering  from  tuberculosis, 
he  shall  admit  him  to  the  hospital  as  a patient.  All  such  applications  shall 
state  whether,  in  the  judgment  of  the  physician,  the  person  is  able  to  pay 
in  whole  or  in  part  for  his  care  and  treatment  while  at  the  hospital;  and 
every  application  shall  be  filed  and  recorded  in  a book  kept  for  that  purpose 
in  the  order  of  their  receipt.  When  said  hospital  is  completed  and  ready 
for  the  treatment  of  patients,  or  whenever  thereafter  there  are  vacancies 
therein,  admissions  to  said  hospital  shall  be  made  in  the  order  in  which 
the  names  of  applicants  shall  appear  upon  the  application  book  to  be  kept 
as  above  provided,  in  so  far  as  such  applicants  are  certified  to  by  the 
superintendent  to  be  suffering  from  tuberculosis.  No  discrimination  shall 
be  made  in  the  accommodation,  care  or  treatment  of  any  patient  because  of 
the  fact  that  the  patient  or  his  relatives  contribute  to  the  cost  of  his 
maintenance  in  whole  or  in  part,  and  no  patient  shall  be  permitted  to  pay 
for  his  maintenance  in  such  hospital  a greater  sum  than  the  average  per 
capita  cost  of  maintenance  therein,  including  a reasonable  allowance  for 
the  interest  on  the  cost  of  the  hospital ; and  no  officer  or  employee  of  such 
hospital  shall  accept  from  any  patient  thereof  any  fee,  payment  or  gratuity 
whatsoever  for  his  services.  [County  Law,  § 49,  as  added  by  L.  1909,  ch. 
341,  B.  C.  & G.  Cons.  L.,  p.  746.] 

§ 6.  MAINTENANCE  OF  PATIENTS  IN  THE  COUNTY  IN  WHICH 
HOSPITAL  IS  SITUATED. 

Wherever  a patient  has  been  admitted  to  said  hospital  from  the  county 


COUNTY  HOSPITAL  FOR  TUBERCULOSIS. 


221 


County  Law,  §§  49-b,  49-c. 

in  which  the  hospital  is  situated,  the  superintendent  shall  cause  such 
inquiry  to  be  made  as  he  may  deem  necessary,  as  to  his  circumstances, 
and  of  the  relatives  of  such  patient  legally  liable  for  his  support.  If 
he  find  that  such  patient,  or  said  relatives  are  able  to  pay  for  his  care 
and  treatment  in  whole  or  in  part,  an  order  shall  be  made  directing  such 
patient,  or  said  relatives  to  pay  to  the  treasurer  of  such  hospital  for  the 
support  of  such  patient  a specified  sum  per  week,  in  proportion  to  their 
financial  ability,  but  such  sum  shall  not  exceed  the  actual  per  capita  cost 
of  maintenance.  The  superintendent  shall  have  the  same  power  and 
authority  to  collect  such  sum  from  the  estate  of  the  patient,  or  his  rela- 
tives legally  liable  for  his  support,  as  is  possessed  by  an  overseer  of  the 
poor  in  like  circumstances.  If  the  superintendent  find  that  such  patient, 
or  said  relatives  are  not  able  to  pay,  either  in  whole  or  in  part,  for  his 
care  and  treatment  in  such  hospital,  the  same  shall  become  a charge 
upon  the  county.  When  any  indigent  patient  shall  have  been  admitted 
to  any  such  hospital  as  a resident  of  the  county  in  which  the  hospital 
is  located,  and  it  shall  be  found  that  such  patient  has  not  acquired  a 
settlement  within  such  county  under  the  provisions  of  the  poor  law, 
the  superintendent  of  such  hospital  shall  collect  from  the  county  in 
which  such  patient  has  a settlement  the  cost  of  his  maintenance  in  such 
hospital,  or  may  in  his  discretion  return  such  patient  to  the  locality  in 
which  he  has  a settlement.  [County  Law,  § 49-a,  as  added  L.  1909, 
ch.  341,  and  amended  by  L.  1912,  chs.  149  and  239,  and  L.  1913,  ch. 
379 ; B.  C.  & G.  Cons.  L.,  p.  746.] 

§ 7 ADMISSION  OF  PATIENTS  FROM  COUNTIES  NOT  HAVING  A 
HOSPITAL. 

In  any  county  not  having  a county  hospital  for  the  care  and  treatment  of 
persons  suffering  from  tuberculosis,  a county  superintendent  of  the  poor,  upon 
the  receipt  of  the  application  and  certificate  hereinafter  provided  for,  shall  apply 
to  the  superintendent  of  any  such  hospital  established  by  any  other  county,  for  the 
admission  of  such  patient.  Any  person  residing  in  a county  in  which  there  is  no 
such  hospital,  who  desires  to  receive  treatment  in  such  a hospital,  may  apply 
therefor  in  writing  to  the  superintendent  of  the  poor  of  the  county  in  which  he 
resides  on  a blank  to  be  provided  by  said  superintendent  tor  that  purpose,  sub- 
mitting with  such  application  a written  certificate  signed  by  a reputable  physician 
on  a blank  to  be  provided  by  the  superintendent  of  the  poor  for  such  purpose, 
stating  that  such  physician  has,  within  the  ten  days  then  next  preceding,  examined 
such  person,  and  that,  in  his  judgment,  such  person  is  suliering  from,  tuberculosis. 
The  superintendent  of  the  poor,  on  receipt  of  such  application  and  certificate,  shall 
forward  the  same  to  the  superintendent  of  any  hospital  for  the  care  and  treatment 
of  tuberculosis.  If  such  patient  be  accepted  by  such  hospital,  the  superintendent  of 
the  poor  shall  provide  for  his  transportation  thereto,  and  for  his  maintenance  therein 
at  a rate  to  be  fixed  as  hereinafter  provided.  [County  Law,  § 49-b,  as  added  by  L. 
1909,  ch.  341,  and  amended  by  L.  1917,  ch.469;  C.  B.  & G.  Cons.  L.,  p.  747.] 

§ 8.  MAINTENANCE  OF  PATIENTS  FROM  COUNTIES  NOT  HAVING 
HOSPITAL. 

Whenever  the  superintendent  of  such  a county  hospital,  shall  receive 
from  a superintendent  of  the  poor  of  any  other  county  an  application  for 


222 


COUNTY  OFFICERS;  JAILS. 


County  Law,  §§  49-d,  49-e. 

the  admission  of  a patient,  if  it  appear  from  such  application  that  the  per- 
son  therein  referred  to  is  suffering  from  tuberculosis,  the  superintendent 
shall  notify  said  person  to  appear  in  person  at  the  hospital,  provided 
there  be  a vacancy  in  such  hospital  and  there  be  no  pending  application 
from  a patient  residing  in  the  county  in  which  the  hospital  is  located. 
If,  upon  personal  examination  of  the  patient,  the  superintendent  is  sat- 
isfied that  such  patient  is  suffering  from  tuberculosis,  he  shall  admit  him 
to  the  hospital.  Every  patient  so  admitted  shall  be  a charge  against  the 
county  sending  such  patient,  at  a rate  to  be  fixed  by  the  board  of  man- 
agers, which  shall  not  exceed  the  per  capita  cost  of  maintenance  therein, 
including  a reasonable  allowance  for  interest  on  the  costs  of  the  hospital; 
and  the  bill  therefor  shall,  when  verified  by  the  superintendent  of  the 
poor  of  the  county  from  which  said  patient  was  sent,  be  audited  and  paid 
by  the  board  of  supervisors  of  the  said  county.  The  said  superintendent  of 
the  poor  shall  cause  an  investigation  to  be  made  into  the  circumstances  of 
such  patient,  and  of  his  relatives  legally  liable  for  his  support,  and  shall 
have  the  same  authority  as  an  overseer  of  the  poor  in  like  circumstances  to 
collect  therefrom,  in  whole  or  in  part,  according  to  their  financial  ability, 
the  cost  of  the  maintenance  of  such  person  in  said  hospital.  [County 
Law,  § 49-c,  as  added  by  L.  1909,  ch.  341;  B.  C.  & G.  Cons.  L.  p.  747.] 

§ 9.  VISITATION  AND  INSPECTION. 

The  resident  officer  of  the  hospital  shall  admit  the  managers  into  every 
nart  of  the  hospital  and  the  premises  and  give  them  access  on  demand  to 
all  books,  papers,  accounts  and  records  pertaining  to  the  hospital  and  shall 
furnish  copies,  abstracts  and  reports  whenever  required  by  them.  All 
hospitals  established  or  maintained  under  the  provisions  of  sections  forty- 
five  to  forty-nine-e,  inclusive,  of  this  chapter,  shall  be  subject  to  inspection 
bv  any  duly  authorized  representative  of  the  state  board  of  charities,  of  the 
state  department  of  health,  of  the  state  charities  aid  association  and  of  the 
board  of  supervisors  of  the  county;  and  the  resident  officers  shall  admit 
such  representatives  into  every  part  of  the  hospital  and  its  buildings,  and 
give  them  access  on  demand  to  all  records,  reports,  books,  papers  and 
accounts  pertaining  to  the  hospital.  [County  Law,  § 49-d,  as  added  by  L. 
1909,  ch.  341 ; B.  C.  & G.  Cons.  L.,  p.  748.] 

§ 10.  HOSPITALS  AT  ALMSHOUSES. 

Wherever  a hospital  for  the  care  and  treatment  of  persons  suffering 
from  tuberculosis  exists  in  connection  with,  or  on  the  grounds  of  a county 
alms-house,  the  board  of  supervisors  may,  after  sections  forty-five  to  forty- 
nine-e  of  this  chapter  take  effect,  appoint  a board  of  managers  for  such 


COUNTY  HOSPITAL  FOR  TUBERCULOSIS. 


223 


County  Law,  § 49-c. 

hospital  and  such  hospital,  and  its  hoard  of  managers,  shall  thereafter 
be  subject  to  all  the  provisions  of  this  act,  in  like  manner  as  if  it  had 
been  originally  established  hereunder.  Any  hospital  for  the  care  and 
treatment  of  tuberculosis  which  may  hereafter  be  established  by  any 
board  of  supervisors  shall  be  subject  to  all  the  provisions  of  said  sec- 
tions. 2sTo  hospital  authorized  under  the  provisions  of  this  chapter  shall 
hereafter  be  located  on  the  grounds  of  an  alms-house.  [County  Law, 
§ 49-e,  as  added  by  L.  1909,  ch.  341,  and  amended  by  L.  1913,  ch.  379 ; 
B.  C.  & G.  Cons.  L.,  p.  748.] 


223a 


COUNTY  OFFICERS;  JAILS. 


CHAPTER  XVI-A. 

LOCAL  BOARDS  OF  CHILD  WELFARE. 

Section  1.  Local  boards  of  child  welfare  established. 

2.  Appointment  of  boards  in  counties. 

3.  Appointment  of  boards  in  cities. 

4.  Members  to  serve  without  compensation.  Expenses  only  to  be  paid. 

5.  General  powers  and  duties  of  board.  State  board  of  charities  may 

revoke  allowances. 

6.  Regulations  governing  allowances. 

7.  Appropriations  and  limitations  for  purposes  of  article. 

8.  Penalties. 

§ 1.  LOCAL  BOARDS  OF  CHILD  WELFARE  ESTABLISHED. 

There  shall  be  a local  board  of  child  welfare  in  each  county  of  the 
state  not  wholly  within  a city,  and  in  each  city  wholly  including  one  or 
more  counties,  which,  pursuant  to  this  article,  may  grant  allowances  to 
widowed  mothers  with  one  or  more  children  under  the  age  of  sixteen 
years,  in  order  that  such  children  may  be  suitably  cared  for  in  their 
homes  by  such  mothers.  [General  Munic.  Law,  § 148,  added  by  L. 
1915,  ch.  228,  in  effect  July  1,  1915.] 


§ 2.  APPOINTMENT  OF  BOARDS  IN  COUNTIES. 

The  board  of  child  welfare  of  a county  shall  consist  of  seven  members 
of  which  the  county  superintendent  of  the  poor  shall  be  ex-officio  mem- 
ber.1 If  any  county  have  more  than  one  superintendent  of  the  poor,  the 
county  judge  shall  designate,  by  writing,  filed  with  the  county  clerk,  the 
superintendent  who  shall  serve  as  a member  of  such  board.  The  other 
six  members  of  the  board  shall  be  appointed  by  the  county  judge  for 
such  terms  that  the  term  of  one  appointive  member  of  the  board  shall 
expire  each  year  thereafter.  Upon  the  expiration  of  the  term  of  office 
of  a member  of  the  board,  his  successor  shall  be  appointed  by  the  county 
judge  for  a full  term  of  six  years.  If  a vacancy  occur,  otherwise  than 
by  expiration  of  term,  in  the  office  of  an  appointive  member  of  the  board, 

1.  This  section  does  not  create  the  office  of  superintendent  of  the  poor  in  a county 
where  no  such  office  existed.  6 State  Dept.  Repts.  441. 


LOCAL  BOARDS  OF  CHILD  WELFARE. 


223b 


General  Municipal  Law,  §§  150-152. 

it  shall  be  filled  for  the  unexpired  term.  At  least  two  members  of  the 
board  shall  be  women.  Appointments  shall  be  made  in  writing  and  filed 
with  the  county  clerk.  [General  Munic.  Law,  § 149,  added  by  L.  1915, 
ch.  228,  in  effect  July  1,  1915.] 

§ 3.  APPOINTMENT  OF  BOARDS  IN  CITIES. 

The  board  of  child  welfare  of  a city  wholly  including  one  or  more 
counties  shall  consist  of  nine  members,  of  which  the  commissioner  of 
public  charities  shall  be  ex-officio  member.  The  other  eight  members 
of  the  board  shall  be  appointed  by  the  mayor  for  such  terms  that  the 
term  of  one  appointive  member  of  the  board  shall  expire  each  year  there- 
after. Upon  the  expiration  of  the  term  of  office  of  a member  of  the 
board,  his  successor  shall  be  appointed  by  the  mayor  for  a full  term  of 
eight  years.  If  a vacancy  occur,  otherwise  than  by  expiration  of  term 
in  the  office  of  an  appointive  member  of  the  board,  it  shall  be  filled  for 
the  unexpired  term.  At  least  three  members  of  the  board  shall  be 
women.  [General  Munic.  Law,  § 150,  added  by  L.  1915,  ch.  228,  in 
effect  July  1,  1915.] 

§ 4.  MEMBERS  TO  SERVE  WITHOUT  COMPENSATION,  EXPENSES, 
ET  CETERA. 

The  members  of  the  board  of  child  welfare,  as  herein  provided,  shall 
receive  no  compensation  for  their  services  as  members  of  such  board,  but, 
after  appropriations  have  been  duly  made  as  herein  provided,  they  shall 
be  entitled  to  the  actual  and  necessary  expenses  incurred  by  them  in 
properly  discharging  their  official  duties,  whether  while  making  investi- 
gations or  otherwise.  [General  Munic.  Law,  §151,  added  by  L.  1915, 
ch.  228,  in  effect.July  1,  1915.] 


§ 5.  GENERAL  POWERS  AND  DUTIES  OF  BOARD.  STATE  BOARD 
OF  CHARITIES  MAY  REVOKE  ALLOWANCES. 

A board  of  child  welfare  shall : 

1.  Meet  and  organize  within  ten  days  after  appointment,  and  fix  the 
dates  for  its  meetings,  which  shall  be  held  at  least  monthly. 


223c 


COUNTY  OFFICERS;  JAILS. 


General  Municipal  Law,  § 152. 

2.  Elect  a chairman,  and  appoint  a secretary  of  the  board,  who  shall 
hold  office  subject  to  the  pleasure  of  the  board. 

3.  Establish  an  office  and,  when  specific  appropriations  have  been 
made  for  such  purposes,  employ  such  officers  and  employees  as  may  bo 
provided  for  by  the  board  of  supervisors  of  a county  or  by  the  board  of 
estimate  and  apportionment  and  the  board  of  aldermen  of  a city. 

4.  Establish  rules  and  regulations  for  the  conduct  of  its  business, 
which  shall  provide  for  the  careful  investigation  of  all  applicants  for 
allowances  and  the  adequate  supervision  of  all  persons  receiving  allow- 
ances; such  investigations  and  supervisions,  when  consistently  possible, 
to  be  made  by  the  board  or  by  the  authorities  now  entrusted  with  similar 
work  and  without  incurring  any  unnecessary  expense.  Reports  must 
be  filed  at  least  quarterly  by  the  agents,  visitors  or  representatives  of  the 
board,  with  respect  to  the  families  receiving  allowances  granted  by  the 
hoard. 

5.  Render  to  the  board  of  supervisors,  if  in  counties,  and  to  the  mayor,  if 
in  cities,  a verified  account  of  all  moneys  received  and  expended  by  them,  or 
under  their  direction,  and  of  all  their  proceedings  in  such  manner  and  form 
as  may  be  required  by  the  board  or  the  mayor,  as  the  case  may  be;  if  re- 
quired by  the  board  of  supervisors  or  mayor  more  frequent  reports  must  be 
given  covering  fractional  parts  of  a year.  [Subd.  amended  by  L.  1917,  ch. 
551.] 

6.  Submit  annually  to  the  proper  fiscal  authorities  of  the  county  or  city 
an  estimate  of  the  funds  required  to  carry  out  the  purposes  of  this  article; 
in  a county  such  estimate  shall  be  furnished  before  the  annual  meeting  of 
the  board  of  supervisors  for  appropriating  moneys  and  levying  taxes;  in  a 
city,  it  shall  be  submitted  at  the  time  provided  by  law  for  the  submission  of 
other  departmental  estimates. 

7.  Be  subject  to  the  general  supervision  of  the  state  board  of  charities, 
and  make  such  reports  as  the  state  board  of  charities  may  require.  Any 
person  who  has  knowledge  that  relief  is  being  granted  in  violation  of  the 
requirements  of  this  act,  may  file  a verified  complaint,  in  writing,  with 
the  state  board  of  charities,  setting  forth  the  particulars  of  such  violation, 
and  said  state  board  of  charities  shall  have  power,  after  proper  investi- 
gation, to  revoke  allowances  or  to  make  such  order  as  it  may  deem  just 
and  equitable  and  such  order  shall  be  complied  with  by  the  local  board  of 


LOCAL/  BOARDS  OF  CHILD  WELFARE. 


223d 


General  Municipal  Law,  § 153. 

child  welfare.  [General  Munic.  Law,  § 152,  added  by  L.  1915,  ch. 
228,  in  effect  July  1,  1915.] 

§ 6.  REGULATIONS  GOVERNING  ALLOWANNCES. 

The  following  provisions  shall  govern  the  granting  of  allowances  pur- 
suant to  this  article : 

1.  A board  of  child  welfare  may,  in  its  discretion,  when  funds  have 
been  appropriated  therefor,  grant  an  allowance  to  any  dependent  widow 
residing  in  the  county  or  city  wherein  she  applies  for  an  allowance,  and 
who  is  deemed  by  the  local  board  of  child  welfare  to  be  a proper  person 
mentally,  morally  and  physically  to  care  for  and  bring  up  such  child  or 
children,  provided  such  widow  has  been  a resident  of  the  county  or  of  the 
city  wherein  the  application  for  an  allowance  is  made  for  a period  of  two 
years  immediately  preceding  the  application,  and  whose  deceased  hus- 
band was  a citizen  of  the  United  States  and  a resident  of  the  state  at  the 
time  of  his  death. 

2.  Such  allowance  shall  be  made  by  a majority  vote  of  the  board  duly 
entered  upon  the  minutes  of  any  regular  or  special  meeting,  and  may  be 
increased,  diminished  or  totally  withdrawn  in  the  discretion  of  the  local 
board  of  child  welfare. 

3.  Before  granting  an  allowance  the  board  shall  not  only  determine 
that  the  mother  is  a suitable  person  to  bring  up  her  own  children  and  that 
aid  is  necessary  to  enable  her  to  do  so,  but  further  that  if  such  aid  is  not 
granted  the  child  or  children  must  be  cared  for  in  an  institutional  home. 

4.  Such  an  allowance  or  allowances  shall  not  exceed  the  amount  or 
amounts  which  it  would  be  necessary  to  pay  to  an  institutional  home  for 
the  care  of  such  widow’s  child  or  children. 

5.  An  allowance  granted  by  the  board  shall  be  paid  out  of  any  moneys 
appropriated  by  the  local  authorities  for  such  purposes,  or  otherwise 
available  by  the  board  for  such  purpose ; such  local  authorities  are  au- 
thorized to  appropriate  and  make  available  for  the  board  of  child  welfare 
and  to  include  in  the  tax  levy  for  such  county  or  city,  such  sum  or  sums, 
as  in  tbeir  judgment,  maybe  necessary  to  carry  out  the  provisions  of  this* 
article;  such  moneys  to  be  kept  in  a separate-fund  and  to  be  disbursed  by 


223e 


COUNTY  OFFICERS;  JAILS. 


General  Municipal  Law,  §§  154,  155. 

the  proper  county  or  city  fiscal  authorities  on  orders  of  the  local  board 
of  child  welfare  and  upon  proper  vouchers  therefor. 

6.  An  application  for  allowance  may  be  made  directly  to  the  local 
board  of  child  welfare  or  to  any  member  of  the  board. 

7.  A full  and  complete  record  shall  be  kept  in  every  case  coming  either 
directly  or  indirectly  within  the  jurisdiction  of  the  board ; such  record  to 
be  available  to  the  proper  authorities  of  county  or  city  interested  therein. 

8.  An  allowance  made  by  the  board  shall  not  be  for  a longer  continu- 
ous period  than  six  months  without  renewal,  which  allowance  may  be 
continued  from  time  to  time  at  same  or  different  amounts,  for  similar 
periods  or  less,  either  successively  or  intermittently  or  may  be  revoked  at 
the  pleasure  of  the  local  board  of  child  welfare.  [General  Munic.  Law, 
§ 153,  added  by  L.  1915,  ch.  228,  in  effect  July  1,  1915.] 

§ 7.  APPROPRIATIONS  AND  LIMITATIONS  FOR  PURPOSES  OF 
ARTICLE. 

The  board  of  supervisors  of  a county,  and  the  board  of  estimate  and 
apportionment  and  the  board  of  aldermen  of  a city  to  which  this  article  is 
applicable,  are  hereby  authorized  and  empowered  annually  to  appropriate 
such  a sum,  if  any,  as,  in  their  discretion  and  judgment,  may  be  needed  to 
carry  out  the  provisions  of  this  article,  including  expenses  for  administra- 
tion and  relief;  it  is  further  provided  that  no  board  of  child  welfare  shall 
expend  or  contract  to  expend  under  the  provisions  of  this  act  or  otherwise, 
any  public  moneys  not  specifically  appropriated  as  herein  provided;  the 
board  of  supervisors  of  any  county  may  determine,  as  provided  in  section 
one  hundred  and  thirty-eight  of  the  state  poor  law,  the  same  being  chapter 
forty-two  of  the  consolidated  laws,  whether  or  not  the  actual  expense  for  the 
relief  of  widowed  mothers  and  their  children  under  this  article  shall  be  a 
charge  upon  the  county  or  upon  the  respective  towns  thereof.  Each  such 
board  of  child  welfare  shall,  from  time  to  time,  audit  and  cause  to  be  paid  all 
expenses  for  administration  and  the  w^ages  and  salaries  of  its  employees. 
[General  Munic.  Law,  § 154,  added  by  L.  1915,  ch.  228,  and  amended  by  L. 
1917,  ch.  551.] 

§ 8.  PENALTIES. 

1.  A person  who  shall  procure  or  attempt  to  procure,  directly  or  in- 
directly, any  allowance  for  relief  under  this  article,  for  or  on  account 


LOCAL  BOARDS  OF  CHILD  WELFARE. 


223f 


General  Municipal  Law,  § 155. 

of  a person  not  entitled  thereto,  or  shall  knowingly  or  wilfully  pay  or 
permit  to  be  paid  any  allowance  to  a person  not  entitled  thereto,  shall  be 
guilty  of  a misdemeanor. 

2.  The  members  of  a board  of  child  welfare,  established  by  this  act, 
shall  be  appointed  within  sixty  days  after  this  act  takes  effect.  [General 
Munic.  Law,  § 155,  added  by  L.  1915,  ch.  228,  in  effect  July  1,  1915. j 


.224: 


COUNTY  OFFICERS;  JAILS. 
County  Law,  § 243. 


CHAPTER  XVIX. 

PROVISIONS  GENERALLY  APPLICABLE  TO  COUNTY  OFFICERS. 

EXPLANATORY  NOTE. 

General  Provisions. 

Those  provisions  of  law  which  apply  generally  to  county  officers  are 
included  in  this  chapter.  They  are  found  for  the  most  part  in  Article 
XV  of  the  County  Law.  It  is  provided  by  the  constitution  that  a 
sheriff,  county  clerk,  district  attorney,  and  county  register  may  be  re- 
moved by  the  governor  after  an  opporunity  to  be  heard  iii  defense  of 
charges  preferred.  The  Public  Officers  Law,  § 33,  also  provides  that 
a county  treasurer,  county  superintendent  of  the  poor  and  coroner  may 
be  so  removed.  The  procedure  is  also  prescribed  by  law. 


Section  1. 

2. 


3. 


4. 

5. 

6. 

7. 

8. 


9. 


County  officers  to  report  to  boards  of  supervisors. 

District  attorney  to  sue  for  and  recover  moneys  in  hands  of  county 
officers. 

Official  seals  of  counties,  boards  of  supervisors,  county  treasurers  and 
registers. 

Official  oaths  of  county  officers. 

Gereral  provisions  relating  to  official  bonds  and  undertakings. 
Certain  county  officers  may  be  removed  by  governor. 

Evidence  in  proceedings  for  removal  by  governor. 

Order  of  removal  of  officer,  how  made  and  where  filed. 

Removal  for  treasonable  or  seditious  acts  or  utterances. 


§ 1.  COUNTY  OFFICERS  TO  REPORT  TO  BOARDS  OF  SUPERVISORS. 

Each  county  officer  who  shall  receive,  or  is  authorized  by  law  to  receive, 
any  money  on  account  of  fines  or  penalties  or  other  matter  in  which  his 
county,  or  any  town  or  city  therein,  shall  have  an  interest,  shall  annually 
make  a written  report  to  the  board  of  supervisors  of  his  county,  verified  to 
be  true,  bearing  date  the  first  day  of  November,  stating  the  time  when, 
and  the  name  of  every  person  from  whom  such  money  has  been  received, 
the  amount  thereof,  on  what  account  received,  and  the  sums  remaining  due 


PROVISIONS  GENERALLY  APPLICABLE. 


225 


County  Law,  §§  244,  245. 

and  unpaid;  and  if  no  such  money  has  been  received,  his  report  shall  so 
state.1  Such  report  shall  be  filed  with  the  clerk  of  the  board,  on  or  before 
the  fifth  day  of  November;  and  no  officer  shall  be  entitled  to  receive  pay- 
ment for  his  services,  unless  he  shall  file  with  the  supervisors,  or  other  offi- 
cers performing  their  duties,  his  affidavit  that  he  has  made  such  report,  and 
paid  over  all  moneys  which  he  is  required  to  pay  over,  within  ninety  days 
after  receiving  any  such  money.  Such  officers  shall  pay  the  same  without 
any  deduction  to  the  treasurer  of  his  county,  who  shall  execute  duplicate 
receipts  therefor,  one  of  which  he  shall  deliver  to  the  person  paying  the 
money,  and  attach  the  other  to  his  annual  report  herein  required;  but 
nothing  herein  shall  be  construed  to  apply  to  moneys  received  by  any  town 
or  city  officer  in  his  official  capacity,  as  such,  specially  appropriated  for  any 
town  or  city  purpose.2  [County  Law,  § 243;  B.  C.  & Gr.  Cons.  L.,  p.  830.] 

§ 2.  DISTRICT  ATTORNEY  TO  SUE  FOR  AND  RECOVER  MONEYS 
IN  HANDS  OF  COUNTY  OFFICERS. 

The  district  attorney  shall  sue  for  and  recover,  in  behalf  of,  and  in  the 
name  of,  his  county,  the  money  received  by  any  officer  for,  or  on  account  of, 
his  county,  or  any  town  or  city  therein,  and  not  paid  to  the  county 
treasurer,  as  herein  required.  All  moneys  belonging  to  any  town  or  city 
in  such  county,  which  shall  be  received  by  the  county  treasurer,  shall  be 
distributed  to  the  several  towns  or  cities  entitled  to  the  same,  by  resolution 
of  the  board  of  supervisors,  which  shall  be  entered  in  the  minutes  of  its 
proceedings.  [County  Law,  § 244;  B.  C.  & G.  Cons.  L.,  p.  831.] 

§ 3.  OFFICIAL  SEALS  OF  COUNTIES,  BOARDS  OF  SUPERVISORS, 
COUNTY  TREASURERS  AND  REGISTERS. 

The  official  seals  of  boards  of  supervisors  of  the  several  counties,  county 
seal,  county  treasurer’s  seal,  surrogate’s  seal,  and  the  seal  of  the  register 


1.  Penal  provision.  Section  1842  of  the  Penal  Law  provides  that:  “A 

county  officer  or  an  officer  whose  salary  is  paid  by  the  county,  who  neglects 
or  refuses  to  make  a report  under  oath  to  the  board  of  supervisors  of  such 
county  on  any  subjects  or  matters  connected  with  the  duties  of  his  office,  when- 
ever required  by  resolution  of  such  board,  is  guilty  of  a misdemeanor.” 

As  to  money  received  by  district  attorney  in  actions  brought  by  him  for 
the  recovery  of  penalties,  see  Code  Civ.  Proc.,  secs.  1967,  1968,  ante. 

2.  The  effect  of  this  section  is  to  supersede  the  provisions  of  the  Buffalo 
city  charter  (L.  1891,  ch.  105,  sec.  385),  directing  the  keeper  of  the  Erie  county 
penitentiary  to  pay  over  such  fines  as  he  should  collect  to  the  city  treasurer 
of  Buffalo  The  keeper  of  the  Erie  county  penitentiary  is  a county  officer, 
and  the  provisions  of  the  above  section  of  the  County  Law  are  applicable  to  him. 
See  City  of  Buffalo  v.  Neal,  86  Hun,  76;  33  N.  Y.  Supp.  346. 


226 


COUNTY  OFFICERS;  JAILS. 


County  Law,  § 246. 

of  deeds,  shall  continue  to  be  the  official  seals,  respectively,  of  such 
boards,  county  treasurer,  surrogate,  and  register  of  deeds,  and  used  as 
such,  respectively,  when  authorized  by  law.  When  any  such  seal  shall 
be  lost,  destroyed,  or  become  unfit  for  use,  the  board  of  supervisors  of 
the  county  interested  therein  or  not  having  such  seal,  shall  cause  a new 
seal  or  seals  to  be  made  at  the  expense  of  the  county.  A description  of 
each  of  such  seals,  together  with  impressions  therefrom,  shall  be  filed 
in  the  office  of  the  county  clerk  and  the  office  of  the  secretary  of  stater 
unless  it  has  already  been  done.  In  counties  having  two  county  seats, 
a duplicate  of  the  county  seal  shall  be  procured  and  kept  at  the  county 
seat  where  the  county  clerk’s  office  is  not  situated,  at  some  place  to  be 
designated  by  the  county  clerk,  and  may  be  used  by  him  the  same  as  at 
his  office.3  In  counties  having  but  one  court  house  and  which  is  located 
more  than  five  miles  from  the  county  clerk’s  office,  a duplicate  of  the 
county  seal  shall  be  procured  and  k§pt  at  such  court  house  and  the 
county  clerk  may  use  the  same  at  such  court  house.  The  seal  kept  by 
the  county  clerk  in  each  county,  including  New  York  county,  as  pre- 
scribed in  the  judiciary  law,  shall  continue  to  be  the  seal  of  the  county, 
and  must  be  used  by  him  where  he  is  required  to  use  an  official  seal. 
[County  Law,  § 215,  as  amended  by  L.  1914,  ch.  29 ; B.  C.  & G.  Cons. 
L.,  p.  831.] 

Section  194  of  the  Judiciary  Law  provides  that,  “ the  seal  kept  by 
the  county  clerk  of  each  county  except  in  the  county  of  New  York,  shall 
continue  to  be  the  seal  of  the  county  court  in  that  county.” 

§ 4.  OFFICIAL  OATHS  OF  COUNTY  OFFICERS. 

Elective  officers  shall  be  chosen  at  general  elections.  A person  in  of- 
fice, when  this  chapter  takes  effect,  shall  continue  to  hold  the  same  until 
the  expiration  of  the  term  for  which  he  was  elected  or  appointed  ; and  a 
person  thereafter  elected  to  any  such  office  on  or  before  entering  upon 
the  duties  thereof,  and  a person  thereafter  appointed  to  any  such  office 
within  ten  days  after  notice  thereof,  and  before  entering  upon  the  duties 
of  his  office,  shall  take  and  subscribe  before  the  county  clerk,  or  county 
judge  of  the  county,  the  constitutional  oath  of  office;  and  the  same,  with 
his  certificate  of  election  or  appointment,  shall  be  immediately  filed  in 
the  office  of  the  county  clerk.4  [County  Law,  § 246 ; B.  C.  & G.  Cons. 
L.,  831.]  ^ 

3.  The  expense  of  a new  seal  for  the  county  clerk  or  a surrogate’s  court,  must 
be  paid  as  a part  of  the  contingent  expenses  for  the  county.  See  Jud.  Law,  § 
29. 

How  seal  impressed  on  instruments.  A seal  of  a court,  public  officer  on 
corporation,  may  be  impressed  directly  upon  the  instrument  or  writing  to  b( 
sealed,  or  upon  a wafer,  wax  or  other  adhesive  substance  affixed  thereto,  oi 
upon  paper  or  other  similar  substance  affixed  thereto  by  mucilage  or  othei 
adhesive  substance.  See  General  Construction  Law,  sec.  43. 

4.  Official  oaths.  All  elective  or  appointive  county  officers  are  required  to 

take  the  constitutional  oath  of  office.  The  Constitution  (art.  13,  sec.  1),  provides 
that:  “All  officers,  executive  and  judicial,  except  such  inferior  officers  as  shall 


PROVISIONS  GENERALLY  APPLICABLE. 


227 


County  Law,  § 247. 

§ 5.  GENERAL  PROVISIONS  RELATING  TO  OFFICIAL  BONDS  AND 
UNDERTAKINGS. 

Every  undertaking  required  by  this  chapter  must  be  executed  by  the 
officer  or  person  in  whose  behalf  it  is  given,  and  his  sureties,  and  duly 
acknowledged  or  proven  and  certified,  and  the  approval  indorsed  thereon. 
The  parties  executing  the  same  shall  be  jointly  and  severally  liable,  regard- 
less of  its  form  in  that  respect,  for  the  damages  sustained  by  reason  of  a 


be  by  law  exempted,  shall,  before  they  enter  on  the  duties  of  their  respective 
offices,  take  and  subscribe  the  following  oath  or  affirmation:  I do  solemnly 

swear  (or  affirm)  that  I will  support  the  Constitution  of  the  United  States, 
and  the  Constitution  of  the  State  of  New  York,  and  that  I will  faithfully  dis- 
charge the  duties  of  the  office  according  to  the  best  of  my  ability;  and  all  such 
officers  who  shall  have  been  chosen  at  any  election  shall,  before  they  enter 
on  the  duties  of  their  respective  offices,  take  and  subscribe  the  oath  or  affirma- 
tion above  prescribed,  together  with  the  following  addition  thereto,  as  part 
thereof: 

“ And  I do  further  solemnly  swear  (or  affirm)  that  I have  not  directly  or  in- 
directly paid,  offered  or  promised  to  pay,  contributed,  or  offered  or  promised 
to  contribute  any  money,  or  other  valuable  thing  as  a consideration  or  re- 
ward for  the  giving  or  withholding  a vote  at  the  election  at  which  I was 
elected  to  said  office,  and  have  not  made  any  promise  to  influence  the  giving 
or  withholding  any  such  vote,”  and  no  other  oath,  declaration  or  test  shall 
be  required  as  a qualification  for  any  office  of  public  trust. 

The  Public  Officers  Law,  sec.  10,  as  amended  by  L.  1913,  ch.  59,  provides  that 
an  official  oath  “ may  be  administered  by  a judge  of  the  court  of  appeals  or  by 
any  officer  authorized  to  take,  within  the  state,  the  acknowledgment  of  the 
execution  of  a deed  of  real  property.”  This  provision  applies  generally  to  all 
officers  where  no  other  provision  is  made  by  law.  The  above  section  requires 
the  oath  to  be  taken  and  subscribed  before  the  county  clerk  or  county  judge 
of  the  county,  which  undoubtedly  controls  the  taking  of  the  official  oath  by  a 
county  officer. 

Failure  to  take  oath.  The  county  clerk  is  required  to  give  notice  to  the 
governor  of  all  county  officers  who  have  failed  to  file  their  oath  of  office  or 
official  undertaking.  See  County  Law,  sec.  161,  sub.  4,  ante,  p.  128;  see,  also, 
Public  Officers  Law,  sec.  13. 

It  is  provided  in  section  30  of  the  Public  Officers  Law  that  every  office  shall 
be  vacant  upon  the  refusal  or  neglect  of  an  officer  to  file  his  official  oath  upon 
or  within  fifteen  days  after  the  commencement  of  the  term  of  office  for  which 
he  is  chosen,  if  an  elective  office,  or  if  an  appointive  office,  within  fifteen  days 
after  notice  of  his  appointment,  or  within  fifteen  days  after  the  commencement 
of  his  term. 

Notwithstanding  the  provisions  of  the  statute  that  upon  a refusal  or  neg- 
lect of  a public  officer  to  file  his  oath  the  office  becomes  vacant,  it  has  been 
held  repeatedly  that  the  omission  of  the  oath  within  the  required  time  did 
not,  ipso  facto,  vacate  the  office,  but  at  most  made  the  officer’s  title  to  the 
office  defeasible,  and  afforded  cause  for  forfeiture.  See  Cronin  v.  Stoddard, 
97  N.  Y.  271,  274;  People  ex  rel.  Woods  v.  Crissey,  91  N.  Y.  616,  635;  People 
ex  rel.  Brooks  v.  Watts,  73  Hun,  404,  407;  26  N.  Y.  Supp.  280;  Matter  of  Taylor* 


COUNTY  OFFICERS;  JAILS. 


228 


County  Law,  § 247. 

breach  thereof.* * 5  Every  officer  or  board  required  to  approve  an  undertak- 
ing may  examine  each  surety  thereto  under  oath,  and  shall  not  approve  the 
same  unless  the  sureties  are  freeholders  of  the  state  and  jointly  worth  over 
and  above  their  debts  and  liabilities  at  least  double  a sum  which  such 
officer  or  board  may  fix  upon  and  insert  in  the  undertaking  as  reasonably 
sufficient  to  indemnify  the  county,  and  every  person  who  may  be  or  become 
interested  therein,  or  in  any  breach  thereof.6  Official  bonds  and  under- 


25  Abb.  N.  C.  143;  see,  also.  Matter  of  Drury,  39  Misc.  288;  79  N.  Y.  Supp. 

498. 

5.  Effect  of  official  undertaking.  Every  official  undertaking  must  be  to  the 
effect  that  the  officer  will  faithfully  discharge  the  duties  of  his  office  and 
promptly  account  for  and  pay  over  moneys  or  property  received  by  him  as  such 
officer  in  accordance  with  law,  or  in  default  thereof,  that  the  parties  executing 
such  undertaking  will  pay  all  damages,  costs  and  expenses  resulting  from  such 
default,  not  exceeding  a sum,  if  any,  specified  in  such  undertaking.  See  Public 
Officers  Law,  sec.  11,  as  amended  by  L.  1911,  ch.  424,  L.  1912,  ch.  481,  L.  1913, 
ch.  325,  and  L.  1914,  ch.  48. 

Approval  of  undertaking.  Such  section  of  the  Public  Officers  Law  provides 
that:  “ The  undertaking  of  a municipal  officer  shall,  if  not  otherwise  provided 

by  law,  be  approved  as  to  its  form  and  the  sufficiency  of  the  sureties  by  the 
chief  executive  officer  or  by  the  governing  body  of  the  municipality  and  be 
filed  with  the  clerk  thereof.  The  approval  by  such  governing  body  may  be 
by  resolution,  a certified  copy  of  which  shall  be  attached  to  the  undertaking. 
The  governing  body  of  a county  is  the  board  of  supervisors.”  It  would  seem, 
therefore,  that  where  no  provision  is  made  by  law  for  the  approval  of  an  official 
undertaking  by  a county  officer  that  the  board  of  supervisors  may,  by  resolution, 
approve  such  undertaking. 

6.  Sureties.  Section  11  of  the  Public  Officers  Law,  as  amended  by  L.  1911, 

ch.  424,  L.  1912,  ch.  481,  L.  1913,  ch.  325,  L.  1914,  ch.  48,  and  L.  1915,  ch.  628,  also 
provides  that : “ Every  official  undertaking  shall  be  executed  and  duly  acknowl- 

edged by  at  least  two  sureties,  each  of  whom  shall  add  thereto  his  affidavit  that 
he  is  a freeholder  or  householder  within  the  state,  stating  his  occupation  and  resi- 
dence and  the  street  number  of  his  residence  and  place  of  business  if  in  a city,  and 
a sum  which  he  is  worth  over  and  above  his  just  debts  and  liabilities  and  property 
exempt  from  execution.  The  aggregate  of  tiie  sums  so  stated  in  such  affidavits 
must  be  at  least  double  the  amount  specified  in  the  undertaking.  If  the  surety  on 
an  official  undertaking  of  a state  or  local  officer,  clerk  or  employee  of  the  state  or 
political  subdivision  thereof  or  of  a municipal  corporation  be  a fidelity  or  surety 
corporation,  the  reasonable  expense  of  procuring  such  surety,  not  exceeding  one  per 
centum  per  annum  upon  the  sum  for  which  such  undertaking  shall  be  required  by 
or  in  pursuance  of  law  to  be  given,  shall  be  a charge  against  the  state  or  political 
subdivision  or  municipal  corporation  respectively  in  and  for  which  he  is  elected  or 
appointed,  except  that  the  expense  of  procuring  such  surety  as  aforesaid,  on  an 
official  undertaking  of  any  officer,  clerk  or  employee  in  any  city  department  of  the 
city  of  New  Yh>rk,  or  of  any  office,  board  or  body  of  said  city,  or  of  a borough  or 
county  within  said  city,  including  officers,  clerks  and  employees  of  every  court 
within  said  city,  shall  not  be  a charge  upon  said  city  or  upon  any  of  the  counties 
contained  within  said  city,  unless  the  comptroller  of  the  said  city,  shall  first  have 
approved  the  necessity  of  requiring  such  official  undertaking  to  be  given,  and  shall 
have  approved  of  or  fixed  the  amount  of  any  such  official  undertaking;  but  this 
exception  shall  not  apply  to  an  official  undertaking  specifically  required  by  statute 
to  be  given,  and  the  amount  of  which  is  specifically  fixed  by  statute.  The  failure 
to  execute  an  official  undertaking  in  the  form  or  by  the  number  of  sureties 
required  by  or  in  pursuance  of  law,  or  of  a surety  thereto  to  make  an  affidavit 
required  by  or  in  pursuance  of  law,  or  in  the  form  so  required,  or  the  omission 


PROVISIONS  GENERALLY  APPLICABLE. 


22$ 


Public  Officers  Law,  §§  33,  34. 


takings,  including  the  bonds  of  executors,  administrators,  guardians  and 
trustees,  required  by  law  to  be  filed  in  the  office  of  the  county  clerk  or 
surrogate,  shall  also  be  recorded  in  such  offices  respectively,  in  a book  to 
be  provided  and  kept  in  each  of  such  offices,  to  be  designated  “ book  of 
official  bonds  and  undertakings.”  The  county  clerk  and  surrogate’s 
clerk  shall  respectively  be  entitled  to  the  same  fees  for  such  recording, 
as  are  allowed  to  county  clerks  for  recording  conveyances,  except  that 
in  counties  where  the  surrogate’s  clerk  receives  a salary  as  full  com- 
pensation for  bis  services,  be  shall  not  be  entitled  to  any  fee  for  such 
services.  [County  Law,  § 247 ; B.  C.  & G.  Cons.  L.,  p.  832.] 

§ 6.  CERTAIN  COUNTY  OFFICERS  MAY  BE  REMOVED  BY  GOVER- 
NOR. 

An  officer  appointed  by  the  governor  for  a full  term  or*to*fill  a vacancy, 
any  county  treasurer,  any  county  superintendent  of  the  poor,  any  register 
of  a county,  any  coroner  or  any  notary  public,  may  be  removed  by  the 
governor  within  the  term  for  which  such  officer  shall  have  been  chosen, 
after  giving  to  such  officer  a copy  of  the  charges  against  him  and  an 
opportunity  to  be  beard  in  bis  defense.7  [Public  Officers  Law,  § 33 ; 
B.  C.  & G.  Cons.  L.,  p.  4633.] 

§ 7.  EVIDENCE  IN  PROCEEDINGS  FOR  REMOVAL  BY  GOVERNOR. 

The  governor  may  take  the  evidence  in  any  proceeding  for  the  removal 
by  him  of  a public  officer  or  may  direct  that  the  evidence  be  taken  before 
a justice  of  the  supreme  court  of  the  district,  or  the  county  judge  of  the 

from  such  an  undertaking  of  the  approval  required  by  or  in  pursuance  of  law, 
shall  not  affect  the  liability  of  the  sureties  therein.” 

Justification  by  sureties.  Sureties  are  required  to  justify  in  the  aggregate  in  at 
least  double  the  amount  of  the  liability  as  specified  in  the  undertaking.  Opinion 
of  Atty  General  (1916),  9 State  Dept.  Reports,  453. 

Force  and  effect  of  official  undertaking.  Section  12  of  the  Public  Officers 
Law  provides  that:  “An  officer  of  whom  an  official  undertaking  is  required, 
shall  not  receive  any  money  or  property  as  such  officer,  or  do  any  act  affecting 
the  disposition  of  any  money  or  property  which  such  officer  is  entitled  to  receive 
or  have  the  custody  of,  before  he  shall  have  filed  such  undertaking;  and  any 
person  having  the  custody  or  control  of  any  such  money  or  property  shall  not 
deliver  the  same  to  any  officer  of  whom  an  undertaking  is  required  until  such 
undertaking  shall  have  been  given.  If  a public  officer  required  to  give  an 
official  undertaking,  enters  upon  the  discharge  of  any  of  his  official  duties  before 
giving  such  undertaking,  the  sureties  upon  his  undertaking  subsequently  given 
for  or  during  his  official  term  shall  be  liable  for  all  his  acts  and  defaults  done  or 
suffered  and  for  all  moneys  and  property  received  during  such  term  prior  to  the 
execution  of  such  undertaking,  or  if  a new  undertaking  is  given,  from  the  time 
notice  to  give  such  new  undertaking  is  served  upon  him.  Every  official  undertaking 
shall  be  obligatory  and  in  force  so  long  as  the  officer  shall  continue  to  act  as  such 
and  until  his  successor  shall  be  appointed  and  duly  qualified,  and  until  the  con- 
ditions of  the  undertaking  shall  have  been  fully  performed.  When  an  official 
undertaking  is  renewed  pursuant  to  law  the  sureties  upon  the  former  undertaking 
shall  not  be  liable  for  any  official  act  done  or  moneys  received  after  the  due 
execution,  approval  and  filing  of  the  new  undertaking.” 

7.  The  constitution  authorizes  the  governor  to  remove  a sheriff,  county 
clerk,  district  attorney  -and  register  in  a county  having  a register,  within  the  term 
for  which  he  shall  have  been  elected,  giving  to  such  officer  a copy  of  the  charges 
against  him.  and  an  opportunity  of  being  heard  in  his  defense.  See  Constitution, 
art.  10,  sec.  1. 


COUNTY  OFFICERS;  JAILS. 


230 

Public  Officers  Law,  § 35. 

county,  in  which  the  officer  proceeded  against  shall  reside,  or  before  a com- 
missioner appointed  by  the  governor  for  that  purpose  by  an  appointment 
in  writing,  and  in  the  office  of  the  secretary  of  state.  The  governor  may 
direct  such  judge  or  commissioner  to  report  to  him  the  evidence  taken  in 
such  proceeding,  or  the  evidence  and  the  findings  by  the  judge  or  com- 
missioner of  the  material  facts  deemed  by  such  judge  or  commissioner  to  be 
established.  The  commissioner  or  judge  directed  to  take  such  evidence 
may  require  witnesses  to  attend  before  him,  and  shall  issue  subpoenas  for 
such  witnesses  as  may  be  requested  by  the  officer  proceeded  against. 

The  governor  may  direct  the  attorney-general,  or  the  district  attorney  of 
the  county  in  which  the  officer  proceeded  against  shall  reside  to  conduct 
the  examination  into  the  truth  of  the  charges  alleged  as  ground  for  such 
removal.  If  the  examination  shall  be  before  a commissioner  or  judge,  it 
shall  be  held  at  such  place  in  the  county  in  which  the  officer  proceeded 
against  shall  reside  as  the  commissioner  or  judge  shall  appoint,  and  at  least 
eight  days  after  written  notice  of  the  time  and  place  of  such  examination 
shall  have  been  given  to  the  officer  proceeded  against. 

All  sheriffs,  coroners,  constables  and  marshals  to  whom  process  shall 
be  directed  and  delivered  under  this  section  shall  execute  the  same  with- 
out unnecessary  delay.* * * * * * * 8  [Public  Officers  Law,  § 34;  B.  C.  & G.  Cons. 
L.,  p.  4633.] 

§ 8.  ORDER  OF  REMOVAL  OF  OFFICER,  HOW  MADE  A AD  WHERE  FILED. 

Every  removal  of  an  officer  by  one  or  more  state  officers,  shall  be  in 
written  duplicate  orders,  signed  by  the  officer,  or  by  all  or  a majority 
of  the  officers,  making  the  removal,  or  if  made  by  a body  or  board  of 
state  officers  may  be  evidenced  by  duplicate  certified  copies  of  the  reso- 
lution or  order  of  removal,  signed  either  by  all  or  by  a majority  of  the 
officers  making  the  removal,  or  by  the  president  and  clerk  of  such  body 
or  board.  Both  such  duplicate  orders  or  certified  copies  shall  be  de- 


Power  of  removal  by  governor.  Governor  under  the  statute  has  the  sole  and 

exclusive  power  of  removal  during  the  recess  of  the  senate.  Matter  of  Bartlett, 

9 How.  Pr.  414.  Municipal  officers,  removal  by  the  governor.  Ex  parte  Bren- 

nan, 19  Abb.  376-n. 

The  governor  may  remove  a sheriff  appointed  by  him  to  fill  a vacancy  caused 
by  the  removal  of  a sheriff  elected  by  the  people,  although  no  charges  are 

preferred  against  the  sheriff  so  appointed  and  afterwards  removed  by  him. 

See  People  ex  rel.  Faxton  v.  Parker,  6 Hill.  49. 

8.  The  expenses  of  proceedings  brought  before  the  governor  for  the  removal 
of  a county  officer  are  a county  charge.  S<se  County  Law,  sec.  240,  sub.  16, 
ante,  p.  45. 


PROVISIONS  GENERALLY  APPLICABLE. 


231 


Public  Officers  Law,  § 35. 

livered  to  the  secretary  of  state,  who  shall  record  in  his  office  one  of  such 
duplicates,  and  shall,  if  the  officer  removed  is  a state  officer,  deliver  the 
■other  to  such  officer  by  messenger,  if  required  by  the  governor  and  other- 
wise by  mail  or  as  the  secretary  of  state  shall  deem  advisable,  and  shall, 
if  directed  by  the  governor,  cause  a copy  thereof  to  be  published  in  the 
state  papers.  If  the  officer  removed  be  a local  officer,  he  shall  send  the 
other  of  such  duplicates  to  the  county  clerk  of  the  county  in  which  the 
officer  removed  shall  have  resided  at  the  time  he  was  chosen  to  the  office, 
and  such  clerk  shall  file  the  same  in  his  office,  and  forthwith  notify  the 
officer  removed  of  his  removal.  [Public  Officers  Law,  § 35 ; B.  C.  & 
G.  Cons.  L.,  p.  4634.] 

§ 9.  REMOVAL  FOR  TREASONABLE  OR  SEDITIOUS  ACTS  OR  UT- 
TERANCES. 

A person  holding  any  public  office  shall  be  removable  therefrom,  in  the 
manner  provided  by  law,  for  the  utterance  of  any  treasonable  or  seditious 
word  or  words  or  the  doing  of  any  treasonable  or  seditious  act  or  acts  during 
his  term.  [Public  Officers  Law,  § 35-a,  as  added  by  L.  1917,  ch.  416.] 


PART  III. 

TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


CHAPTER  XVIII. 

TOWNS;  ERECTION  AND  ALTERATION. 

EXPLANATORY  NOTE. 

Towns. 

The  statutes  of  this  state  have  always  recognized  the  division  of  the 
territory  of  the  state  into  counties  and  towns.  At  the  outset  towns  were 
political  subdivisions  created  or  organized  for  the  convenient  exercise 
of  political  authority,  and  as  a means  of  governmental  administration. 
As  political  subdivisions,  they  exist  for  the  purpose,  largely,  of  providing 
locally  for  (1)  the  administration  of  civil  and  criminal  justice,  through 
justices  of  the  peace ; (2)  the  preservation  of  public  health,  through  local 
boards  of  health  and  health  officers;  (3)  the  construction  and  mainte- 
nance of  highways  and  bridges,  through  town  boards  and  highway 
officers;  (4)  the  relief  of  the  poor,  through  overseers  of  the  poor;  (5) 
the  assessment  and  collection  of  taxes,  through  assessors  and  collectors. 
There  are  many  other  administrative  functions  conferred  upon  towns, 
but  those  referred  to  are  the  most  important. 

As  towns  exist  in  this  state,  they  were  unknown  to  the  common  law, 
and  are  all  of  statutory  creation.  They  were  erected  and  organized 
by  statute,  and  all  their  duties  and  obligations  are  prescribed  by  statute, 
and  they  derive  their  capacity  and  powers  from  the  same  source.  Town 
officers  have  certain  powers  to  exercise  and  duties  to  perform,  all  of 
which  depend  upon  statutory  enactment. 

Towns  as  Corporations. 

Under  the  revised  Statutes  (R.  S.  pt.  1,  ch.  11,  tit.  1,  § 1)  the  powers 
of  a town  were  specifically  stated,  and  included  the  power  to  sue  and 
be  sued ; to  purchase  and  hold  lands  for  town  purposes ; to  make  con- 
tracts ; and  to  regulate  the  disposition  and  use  of  its  corporate  prop- 
erty. These  powers  are  retained  under  the  present  town  law.  A town 

232 


TOWNS;  ERECTION  AND  ALTERATION. 
Explanatory  note. 


233 


tlrus  is  clothed  with  corporate  powers,  and  for  many  purposes  is  a 
municipal  corporation.  These  powers  are  limited  to  those  specifically  or 
impliedly  granted  by  statute.  As  stated  in  § 2 of  the  Town  Law,  a 
town  is  a municipal  corporation  with  such  powers  and  duties  of  local 
government  and  administration  of  public  affairs  as  may  he  conferred 
upon  it  by  law.  If  there  is  no  statute  authorizing  the  making  of  a con- 
tract or  the  performance  of  an  act  by  a town  officer,  the  town  may  not 
be  held  liable  therefor,  on  the  theory  that  the  town  has  been  benefited 
thereby.  Those  dealing  with  town  officers  must  bear  in  mind  this 
limitation. 

Erection  of  Towns,  and  Alteration  of  Boundaries. 

In  the  first  instance  towns  were  created  by  statute.  Section  35  of 
the  County  Law  authorizes  boards  of  supervisors  to  erect  new  towns, 
and  divide  or  alter  the  boundaries  of  towns  already  existing.  Since 
this  power  has  existed,  it  has  been  usual  to  erect  new  towns  and  alter 
boundaries  of  old  towns  by  resolution  of  the  board  of  supervisors.  Such 
resolutions  are  required  to  be  published  by  the  secretary  of  state  as  a 
part  of  the  Session  laws. 


Section  1.  Town,  a municipal  corporation. 

2.  Alteration  and  erection  of  towns  by  boards  of  supervisors;  appli- 

cation therefor;  notice  to  be  posted  and  published;  name  of 
new  town. 

2-a.  Division  of  a town  into  two  towns  in  certain  counties  not  containing 
a city  of  over  ten  thousand  inhabitants. 

2-b.  Submission  to  town  electors  of  proposition  for  a division  under  the 
preceding  section. 

3.  Time  and  place  of  holding  first  election  in  new  town;  term  of  office  of 

town  officer  not  to  be  abridged. 

4.  Establishment  of  disputed  lines;  application  therefor;  notice  to  be  pub- 

lished and  served  upon  town  officers;  resolution  to  be  filed  in  office 
of  secretary  of  state. 

5.  Disposition  of  town  property,  upon  alteration  of  town  boundaries;  when 

property  to  be  sold;  duties  of  town  boards  respecting  sale;  cemetery 
not  to  be  sold  or  divided. 

6.  Debts  to  be  apportioned  according  to  amount  of  taxable  property;  col- 

lection of  unpaid  taxes  in  such  towns. 

7.  Meetings  of  town  boards  for  disposition  of  property  and  apportionment 

of  debts  to  be  called  by  supervisors;  action  to  enforce  settlement. 

§ 1.  TOWN,  A MUNICIPAL  CORPORATION. 

A town  is  a municipal  corporation  comprising  the  inhabitants  within  its 
boundaries,  and  formed  for  the  purpose  of  exercising  such  powers  and  dis- 


234 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 2. 

charging  such  duties  of  local  government  and  administration  of  public 
affairs  as  have  been,  or  may  be  conferred  or  imposed  upon  it  by  law.1 
[Town  Law,  § 2;  B.  C.  & G.  Cons.  L.,  p.  6132.] 


1.  Towns  as  corporations.  The  tendency  of  legislation  during  the  past 
few  years  has  been  to  change  the  character  and  capacity  of  the  simple  town- 
ship of  former  days.  Judge  Denio,  in  the  case  of  Lorillard  v.  Town  of  Mon- 
roe, 11  N.  Y.  392,  said:  “ The  several  towns  in  this  state  are  corporations 

for  certain  special  and  very  limited  purposes,  or,  to  speak  more  accurately, 
they  have  a certain  limited  corporate  capacity.  They  may  purchase  and  hold 
lands  within  their  own  limits  for  the  use  of  their  inhabitants.  They  may  as 
a corporation  make  such  contracts  and  hold  such  personal  property  as  may 
be  necessary  to  the  exercise  of  their  corporate  or  administrative  powers,  and 
they  may  regulate  and  manage  their  corporate  property,  and  as  a necessary 
incident  may  sue  and  be  sued  where  the  assertion  of  their  corporate  rights 
or  the  enforcement  against  them  of  their  corporate  liabilities  shall  require 
such  proceedings.  In  all  other  respects — for  instance,  in  everything  which 
concerns  the  administration  of  civil  or  criminal  justice,  the  preservation  of 
the  public  health  and  morals,  the  conservation  of  highways,  roads  and  bridges, 
the  relief  of  the  poor,  and  the  assessment  and  collection  of  taxes,  the  several 
towns  are  political  divisions,  organized  for  the  convenient  exercise  of  portions 
of  the  political  power  of  the  state,  and  are  no  more  corporations  than  the 
judicial,  or  the  senate  and  assembly  districts.”  See,  also.  Town  of  Gallatin 
v.  Loucks,  21  Barb.  578;  Godfrey  v.  Queens  County,  89  Hun,  18;  34  N.  Y.  Supp. 
1052. 

But  the  legislature  in  imposing  liabilities  and  obligations,  and  correspond- 
ing duties  upon  a town,  have  made  it  something  different  from  a mere  politi- 
cal division  of  the  state  and  brought  it  in  character  and  capacity  nearer  to  a 
municipal  corporation.  Horn  v.  Town  of  New  Lots,  83  N.  Y.  100,  107. 

Powers  of  towns  as  corporations.  Towns  as  municipal  corporations  are 
materially  different  in  their  powers  from  business  corporations.  Business 
corporations,  unless  restrained  by  their  charter,  possess  the  power  to  borrow 
money  and  issue  securities  therefor.  Generally  they  could  not  carry  on  their 
authorized  and  legitimate  business  without  such  a power,  and  hence  it  must 
be  presumed  that  the  legislature  intended  that  they  should  possess  it;  but 
towns  and  other  municipal  corporations  are  organized  for  governmental  pur- 
poses, and  their  powers  are  limited  and  defined  by  the  statutes  under  which 
they  are  constituted.  They  possess  only  such  powers  as  are  expressly  conferred 
or  necessarily  implied.  Wells  v.  Town  of  Salina,  119  N.  Y.  280,  287;  23  N.  E. 
870.  See,  also,  Morey  v.  Town  of  Newfane,  8 Barb.  645;  Town  of  Lyons  v.  Cole, 
3 T.  & C.  431;  Sweet  v.  Hulbert,  51  Barb.  312;  People  ex  rel.  Hess  v.  Clark,  53 
Barb.  171;  People  ex  rel.  Read  v.  Town  of  Smithville,  85  Hun,  114;  32  N.  Y. 
Supp.  668;  Dorn  v.  Town  of  Oyster  Bay,  84  Hun,  510;  32  N.  Y.  Supp.  341;  Morson 
v.  Town  of  Gravesend,  89  Hun,  52;  35  N.  Y.  Supp.  94. 

The  corporate  existence  of  towns  and  their  capacity  to  hold  property,  to 
protect  the  possession  thereof,  and  to  enforce  their  quasi  corporate  rights  by 
appropriate  action,  are  recognized  by  statute.  Bridges  v.  Supervisors  of  Sulli- 
van County,  92  N.  Y.  570,  575;  Town  of  Verona  v.  Peckham,  66  Barb.  103; 
Furey  v.  Town  of  Gravesend,  38  Hun,  319.  In  the  absence  of  a statute  a 
town  has  no  power  to  act  as  a trustee  for  charitable  purposes.  Fosdick  v. 


TOWNS;  ERECTION  AND  ALTERATION. 


235 


County  Law,  § 35. 

§ 2.  ALTERATION  AND  ERECTION  OF  TOWNS  BY  BOARDS  OF 
SUPERVISORS;  APPLICATION  THEREFOR;  NOTICE  TO  BE 
POSTED  AND  PUBLISHED;  NAME  OF  NEW  TOWN. 

Any  such  board  [of  supervisors]  may,  at  any  meeting  thereof,  by 
a vote  of  two-thirds  of  all  the  members  elected  thereto,  on  the  application 
of  at  least  twelve  freeholders  of  each  of  the  towns  to  be  affected,  divide 


Town  of  Hempstead,  125  N.  Y.  581;  26  N.  E.  801.  A town  in  its  corporate 
capacity  is  authorized  to  acquire  land  for  a legitimate  town  purpose.  People 
ex  rel.  Averill  v.  Works,  7 Wend.  486.  It  may  take  lands  for  highway  pur- 
poses by  conveyance,  voluntary  or  otherwise;  and  this  implies  the  power  to 
take  such  interest  as  the  necessity  of  the  case  or  the  public  good  may  re- 
quire. Hughes  v.  Bingham,  135  N.  Y.  347;  32  N.  E.  78;  Bail  v.  Long  Island 
R.  R.  Co.,  106  N.  Y.  283;  12  N.  E.  607. 

A town  may  take  personal  property  by  bequest  for  the  support  of  its  poor. 
Fosdick  v.  Town  of  Hempstead,  8 N.  Y.  Supp.  773. 

Effect  of  statute  upon  powers  of  towns  as  corporations.  Under  the  revised 
statutes  (R.  S.,  pt.  1,  ch.  11,  tit.  1,  sec.  1),  the  powers  of  a town  as  a corporate 
body  were  specifically  stated.  These  powers  included  the  power  to  sue  and  be 
sued;  to  purchase  and  hold  lands  within  its  own  limits  and  for  the  use  of  its 
inhabitants;  to  make  contracts;  and  to  regulate  the  disposition  and  use  of  its 
corporate  property.  The  above  section  of  the  Town  Law  is  a substitute  for 
such  provision  of  the  revised  statutes.  By  declaring  a town  to  be  a municipal 
corporation  it  was  evidently  intended  to  continue  in  the  town  the  powers 
formerly  expressly  conferred.  The  present  law  provides  for  the  exercise  by  the 
town  of  such  powers  pertaining  to  the  administration  of  town  affairs  as  may  be 
conferred  or  imposed  upon  it  by  law.  Lythe  v.  Town  of  Evans,  33  Misc.  221;  68 
N.  Y.  Supp.  356.  This  section  of  the  Town  Law  has  not  enlarged  the  town’s 
corporate  capacity.  Morson  v.  Town  of  Gravesend,  89  Hun,  52;  35  N.  Y.  Supp. 
94. 

In  case  of  Dorn  v.  Town  of  Oyster  Bay,  84  Hun,  510;  32  N.  Y.  Supp.  341,  Dyke- 
man,  J.,  says:  “The  towns  of  this  state  are  the  primary  political  divisions.  As 
they  exist  here  they  were  unknown  to  the  common  law,  and  are  all  of  statutory 
creation.  They  were  erected  and  organized  by  statute,  and  all  their  duties  and 
obligations  are  prescribed  by  statute,  and  they  derive  their  capacity  and  powers 
from  the  same  source.  In  the  earlier  history  of  the  state  their  capacity  was 
limited,  and  their  duties  and  liabilities  were  but  few.  By  the  revised  statutes, 
each  town  as  a body  corporate  had  capacity  to  purchase  and  hold  property  for  cer- 
tain purposes,  to  sue  and  be  sued,  and  to  make  certain  contracts  in  relation  to  cor- 
porate property  and  affairs.  Modern  legislation  has,  however,  enlarged  their  capa- 
city and  endued  them  with  powers  and  imposed  upon  them  obligations  similar  to 
those  possessed  by  municipal  corporations.” 

Power  to  sue.  A town  is  a municipal  corporation  and  as  such  may  sue  in  all 
courts  in  like  case  as  a natural  person.  That  is  to  say,  where  there  is  an  existing 
liability  at  law,  or  an  existing  right  which  it  may  enforce,  the  method  of  its  en- 
forcement must  be  the  same  as  if  it  were  a natural  person.  Town  of  Hempstead  v. 
Lawrence,  138  App.  Div.  473,  122  N.  Y.  Supp.  1037. 

Power  to  contract.  Towns  have  no  general  power  to  enter  into  con- 
tracts or  to  incur  obligations  the  payment  of  which  can  be  enforced  against 
them.  Persons  dealing  with  town  officers  are  charged  with  notice  of  the 
limited  corporate  capacity  of  the  town,  and  it  is,  therefore,  incumbent  upon 
one  who  asserts  the  fact  of  an  indebtedness  to  him  from  the  town  to  point 
out  the  act  of  the  legislature  which  authorized  and  empowered  the  town  to 


236 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


County  Law,  § 35. 

or  alter  the  bounds  of  any  town  in  the  county,  or  erect  a new  town  therein. 
Notice  of  such  application,  signed  by  such  freeholders,  shall  be  posted  in 
five  conspicuous  public  places  in  each  of  such  towns  for  four  weeks  next  pre- 
ceding a presentation  of  such  application  to  the  board;  and  a copy  of  such 
notice  shall  be  published  for  at  least  six  consecutive  weeks  next  preceding  the 
meeting  of  the  board  to  which  the  application  is  to  be  made,  in  three  news- 
papers published  in  the  county,  if  there  be  so  many,  otherwise  in  all  the 
newspapers  published  in  the  county  as  often  as  once  a week.  Such  ap- 
plicants shall  present  to  the  board  with  such  application  and  notice,  due 
proof  of  the  posting  and  publishing  of  such  notice,  and  furnish  the  board 
with  a map  and  survey  of  such  towns,  showing  the  proposed  alteration.  The 
board  shall  designate  the  name  of  any  new  town  so  erected.  If  the 
application  be  granted,  a copy  of  such  map,  with  a certified  statement  of 
the  action  of  the  board  thereto  annexed,  shall  be  filed  in  the  office  of  the 
secretary  of  state,  who  shall  cause  such  statement  to  be  printed  and  pub- 
lished with  the  laws  of  the  next  legislature.  Except  as  otherwise  provided 
in  section  thirty-five-b,  the  provisions  of  this  section  shall  not  apply  to  the 
division  of  a town  into  two  towns  wholly  within  the  boundaries  of  and  to- 
gether comprising  the  entire  territory  of  the  town  so  divided,  in  a county 
which  does  not  then  contain  a city  of  over  ten  thousand  inhabitants  and 
which  adjoins  a county  having  a city  containing  a population  of  not  less 
than  two  hundred  thousand  and  not  more  than  four  hundred  thousand, 
according  to  the  preceding  federal  or  state  census  or  enumeration.2  [County 
Law,  § 35,  as  amended  by  L.  1911,  ch.  250,  and  L.  1917,  ch.  233;  B.  C.  & 
G.  Cons.  L,  p.  733.] 

incur  the  debt.  Morson  v.  Town  of  Gravesend,  89  Hun,  52;  35  N.  Y.  Supp.  94.  It 
is  a general  rule  that  all  parties  dealing  with  public  officers  are  chargeable  with 
notice  of  the  limitation  of  their  powers,  and  a contract  by  a public  officer  in  excess 
of  the  powers  conferred  upon  him  imposes  no  liabilities  upon  the  municipal  corpora- 
tion, even  though  the  benefits  of  the  contract  have  been  received  and  applied  for 
the  benefit  of  the  public.  Van  Dolson  v.  Bd.  of  Education,  28  App.  Div.  501 ; 51  N.  Y. 
Supp.  720;  Walton  v.  City  of  N.  Y.,  26  App.  Div.  76;  49  N.  Y.  Supp.  615.  Where  a 
statute  prescribes  the  purpose  and  the  manner  in  which  a contract  shall  be  made 
by  a town  officer,  the  provisions  of  such  statute  must  be  strictly  followed,  other- 
wise the  contract  will  be  invalid.  Suburban  Electric  Light  Co.  v.  Town  of  Hemp- 
stead, 38  App.  Div.  355;  56  N.  Y.  Supp.  443.  See,  also,  Parfitt  v.  Ferguson,  159 
N.  Y.  Ill;  53  N.  E.  707;  Lawrence  v.  Smith,  24  Misc.  233;  52  N.  Y.  Supp.  724. 

Bridges  and  highways.  Towns,  in  their  corporate  capacity,  have  no  duties  to  per- 
form in  respect  to  the  care,  superintendence  or  regulation  of  highways  within  their 
limits.  People  ex  rel.  Van  Keuren  v.  Town  Auditors,  74  N.  Y.  310.  And  see  People 
ex  rel.  Everett  v.  Supervisors,  9'3  N.  Y.  397;  Robinson  v.  Town  of  Fowler,  80  Hun, 
101,  30  N.  Y.  Supp.  25;  People  ex  rel.  Loomis  v.  Town  Auditors,  75  N.  Y.  316. 

Liability  for  acts  of  agents  and  officers.  Town  assessors  and  collectors  are  not 
officers  or  agents  of  town  in  its  corporate  capacity,  and  the  town  is  not  liable  for 
their  mistakes.  Lorillard  v.  Town  of  Monroe,  11  N.  Y.  392;  Town  of  Gallatin  v. 
Loucks,  21  Barb.  578. 

Towns  are  not  liable  for  the  negligent  acts  of  their  officers  in  the  absence  of 
statutory  provisions.  The  rule  of  respondent  superior  does  not  exist  between  a 
town  and  its  officers.  The  officers  of  a town  are  liable  for  their  negligence  in  the 
performance  of  their  official  duties.  Short  v.  Town  of  Orange  (1916),  175  App.  Div. 
260,  161  N.  Y.  Supp.  466. 

2.  For  forms  of  application,  notice  and  resolution  of  board  of  supervisors  provid- 
ing for  the  erection  of  new  towns,  see  Forms  Nos.  11  and  12,  post. 

Proceedings  for  division  of  towns.  The  question  whether  a town  has  been 
legally  erected  may  be  decided  in  an  action  in  the  nature  of  quo  warranto  against 
one  claiming  to  exercise  the  office  of  supervisor  of  such  town.  Where  the  act 
of  the  board,  dividing  a town  and  forming  a new  one  from  a portion  thereof, 


TOWNS;  ERECTION  AND  ALTERATION. 


236a 


County  Law,  § 35a. 


§ 2a.  DIVISION  OF  A TOWN  INTO  TWO  TOWNS  IN  CERTAIN  COUN- 
TIES NOT  CONTAINING  A CITY  OF  OVER  TEN  THOUSAND 
INHABITANTS. 

In  any  county  which  does  not  then  contain  a city  of  over  ten  thousand 
inhabitants,  and  which  adjoins  a county  having  a city  containing  a popu- 
lation of  not  less  than  two  hundred  thousand  and  not  more  than  four  hun- 
dred thousand,  according  to  the  preceding  federal  or  state  census  or  enumer- 
ation, a town  of  such  county  may  be  divided,  in  the  manner  provided  in  this 
section  and  section  thirty-five-b,  into  two  towns  wholly  within  the  boundar- 
ies of  and  together  comprising  the  entire  territory  of  the  town  so  divided. 
The  board  of  supervisors  of  such  county,  at  any  meeting  thereof,  by  vote  of 
two-thirds  of  all  the  members  elected  thereto,  on  the  written  application  of 
qualified  electors  of  the  town  affected,  signed  and  acknowledged  by  them,  to 
the  number  of  twenty-five  per  centum  of  the  votes  cast  in  such  town  at  the 
preceding  general  election,  may  make  such  application,  subject  to  the  action 
of  the  electors  of  such  town  by  vote  thereafer  taken  as  herein  provided. 
The  acknowledgments  to  such  application  shall  be  taken  and  certified  in 
manner  and  form  as  provided  by  law  for  the  acknowledgment  of  a deed  to 
be  recorded.  The  application  must  describe  with  common  certainty  the 
boundaries  of  each  of  the  proposed  new  towns.  Such  written  application 
shall  be  filed  with  the  clerk  of  such  board,  who,  with  the  chairman  of  the 
board,  shall  fix  a day,  not  less  than  five  nor  more  than  six  weeks  after  the 
filing  of  the  application,  when  the  application  shall  be  presented  to  the 
board  for  a hearing  thereon.  Such  clerk  shall  prepare  a notice  of  such 
hearing,  which  shall  contain  a brief  description  of  the  proposed  division  and 
recite  the  filing  of  the  petition.  He  shall  transmit  such  notice  to  the  town 
clerk  of  the  town  affected,  who  shall  cause  copies  thereof  to  be  posted  in  five 
conspicuous  public  places  in  the  town  at  least  four  weeks  before  such  hear- 
ing and  shall  cause  the  notice  to  be  published  once  each  week  for  at  least 
four  weeks  next  preceding  such  hearing  in  a newspaper  published  in  the 
county,  which  shall  be  a newspaper  published  in  the  town  if  there  be  one. 
Due  proof  of  such  posting  and  publication  shall  be  filed  with  the  clerk  of 
the  board  of  supervisors  at  or  before  the  hearing.  If  the  board  is  not  to  be 
otherwise  in  session  at  the  time  so  fixed,  the  clerk  shall  call  a special  meet- 
ing for  the  purpose  of  this  section.  The  applicants  shall  furnish  the  board 
with  a map  and  survey  of  the  proposed  division.  If  the  board  shall  grant 
the  application,  it  shall  make  such  determination  by  resolution,  which  shall 
provide  for  the  submission  of  the  following  question  to  the  qualified  electors 
of  such  town:  “ Shall  the  town  of  (here  insert  name  of  the  original  town) 
be  divided  pursuant  to  a resolution  of  the  board  of  supervisors  of  this 
county  heretofore  adopted,  into  two  towns  having  the  following  boundaries : 
(here  insert  description  as  appearing  in  the  map  and  application  of  each  of 
such  proposed  towns)  ?9>  After  the  board  of  supervisors  shall  have  granted 
and  such  application,  no  other  application  for  a different  division  of  the 
same  town  shall  be  presented  or  acted  upon  until  after  the  determination  of 
the  proposition  submitted  as  provided  in  the  next  section,  nor  unless  such 
proposition  shall  have  been  decided  in  the  negative.  [County  Law,  § 35-a, 
as  added  by  L.  1017,  ch.  233.] 


236b 


TOWNS.  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


County  Law,  § 35b. 

§ 2b.  SUBMISSION  TO  TOWN  ELECTORS  OF  PROPOSITION  FOR  A 
DIVISION  UNDER  THE  PRECEDING  SECTION. 

The  question  provided  for  in  section  thirty-five-a  shall  be  submitted  at 
the  next  biennial  town  meeting  occuring*  not  less  than  thirty  nor  more 
than  sixty  days  after  the  receipt  of  such  resolution  by  the  town  clerk ; and 
if  a biennial  town  meeting  is  not  to  occur  within  such  times,  then  the  town 
clerk  shall  call  a special  town  meeting  for  the  submission  of  such  proposi- 
tion. The  clerk  shall  give  notice  of  the  fact  that  such  proposition  is  to  be 
submitted  by  posting  the  same  in  at  least  ten  public  places  in  the  town  and 
publishing  such  notice  at  least  ten  days  before  the  meeting  in  a newspaper 
published  in  the  county,  which  shall  be  a newspaper  published  in  the  town 
if  there  be  one.  If  a special  town  meeting  is  called  for  such  purpose,  a 
statement  of  that  fact  shall  be  included  in  the  notice  together  with  a state- 
ment of  the  time  and  place  of  holding  the  same.  The  vote  upon  such  ques- 
tion shall  be  taken  by  ballot,  in  the  form  prescribed  in  the  election  law.  The 
ballots  shall  be  provided  by  the  authorities  charged  by  law  with  the  duty  of 
furnishing  official  ballots  for  other  town  proposition.  Any  elector  qualified 
to  vote  for  town  officers,  if  such  officers  were  then  to  be  chosen,  shall  be 
entitled  to  vote  upon  such  proposition.  A canvass  and  return  of  the  votes, 
and  canvass  of  the  results,  shall  be  made  as  provided  by  law.  If  the  major- 
ity of  votes  cast  on  the  proposition  shall  be  in  the  affirmative,  the  town 
shall  be  thereby  divided  and  two  towns  created  in  place  thereof,  to  consist 
of  the  territory  described  in  the  proposition;  but  such  division  and  such 
creation  of  new  towns  shall  not  go  into  operation  for  the  purpose  of  affect- 
ing the  organization  of  the  existing  town  and  the  powers  and  duties  of 
such  town  and  its  officers  until  the  election  and  qualification  of  officers  for 
the  new  towns.  A certified  copy  of  a statement  of  the  result  of  the  vote 
shall  be  immediately  filed  with  the  clerk  of  the  board  of  supervisors  and 
another  certified  copy  in  the  office  of  the  county  clerk.  The  board  of  super- 
visors shall  designate  the  name  of  each  new  town  so  created  and  shall  cause 
a copy  of  the  map,  provided  for  in  the  preceding  section,  to  be  filed  in  the 
office  of  the  secretary  of  state,  together  with  a certificate  that  such  new 
towns  have  been  created  in  conformity  with  the  provisions  of  this  and  the 
preceding  section.  Such  certificate  shall  be  published  with  the  laws  of  the 
next  legislature.  It  shall  be  the  duty  of  the  board  of  supervisors,  within 
sixty  days  after  such  town  meeting,  if  such  proposition  shall  have  been 
decided  in  the  affirmative,  to  provide  by  resolution  for  the  first  election  in 
each  of  such  new  towns  in  the  manner  provided  in  section  thirty-six  of  this 
chapter.  Such  election  shall  be  held  not  later  than  three  months  after  such 
town  meeting.  A certified  copy  of  the  resolution  fixing  the  date  of  such 
election  shall  also  be  filed  in  the  office  of  the  secretary  of  state.  No  incor- 
porated village  shall  be  divided  in  the  formation  of  new  towns  under  the 
provisions  of  section  thirty-five-a  and  of  this  section.  If  the  majority  of 
votes  cast  on  such  proposition  be  in  the  negative  or  be  equal,  the  town  shall 
not  be  so  divided.  The  provisions  of  this  and  the  preceding  section  shall 
not  affect  an  application  for  the  division  of  any  town  heretofore  presented 
to  any  board  of  supervisors  and  now  pending,  but  the  same  shall  be  deter- 
mined as  provided  in  section  thirty-five.  [County  Law,  § 35-b,  as  added 
by  L.  1917,  ch.  233.] 

* So  in  original. 


TOWNS;  ERECTION  AND  ALTERATION. 


237 


County  Law,  §§  36,  37. 

§ 3.  TIME  AND  PLACE  OF  HOLDING  FIRST  ELECTION  IN  NEW 
TOWN;  TERM  OF  OFFICE  OF  TOWN  OFFICER  NOT  TO  BE 
ABRIDGED. 

The  board  [of  supervisors]  shall  designate  the  time  and  place  of  holding 
the  first  town  meeting  in  a new  town  so  erected,  and  appoint  three  electors 
thereof,  who  shall  post  notice  of  such  town  meeting,  signed  by  the  chair- 
man or  clerk  of  the  board  of  supervisors,  in  four  conspicuous  public  places 
in  such  town,  at  least  fourteen  days  before  holding  the  same.  Such 
electors  shall  preside  at  such  town  meeting,  appoint  a clerk,  open  and  keep 
the  polls,  and  exercise  the  same  powers  as  justices  of  the  peace  when 
presiding  at  town  meetings;  but  if  such  electors  shall  refuse  or  neglect 
to  serve,  the  electors  of  the  town  present  shall  substitute  one  of  their 
number  for  each  one  so  neglecting  or  refusing  to  serve;  and  the  posting 
of  the  notice  of  such  meeting  shall  be  valid  if  done  by  any  elector  of  the 
town.  Nothing  herein  shall  affect  the  rights,  or  abridge  the  term  of  office 
of  any  town  officer  in  any  town,  but  they  shall  hold  and  exercise  the  offices 
in  the  town  in  which  they  shall  respectively  reside  after  the  change  or 
alteration.  [County  Law,  § 36 ; B.  C.  & G.  Cons.  L.,  p.  734.] 

§ 4.  ESTABLISHMENT  OF  DISPUTED  LINES;  APPLICATION  THERE- 
FOR; NOTICE  TO  BE  PUBLISHED  AND  SERVED  UPON  TOWN 
OFFICERS;  RESOLUTION  TO  BE  FILED  IN  OFFICE  OF  SEC- 
RETARY OF  STATE. 

Such  board  may  establish  and  define  boundary  lines  between  the  several 
towns  of  the  county.  A notice  of  intention  to  apply  to  the  board  to 
establish  and  define  such  boundary  line,  particularly  describing  the  same, 
and  the  line  as  proposed  to  be  acted  upon  by  such  board,  signed  by  a 
majority  of  the  members  of  the  town  board  of  some  one  of  the  towns 
to  be  affected  thereby,  shall  be  published  for  four  consecutive  weeks  next 
preceding  the  meeting  of  the  board  at  which  the  application  is  to  be 
presented,  in  three  newspapers  published  in  the  county  in,  or  nearest  to 
such  towns,  if  so  many,  otherwise  in  all  the  newspapers  published  in  the 
county  as  often  as  once  a week.  A copy  of  such  notice  shall  also  be  served 
personally,  at  least  fifteen  days  before  the  meeting  of  such  board,  on  the 
supervisors  and  town  clerk  of  each  of  the  other  towns  to  be  affected  thereby. 


only  described  the  dividing  line,  it  has  been  held  that  the  indefiniteness  was 
cured  by  reference  contained  in  the  act  to  the  application  upon  which  it  was 
founded  and  from  which  it  appeared  that  the  new  town  was  to  lie  south  of  the 
line  of  division.  People  v.  Carpenter,  24  N.  Y.  86.  In  this  case  the  court  ruled 
that  the  act  of  the  supervisors  being  one  of  a legislative  character,  in  favor 
of  the  regularity  of  which  all  presumptions  are  to  be  indulged;  those  who  would 
impeach  the  act  must  show  by  affirmative  proof  a non-compliance  with  the 
conditions  imposed  by  law  as  a prerequisite  to  the  exercise  of  power. 


l 


238  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 30. 

A copy  of  the  resolution,  as  adopted  by  the  board,  which  shall  contain  the 
courses,  distances  and  fixed  monuments  specified  in  such  boundary  line  or 
lines,  together  with  a map  of  the  survey  thereof,  with  the  courses,  distances 
and  fixed  monuments  referred  to  therein,  plainly  and  distinctly  marked 
and  indicated  thereon,  shall  be  filed  in  the  office  of  the  secretary  of  state 
within  thirty  days  after  the  adoption  of  such  resolution,  who  shall  cause 
the  same  to  be  printed  and  published  with  the  laws  of  the  next  state 
legislature  after  the  adoption  thereof.3  [County  Law,  § 37;  B.  C.  & G. 
Cons.  L.,  p.  734.] 

§ 5.  DISPOSITION  OF  TOWN  PROPERTY,  UPON  ALTERATION  OF 
TOWN  BOUNDARIES;  WHEN  PROPERTY  TO  BE  SOLD  DU- 
TIES OF  TOWN  BOARDS  RESPECTING  SALE;  CEMETERY 
NOT  TO  BE  SOLD  OR  DIVIDED. 

When  the  boundaries  of  a town  owning  real  or  personal  property  shall 
be  altered,  either  by  a division  of  a town  into  two  or  more  towns  or  by  the 
annexation  of  a part  of  its  territory  to  another  town  or  towns,  the  town 
boards  of  the  several  towns  affected  by  such  alterations  shall  meet  as  soon, 
as  may  be  after  the  first  town  meetings  subsequently  held  in  such  towns, 
and  shall  make  such  agreement  concerning  the  disposition  to  be  made  of 
such  real  and  personal  property,  and  the  apportionment  of  the  proceeds, 
as  they  shall  deem  equitable  and  take  all  measures,  and  execute  all  con- 
veyances necessary  to  carry  such  agreement  into  effect.  If  no  such  agree- 


3.  For  form  of  resolution  of  board  of  supervisors  establishing  and  defining 
boundary  lines  between  towns,  see  Form  No.  13,  post. 

Failure  to  acquire  jurisdiction.  If  the  board  of  supervisors  attempts  to 
establish  disputed  boundary  lines  without  having  acquired  jurisdiction  by  the 
necessary  application  and  the  publication  of  the  notice  to  make  such  applica- 
tion, an  injunction  will  lie  against  such  board  to  restrain  further  action  by  it. 
People  ex  rel.  Town  of  Knox  v.  Supervisors,  63  Row.  Pr.  411. 

Effect  of  statute  establishing  boundary  line  between  towns.  A board  of 
supervisors  may,  under  this  section,  ascertain  and  locate  a disputed  boundary 
line  between  two  towns  within  the  county  which  was  established  and  settled 
by  an  early  statute  in  accordance  with  an  ancient  designated  map.  The 
authorized  action  of  a board  of  supervisors  in  determining  such  a boundary 
line  cannot,  in  the  absence  of  fraud,  collusion  or  bad  faith  on  the  part  of  the 
board,  be  attacked  in  a taxpayer’s  action.  Govers  v.  Board  of  Supervisors,  171 
N.  Y.  403,  affg.  55  App.  Div.  40,  67  N.  Y.  Supp.  27. 

Town  boundaries;  islands  intersected  by  town  lines.  Whenever  two  towns 
are  separated  from  each  other  by  a river,  creek  or  lake,  the  middle  of  the 
channel  of  such  river,  creek  or  lake,  shall  be  the  division  line  between  them, 
unless  hereinbefore  otherwise  provided.  R.  S.  pt.  1,  ch.  2,  tit.  4,  sec.  58. 

Whenever  the  boundary  line  between  two  towns  crosses  an  island,  the 
whole  of  such  island  shall  be  deemed  to  be  within  the  town  in  which  the 
greater  part  of  it  lies,  unless  hereinbefore  otherwise  provided.  Idem,  sec.  59. 


TOWNS;  ERECTION  AND  ALTERATION. 


239 


Town  Law,  § 31. 

ment  shall  be  made  within  six  months  after  such  town  meetings,  the 
town  board  of  each  town  in  which  any  portion  of  such  real  property,  or  in 
whose  possession  any  of  such  personal  property  shall  be,  shall,  as  soon 
as  may  be,  sell  and  convey  such  part  of  the  real  property  as  shall  be 
included  within  the  limits  of  the  town  as  fixed  by  such  alteration,  and 
such  of  the  personal  property  as  may  be  in  its  possession ; and  the  proceeds 
arising  from  the  sale  shall  be  apportioned  between  the  several  towns  in- 
terested therein,  by  the  town  boards  of  all  the  towns,  according  to  the 
amount  of  the  taxable  property  of  the  town  divided  or  altered,  as  the  same 
existed  immediately  before  such  division  or  alteration,  to  be  ascertained  by 
the  last  assessment-roll  of  such  town.  But  no  town  cemetery  or  burial 
ground  shall  be  sold  or  divided,  but  the  same  shall  belong  to  the  town  with- 
in which  it  may  be  situated  after  a division  of  the  town  shall  have  been 
made,  and  no  lots  heretofore  granted  by  the  people  of  this  state  to  any  town 
for  the  support  of  the  gospel  and  of  schools,  commonly  called  the  gospel 
and  schools  lots,  shall  be  sold  or  apportioned.4  [Town  Law,  § 30 ; B.  C.  & G. 
Cons.  L.,  p.  6138.] 

§ 6.  DEBTS  TO  BE  APPORTIONED  ACCORDING  TO  AMOUNT  OF 
TAXABLE  PROPERTY;  COLLECTION  OF  UNPAID  TAXES  IN 
SUCH  TOWNS. 

Debts  owed  by  a town  so  divided  or  altered  shall  be  apportioned  in  the 
same  manner  as  the  personal  property  of  a town,  and  each  town  shall  be 
charged  with  its  share  of  the  debts,  according  to  the  apportionment,  and 
the  amount  of  the  unpaid  taxes  levied  and  assessed  upon  the  taxable 
property  of  the  town,  divided  or  altered,  before  the  division  or  alteration 
thereof,  shall  be  apportioned  between  the  several  towns  interested  therein, 
according  to  the  amount  of  taxable  property  in  each  town  as  the  same  ex- 
isted before  such  division  or  alteration,  to  be  ascertained  by  the  last  assess- 
ment-roll of  the  town.5 


4.  Title  of  property.  Without  express  provision  of  statute  the  erection 
of  a new  town  does  not  take  away  the  rights  of  the  old  town  as  to  the  com- 
mon property  not  located  within  the  limits  of  the  new  town.  Denton  v.  Jack- 
son,  2 Johns.  Ch.  320.  But  in  the  case  of  Town  of  North  Hempstead  v.  Town 
of  Hempstead,  2 Wend.  109,  it  was  held  that  the  division  of  the  town  of 
Hempstead  effected  a division  of  the  common  lands. 

Under  an  act  passed  by  the  legislature  to  divide  the  town  of  Kingston  it 
was  held  the  legal  title  in  the  property  belonging  to  the  freeholders  and  in- 
habitants of  the  town,  continued  in  their  trustees  until  conveyed  by  them  to 
officers  of  the  towns  into  which  the  old  town  was  divided.  Jackson  v.  Louw, 
12  Johns.  252. 

As  to  constitutionality  of  chapter  975  of  the  laws  of  1895,  dividing  the  town 
of  Watervliet,  see  Fort  v.  Cummings,  90  Hun,  481. 

5.  Apportionment  of  debts.  By  this  section  debts  owed  by  a town  which 


210 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 32. 

In  making  such  division,  there  shall  be  set  off  to  each  town  interested 
the  unpaid  taxes  assessed  and  levied  upon  the  real  property  within  its 
borders  and  such  as  were  assessed  and  levied  upon  personal  property 
against  persons  or  corporations  who  resided  within  its  borders  at  the  time 
of  the  assessment ; and  each  town,  to  which  the  same  are  apportioned,  shall 
have  the  same  power,  right  and  methods  of  collecting  the  same  by  war- 
rant, action,  sale  or  otherwise,  as  the  town  so  divided  or  altered  had,  or 
would  have  had  if  such  town  had  not  been  so  divided  or  altered.  Any 
such  town  having  apportioned  to  it  more  than  its  proportion  of  unpaid 
taxes,  according  to  the  aforesaid  taxable  property,  to  be  ascertained  by  the 
last  assessment-roll  of  such  town,  shall  pay  to  the  other  town  or  towns  in- 
terested, such  sum  or  sums  as  shall  be  necessary  to  make  such  apportion- 
ment correspond  with  the  said  taxable  property,  as  ascertained  by  the  said 
last  assessment-roll  of  said  town,  before  the  said  division  or  alteration. 
[Town  Law,  § 31;  B.  C.  & G.  Cons.  L.,  p.  6138.] 

§ 7.  MEETINGS  OF  TOWN  BOARDS  FOR  DISPOSITION  OF  PROP- 
ERTY AND  APPORTIONMENT  OF  DEBTS  TO  BE  CALLED  BY 
SUPERVISOR;  ACTION  TO  ENFORCE  SETTLEMENT. 

Whenever  a meeting  of  the  town  boards  of  two  or  more  towns  shall  be 
required,  in  order  to  carry  into  effect  the  provisions  of  this  article,  such 
meeting  may  be  called  by  either  of  the  supervisors  of  such  towns,  by  giv- 
ing at  least  three  days’  written  notice  to  all  the  other  members  of  such  town 
boards  of  the  time  and  place  of  such  meeting.  [Town  Law,  § 32 ; B.  C.  & 
G.  Cons.  L.,  p.  6139.] 

Whenever  said  town  boards  shall  fail  to  carry  into  effect  the  provisions  of 
this  article  and  agree  upon  the  amount  of  assets  to  which  each  town  is 
entitled,  and  the  amount  of  indebtedness  for  which  each  town  is  liable  and 
complete  the  full  settlement  thereof,  within  eighteen  months  after  the 


has  been  divided  or  whose  boundaries  have  been  altered  must  be  apportioned 
by  the  town  boards  of  the  several  towns  affected  by  the  division  or  alteration 
in  the  manner  prescribed  in  the  preceding  section  for  the  apportionment  of  the 
personal  property  of  the  several  towns;  that  is  by  an  agreement  to  be  made 
by  the  town  boards. 

Proceedings  by  mandamus  cannot  be  instituted  against  a board  of  super- 
visors to  levy  and  assess  the  amount  due  upon  a judgment  against  the  town 
upon  the  territory  formerly  included  in  the  town.  The  statute  requires  the 
town  boards  to  apportion  the  debts  of  the  towns  upon  the  property  of  the 
several  towns,  and  if  the  town  boards  refuse  to  act  the  remedy  is  by  mandamus 
against  them  to  compel  a compliance  with  the  terms  of  the  statute.  People 
ex  rel.  McKenzie  v.  Board  of  Supervisors  of  Ulster  County,  94  N.  Y.  263.  In 
this  case  the  court  said:  “But  for  the  statute,  or  some  other  provision  of 

law,  upon  a division  of  the  old  town  of  Kingston,  all  the  liabilities  of  that 


TOWNS;  ERECTION  AND  ALTERATION.  245 

Town  Law,  §§  33,  34. 

division  or  alteration  mentioned  in  section  thirty  of  this  article,  any  of 
such  towns  may  begin  and  maintain  an  action  against  the  other  town  or 
towns  to  make  and  enforce  such  settlement.  [Idem,  § 33.] 

The  provisions  of  this  article  shall  apply  to  towns  heretofore  and  here- 
after divided  or  altered.  [Idem,  § 34.] 


town  would  have  remained  against  the  present  town  of  Kingston;  and  it 
would  have  been  entitled  to  all  the  property  of  the  old  town  within  its  limits, 
and  would  have  been  obliged  to  discharge  all  its  debts  and  obligations.  Lara- 
mie County  v.  Albany  County,  92  U.  S.  307;  Mount  Pleasant  v.  Beckwith, 
100  U.  S.  514.  Within  the  latter  authority,  if  the  old  town  of  Kingston  had 
been  entirely  blotted  out,  and  its  territory  annexed  to  other  towns;  or  if 
other  towns  had  been  carved  out  of  it,  and  new  municipalities  had  thus  been 
formed,  in  the  absence  of  any  legislation  providing  for  the  payment  of  the 
debts  of  the  old  town,  they  would  have  devolved  upon  the  new  towns  to  be 
paid  by  them  in  equitable  proportions.  But  here  express  provision  of  law  is 
made  as  to  the  manner  of  discharging  the  obligations  of  the  old  town;  and 
those  provisions  are,  at  least  in  the  first  instance,  executive  and  must  be  pur- 
sued. Under  them  all  the  debts  of  the  old  town  of  Kingston  are  to  be  ap- 
portioned by  the  officers  named,  between  the  three  towns  of  Ulster,  Wood- 
stock  and  Kingston,  according  to  taxable  property  as  the  same  existed  im- 
mediately before  the  division,  to  be  ascertained  by  the  last  assessment  list 
of  the  town,  which  was  the  assessment  list  of  1879.  The  relator,  therefore, 
has  a plain  remedy,  which  is  by  mandamus,  to  compel  a meeting  of  the  present 
officers  of  the  three  towns  and  a discharge  by  them  of  the  duties  devolved 
upon  them  by  the  statute.” 


242 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Explanatory  note. 


CHAPTER  XIX. 

TOWN  MEETINGS. 

EXPLANATORY  NOTE. 

Town  Meetings  Generally. 

The  present  law  has  materially  modified  that  ancient  institution 
known  as  “ the  town  meeting.”  In  former  days  it  was,  as  its  name 
indicates,  a meeting  of  the  inhabitants  of  a town  to  consider  town  affairs 
and  elect  town  officers.  It  was  not  then  subject  to  the  same  formalities 
as  at  the  present  time.  The  persons  present  at  such  meeting  frequently 
discussed  town  enterprises,  and  passed  by  resolution,  adopted  without 
a ballot,  upon  many  important  questions.  This  power  of  voting  viva 
voce  upon  town  questions  still  remains,  but  it  is  infrequently  exercised. 
Town  meetings  are  now  most  commonly  held  at  the  time  of  general  elec- 
tions, in  the  same  election  districts  and  subject  to  the  same  general 
conditions  as  such  elections.  Where  town  meetings  are  so  held  the 
provisions  of  the  Election  Law,  relative  to  nominations,  ballots  and 
canvassing  are  generally  applicable. 

Time  and  Place  of  Holding  Town  Meetings. 

Town  meetings  were  formerly  held  annually.  But  since  1897 
(L.  1897,  ch.  481)  they  have  been  held  biennially,  in  most  counties  in 
each  odd-numbered  year.  Unless  otherwise  provided  by  boards  of  super- 
visors such  meetings  are  held  on  the  second  Tuesday  of  February.  Such 
boards  may  fix  a different  time  for  holding  such  meetings ; at  any  time 
between  February  1 and  May  1,  or  on  general  election  day.  It  is  also 
provided  that  a town  may  change  the  time  of  holding  town  meetings  to 
general  election  day  by  adopting  a proposition  therefor  at  a regular 
town  meeting. 

The  place  of  holding  town  meeting  not  held  at  the  time  of  general 
elections  may  be  determined  by  vote  of  a biennial  town  meeting.  Such 
town  meetings  may  be  held  in  election  districts,  when  so  voted  by  the 
electors  of  the  town  at  a biennial  or  special  town  meeting.  Unless  it 
has  been  so  voted,  town  meetings  are  to  be  held  in  one  place.  Where 
town  meetings  are  held  in  election  districts,  the  votes  cast  are  to  be 
canvassed  by  the  justices  of  the  peace  and  the  town  clerk  on  the  daj 
following  the  town  meeting.  (See  Town  Law,  § 65.) 


TOWN  MEETINGS. 


243 


Explanatory  note. 


Special  Town  Meetings. 

Special  town  meetings  are  held  for  purposes  authorized  by  law,  on  the 
call  of  the  town  clerk.  Applications  therefor  must  be  in  writing  ad- 
dressed to  the  town  clerk.  Such  applications  must  be  signed  by  at  least 
twenty-five  taxpayers,  or  must  he  presented  by  a supervisor,  superin- 
tendent of  highways,  or  overseer  of  the  poor.  Notice  of  such  town 
meeting  must  be  given  by  the  town  clerk,  by  posting  the  same  at  least 
twenty  days  before  the  day  of  the  meeting  in  at  least  four  conspicuous 
places  in  the  town,  and  by  publication  in  at  least  two  newspapers  in  the 
town  ; if  only  one  is  published  in  the  town,  publication  must  be  made 
therein.  If  none  are  published  in  the  town,  the  notices  must  be  pub- 
lished in  at  least  two  newspapers  in  the  county. 

Adopting  Propositions. 

If  a proposition  requiring  a vote  by  ballot  is  to  be  submitted  at  a 
town  meeting,  either  biennial  or  special,  application  must  be  presented 
to  the  town  clerk,  either  by  taxpayers  or  town  officers,  stating  the  prop- 
osition proposed.  The  town  clerk  must  give  the  notice  required  by  law 
that  such  proposition  is  to  be  submitted.  Ballots  and  ballot  boxes  must 
he  provided  by  him  for  use  in  voting  upon  such  proposition.  The  pro- 
visions of  § 48  of  the  Town  Law,  as  amended  by  L.  1916,  ch.  79,  apply 
to  propositions  voted  upon  at  town  meetings  held  at  other  times  than  on 
general  election  day.  If  the  town  meeting  is  held  on  general  election 
day,  the  provisions  of  the  Election  Law,  § 294,  as  amended  by  L.  1910, 
ch.  446,  § 295,  as  amended  by  L.  1913,  ch.  820,  and  L.  1914,  ch.  244, 
§ 316,  as  amended  by  L.  1911,  ch.  649,  and  L.  1913,  ch.  821,  and  § 332, 
as  amended  by  L.  1913,  ch.  821,  relative  to  questions  submitted  at  a 
general  election,  apply  to  such  town  meeting. 

Conduct  of  Town  Meetings. 

If  town  meetings  are  held  on  general  election  day  the  regularly 
elected  or  appointed  election  officers  conduct  such  meetings.  If  held  on 
other  days,  the  justices  of  the  peace  of  the  town  must  preside  and  see 
that  such  meetings  are  conducted  according  to  law.  The  town  clerk 
acts  as  clerk  of  such  meeting  and  must  keep  minutes  of  the  proceed- 
ings. A town  meeting  held  at  a time  other  than  general  election  day  is 
to  continue  open  from  the  rising  to  the  setting  of  the  sun.  Such  meeting 
may  be  continued  during  the  following  day,  and  may  be  adjourned  to 
a different  place  upon  a vote  of  the  meeting  in  favor  thereof. 

Qualifications  of  Electors. 

Any  person  qualified  to  vote  at  a general  election  may  vote  for  town 
officers.  But  he  cannot  vote  upon  a proposition  for  the  raising  of  money, 


244 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 40. 


unless  he  or  his  wife  is  the  owner  of  taxable  property  in  the  town.  A 
woman,  who  is  a resident  of  the  town  and  of  the  required  age,  and  is  the 
owner  of  property  assessed  upon  the  last  preceding  assessment  roll  of 
the  town,  may  vote  upon  a proposition  to  raise  money  by  tax  or  assess- 
ment. 

Powers  of  Town  Meetings 

The  general  powers  of  a biennial  town  meeting  are  prescribed  by  § 43, 
as  amended  by  L.  1909,  ch.  422,  and  L.  1917,  ch.  44,  of  the  Town  Law. 
Other  powers  are  conferred  by  other  laws  to  which  reference  is  made  in  the 
proper  place. 


Section  1.  Time  and  place  of  biennial  town  meetings  ; board  of  supervisors  may  fix 
time  ; town  meeting  on  general  election  day. 

2.  Town  may  change  date  of  holding  town  meeting  ; submission  of  proposi- 

tion therefor  ; certificate  to  be  filed  with  town  clerk  and  clerk  of  board 
of  supervisors  ; terms  of  office’ 

3.  Changing  place  of  holding  town  meetings  ; not  to  apply  to  towns  in 

counties  where  town  meetings  are  held  at  time  of  general  election. 

4.  General  powers  of  biennial  town  meetings. 

5.  Power  of  town  meeting  to  make  appropriation  for  public  monuments. 

6.  Special  town  meeting  ; for  what  purpose  called  ; application  therefor. 

made  by  whom. 

7.  Notices  of  town  meetings ; notice  of  special  towm  meeting. 

8.  Notice  of  propositions  to  be  determined  by  ballot  ; ballot  boxes  ; form  of 

ballot. 

9.  Presiding  officers  of  town  meetings  ; if  no  justice  be  present,  person  may 

be  elected  by  electors. 

10.  Clerk  of  meetings. 

11.  Duration  of  town  meetings. 

12.  Proclamation  of  opening  and  closing  polls. 

13.  Qualification  of  voter  at  town  meeting  held  at  time  of  general  election. 

14.  Qualification  of  elector  at  town  meeting. 

15.  Qualification  of  elector  to  vote  for  site  for  towm  house. 

16.  When  women  qualified  to  vote. 

17.  Votes  to  expend  over  five  hundred  dollars  to  be  by  ballot,  if  less,  by  viva* 

voce. 

18.  Ballots  ; electors  in  incorporated  village,  when  not  to  vote  on  highway 

questions. 

19.  Transaction  of  business  not  requiring  a ballot  ; when  questions  are  to  be 

submitted  ; how  determined. 

20.  Challenges;  provisions  of  election  law  applied. 

21.  Minutes  of  proceedings. 

22.  Canvass  of  votes  ; notification  of  officers  elected. 

23.  Town  meetings  in  election  districts;  may  be  held  if  regular  election- 

districts,  or  town  board  may  divide  town ; applibation  therefor. 

24.  Vote  upon  propositions  not  requiring  a ballot ; vote  to  be  by  division  of 

electors  present;  inspectors  to  enter  statement  of  results:  notice  of  sub- 
mission of  proposition. 

25.  Town  meetings  held  at  the  time  of  general  election ; canvass  of  votes. 

26.  Ballots  at  town  meeting  held  at  time  of  general  election. 

27.  The  use  and  purchase  of  voting  machines. 

§ 1.  TIME  AND  PLACE  OF  BIENNIAL  TOWN  MEETINGS;  BOARD  OF 
SUPERVISORS  MAY  FIX  TIME;  TOWN  MEETING  ON  GEN- 
ERAL ELECTION  DAY. 

The  electors  of  a towm  shall,  biennially,1  on  the  second  Tuesday  of 


1.  Biennial  town  meetings.  Previous  to  the  passage  of  chapter  four 


TOWN  MEETINGS. 


245 


Town  Law,  § 40. 

February,  assemble  and  hold  meetings  at  such  place  in  the  town  as  the 
electors  thereof  at  their  biennial  town  meeting  shall,  from  time  to  time, 
appoint.  If  no  place  shall  have  been  fixed  for  such  meeting,  the  same 
shall  be  held  at  the  place  of  the  last  town  meeting  in  the  town  or  election 
district,  when  town  meetings  of  a town  are  held  in  election  districts.  The 
board  of  supervisors  of  any  county  may,  by  resolution,  fix  a time  when  the 
biennial  town  meetings  in  such  county  shall  be  held,  which  shall  be  either 
on  some  day  between  the  first  day  of  February  and  the  first  day  of  May, 
inclusive,  or  on  the  first  Tuesday  after  the  first  Monday  in  November  of; 
an  odd  numbered  year.2  [Town  Law,  § 40;  B.  C.  & G.  Cons.  L.,  p.  6140.] 


hundred  and  eighty-one  of  the  laws  of  1897,  town  meetings  were  held  an- 
nually. By  that  act  a town  meeting  was  to  be  held  in  each  town  in  the  spring 
of  1898,  at  which  town  officers  were  to  be  elected  for  terms  of  one  year;  and 
it  was  also  provided  that  town  meetings  should  be  held  in  the  year  1899  and 
biennially  thereafter. 

Place  of  holding*  town  meetings.  The  place  of . holding  a town  meeting 
should  be  determined  by  motion  or  resolution,  put  in  the  usual  form,  upon 
fair  notice  to  the  electors.  The  result  should  be  declared  by  the  proper  officer 
and  entered  on  the  minutes.  Attorney-General’s  Opinion  (1870),  p.  450.  The 
voting  upon  a question  of  where  the  town  meeting  shall  be  held  may  be  by 
ballot,  viva  voce , or  by  ayes  and  nays.  If  by  ballot  no  previous  notice  that  the 
vote  is  to  be  taken  is  required.  Attorney-General’s  Opinion  (1855),  p.  236. 

Under  a statute  similar  in  all  respects  to  this  the  Court  of  Appeals  held  that 
the  qualified  electors  of  a town  at  their  town  meeting,  have  power,  after  the 
regular  organization  of  the  meeting,  to  determine  by  vote  that  the  meeting 
shall  be  continued  at  the  place  of  such  organization  through  a part  of  the 
day  and  then  adjourned  to  some  other  place  in  the  town,  and  thene  continued 
through  the  residue*  of  the  day.  People  ex  rel.  Simonson  v.  Martin,  5 N.  Y. 
22.  This  case  was  decided  at  the  time  when  town  meetings  were  much  less 
formal  in  their  character  than  at  present,  and  it  may  well  be  doubted  whether 
under  the  existing  system  a town  meeting  may  be  held  at  more  than  one 
place  on  the  same  day.  See,  also.  People  ex  rel.  Kniffin  v.  Tabor,  21  How. 
Pr.  42.  But  see  Town  Law,  § 51,  post. 

Conduct  of  town  meeting.  Vote  of  electors  is  not  invalid  or  irregular  be- 
cause the  resolution  was  put  to  vote  and  adopted  from  the  piazza  of  a hotel, 
to  the  voters  outside,  while  the  meeting  and  balloting  was  held  inside  the  hotel; 
nor  because  the  clerk  of  the  board,  under  directions  of  presiding  officers  put 
the  vote,  and  declared  it  carried.  People  ex  rel.  Kniffin  v.  Talor,  21  How.  Pr.  42. 

2.  Town  meetings  on  general  election  day.  By  chapter  363  of  the  laws  of 
1898,  amending  § 10  of  the  former  Towrn  Law,  boards  of  supervisors  were  au- 
thorized to  adopt  a resolution  fixing  the  time  of  holding  biennial  town  meetings 
on  the  first  Tuesday  after  the  first  Monday  in  November,  that  is,  on  general 
election  day.  A large  number  of  counties  have  adopted  such  a resolution. 

By  chapter  30  of  the  laws  of  1899,  it  was  provided  that:  “The  acts,  resolu- 

tions and  proceedings  of  boards  of  supervisors  under  the  authority  conferred 
by  chapter  363  of  the  laws  of  1898,  changing  the  time  of  holding  town  meetings 
in  their  respective  counties  to  the  first  Tuesday  after  the  first  Monday  in 


246 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 41. 

§ 2.  TOWN  MAY  CHANGE  DATE  OF  HOLDNG  TOWN  MEETING:  SUBMIS- 
MON  OF  PROPOSITION  THEIIEFOR;  CERTIFICATE  TO  BE  FILED 
WITH  COUNTY  CLERK  AND  CLERK  OF  BOARD  OF  SURER  VISORS; 
TERMS  OF  OFFICE. 

A town  may  change  the  date  of  its  town  meeting  to  the  first  Tuesday  after 
the  first  Monday  in  November,  known  as  general  election  day,  by  adopting  a 
proposition  therefor  at  a regular  town  meeting.  Such  a proposition  may  be 
submitted  by  the  town  board  on  its  own  motion,  and  shall  be  submitted  by  such 
board  on  the  written  application  of  twenty-five  taxable  voters  of  the  town.  The 
proposition  must  be  submitted,  voted  on,  and  the  result  canvassed  as  prescribed 
by  section  forty-eight.  If  it  be  adopted  a certificate  to  that  effect  shall  be  filed 
by  the  town  clerk  within  ten  days  thereafter  in  the  office  of  the  county  clerk 
and  also  with  the  clerk  of  the  board  of  supervisors.  If  the  proposition  be 
adopted  the  first  town  meeting  shall  be  held  on  general  election  day  in  the  next 
calendar  year,  and  the  terms  of  all  officers,  except  justices  of  the  peace  and 
assessors,  elected  on  the  day  of  the  adoption  of  the  proposition  shall  expire  on 
the  day  of  such  first  meeting.  1 hereafter  town  meetings  in  such  town  shall 
be  held  biennially  on  general  election  day  in  the  manner  prescribed  by  this 
chapter,  except  that  after  five  years  from  the  first  meeting,  the  town  meeting 
may  in  like  manner  change  from  such  general  election  day  to  any  other  day 
authorized  by  law.  The  term  of  office  of  all  officers,  except  justices  of 
the  peace,  in  a town  which  under  this  section  changes  its  town  meeting  to 
general  election  day,  shall  be  two  years  from  the  date  of  their  election,  except 
that  the  term  of  an  assessor  elected  on  such  day  shall  be  for  two  or  four 


November,  are  hereby  legalized,  ratified  and  confirmed,  and  in  such  counties 
town  meetings  shall  be  held  in  the  year  1899  only  on  that  day.*’  A similar  act 
was  passed  in  1901.  See  L.  1901,  ch.  32. 

In  the  case  of  People  ex  rel  Smith  v.  Schillein,  95  N.  Y.  124,  the  question  con- 
sidered was  whether  a justice  of  the  peace  required  by  the  constitution  (art.  6, 
sec.  18),  to  be  elected  at  “ an  annual  town  meeting,”  could,  by  an  act  of  the 
legislature  be  elected  at  any  other  time  than  at  a regular  town  meeting.  The 
court  held,  without  deciding  the  question  as  to  whether  the  legislature  could 
change  the  time  of  holding  a town  meeting  to  general  election  day,  that  if  a 
regular  town  meeting  was  held  in  the  spring,  that  the  justices  of  the  peace 
could  not  be  elected  at  a general  election. 

Resolution  of  board  of  supervisors  changing  town  meetings  to  general  election 
day.  A resolution  of  a board  of  supervisors  which  attempts  to  extend  the  terms 
of  town  officers  elected  at  a town  meeting  is  unauthorized.  People  ex  rel.  Smith 
v.  Weeks,  176  N.  Y.  194,  affg.  87  N.  Y.  App.  Div.  610,  84  N.  Y.  Supp.  16.  But  a 
resolution  changing  the  time  of  holding  the  biennial  town  meeting  from  spring 
to  fall  is  constitutional.  People  ex  rel.  Fluchiger  v.  Huftalen,  158  App.  Div.  44. 
Where  the  time  of  the  biennial  meeting  is  changed  from  March  to  the  general 
election  day,  town  officers  may  not  be  elected  at  a town  meeting  in  March,  and 
such  officers  had  no  right  to  the  offices,  as  against  those  who  were  in  office  at 
the  time.  The  town  officers  then  in  office  may  hold  until  the  vacancies  caused 
by  the  expiration  of  their  terms  are  filled  by  the  town  board,  or  by  those  elected 
at  the  biennial  town  meeting  in  November.  People  ex  rel.  Peckins  v.  Pelcher, 
81  Misc.  423.  The  time  of  holding  town  meetings  cannot  be  changed  by  the 
board  of  supervisors  so  as  to  extend  the  terms  of  the  supervisors  in  office  at  the 
time  of  the  adoption  of  the  resolution.  Rept.  of  Atty.  Genl.,  Feb.  15,  1912.  Board 
of  supervisors  has  no  power  to  fix  the  year  in  which  biennial  town  meetings 
shall  be  held.  Rept.  of  Atty.  Genl.  (1900),  269.  But  in  the  case  of  Smith  v. 
Farley,  155  App.  Div.  813,  140  N.  Y.  Supp.  990;  it  was  held  that  under  the  provision 
of  this  section  that  “ The  board  of  supervisors  of  any  county  may,  by  resolution, 
fix  a time  when  the  biennial  town  meetings  in  such  county  shall  be  held,  which 
shall  be  either  on  some  day  between  the  first  day  of  February  and  the  first  day  of 
May,  inclusive,  or  on  the  first  Tuesday  after  the  first  Monday  in  November  of  an 
odd  numbered  year,”  the  board  of  supervisors  of  a county  where  town  meetings 
have  been  held  on  the  first  Tuesday  after  the  first  Monday  in  November  of  the 
odd-numbered  years  may  pass  a resolution  providing  that  thereafter  the  biennial 
town  meetings  of  said  county  shall  be  held  on  the  first  Tuesday  after  the  first 
Monday  in  March  of  an  even-numbered  year,  and  of  the  even-numbered  years 
thereafter. 


TOWN  MEETINGS. 


247 


Town  Law,  § 42. 

years,  as  the  case  may  be,  from  the  date  of  such  election.  [Town  Law,  § 
41,  as  amended  by  L .,  1910,  cli.  271 ; B.  C.  & G.  Cons.  L.,  p.  6141.] 

§ 3.  CHANGING  PLACE  OF  HOLDING  TOWN  MEETINGS;  NOT  TO 
APPLY  TO  TOWNS  IN  COUNTIES  WHERE  TOWN  MEETINGS 
ARE  HELD  AT  TIME  OF  GENERAL  ELECTION. 

The  electors  of  a town  may,  upon  the  application  of  fifteen  electors 
therein,  to  be  filed  with  the  town  clerk  twenty  days  before  a biennial  town 
meeting  is  to  be  held,  determine  at  such  meeting,  by  ballot,  where  future 
town  meetings  shall  be  held.  Where  town  meetings  in  any  town  are  held 
in  separate  election  districts,  the  electors  of  each  district  may,  at  a biennial 
town  meeting,  determine  by  resolution  where  its  future  town  meetings  shall 
be  held.  If  any  place  so  designated  shall  thereafter,  and  before  the  close 
of  the  next  biennial  town  meeting,  be  destroyed,  or  for  any  reason  become 
unfit  for  use,  or  cannot  for  any  reason  be  used  for  such  purpose,  the  town 
board  shall  forthwith  designate  some  other  suitable  place  for  holding  such 
town  meeting  in  said  town  or  election  district,  as  the  case  may  be.  The 
provisions  of  this  section  shall  not  apply  to  towns  in  counties  where  the 
town  meetings  are  held  at  the  same  time  as  general  elections.3  [Town 
Law,  § 42 ; B.  C.  & G.  Cons.  L.,  p.  6142.] 

§ 4.  GENERAL  POWERS  OF  BIENNIAL  TOWN  MEETINGS. 

The  electors  of  each  town  may,  at  their  biennial  town  meeting: 


Provisions  of  town  law  relative  to  holding  town  meetings  on  general  election 
day.  Article  31  of  the  Town  Law  provides  for  the  holding  of  annual  town  meet- 
ings and  elections  in  the  towns  in  the  counties  of  Rockland,  Orange  and 
Sullivan. 

Article  26  of  the  Town  Law  provides  for  holding  of  town  meetings  and  elec- 
tions in  a county  of  the  state  having  a population  of  over  150,000  and  less 
than  160,000  inhabitants.  This  article  only  applies  to  the  county  of  Onondaga. 

Article  27  provides  for  the  holding  of  town  meetings  and  elections  in  a 
county  of  the  state  having  a population  of  over  130,000  and  less  than  150,000 
inhabitants.  This  article  only  applies  to  the  county  of  Oneida. 

Article  28  provides  for  the  holding  of  town  meetings  in  a county  having  a 
population  of  more  than  120,000  and  less  than  130,000  inhabitants.  This  article 
applies  only  to  the  county  of  Rensselaer. 

Article  25  provides  for  the  holding  of  town  meetings  and  elections  in  a 
county  having  a population  of  over  400,000  and  less  than  600,000  inhabitants. 
This  article  only  applies  to  the  county  of  Erie. 

Article  29  provides  for  the  holding  of  town  meetings  and  elections  in  a county 
of  the  state  having  a population  of  over  71,000  and  less  than  75,000  inhabitants. 
This  article  applies  only  to  the  county  of  Niagara. 

Article  30  provides  for  holding  town  meetings  and  elections  in  counties 
having  a population  of  over  50,000  and  less  than  54,000  inhabitants.  This  article 
would  seem  to  apply  only  to  the  county  of  Herkimer. 

Article  31-a,  as  added  by  L.  1917,  ch.  126  and  amended  by  L.  1918,  ch.  372,  pro- 
vides for  holding  town  meetings  and  election  of  town  officers  in  Nassau  county. 

Article  31-b,  as  added  by  L.  1918,  ch.  319,  provides  for  town  meetings  and"  terms 
of  town  officers  in  Suffolk  countj'. 

3.  See,  also,  Note  1,  ante,  under  section  40  of  Town  Law.  This  section  applies 
to  determining  by  electors  of  the  town  where  future  town  meetings  shall  be  held. 


248 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 43. 

1.  Determine  what  number  of  constables,  not  exceeding  five,  and  pound- 
masters  shall  be  chosen  in  their  town  for  the  then  ensuing  two  years,  ex- 
cept that  in  a town  of  a county  containing  two  hundred  thousand  inhabi- 
tants or  less,  according  to  the  last  federal  census  or  state  enumeration,  ad- 
joining a city  of  the  first  class  containing  a population  of  over  one  million, 
the  number  of  constables  to  be  so  determined  shall  not  exceed  four;4  [Subd. 
amended  by  L.  1917,  ch.  44.] 

2.  Elect  such  town  officers  as  may  be  required  to  be  chosen  ;4a 

3.  Direct  the  prosecution  or  defense  of  all  actions  and  proceedings  in 
which  their  town  is  interested,  and  the  raising  of  such  sum  therefor  as  they 
may  deem  necessary  ;5 

4.  Take  measures  and  give  directions  for  the  exercise  of  their  corporate 
powers ; 


4.  Number  of  constables.  If  a town  meeting  has  duly  fixed  the  number  of  con- 
stables, votes  cast  for  more  candidates  than  the  number  limited  are  wholly  void. 
People  v.  Loomis,  8 Wend.  396. 

The  determination  of  the  number  must  be  by  formal  resolution  (People  v.  Adams, 
9 Wend.  333),  although,  of  course,  such  resolution  is  not  required  to  be  voted  on 
by  ballot.  See,  also,  People  ex  rel.  Planter  v.  Jones,  17  Wend.  81. 

4a.  Justices  of  the  peace  may  only  be  elected  at  the  biennial  town  meetings  pre- 
scribed by  statute.  People  ex  rel.  Lyon  v.  Wallin,  141  App.  Div.  34,  125  N.  Y.  Supp. 
613. 

5.  Prosecution  of  actions  and  proceedings.  Where  cause  of  action  exists  in  behalf 
of  a town,  and  no  officer  is  by  statute  authorized  to  prosecute  for  such  cause  of 
action,  the  town  meeting  may  direct  such  an  action  to  be  brought,  and  may  appoint 
an  agent  to  prosecute  it;  but  such  suit  must  be  brought  in  the  name  of  the  town. 
Cornell  v.  Town  of  Guilford,  1 Den.  510.  In  this  case  the  electors  of  a town  at  a 
town  meeting  directed  the  commissioners  of  highways  to  prosecute  a turnpike  com- 
pany for  entering  upon  and  taking  possession  of  a public  highway  and  bridge  in 
that  town,  and  the  commissioners  accordingly  brought  suit  for  that  cause  of  action 
in  their  own  name,  and  failing  to  succeed,  judgment  was  rendered  against  them. 
It  was  held  that  such  commissioners  could  not  sustain  an  action  against  the  town 
for  reimbursement  for  their  costs  and  expenses,  and  for  costs  recovered  against  them 
in  the  suit.  The  resolution  in  this  case  would  have  been  valid  if  it  had  authorized 
the  commissioners  to  prosecute  a suit  against  the  turnpike  company  in  the  name  of 
the  town. 

A resolution  directing  the  prosecution  of  actions  and  proceedings  should  be 
formally  drawn  up  and  submitted  to  the  electors  of  the  town  and  be  duly  entered 
upon  the  minutes  kept  by  the  clerk  of  the  town  meeting.  Town  of  Lyons  v. 
Cole,  3 T.  & C.  431;  Denton  v.  Jackson,  2 Johns.  Ch.  336.  In  the  former  case  it 
appeared  that  a town  resolution  was  adopted  authorizing  the  supervisors  to  bring 
an  action  to  restrain  commissioners  appointed  for  the  issue  of  town  bonds,  from 
disposing  of  the  bonds  until  the  rights  of  the  town  were  protected;  the  supervisor 
employed  attorneys  who,  with  his  consent,  brought  an  action  in  the  name  of  the 
town  against  the  commissioners,  attacking  their  authority  to  issue  the  bonds,  and 
asking  judgment  that  the  issue  be  declared  void.  It  was  held  void;  that  the  action 
was  unauthorized  by  the  resolution  and  that  the  defendant’s  motion  to  dismiss 
the  complaint  and  stay  the  proceedings  should  be  granted. 

In  the  case  of  Town  of  Delhi  v.  Graham,  3 Hun,  407 ; 6 T.  & C.  49,  the  fact  that 
an  action  had  been  brought  in  behalf  of  the  town  was  announced  at  a town  meeting 
and  received  without  objection;  it  was  held  that  a motion  by  the  defendant  for  a 
stay  of  proceedings  on  the  ground  that  the  use  of  the  name  of  the  town  was  unau- 
thorized should  be  denied,  since  there  had  been  no  fraudulent  use  of  the  name 
although  the  action  was  not  formally  brought. 


TOWN  MEETINGS. 


249 


Town  Law,  § 43. 

5.  Make  provisions  and  allow  rewards  for  the  destruction  of  noxious 
weeds  and  animals,  as  they  may  deem  necessary,  and  raise  money  therefor ; (i 


It  is  not  necessary,  in  an  action  brought  pursuant  to  the  authority  granted 
by  a town  meeting,  to  aver  in  the  complaint  and  prove  on  the  trial  that  action 
had  been  taken  by  a town  meeting  authorizing  the  prosecution  of  the  suit, 
in  order  to  entitle  a town  to  recover  upon  a cause  of  action  shown  to  exist 
in  its  favor.  Town  of  Fort  Covington  v.  U.  S.  & Canada  R.  R.  Co.,  1 App. 
Div.  223;  40  N.  Y.  Supp.  313;  affd.  156  N.  Y.  702.  The  court  remarked  in 
this  case  that:  “ If  the  defendants  had  any  advantage,  arising  from  such  an 

omission,  and  wished  to  secure  it,  they  should  have  moved  to  dismiss  the 
action  on  that  ground.  It  is  not  in  my  judgment  one  of  the  issues  to  be  tried 
in  the  action.  Whether  plaintiffs  have  legal  authority  to  sue  can  only  be  pre- 
sented on  motion.” 

Power  of  town  to  borrow  money  to  pay  expenses  of  actions.  An  action 
having  been  commenced  by  certain  taxpayers  to  restrain  the  enforcement  of 
certain  town  bonds  and  to  have  the  law  under  which  they  were  issued  adjudged 
unconstitutional,  a resolution  was  adopted  at  an  ennual  town  meeting  author- 
izing the  supervisor  of  the  town,  on  consent  of  the  plaintiffs  in  said  action, 
to  assume  control  thereof,  prosecute  it  to  a final  determination  and  pay  all  the 
expenses;  and  for  that  purpose  to  borrow  on  the  credit  of  the  town  all  needed 
sums  of  money.  A supervisor  acting  in  accordance  with  the  resolution,  bor- 
rowed money  on  the  credit  of  the  town,  giving  its  notes  therefor,  which 
money  was  used  for  the  purpose  specified.  In  an  action  upon  the  notes  it  was 
held  that,  assuming  the  electors  of  the  town  had  power  to  authorize  its  super- 
visor to  take  control  of  the  pending  action;  also,  that  it  might  be  treated  as 
if  commenced  in  the  name  of  the  town  or  its  supervisor,  and  that  such  electors 
had  power  to  direct  money  to  be  raised  for  prosecuting  that  action,  still  the 
action  upon  the  notes  was  not  maintainable.  Wells  v.  Town  of  Salina,  119  N.  Y. 
280;  23  N.  E.  870.  This  case  was  decided  entirely  upon  the  question  of  the 
authority  of  a town  to  borrow  money  upon  credit  to  meet  town  charges.  Judge 
Earl  said  in  his  opinion  in  this  case:  “ It  is  the  policy  of  the  laws  that  town 

charges  shall  be  met  by  annually  recurring  taxation,  and  thus  extravagance 
and  improvidence  are  in  some  degree  checked,  as  those  who  create  town  charges 
or  are  the  taxpayers  when  they  arise,  must  bear  the  burden  of  taxation  to 
meet  them.  It  is  quite  easy  for  the  taxpayers  of  to-day  to  create  a debt  which 
they  are  not  to  feel  and  which  the  taxpayers  of  the  future  are  to  discharge.  The 
system  of  laws  relating  to  towns  requires  that  all  bills  for  moneys  expended 
or  materials  furnished  or  services  rendered  to  the  town  shall  be  verified  and 
presented  to  the  board  of  town  auditors  and  audited  by  them,  and  then  enforced 
by  warrants  of  the  boards  of  supervisors  against  the  taxpayers  of  the  town. 
This  whole  system  would  be  subverted  if  towns  could  borrow  money  upon  credit 
to  meet  town  charges.  Then  the  money  would  have  to  be  repaid  whether  the 
town  had  had  the  benefit  thereof  or  not,  and  the  wise  provisions  of  the 
statutes  to  secure  economy  and  safety  by  the  audit  of  accounts  would  be 
entirely  frustrated.” 

6.  Noxious  weeds.  Under  sec.  12,  sub.  7,  of  the  County  Law,  ante. 
boards  of  supervisors  are  authorized  to  make  such  laws  and  regulations  as 
they  may  deem  necessary  for  the  destruction  of  wild  and  noxious  animals  and 
weeds  within  the  county.  It  is  the  duty  of  the  superintendent  of  highways  to 


250 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 43. 

6.  Establish  and  maintain  pounds  at  such  places  within  their  town  as 
may  be  convenient ;* * * * *  7 

7.  Direct  public  nuisances  in  their  town,  affecting  the  security  of  life 
and  health,  to  be  changed,  abated  or  removed  and  raise  a sum  of  money 
sufficient  to  pay  the  expense  thereof ; 8 

8.  Make  from  time  to  time  such  prudential  rules  and  regulations  as  they 
may  think  proper,  for  the  better  improving  of  all  lands  owned  by  their 
town,  in  its  corporate  capacity,  whether  common  or  otherwise;  for  main- 
taining and  amending  partition  or  other  fences  around  or  within  the  same, 
and  directing  the  time  and  manner  of  using  such  land ; 9 


cause  noxious  weeds  within  the  bounds  of  the  highways  to  be  cut  down  or 

destroyed  twice  in  each  year.  See  Highway  Law,  sec.  47,  sub.  7,  post.  It 

is  made  the  duty  of  owners  or  occupants  of  lands  adjoining  highways  to  cut 

noxious  weeds,  brier  and  brush  growing  upon  the  lands  within  the  bounds  of 

the  highway  twice  in  each  year.  See  Highway  Law,  secs.  54,  55,  post. 

7.  Pounds.  As  to  the  erection  of  pounds  and  the  appointment  or  election  of 
pound  masters,  see  Town  Law,  secs.  410,  411,  post. 

8.  Public  nuisances.  A public  nuisance  as  a crime  is  defined  by  section  1592 
of  the  Penal  Law.  Public  nuisances  which  are  detrimental  to  the  public  health 
are  within  the  jurisdiction  of  the  local  board  of  health  and  are  abated  or 
removed  subject  to  the  provisions  of  the  Public  Health  Law,  secs.  31-37, 
post.  See  Boyce’s  Health  Officers’  Manual,  pp.  28-29.  The  whole  subject  of 
abatement  of  public  nuisances  affecting  public  health  is  included  within  the 
provisions  of  these  sections  of  the  Public  Health  Law,  and  the  jurisdiction  of  the 
town  board  of  health  is  sufficiently  extensive  to  provide  for  all  cases  which  may 
arise.  It  is  therefore  seldom  that  a town  meeting  will  be  called  upon  to  direct 
the  abatement  of  public  nuisances. 

9.  Town  lands.  It  is  a settled  rule  of  the  common  law  that  a community  not 
incorporated  cannot  purchase  and  take  lands  in  succession.  Hornbeck  v. 
Westbrook,  9 Johns.  73;  but  in  the  case  of  Vail  v.  L.  I.  R.  R.  Co.,  106  N.  Y.  283; 
12  N.  E.  607,  holding  that  the  acquisition  by  a town  of  a fee  in  land  for 
highway  purposes  by  voluntary  grant  is  within  the  powers  conferred  upon  it 
by  statute.  It  is  possible  that  the  provisions  of  section  2 of  the  Town  Law 
(ante),  to  the  effect  that  a town  is  a municipal  corporation,  would  modify  the 
common  law  rule  and  authorize  an  acquisition  of  lands  by  towns  for  legitimate 
town  purposes. 

Questions  have  arisen  in  certain  towns,  especially  those  erected  on  Long: 
Island  as  to  the  rights  of  towns  in  respect  to  lands  deeded  to  them  under 
colonial  grants.  The  title  to  common  lands  held  by  a town  under  colonial  grants 
is  in  the  town  as  a corporation  and  is  subject  only  to  the  trust  for  public  use. 
People  v.  N.  Y.  & Manhattan  Beach  Ry.  Co.,  84  N.  Y.  565.  In  the  case  of  Law- 
rence v.  Town  of  Hempstead,  155  N.  Y.  297;  49  N.  E.  868,  this  whole  question 
was  thoroughly  considered  and  It  was  held  that  the  colonial  patents  to  the  town 
of  Hempstead  vested  the  ownership  in  that  town  in  its  corporate  capacity,  and 
not  in  the  patentee’s  name  in  the  grant  nor  in  the  inhabitants  of  the  town.  It 
is  stated  in  this  case  that  the  early  mode  of  dividing  such  lands  among  the 
patentees,  or  their  associates  or  successors  was  by  the  “ fencing  order.”  This 


TOWN  MEETINGS. 


251 


Town  Law,  § 43. 

9.  Make  like  rules  and  regulations  for  ascertaining  the  sufficiency  of  all 
fences  in  such  town  and  for  impounding  animals;  impose  such  penalties 
on  persons  offending  against  any  rule  or  regulation  established  by  their  own 
town,  excepting  such  as  relate  to  the  keeping  and  maintaining  of  fences, 
as  they  may  think  proper,  not  exceeding  ten  dollars  for  each  offense,  and 
apply  the  same,  when  recovered,  in  such  manner  as  they  may  think  most 
conducive  to  the  interests  of  their  town ; 10 


division  when  duly  made  at  a town  meeting  was  held  to  operate  as  a valid 
source  of  title  and  the  court  intimated  that  it  is  too  late  after  the  lapse  of  two 
hundred  and  fifty  years  to  criticise,  on  account  of  the  absence  of  legal  forms, 
transfers  on  which  the  titles  of  great  communities  are  based. 

In  the  case  of  People  ex  rel.  Averill  v.  Works,  7 Wend.  486,  it  was  held  that 
electors  could  at  a town  meeting  adopt  regulations  for  the  improvement  of 
town  lands.  As  to  trespass  on  town  lands,  see  Foster  v.  Rhoades,  19  Johns.  191; 
Emans  v.  Turnbull,  2 Johns.  313. 

10.  Sufficiency  of  fences.  The  electors  of  each  town  have,  under  the  above 
section  of  the  Town  Law,  the  power  at  their  biennial  town  meeting  to  make 
rules  and  regulations  for  ascertaining  the  sufficiency  of  all  fences  in  the  town. 
When  the  sufficiency  of  a fence  shall  come  in  question  in  any  suit,  it  shall  be 
presumed  to  have  been  sufficient  until  the  contrary  is  established.  Railroad 
corporations  are  required  under  the  Railroad  Law  to  erect  and  maintain  fences 
on  the  sides  of  their  road  of  the  height  and  strength  sufficient  to  prevent  cattle, 
horses,  etc.,  from  going  upon  the  road  from  the  adjacent  lands.  Railroad  Law, 
sec.  52,  as  amended  by  L.  1915,  ch.  281. 

In  the  case  of  Leyden  v.  N.  Y.  C.  & H.  R.  R.  R.  Co.,  55  Hun,  114,  it  was  held 
that  in  the  absence  of  action  by  a town  meeting  establishing  the  height  and 
strength  of  division  fences  it  was  competent  to  show  in  a town  what  the  height 
and  strength  of  such  fences  generally  were,  and  the  court,  also,  in  this  case, 
held  that  although  the  fence  erected  by  the  railroad  corporation  was  in  the 
first  instance  higher  and  stronger  than  was  necessary,  that  if  it  permits  a 
portion  of  such  a fence  to  be  broken  down  and  cattle  escape  through  the  same 
upon  the  railway  lands,  the  company  is  liable  for  damages  done  to  such  cattle. 
As  to  the  erection  and  maintenance  of  division  fences  of  owners  of  lands,  see 
Town  Law,  secs.  360-369,  post.  Section  367  of  the  Town  Law  provides 
that:  “ Whenever  the  electors  of  any  town  shall  have  made  any  rule  or  regula- 
tion prescribing  what  shall  be  deemed  a sufficient  division  fence  in  such  town, 
any  person  who  shall  thereafter  neglect  to  keep  a fence  according  to  such 
rule  or  regulation,  shall  be  precluded  from  recovering  compensation  for  damages 
done  by  any  beast  lawfully  kept  upon  the  adjoining  lands  that  may  enter  there- 
from on  any  lands  of  such  person,  not  fenced  in  conformity  to  the  said  rule  or 
regulation,  through  any  such  defective  fence.” 

Where  the  electors  of  the  town  at  a regular  town  meeting,  prescribe  or  de- 
termine what  shall  be  a sufficient  lawful  fence  in  their  town,  no  person  can 
maintain  an  action  for  the  trespass  committed  by  cattle  which  enter  the 
plaintiff’s  land  through  a fence  which  is  not  sufficient  according  to  the  rule 
prescribed  at  such  town  meeting.  Griffin  v.  Martin,  7 Barb.  297;  Hardenburgh 
v Lockwood,  25  Barb.  9. 

Town  meeting  cannot  regulate  running  of  animals  on  lands  of  owner.  Shep- 


252  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 43,  45. 

10.  In  towns  bound  to  support  their  own  poor,  direct  such  sums  to  be 
raised,  as  they  may  deem  necessary  for  such  purpose,  and  to  defray  any 
charges  that  may  exist  against  the  overseers  of  the  poor  in  their  town ;*  11 

11.  Determine  any  other  question  lawfully  submitted  to  them; 

12.  Direct  the  sale  and  conveyance  by  the  supervisor  in  the  name  of  the 
town  of  property  owned  by  it. lla 

13.  Make  provisions  for  recopying,  binding  and  indexing,  or  either 
thereof,  the  public  records  of  the  town  from  and  to  such  dates  as  may  be 
determined,  and  the  raising  of  such  sums  therefor  as  may  be  deemed  nec- 
essary. [Subd.  added  by  L.  1909,  ch.  422,  in  effect  May  21,  1909.] 

Every  older  or  direction,  and  all  rules  and  regulations  made  by  any  town 
meeting,  shall  remain  in  force  until  the  same  shall  be  altered  or  repealed 
at  some  subsequent  town  meeting.  [Town  I, aw,  § 43;  B.  C.  & G.  Cons.  L., 
p.  6142.] 


§ 5«  POWER  OF  TOWN  MEETING  TO  MARE  APPROPRIATION  FOR 
PUBLIC  MONUMENTS. 

It  shall  be  competent  for  electors  of  any  town,  at  any  regular  town 
meeting  at  any  regular  election  to  vote  any  sum  of  money,  to  be  desig- 
nated by  a majority  of  all  the  electors  voting  at  such  town  meeting  or 
-election,  for  the  purposes  of  erecting  a public  monument  within  such 
town  in  memory  of  the  soldiers  of  such  town  or  in  commemoration  of 
any  public  person  or  event;  but  no  debt  shall  be  created  nor  shall  any 
tax  be  imposed  on  any  town  for  such  purpose  unless  the  same  shall 
have  been  voted  for  by  a majority  of  the  legal  voters  of  the  town  af- 
fected, voting  at  such  election.  The  board  of  supervisors  may  legalize 
the  vote  of  any  town  for  such  purpose,  and  after  such  vote  they  may 
raise  or  authorize  the  specified  sum  or  sums  of  money  to  be  raised  for 
such  purpose  in  any  of  the  modes  provided  for  by  law  for  raising 
money  for  towns.  All  moneys  expended  by  any  town  for  the  purposes 
authorized  by  this  section  shall  be  expended  under  the  direction  of  the 
supervisor,  town  clerk  and  justices  of  the  peace  of  such  town  or  a ma- 
jority of  them  or  by  a commissioner  or  commisisoners  for  that  pur- 
pose appointed  by  such  town  officers  or  by  a majority  of  them.  But  noth- 
ing in  this  section  shall  affect  the  right  of  the  electors  to  vote  on  a propo- 
sition heretofore  directed  to  be  submitted  by  a board  of  supervisors, 

herd  v.  Hees,  12  Johns.  433;  Holliday  v.  Marsh,  3 Wend.  142;  Wells  v.  Howell,  19 
Johns.  385. 

11.  Support  of  poor.  If  the  proposition  to  raise  money  for  the  support  of  the 
poor  calls  for  an  amount  exceeding  $500  it  must  be  voted  upon  by  ballot.  (Town 
Law,  sec.  57,  ante.)  The  expenditure  of  money  for  the  relief  of  the  poor  is  treated 
in  a subsequent  chapter.  See  chs.  38,  39,  post. 

lla.  A proposition  to  direct  a sale  and  conveyance  of  town  property  may  be 
passed  upon  at  a special  town  meeting,  provided  it  was  not  acted  upon  at  the  last 
preceding  biennial  town  meeting.  When,  however,  such  a proposition  is  once  sub- 
mitted and  passed  upon  at  a town  meeting,  it  may  not  be  again  submitted  until 
the  succeeding  biennial  meeting.  Rept.  of  Atty.  Genl.,  Jan.  31,  1912. 


TOWN  MEETINGS. 


253- 


Town  Law,  § 46. 

or  the  power  of  a board  of  supervisors  to  carry  into  effect  the  vote  upon 
such  proposition.  [Town  Law,  § 45  ; B.  C.  & G.  Con-s.  L.,  p.  6145.] 

§ 6.  SPECIAL  TOWN  MEETING;  FOR  WHAT  PURPOSE  CALLED; 

APPLICATION  THEREFOR,  MADE  BY  WHOM. 

Except  as  herein  set  forth  special  town  meetings  shall  also  be  held 
whenever  twenty-five  taxpayers  upon  the  last  town  assessment-roll  shall, 
by  written  application  addressed  to  the  town  clerk,  require  a special  town 
meeting  to  be  called,  for  the  purpose  of  raising  money  for  the  support  of 
the  poor;  or  to  vote  upon  the  question  of  raising  and  appropriating 
money  for  the  construction  and  maintenance  of  any  bridges  which  the 
town  may  be  authorized  by  law  to  erect  or  maintain ; or  for  the  purpose 
of  determining  in  regard  to  the  prosecution  or  defense  of  actions,  or  the 
raising  of  money  therefor ; or  to  vote  upon  any  proposition  which  might 
have  been  determined  by  the  electors  of  the  town  at  the  last  biennial 
town  meeting,  but  was  not  acted  upon  thereat ; or  to  vote  upon  or  deter- 
mine any  question,  proposition  or  resolution  which  may  lawfully  be 
voted  upon  or  determined  at  a special  town  meeting,12  except  that  in 

12.  Purpose  for  which  special  town  meetings  may  be  called.  Only 
such  questions  or  propositions  can  be  voted  upon  at  a special  town  meeting  as  are 
specified  in  the  statute.  People  v.  Works,  7 Wend.  486.  In  the  case  of  Berlin 
Iron  Bridge  Company  v.  Wagner,  57  Hun,  346;  10  N.  Y.  Supp.  840,  it  appeared 
that  a special  town  meeting  was  duly  called  for  the  purpose  of  voting  upon  a 
resolution  to  raise  and  appropriate  money  for  the  construction  and  maintenance 
of  an  iron  bridge.  This  resolution  was  voted  upon  by  the  electors  of  the  town 
by  ballot  and  adopted  by  a majority  vote.  A resolution  was  further  submitted  to 
the  electors  of  the  town  and  voted  upon  by  viva  vooe  vote  authorizing  an  appli- 
cation to  the  board  of  supervisors  for  the  appointment  of  a commission  to  build 
such  bridge.  It  was  held  that  the  special  town  meeting  had  no  authority  to 
authorize  the  appointment  of  such  commissioners,  and  that  an  act  of  the  board  of 
supervisors  providing  for  such  appointment  was  invalid.  The  special  town  meet- 
ing was  called  under  the  provisions  of  the  statute  as  it  existed  prior  to  the  passage 
of  the  Town  Law,  and  such  statute  did  not  authorize  the  calling  of  a special  town 
meeting  to  secure  the  appointment  of  commissioners  to  construct  a bridge.  Such 
statute  only  authorizes  a vote  upon  the  question  of  raising  and  appropriating 
money  for  the  construction  and  maintenance  of  a bridge. 

The  provisions  of  the  above  section  permitting  special  town  meetings  to  vote 
on  the  question  of  raising  and  appropriating  moneys  for  the  construction  and 
maintenance  of  bridges  does  not  abolish  the  limitation  as  to  the  amount  to  be 
raised  by  immediate  taxation ; it  simply  authorizes  necessary  sums  to  be  raised 
which,  prior  to  the  passage  of  the  act  of  1886,  chapter  259,  from  which  the  above 
section  was  derived,  could  only  have  been  authorized  at  a regular  town  meeting. 
The  provision  contained  in  such  section,  limiting  the  authority  to  the  special 
meeting  “called  for  the  purpose,”  simply  requires  a meeting  called  for  the  purpose 
of  considering  and  deciding  the  question  of  erecting  or  repairing  the  bridge,  and  so 
it  is  not  necessary  that  the  call  should  state  that  it  is  for  the  purpose  of  borrow- 
ing money.  Berge  v.  Berlin  Bridge  Company,  133  N.  Y.  477 ; 31  N.  E.  609. 

In  the  case  of  Town  of  Kirkwood  v.  Newburg,  45  Hun  323,  a similar  resolution 
adopted  by  a special  town  meeting  was  under  consideration.  The  resolution  was 
not  challenged  on  the  ground  of  the  want  of  authority  of  the  special  town  meeting, 
and  it  would  seem  that  the  town  meeting  was  in  that  case  called  under  a different 
statute.  If  it  is  desired  to  provide  for  the  appointment  of  commissioners  to  super- 
intend the  construction  of  a bridge,  it  is  possible  that  an  application  may  be  made 
to  the  board  of  supervisors  for  the  passage  of  an  act  therefor  under  the  provisions 
of  section  69  of  the  County  Law.  Tn  case  the  board  of  supervisors  has  authority 
to  act  in  a given  case,  it  is  presumed  that  they  would  be  authorized  to  appoint 
commissioners  to  superintend  the  construction  of  a bridge.  Berlin  Iron  Bridge 
Company  v.  Wagner,  supra. 


254 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 47. 

towns  having  an  assessed  valuation  of  ten  million  dollars  or  more, 
located  within  a county  adjoining  a city  of  the  first  class,  propositions 
above  specified  shall  be  submitted  on  an  application  of  taxpayers  of  such 
town,  at  a regular  or  special  town  meeting,  only  upon  the  application  of 
at  least  one  hundred  taxpayers  for  the  first  ten  million  dollars  of  assessed 
valuation  and  by  at  least  one  hundred  taxpayers  for  each  additional  ten 
million  dollars  of  assessed  valuation  or  major  fraction  thereof.  Special 
town  meetings  may  also  be  held  upon  the  like  application  of  the  super- 
visor, commissioners  of  highways  or  overseers  of  the  poor,  to  determine 
questions  pertaining  to  their  respective  duties  as  such  officers,  and  which 
the  electors  of  a town  have  a right  to  determine.  An  application  au,d 
notice  heretofore  made  and  given  for  a special  town  meeting  to  be  here- 
after held  for  a purpose  not  heretofore  authorized  by  law,  but  now 
authorized  by  law,  shall  be  as  valid  and  of  the  same  force  and  effect  as 
if  such  purpose  had  been  authorized  by  law  at  the  time  of  such  applica- 
tion and  notice.  All  special  town  meetings  in  towns  in  which  the  regu- 
lar biennial  town  meetings  are  held  at  the  time  of  the  general  election 
may  be  held  in  any  such  town  at  one  polling  place  therein,  as  near  to  the 
geographical  center  of  the  town  as  practicable,  to  be  fixed  by  the  town 
board,  and  shall  be  conducted  by  the  justices  of  the  peace  and  town  clerk, 
the  latter  to  act  as  clerk  of  such  meeting.  A resolution  fixing  such  place 
shall  remain  in  force  in  respect  to  subsequent  special  town  meetings 
until  abrogated  by  a like  resolution  changing  such  polling  place.  [Town 
Law,  § 46,  as  amended  by  L.  1910,  ch.  188,  and  L.  1916,  ch.  341 ; B.  C. 
& G.  Cons.  L.,  p.  6145.] 

§ 7.  NOTICES  OF  TOWN  MEETINGS;  NOTICE  OF  SPECIAL  TOWN 
MEETINGS. 

hfo  previous  notice  need  be  given  of  the  biennial  town  meetings ; but 
the  town  clerk  shall,  at  least  twenty  days  before  the  holding  of  any  special 
town  meeting  cause  notice  thereof,  under  his  hand,  to  be  posted  con- 
spicuously in  at  least  four  of  the  most  public  places  in  the  town  and  to  be 
published  once  in  each  week  for  two  consecutive  weeks  immediately  prior 
to  such  special  town  meeting  in  two  newspapers  published  in  such  town ; 
if  there  be  but  one  newspaper  published  in  such  town  then  in  such  news- 


When  the  proceedings  of  the  special  town  meeting  called  to  consider  the  propriety 
of  instituting  and  defining  certain  statutes  and  to  raise  money  therefor  were 
regular  and  authorized  the  relator  to  begin  certain  actions,  the  expenses  incurred 
by  him  therefor  are  a valid  claim  against  the  town,  and  if  the  town  board  neglect 
or  refuse  to  audit,  the  proper  remedy  is  by  mandamus  to  compel  such  audit. 
People  ex  rel.  Wells  v.  Board  of  Audit,  4 Hun,  94.  A town  meeting  has  no  power 
to  discontinue  a highway  once  established.  That  can  be  done  only  by  the  inter- 
vention of  the  authorities  and  according  to  the  procedure  pointed  out  in  the 
statute,  and  a town  meeting  is  no  part  thereof.  Hughes  v.  Bingham,  135  N.  Y. 
347;  32  N.  E.  78. 

Prosecution  or  defense  of  actions.  The  provision  that  special  town  meet- 
ings may  be  held  “ for  the  purpose  of  determining  in  regard  to  the  prosecution  or 
defense  of  actions  ” is  permissive,  and  the  town  board  has  implied  authority  to 
authorize  the  prosecution  of  an  action  by  the  town.  Town  of  Hempstead  v.  Law- 
rence, 138  App.  Div.  473,  122  N.  Y.  Supp.  1037. 


TOWN  MEETINGS. 


255 


Town  Law,  § 48. 

paper  and  in  the  newspaper,  published  in  the  county,  having  the  largest 
circulation  in  such  town  or  if  there  be  no  newspaper  published  in  such 
town  then  in  the  two  newspapers  published  in  the  county,  having  the 
largest  circulation  in  such  town;  which  notices  shall  specify  the  time, 
place  and  purposes  of  the  meeting.13  [Town  Law,  § 47 ; B.  C.  & G. 
Cons.  L.,  p 6146.] 

§ 8.  NOTICE  OF  PROPOSITIONS  TO  RE  DETERMINED  BY  BALLOT; 

BALLOT-BOXES;  FORM  OF  BALLOTS. 

No  proposition  or  other  matter  than  the  election  of  officers  shall  be 
voted  upon  by  ballot  at  any  town  meeting,  unless  the  town  officers  or  at 
least  twenty-five  taxpayers  upon  the  last  preceding  town  assessment  roll 
whose  signatures  shall  be  acknowledged  in  the  same  manner  as  a deed 
to  be  recorded,  and  in  towns  with  a population  of  more  than  ten  thousand 
inhabitants  as  appears  by  the  last  federal  census,  at  least  fifty  taxpayers 
upon  the  last  preceding  town  assessment  roll  whose  signatures  shall  be 
acknowledged  in  like  manner,  shall,  at  least  twenty  .days  before  the  town 
meeting,  file  with  the  town  clerk  a written  application,  plainly  stating 
the  question  they  desire  to  have  voted  upon,  and  .requesting  a vote 
thereon  at  such  town  meeting ; provided,  however,  that  in  a town  having 
less  than  fifteen  hundred  inhabitants,  such  application  shall  be  sufficient 
if  so  signed  and  acknowledged  by  ten  per  centum  of  such  taxpayers,  but 
nothing  herein  contained  shall  require  the  signatures  of  over  twenty-five 
taxpayers  in  such  town.  When  town  officers,  as  such,  make  the  applica- 
tion for  a vote  to  raise  money  for  purposes  pertaining  to  their  duties, 
they  shall  file  with  their  application  a statement  of  their  account  to  date, 
with  the  facts  and  circumstances  which,  in  their  opinion,  make  the  appro- 
priation applied  for  necessary,  and  their  estimation  of  the  sum  necessary 
for  the  purpose  stated,  which  statement  may  be  examined  by  any  elector 
of  the  town,  and  shall  be  publicly  read  by  the  town  clerk  at  the  meeting 
when  and  where  the  vote  is  taken,  at  the  request  of  any  elector.  The 


Submission  of  propositions  under  Liquor  Tax  Law.  A special  town 
meeting  is  not  in  any  sense  “ a town  election  ” at  which  propositions  can  be  sub- 
mitted to  the  electors  of  the  town  to  determine  the  question  whether  liquors  shall  be 
sold  therein.  In  the  case  of  People  ex  rel.  Thomas  v.  Sackett,  15  App.  Div.  290, 
293;  44  N.  Y.  Supp.  593,  the  court  said:  “Under  section  16  of  the  Liquor  Tax  Law 
the  meeting  therein  referred  to  is  the  one  at  which  a town  election  for  officers  may 
be  held ; one  at  which  official  ballots  are  required  to  be  used,  and  for  which  it  is 
made  the  duty  of  the  town  clerk  to  prepare  such  ballots  at  a fixed  and  stated  time. 
The  annual  town  meeting  is  the  only  one  to  which  these  provisions  are  applicable. 

Legalizing  acts  of  town  meetings.  It  is  provided  in  the  County  Law,  sec.  15, 
ante,  that  the  board  of  supervisors  may  “ by  two- thirds  vote  of  all  its  members, 
legalize  the  informal  acts  of  any  town  meeting  or  village  election  within  such 
county,  etc.” 

Application.  The  application  under  this  section  for  a special  town  meeting 
must  be  addressed  to  the  town  clerk  and  should  be  subscribed  by  at  least  twenty-five 
taxpayers  whose  names  appear  upon  the  last  preceding  town  assessment-roll;  or  such 
application  may  be  made  by  either  of  the  town  officers  mentioned  in  the  above 
section.  For  the  form  of  such  application,  see  Form  No.  14,  post. 

13.  For  form  of  notice  of  special  town  meeting,  see  Form  No.  15,  post. 


256  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 48. 

town  clerk  shall,  at  the  expense  of  his  town,  give  at  least  ten  days’  notice, 
posted  conspicuously  in  at  least  four  of  the  most  public  places  in  the 
town,  of  any  such  proposed  question,  and  that  a vote  will  be  taken  by 
ballot  at  the  town  meeting  mentioned.14  He  shall  also,  at  the  expense 


14.  For  forms  of  application  for  vote  by  ballot  upon  propositions  and  of 
notice  that  a vote  upon  such  proposition  will  be  taken  by  ballot,  see  Forms  Nos. 
16  and  17,  post. 

References.  Notice  of  submission  of  propositions  to  be  voted  upon  at  general 
elections,  Election  Law,  § 294,  as  amended  by  L.  1910,  ch.  446.  Publication  of 
propositions,  Id.  § 295,  as  amended  by  L.  1913,  ch.  820,  and  L.  1914,  ch.  244 
Ballot  boxes  for  questions  submitted,  Id.  § 316,  as  amended  by  L.  1911,  ch.  649, 
and  L.  1913,  ch.  821. 

Forms  of  ballot;  ballot  boxes.  The  form  of  ballots  for  questions  submitted 
is  prescribed  by  section  332  of  the  Election  Law,  post.  See  Jewett’s  Election 
Manual,  1918.  By  the  provisions  of  this  section  town  propositions  for  raising 
or  appropriating  money  for  town  purposes  are  to  be  separate  from  all  other 
ballots  for  the  submission  of  other  propositions  or  questions  to  the  electors  of  the 
town  to  be  voted  upon  at  the  same  town  meeting  or  election.  This  provision 
applies  to  town  meetings  held  at  the  same  time  as  general  elections. 

In  the  case  of  Matter  of  Larkin,  163  N.  Y.  201 ; 57  N.  E.  404,  it  was  lield  in 
effect  that  the  provisions  of  the  Election  Law  do  not  apply  to  town  meetings 
held  at  a time  other  than  at  the  time  of  a general  election,  unless  the  Town  Law 
in  express  terms  applies  such  provisions.  See,  also.  People  ex  rel.  Guernsey  v. 
Pierson,  35  Misc.  406.  In  view  of  this  decision  it  may  be  that  the  above  section 
of  the  Town  Law  would  control  the  form  of  a ballot  for  the  submission  of  a proposi- 
tion, and  that,  therefore,  a written  ballot  submitting  a question  at  such  a town 
meeting  would  be  valid ; but  it  would  be  the  safer  and  better  method,  in  preparing 
ballots  for  questions  submitted,  to  conform  to  the  requirements  of  the  Election 
Law.  Section  316  of  the  Election  Law,  post  (see  Jewett’s  Election  Manual,  1918), 
provides  for  the  furnishing  of  a separate  ballot  box  for  the  reception  of  votes  updn 
propositions,  to  be  indorsed  “ Box  for  questions  submitted.” 

Under  the  provision  that  boards  of  election  shall  provide  ballots  for  all  elec- 
tions except  those  at  town  meetings  held  at  times  other  than  a general  election, 
the  exception  has  no  application  to  a town  meeting  held  at  the  same  time  as  a 
general  election,  and  ballots  furnished  for  a local  option  election  thereat  are  valid. 
Matter  of  Town  of  Bath  (1916),  93  Misc.  575^  157  N.  Y.  Supp.  205. 

Compliance  with  statute.  It  is  very  rarely  that  at  a town  meeting  all  of  the 
requirements  of  the  Election  Law,  Town  Law,  Liquor  Tax  Law,  and  other  statutes 
relating  to  such  election,  are  strictly  complied  with.  These  requirements  are  too 
numerous  and  intricate  to  expect  exact  compliance  with  every  detail  on  the  part 
of  town  officers.  If  an  election  could  be  set  aside  for  every  oversight,  omission 
and  mistake  of  the  officers  in  charge,  but  few  would  stand.  Unless  it  is  shown 
that  such  mistake  affected  the  result  or  tended  to  deprive  someone  of  his  legal 
rights,  such  election  should  not  be  disturbed.  Matter  of  Town  of  Groton  (1909), 
63  Misc.  370,  118  N.  Y.  Supp.  417,  affd.  134  App.  Div.  991. 

Submission  of  propositions  under  the  Liquor  Tax  Law.  This  section  of 
the  Town  Law  is  general  and  sweeping  in  its  provisions,  and  was  intended  not 
only  to  apply  to  all  propositions  and  questions  which  could  be  lawfully  submitted 
to  a town  meeting  at  the  time  of  the  passage  of  such  law,  but  also  to  other  proposi- 
tions that  could  thereafter  be  submitted  by  reason  of  subsequent  enactments. 
People  ex  rel.  Hovey  v.  Town  Clerk,  26  Misc.  220,  222;  56  N.  Y.  Supp.  64.  In  this 
case  the  provisions  of  the  above  section  were  held  to  apply  to  a petition  of  town 
electors  to  request,  under  section  13  of  the  Liquor  Tax  Law,  a resubmission  to  the 
electors  at  a town  meeting  of  the  question  of  local  option,  and  that,  therefore,  unless 
the  petition  is  filed  with  the  town  clerk  at  least  twenty  days  before  the  town  meet- 
ing, his  refusal  to  print  the  ballots  required  for  such  resubmission  is  jusified,  and 
action  upon  his  part  will  not  be  compelled  by  mandamus. 

In  the  case  of  Matter  of  Eggleston,  51  App.  Div.  38;  64  N.  Y.  Supp.  471,  it  was 


TOWN  MEETINGS. 


9N 


0 i 


Town  Law,  § 48. 

of  his  town,  provide  a ballot  box,  properly  labeled,  briefly  indicating 
the  question  to  be  voted  upon,  into  which  all  ballots  voted  upon  the  ques- 


held  that  a petition  for  the  submission  of  a question  under  the  local  option 
provisions  contained  in  section  13  of  the  Liquor  Tax  Law  should  be  filed  with 
the  town  clerk,  notwithstanding  the  fact  that  such  section  of  the  Liquor  Tax 
Law  required  such  petition  to  be  “ filed  twenty  days  before  such  town  meeting 
with  the  officer  charged  with  the  duty  of  furnishing  ballots  for  the  election.” 
The  question  in  this  case  seems  to  have  arisen  because  of  the  confusion  which 
existed  in  the  Election  Law  at  that  time  as  to  the  proper  officer  to  provide 
ballots  where  town  meetings  were  held  at  the  time  of  general  elections.  This 
confusion  has  been  removed  by  the  provisions  of  former  § 342  of  the  Election 
Law'  (Jewett’s  Election  Manual,  1918),  to  the  effect  that  if  a town  meeting 
is  held  on  general  election  day  ballots  for  town  propositions  shall  be  pro- 
vided by  the  town  clerk  in  the  same  form  as  at  a town  meeting  held  at  any  other 
time.  The  case  last  cited  also  bolds  that  it  is  a duty  of  the  town  clerk  to  give 
notice  of  the  submission  of  the  questions  relating  to  local  option  in  the  manner 
prescribed  by  the  above  section  of  the  Town  Law. 

Effect  of  insufficient  notice.  The  question  of  the  effect  of  an  insufficient 
notice  upon  the  validity  of  the  vote  upon  a proposition  submitted  at  a town 
meeting  has  arisen  in  cases  under  the  Liquor  Tax  Law.  In  the  case  of  People 
ex  rel.  Crane  v.  Chandler,  41  App.  Div.  178;  58  N.  Y.  Supp.  794,  the  notice  was 
published  but  four  days  prior  to  the  town  meeting.  It  was  contended  that  such 
notice  ought  to  have  been  filed  twenty  days  before  the  town  meeting.  The  court 
held  that  a resubmission  of  the  proposition  was  not  necessary  since  it  appeared 
that  the  electors  of  the  town  had  notice  of  the  intention  to  submit  the  questions 
and  that  they  acted  upon  such  notice  and  expressed  their  will  in  the  mode 
prescribed  by  statute;  and  the  court  declared  that  there  were  no  informalities 
sufficient  to  warrant  it  in  saying  that  the  conclusion  reached  by  the  electors  was 
not  sufficient.  The  court  cited  the  case  of  People  ex  rel.  Hirsh  v.  Wood,  148  N.  Y. 
142;  42  N.  E.  536,  in  which  the  court  said:  “We  can  conceive  of  no  principle 
which  permits  the  disfranchisement  of  innocent  voters  for  the  mistake  or  even 
wilful  misconduct  of  election  officers  in  performing  the  duty  cast  upon  them. 
The  object  of  elections  is  to  ascertain  the  popular  will,  and  not  to  thwart  it. 
The  object  of  election  laws  is  to  secure  the  rights  of  duly  qualified  electors  and 
not  to  defeat  them.  Statutory  regulations  are  enacted  to  secure  freedom  of 
choice,  and  to  prevent  fraud.”  See,  also,  Matter  of  Clement,  29  Misc.  29;  60* 
N.  Y.  Supp.  328. 

Sufficiency  of  application.  The  provisions  of  the  above  section  of  the 
Town  Law  were  not  complied  with  where  it  appears  that  a sufficient  number  of 
qualified  persons  signed  a paper  denominated  a “ resolution,”  which  recited  that 
a certain  sum  should  be  raised  on  the  faith  and  credit  of  the  town  by  an  issue 
and  sale  of  its  bonds,  and  that  the  money  raised  and  its  interest  should  be 
charged  upon  the  property  of  the  town  taxable  therefor,  for  the  purpose  of  grad- 
ing and  paving  certain  roads  described  in  the  resolution.  The  paper  was  not  ad- 
dressed to  any  person,  body  or  officer,  and  did  not  state  any  question  which  the 
signers  desired  should  be  voted  upon,  nor  did  it  request  that  any  vote  be  taken 
thereon  at  a town  meeting,  and  the  signers,  although  taxpayers,  were  not  de- 
scribed as  such  in  the  paper,  all  of  which  are  necessary  requirements  under  the 
statute.  Town  of  Oyster  Bay  v.  Harris,  21  App.  Div.  227;  47  N.  Y.  Supp.  510. 


258  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law’,  § 49. 

tion  indicated  shall  he  deposited.  He  shall  also  prepare  and  have  at 
the  town  meeting  a sufficient  number  of  written  or  printed  ballots,  both 
for  and  against  the  question  to  be  voted  upon,  for  the  use  of  the  electors. 
The  vote  shall  be  canvassed,  the  result  determined  and  entered  upon  the 
minutes  of  the  meeting,  the  same  as  votes  given  for  town  officers.  [Town 
Law,  § 48,  as  amended  by  L.  1916,  ch.  79  ; B.  C.  & G.  Cons.  L.,  p.  6146.] 

§ 9.  PRESIDING  OFFICERS  OF  TOWN  MEETINGS;  IF  NO  JUSTICE 
BE  PRESENT,  PERSON  MAY  BE  ELECTED  BY  ELECTORS. 

The  justices  of  the  peace  of  each  town  shall  attend  every  town  meeting 
held  therein,  except  where  such  town  meetings  are  held  at  the  time  of  the 
general  elections,  and  such  of  them  as  shall  be  present  shall  preside  at 
such  meeting,  and  see  that  the  same  is  orderly  and  regularly  conducted, 
and  shall  have  the  like  authority  to  preserve  order,  to  enforce  obedience 
and  to  commit  for  disorderly  conduct,  as  is  possessed  by  the  board  of 
inspectors  at  a general  election.15 


15.  Constitutional  provisions.  The  constitution  provides  that  registration 
or  election  boards  shall  be  bi-partisan,  but  this  provisions  does  not  apply  to  town 
meetings.  (Constitution,  art.  2,  sec.  6.) 

Maintenance  of  order.  Under  the  provisions  of  this  section  the  justices 
presiding  at  a town  meeting  have  the  same  power  to  preserve  order  as  in- 
spectors of  election  at  a general  election.  Section  315  of  the  Election  Law 
(Jewett’s  Election  Manual,  1918),  provides  that:  “ Such  board,  and  each  in- 

dividual member  thereof  shall  have  full  authority  to  preserve  peace  and  good 
order  at  such  meetings,  and  around  the  polls  of  elections,  and  to  keep  the 
access  thereto  unobstructed,  and  to  enforce  obedience  to  their  lawful  com- 
mands. The  said  board  may  appoint  one  or  more  voters  to  communicate  their 
orders  and  directions,  and  to  assist  in  the  performance  of  their  duties  in  this 
section  enjoined.  If  any  person  shall  refuse  to  obey  the  lawful  commands  of 
the  inspectors,  or  by  disorderly  conduct  in  their  presence  or  hearing  shall  in- 
terrupt or  disturb  their  proceedings,  they  shall  make  an  order  directing  the 
sheriff  or  any  constable  of  the  county,  or  any  peace  or  police  officer  to  take  the 
person  so  offending  into  custody  and  retain  him  until  the  registration  of 
voters,  or  the  canvass  of  the  votes  shall  be  completed,  but  such  order  shall 
not  prohibit  the  person  taken  into  custody  from  voting.  Such  order  shall  be 
executed  by  any  sheriff,  constable,  peace  or  police  officer,  to  whom  the  same 
shall  be  delivered,  but  if  none  shall  be  present,  then  by  any  other  person 
deputed  by  such  board  in  writing.  The  said  board  or  any  member  thereof 
may  order  the  arrest  of  any  person,  other  than  an  election  officer,  violating  or 
attempting  to  violate,  any  of  the  provisions  of  this  chapter.” 

Any  wilful  disobedience  of  a lawful  command  of  the  board  of  inspectors  or 
any  member  thereof,  is  a misdemeanor  (Penal  Law,  § 764,  sub.  17),  and  this 
provision,  of  course,  applies  to  presiding  officers  at  town  meetings. 

Inspectors  have  a right  to  keep  order  during  the  canvass  of  the  votes,  but 
they  cannot  under  such  a pretense  turn  out  a peaceful  and  quiet  citizen  whose 


TOWN  MEETINGS. 


259 


Town  Law,  § 49. 

If  there  be  no  justice  of  the  peace  at  such  meeting,  then  such  person 
as  shall  be  chosen  for  that  purpose  by  the  electors  present  shall  preside 
and  possess  the  like  powers  as  justices;  such  person  appointed  shall  take 
the  constitutional  oath  of  office  before  entering  upon  his  duties  as  such 
presiding  officer.  [Town  Law,  § 49 ; B.  C.  & G.  Cons.  L.,  p.  6147.] 

presence  does  not  interfere  with  the  discharge  of  their  duties.  Horton  v.  Whistler. 
4 N.  Y.  St.  Rep.  810. 

Delegation  of  authority.  Justices  of  the  peace  cannot  delegate  their  authority 
to  other  persons  to  act  in  their  stead  as  presiding  officers  of  town  meetings.  Rept. 
of  Atty.  Genl.,  March  27,  1911. 

Acts  of  justices  of  the  peace  are  ministerial  and  cannot  be  reviewed  by 
certiorari.  Justices  of  the  peace  while  acting  in  the  position  of  inspectors  of 
election,  are  merely  ministerial  officers,  and,  although  they  may  have  allowed 
an  assistant  of  the  town  clerk,  who  was  not  himself  sworn  as  a clerk  to  keep 
the  tally  sheet  and  declare  the  result  of  the  canvass,  and  have  permitted  other 
unauthorized  persons  to  aid,  under  their  direction  and  supervision  in  the  dis- 
tribution of  tickets,  and  in  the  taking  and  counting  of  votes,  the  conduct  of  the 
justices  in  permitting  such  irregularities  is  not  judicial  action  within  the 
ordinary  meaning  of  that  term  and  cannot  be  reviewed  by  a writ  of  certiorari. 
People  ex  rel.  Brooks  v.  Bush,  23  App.  Div.  363;  48  N.  Y.  Supp.  13;  citing  Matter 
of  Many,  10  App.  Div.  451;  41  N.  Y.  Supp.  993.  See,  also,  People  ex  rel.  Van 
Sickle  v.  Austin,  20  App.  Div.  1,  46  N.  Y.  Supp.  526,  where  it  was  held  that  an 
objection  to  the  action  of  a town  election  board  in  not  opening  the  polls  at  the 
proper  time,  could  not  be  raised  by  a writ  of  certiorari  to  review  the  proceed- 
ings of  such  board. 

In  the  case  of  People  ex  rel.  Stapleton  v.  Bell,  119  N.  Y.  175;  23  N.  E.  533, 
the  court  in  considering  the  question  of  the  powers  and  duties  of  election  boards 
said:  “ I think  we  cannot  hold  otherwise  as  to  inspectors  of  election  than  that 

they  are,  under  the  provisions  of  the  Election  Law,  made  ministerial  officers 
wholly,  for  their  duties  are  pointed  out  by  the  law  definitely.  They  are  only 
officers  to  execute  the  law  in  a prescribed  and  definite  way,  and  to  whom  no 
latitude  is  allowed  when  the  proposed  elector  satisfies  the  statutory  demands 
upon  him  for  oaths  and  answers  to  certain  questions.  They  are  bound  to  an 
exact  obedience  of  the  particular  commands  which  the  law  has  laid  upon  them 
as  its  officers,  and  they  may  not  act  on  their  own  opinions  or  knowledge.  The 
duty  of  an  inspector  is  discharged  when  he  has  required  the  challenged  voter 
to  submit  to  the  tests  prescribed.  In  support  of  the  view  that  inspectors  of 
election  act  ministerially  and  not  judicially  in  holding  elections  and  making 
returns,  we  have  ample  authority. 

Town  meetings  in  election  districts  or  at  a time  of  general  elections.  If 
the  town  meetings  are  held  in  election  districts,  elections  are  to  be  conducted 
by  the  inspectors  of  election  thereof  instead  of  the  justices  of  the  peace  of  the 
town  (see  Town  Law,  sec.  65,  post),  and  it  is  also  provided  that  if  a 
biennial  town  meeting  is  held  at  the  same  time  as  a general  election  it  shall 
be  held  in  the  election  districts  of  the  town,  and  be  conducted  by  the  inspectors 
of  election  thereof.  See  Town  Law,  sec.  67,  post. 

When  town  meetings  governed  by  Election  Law.  Local  elections  at  town 
meetings,  not  held  at  the  same  time  as  a general  election,  are  governed  by  the 
Town  Law,  and  the  Election  Law  is  not  applicable  to  such  elections  except 
where  it  has  been  .expressly  made  so  by  provisions  of  the  Town  Law.  Matter 
of  Larkin,  163  N.  Y.  201;  57  N.  E.  404. 


260 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  50,  51. 

§ 10.  CLERK  OF  MEETINGS. 

The  town  clerk  last  before  elected  or  appointed,  or,  if  he  be  absent, 
such  person  as  shall  be  chosen  by  the  electors  present,  shall  be  the  clerk 
of  such  town  meting,  except  when  held  at  the  time  of  a general  election, 
and  shall  keep  faithful  minutes  of  its  proceedings,  in  which  he  shall  enter 
at  length  every  order  or  direction,  and  all  rules  and  regulations  made  by 
such  meeting;  such  person  chosen  by  the  electors  present  shall  take  the 
constitutional  oath  of  office  before  entering  upon  his  duties  as  such  clerk.16 
[Town  Law,  § 50 ; B.  C.  & G.  Cons.  L.,  p.  6148.] 

§11.  DURATION  OF  TOWN  MEETINGS. 

Town  meetings  shall  be  kept  open  for  the  purposes  of  voting  in  the 
daytime  only,  between  the  rising  and  setting  of  the  sun,  and,  if  necessary, 
may  be  continued  by  a vote  of  the  meeting  during  the  next  day,  and  no 
longer,17  and  be  adjourned  to  another  place  not  more  than  one-fourth  of 
a mile  from  the  place  where  it  was  appointed.18  [Town  Law,  § 51;  B.  C. 
& G.  Cons.  L.,  p.  6148.] 


16.  Duties  of  town  clerk.  The  duties  above  imposed  upon  town  clerks  are 
similar  in  many  respects  to  those  of  ballot  and  town  clerks  at  general  elections. 
If  town  meetings  are  held  in  election  districts  or  at  the  time  of  a general 
election  the  duties  of  town  clerks  are  to  be  performed  by  the  regular  election 
officers  of  the  several  districts. 

17.  Hours  during  which  town  meetings  are  to  be  kept  open.  The  language 
of  the  provision  of  the  present  statute  as  to  the  time  that  town  meetings  shall 
be  kept  open  for  purposes  of  voting,  is  substantially  no  different  than  it  was 
been  for  upwards  of  eighty  years.  It  has  never  been  construed  so  as  to  require 
polls  of  town  meetings  to  be  opened  at  sunrise  or  continuously  kept  open  until 
sunset;  but,  on  the  contrary,  it  has  been  held  that  it  is  not  necessary  that  a 
town  meeting  should  be  kept  open  through  the  whole  time  from  sunrise  to 
sunset.  People  ex  rel.  Simonson  v.  Martin,  5 N.  Y.  22;  Goodel  v.  Baker,  8 Cow. 
386.  It  is  sufficient  if  they  are  open  from  9 to  12  A.  M.  and  from  1 P.  M.  to 
sunset.  People  ex  rel.  Van  Sickle  v.  Austin,  20  App.  Div.  1,  46  N.  Y.  Supp.  526. 
In  the  case  of  People  ex  rel.  Van  Sickle  v.  Austin,  28  App.  Div.  1;  46  N.  Y. 
Supp.  526,  it  was  held  that  a town  meeting  was  not  rendered  illegal  by  the 
fact  that  the  polls  were  not  opened  until  nine  o’clock  in  the  forenoon,  they 
continuing  open,  except  for  the  noon  hour,  until  sunset.  In  the  case  of  People 
ex  rel.  Fisher  v.  Hasbrouck,  21  Misc.  188;  47  N.  Y.  Supp.  109,  it  was  held  that 
the  fact  that  polls  at  the  annual  town  meeting  to  which  wras  submitted  a prop- 
osition -whether  traffic  in  liquor  should  be  permitted  in  the  town  were  closed 
about  an  hour  before  sunset  did  not  invalidate  the  votes  cast  at  such  town 
meeting  upon  such  proposition. 

18.  Adjournment.  Under  the  provisions  of  the  revised  laws  of  1813  to  the 
effect  that  no  town  meeting  should  be  held  longer  than  two  days  and  should 
only  be  held  open  between  sunrise  and  sunset,  and  should  be  held  at  such 
places  in  each  town  as  the  freeholders  at  their  town  meeting  should  from  time 


TOWN  MEETINGS. 


261 


Town  Law,  §§  52,  69,  53,  54. 

§ 12.  PROCLAMATION  OF  OPENING  AND  CLOSING  POLLS. 

Before  the  electors  shall  proceed  to  elect  any  town  officer,  proclamation 
shall  be  made  of  the  opening  of  the  polls,  and  proclamation  shall  in  the  like 
manner  be  made  at  each  adjournment  and  of  the  opening  and  closing  of 
the  polls  until  the  election  be  ended.  [Town  Law,  § 52,  B.  C.  & G.  Cons. 
L.,  p.  6148.] 

§ 13.  QUALIFICATION  OF  VOTER  AT  TOWN  MEETING  HELD  AT 
TIME  OF  GENERAL  ELECTION. 

At  a town  meeting  held  at  the  time  of  a general  election  no  person  shall 
be  allowed  to  vote  for  candidates  for  town  officers  who  is  not  registered  and 
entitled  to  vote  at  such  general  election.19  [Town  Law,  § 69;  B.  C.  & G. 
Cons.  L.,  6156.] 

§ 14.  QUALIFICATION  OF  ELECTOR  AT  TOWN  MEETING. 

An  elector  of  a town  shall  not  be  entitled  to  vote  by  ballot  upon  any  proposition 
for  the  raising  or  appropriation  of  money,  or  the  incurring  of  any  town  liability, 
unless  he  or  his  wife  is  the  owner  of  property  in  the  town,  assessed  to  him  or  her 
upon  the  last  preceding  assessment-roll  thereof.i°a  [Town  Law,  § 53,  as  amended 
by  L.  1913,  ch.  124;  B.  C.  & G.  Cons.  L.,  p.  6148.] 

§ 15.  QUALIFICATION  OF  ELECTOR  TO  VOTE  FOR  SITE  FOR  TOWN 
HOUSE. 

An  elector  shall  not  be  entitled  to  vote  upon  a proposition  submitted  for  the  pur- 
poses of  section  three  hundred  and  forty  of  this  chapter,  unless  he  or  his  wife  is 
the  owner  of  property  in  the  town  assessed  to  him  or  her  upon  the  last  preceding 
assessment-roll  thereof.20  [Town  Law,  § 54,  as  amended  by  L.  1913,  ch.  124;  B.  C.  & 
G.  Cons.  L.,  p.  6148.] 

to  time  appoint,  it  was  held  that  the  electors  of  the  town  on  the  town  meeting  being 
opened  had  a right  to  adjourn  the  meeting  to  the  next  day  to  be  held  at  another 
place;  and  that  the  electors  were  the  exclusive  judges  of  the  necessity  of  the  adjourn- 
ment. Goodel  v.  Baker,  8 Cow.  286.  See,  also,  People  ex  rel.  Simonson  v.  Martin,  5 
N.  Y.  22,  where  it  was  held  that  the  qualified  electors  of  a town  meeting  may  de- 
termine by  vote, — after  the  regular  organization  of  the  meeting, — that  the  town 
meeting  be  continued  at  the  place  of  such  organization  through  a part  of  the  day  and 
then  adjourn  to  some  other  place  in  the  town  and  there  continued  through  the 
residue  of  the  day.  The  last  clause  of  the  above  section  expressly  authorizes  an 
adjournment  of  a town  meeting. 

19.  This  section  was  formerly  part  of  § 12  of  the  Town  Law.  Under  amendment 
of  Constitution,  Art.  IT,  § 1 (1917),  extending  right  of  suffrage  to  women,  all 
women  have  same  qualification  as  men  to  vote  at  town  meetings.  They  are  quali- 
fied electors  and  entitled  to  hold  town  offices. 

19a.  Ownership  of  stock  in  a national  bank,  located  in  the  town  and  assessed  upon 
the  last  preceding  assessment  roll,  is  a sufficient  property  qualification.  Rept.  of 
Atty.  Genl.,  May  31,  1911.  But  ownership  of  stock  in  a corporation,  assessed  upon 
the  assessment-roll,  does  not  qualify  the  stockholder  to  vote  upon  a proposition  to 
raise  money.  Rept.  of  Atty.  Genl.,  March  9,  1911. 

The  votes  cast  by  unqualified  electors  on  a proposition  for  the  issuance  of  bonds 
will  not  affect  the  validity  of  the  election  unless  it  be  established  that  sufficient 
number  of  such  votes  were  cast  and  counted  to  change  the  result.  Rept.  of  Atty. 
Genl.  (1*909)  905. 

A proposition  for  the  sale  and  conveyance  of  town  property  can  only  be  voted 
upon  by  taxpayers  or  the  husbands  of  taxpayers.  Rept.  of  Atty.  Genl.,  Jan.  31,  1912. 

20.  This  section  was  formerly  part  of  Town  Law,  § 190,  which  relates  to  the 
erection  of  town  houses.  The  remainder  of  such  section  is  now  § 340  of  the  Town 
Law,  post. 


262 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Town  Law,  §§  55,  57,  58. 


§ 16.  WHEN  WOMEN  QUALIFIED  TO  TOTE. 

A woman  who  possesses  the  qualifications  to  vote  for  town  officers,  ex- 
cept the  qualification  of  sex,  and  who  is  the  owner  of  property  in  the 
town  assessed  to  her  upon  the  last  preceding  assessment-roll  thereof,  is 
entitled  to  vote  upon  a proposition  to  raise  money  by  tax  or  assessment. 
[Town  Law,  § 55,  as  amended  by  I i 1913,  ch.  124;  B.  C.  & G.  Cons. 
L.,  p.  6149.] 

§17.  VOTES  TO  EXPEND  OVER  FIVE  HUNDRED  DOLLARS  TO  BE 
BY  BALLOT,  IF  LESS,  BY  VIVA  VOCE. 

All  votes  in  town  meetings  upon  any  proposition  to  raise  or  appropriate 
money  or  incur  any  town  liability  exceeding  five  hundred  dollars  shall  be 
by  ballot;  if  five  hundred  dollars  or  less,  may  be  viva  voco,  unless  ballot 
is  required  by  the  law  authorizing  the  expenditure.21  [Town  Law,  § 57; 
B.  C.  & G.  Cons.  L.,  p.  6149.] 

§ 18.  BALLOTS;  ELECTORS  IN  INCORPORATED  VILLAGE  WHEN 
NOT  TO  VOTE  ON  HIGHWAY  QUESTIONS. 

When  the  electors  vote  by  ballot,  except  in  towns  where  the  biennial  town 
meetings  are  held  at  the  time  of  general  elections,  all  the  officers  voted  for 
shall  be  named  in  one  ballot,  which  shall  contain  written  or  printed,  or 
partly  written  or  partly  printed,  the  names  of  the  persons  voted  for,  and 
the  offices  to  which  such  persons  are  intending  to  be  elected,  and  shall  be 
delivered  to  the  presiding  officer  so  folded  as  to  conceal  the  contents,  and 
shall  be  deposited  by  such  officers  in  a box  to  be  constructed,  kept  and 
disposed  of,  as  near  as  may  be,  in  the  manner  prescribed  in  the  election 
law.22  [Town  Law,  § 58 ; B.  C.  & G.  Cons.  L.,  p.  6150.] 


21.  Votes  incurring  liability  exceeding  five  hundred  dollars.  A resolution 
authorizing  the  issuing  of  new  bonds  in  place  of  those  which  have  matured  is  a 
proposition  to  incur  a town  liability,  and  if  the  amount  of  such  bonds  exceeds 
the  sum  of  $500,  a resolution  authorizing  such  issue  is  invalid  unless  voted  upon 
by  ballot.  People  ex  rel.  Read  v.  Town  Auditors,  85  Hun,  114;  32  N.  Y.  Supp. 
668. 

A resolution  submitted  at  a special  town  meeting  requesting  authority  of 
the  board  of  supervisors  to  borrow  money  for  the  construction  of  a bridge  if 
incurring  a liability  exceeding  $500  must  be  voted  upon  by  ballot.  Berlin  Iron 
Bridge  Co.  v.  Wagner,  57  Hun,  346;  10  N.  Y.  Supp.  840. 

22.  Ballots  for  town  meetings  under  the  Election  Law.  The  provisions  of 
this  section  relating  to  ballots  containing  the  names  of  town  officers  to  be  voted 
for  at  town  meetings  not  held  at  the  same  time  as  a general  election,  are  prob- 
ably superseded  by  the  provisions  of  section  331  of  the  Election  Law,  as  amended  by 
L.  1914,  chs.  87,  244,  L.  1916,  ch.  537,  and  L.  1918,  ch.  323.  Jewett’s  Election  Manual 
1918.  Under  section  341  as  amended  by  L.  1911,  ch.  649,  L.  1913,  ch.  821,  and  L. 
1916,  ch.  454,  of  the  Election  Law  it  is  provided  that  ballots  to  be  used  at  town 
meetings,  not  held  on  general  election  day,  shall  be  furnished  by  the  town  clerk  of 
the  town. 


TOWN  MEETINGS. 


263' 


Town  Law,  § 59. 

When  any  town  shall  have  within  its  limits  an  incorporated  village, 
'constituting  a separate  road  district,  exempt  from  the  supervision  and 
control  of  the  commissioners  of  highways  of  the  town,  and  from  payment 
of  any  tax  for  the  salary  or  fees  of  said  commissioners,  and  from  payment 
of  any  tax  for  the  opening,  erection,  maintenance  and  repair  of  any  high- 
way or  bridge  of  said  town,  without  the  limits  of  said  village,  no  residents 
of  such  village  shall  vote  at  any  biennial  or  special  election  in  such  town 
for  any  commissioner  of  highways  for  said  town,  nor  for  or  against  any 
appropriation  for  the  opening,  laying  out,  maintenance,  erection  or  repair 
of  any  highway  or  bridge  in  said  town,  without  the  limits  of  said  village.  At 
the  biennial  elections  in  such  towns,  the  names  of  candidates  for  the  office  of 
highway  commissioner  shall  be  printed  on  a different  ballot  from  the  one 
containing  the  names  of  candidates  for  other  town  offices.  Such  ballots 
shall  be  indorsed  “ commissioner  of  highways,”  and  shall  be  deposited, 
when  voted,  in  a separate  ballot  box,  which  also  shall  be  marked  “ com- 
missioner of  highways.”  Such  ballots  and  ballot  box  shall  be  furnished 
by  the  officers  now  charged  by  law  with  that  duty  at  town  elections.23 
[Town  Law,  § 59;  B.  C.  & G.  Cons.  L.,  p.  6150.] 


§ 19.  TRANSACTION  OF  BUSINESS  NOT  REQUIRING  A BALLOT; 

WHEN  QUESTIONS  ARE  TO  BE  SUBMITTED;  HOW  DETER- 
MINED. 

The  business  of  the  towns  which  requires  a vote  of  the  people  otherwise 
than  by  ballot  shall  be  commenced  at  twelve  o’clock  noon  of  the  day  of  the 


Ballots  are  to  be  prepared  from  certificates  of  nominations,  filed  with  the  town 
clerk,  as  provided  in  sections  127  and  128,  as  amended  by  L.  1911,  ch.  891,  and 
L.  1913,  ch.  820,  of  the  Election  Law.  Jewett’s  Election  Manual,  1918. 

Nominations  for  town  offices  are  to  be  made  under  the  provisions  of  sections 
120-126  of  the  Election  Law.  Jewett’s  Election  Manual.  The  number  of  ballots 
is  to  be  determined  by  section  340,  as  amended  by  L.  1913,  ch.  820,  of  the  Election 
Law  (Jewett’s  Election  Manual),  and  they  are  to  be  distributed  as  provided  by 
section  343,  as  amended  by  L.  1916,  ch.  537,  of  that  law.  A town  clerk  in  the 
performance  of  his  duties  respecting  the  furnishing  of  official  and  sample  ballots, 
instruction  cards  and  stationery,  must  conform  in  all  respects  to  the  provisions  of 
article  13  of  the  Election  Law. 

23.  Separate  ballots  for  highway  commissioners  and  for  propositions 
relating  to  highways  and  bridges  in  certain  towns.  The  provisions  of  this 
section,  relating  to  the  separate  ballots  for  the  election  of  highway  commission- 
ers and  for  propositions  for  the  appropriation  of  money  for  the  construction 
and  maintenance  of  highways  and  bridges,  only  apply  to  towns  containing  an 
incorporated  village,  which  is,  by  the  provisions  of  its  charter  or  any  other 
special  law,  exempted  from  taxation  for  all  highway  and  bridge  purposes  within 
the  town  outside  of  the  limits  of  such  village.  This  provision  was  inserted  in 
the  above  section  to  take  care  of  some  one  or  more  villages  which  are  so 
situated  under  the  general  law.  The  highways  and  bridges  of  a town  are  to  be 


264  towns,  town  meetings  and  town  officers. 

Town  Law,  § 60. 

biennial  town  meeting  and  completed  without  adjournment.  No  question 
involving  the  expenditure  of  money  shall  be  introduced  after  two  o’clock 
in  the  afternoon  of  the  same  day.  All  questions  upon  motion  made  at 
town  meetings  shall  be  determined  by  the  majority  of  the  electors  voting, 
and  the  officers  presiding  at  such  meeting  shall  ascertain  and  declare  the 
result  of  the  votes  upon  each  question.24  [Town  Law,  § 60;  B.  C.  & G. 
Cons.  L.,  p.  6151.] 

§ 20.  CHALLENGES;  PROVISIONS  OF  ELECTION  LAW  APPLIED. 

If  any  person  offering  to  vote  at  any  town  meeting  or  upon  any  question 


constructed  and  maintained  by  the  whole  town,  and  the  property  within  an 
incorporated  village  is  not  exempted  from  taxation  therefor.  It  is  provided  in 
the  Village  Law,  section  141  (Cumming  and  Gilbert’s  Village  Law,  p.  113),  that 
the  village  constitutes  a separate  highway  district.  This  provision  is  for  the 
purpose  of  conferring  authority  upon  the  village  authorities  to  construct  and 
maintain  streets  and  highways  within  the  village,  and  was  not  for  the  purpose 
of  relieving  the  village  from  the  construction  and  maintenance  of  town  high- 
ways. It  is  probable  that  in  a town  containing  a particular  village,  to  which 
the  provision  of  the  above  section  referred  to  applies,  that  ballots  for  highway 
commissioners  should  be  separate  from  the  general  town  ballot.  This  is  so 
because  of  the  amendment  to  such  section  by  ch.  S63  of  L.  1897  continuing  such 
provision  in  force  and  superseding  former  section  81  of  the  Election  Law  as 
enacted  by  ch.  909  of  the  L.  1896. 

Effect  of  provision  of  Highway  Law  exempting  certain  villages  from  taxation. 

Under  section  99  of  the  Highway  Law  (post),  providing  for  the  raising  of  money 
by  taxation  for  highway  purposes,  villages  are  exempt  from  any  taxes  imposed  for 
the  maintenance  and  repair  of  the  highways  lying  outside  of  the  villages.  In  the  case 
of  Matter  of  Shapter  v.  Carroll,  18  App.  Div.  390,  392;  46  N.  Y.  Supp.  202,  the 
above  section  was  construed  in  connection  with  such  section  99  of  the  Highway  Law. 
The  court  said:  “Such  section  53  of  the  Highway  Law  (now  § 99)  does  not  re- 

lieve villages  from  assessments  made  for  damages  and  charges  for  laying  out  or 
altering  any  road  or  creating  or  repairing  a bridge  in  the  town.  Section  53  is 
general,  and  applies  to  every  case  where  an  incorporated  village  within  a town 
may  be  a separate  road  district.  Thus,  from  a certain  class  of  public  charges  or 
expenses  connected  with  the  highways  the  villages  are  exempt,  while  to  another 
class  they  are  subject.  A proper  interpretation  of  ch.  262  of  the  Laws  of  1895 
(amending  the  above  section  of  the  Town  Law)  I think  is  required.  It  provides  that 
when  the  village  is  exempt  from  the  supervision  and  control  of  the  commissioners 
of  the  highways  of  the  town  and  from  payment  of  any  tax  for  the  opening,  erection, 
maintenance  and  repair  of  any  highway  or  bridge  of  said  town  without  the  limits 
of  said  village,  no  residents  of  such  village  shall  vote  . . . for  or  against  any 

appropriation,  etc.  The  meaning  of  this  is  that  no  resident  of  the  village  shall  vote 
on  the  subject  of  an  appropriation  when  the  village  is  exempt  from  liability  for 
such  appropriation,  but  it  is  only  in  case  the  village  is  so  exempt  that  the  resi- 
dents of  a village  are  not  to  vote.” 

Residents  of  an  incorporated  village  are  entitled  to  vote  for  superintendent 
of  highways  unless  the  village  is  incorporated  under  a special  charter  exempting 
property  within  its  limits  from  all  taxation  for  highway  purposes.  Rept.  of  Atty. 
Genl.,  Feb.  21,  1911.  Electors  of  villages  are  entitled  to  vote  on  a proposition 
submitted  at  a special  town  meeting  for  the  reconstruction  and  permanent  im- 
provement of  highways  without  the  boundaries  of  the  villages  but  within  the 
town  in  which  they  are  situated.  Opinion  of  Atty.  Genl.,  Jan.  17,  1913. 

24.  Submission  of  resolution.  In  the  case  of  People  ex  rel.  Kniffin  v.  Tabor, 


TOWN  MEETINGS. 


Town  Law,  §§  61,  63. 


265 


arising  at  such  town  meeting  shall  be  challenged  as  unqualified,  the  pre- 
siding officers  shall  proceed  thereupon  in  the  manner  prescribed  in  the 
election  law  when  challenges  are  made,  which  law,  with  its  penalties,  is 
made  applicable  thereto,  and  no  person  whose  vote  shall  have  been  received 
upon  such  challenge  shall  be  again  challenged  upon  any  other  question 
arising  at  the  same  town  meeting.25  [Town  Law,  § 61 ; B.  C.  & G.  Cons. 
L.,  p.  6151.] 


§ 21.  MINUTES  OF  PROCEEDINGS. 

The  poll  list  and  minutes  of  the  proceedings  of  every  town  meeting, 
subscribed  by  the  clerk  of  such  meeting,  and  by  the  officers  presiding,  shall 
be  filed  in  the  office  of  the  town  clerk  within  two  days  after  such  meeting 
and  there  preserved.  [Town  Law,  § 62 ; B.  C.  & G.  Cons.  L.,  p.  6151.] 

A poll-list  shall  be  kept  by  the  clerk  of  the  town  meeting  referred  to  in 
sections  fifty-eight  and  fifty-nine  on  which  shall  be  entered  the  name  of 
each  person  voting  by  ballot.  [Town  Law,  § 63;  B.  C.  & G.  Cons.  L., 
p.  6151.] 

§ 22.  CANVASS  OF  VOTES;  NOTIFICATION  OF  OFFICERS  ELECTED. 

At  the  close  of  the  polls  at  any  town  meeting,  the  canvassers  shall  pro- 


21  How.  Pr.  42,  it  appeared  that  at  a town  meeting  where  the  balloting  was 
carried  on  in  a room  within  a house  and  a resolution  being  proposed  and  drawn 
up  in  the  presence  of  the  presiding  officers,  by  their  direction  the  clerk  proceeded 
outside  of  the  building  where  most  of  the  persons  attending  the  town  meeting 
were  and,  in  the  presence  of  one  of  the  presiding  officers,  there  put  the  motion, 
and  it  was  by  him  or  the  presiding  officer  declared  carried  and  no  one  made 
objection.  It  was  held  that  the  resolution  was  duly  passed. 

25.  Provisions  of  Election  Law  to  control  challenges.  The  manner  of  chal- 
lenging and  the  oath  to  be  administered  in  such  cases  are  prescribed  by  sections 
361-364  of  the  Election  Law  (Jewett’s  Election  Manual,  1918),  and  the  provisions 
of  such  section  are  by  the  above  section  of  the  Town  Law  made  applicable  to 
challenges  at  town  meetings. 

Voters  taking  oath  entitled  to  vote.  Voters  answering  the  questions  put  to 
them  and  taking  the  oath  prescribed  by  law  are  entitled  to  vote,  and  under 
such  circumstances  election  boards  cannot  refuse  to  accept  the  vote  of  an 
elector.  See  People  v.  Pease,  27  N.  Y.  45;  Goetcheus  v.  Matheson,  61  N.  Y.  420; 
People  ex  rel.  Sherwood  v.  Board  of  Canvassers,  129  N.  Y.  372;  29  N.  E.  345; 
Matter  of  Hamilton,  80  Hun,  511;  30  N.  Y.  Supp.  499. 

In  the  case  of  People  ex  rel.  Stapleton  v.  Bell,  119  N.  Y.  175;  23  N.  E.  533, 
it  was  held  that  z board  of  inspectors  of  election  has  no  discretionary  power 
to  reject  the  vote  of  a person  who,  upon  the  application  of  the  statutory  test, 
has  shown  himself  to  be  a qualified  voter;  and  tha£  the  lawfulness  of  the  vote 
cannot  be  determined  until  it  has  been  received;  and  that  the  elector’s  right 
cannot  be  annuled  without  a trial. 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 64. 

ceed  to  canvass  the  votes  publicly  at  the  place  where  the  meeting  was  held. 
Before  the  ballots  are  opened  they  shall  be  counted  and  compared  with  the 
poll-list,  and  the  like  proceedings  shall  be  had  as  to  ballots  folded  together, 
and  difference  in  number,  as  are  prescribed  in  the  election  law.  The  void 
and  protested  ballots,  and  the  voted  ballots  other  than  void  and  protested, 
shall  be  preserved  and  disposed  of  by  the  inspectors  in  the  manner  pro- 
vided by  sections  three  hundred  and  seventy-three  and  three  hundred  and 
seventy-four  of  the  election  law.26  The  result  of  the  canvass  shall  be  read 
by  the  clerk  to  the  persons  there  assembled,  which  shall  be  notice  of  the 
election  to  all  voters  upon  the  poll-list.  The  clerk  shall  also  enter  the  re- 
sult at  length  in  the  minutes  of  the  proceedings  of  the  meeting  kept  by 
him,  and  shall,  within  ten  days  thereafter,  transmit  to  any  person  elected 
to  a town  office,  whose  name  is  not  on  the  poll-list  as  a voter,  a notice  of  his 
election.27  [Town  Law,  § 64,  as  amended  by  L.  1909,  ch.  240;  B.  C.  & 
G.  Cons.  L.,  p.  6152.] 

§ 23.  TOWN  MEETINGS  IN  ELECTION  DISTRICTS;  MAY  BE  HELD 
IN  REGULAR  ELECTION  DISTRICTS,  OR  TOWN  BOARD 
MAY  DIVIDE  THE  TOWN;  APPLICATION  THEREFOR. 

The  electors  of  a town  may  determine  by  ballot  at  a biennial  or  special 
town  meeting  on  the  written  application  of  twenty-five  electors,  that  town 


26.  Dispositi«R  of  rejected  ballots.  The  provisions  of  this  section  require 
inspectors  or  the  officers  presiding  at  a town  meeting  to  preserve  and  dispose 
of  the  void  and  protested  ballots  in  the  manner  provided  by  section  373,  as 
amended  by  L.  1913,  ch.  821,  of  the  Election  Law. 

In  the  case  of  People  ex  rel.  Maxim  v.  Ward,  62  App.  Div.  531,  71  N.  Y.  Supp. 
76,  it  was  held  that  canvassers  of  the  ballots  cast  at  a town  meeting  could 
be  compelled  by  mandamus  to  indorse  upon  each  rejected  ballot  the  reason  for 
such  rejection,  and  to  place  such  ballots  in  a separate  sealed  package,  and  to 
indorse  the  package  with  their  names  and  the  number  of  ballots  contained 
therein,  as  directed  by  section  373  of  the  Election  Law. 

27.  Application  of  provisions  of  Election  Law  to  canvass.  In  the  case  of 
Matter  of  Larkin,  163  N.  Y.  201,  57  N.  E.  404,  it  was  in  effect  held  that  the  pro- 
visions of  this  section  were  to  control  inspectors  at  town  meetings  not  held 
at  the  same  time  as  a general  election  in  the  performance  of  their  duties,  and 
that  in  making  a canvass  of  the  votes  cast  the  provisions  of  the  Election  Law 
did  not  apply  except  as  expressly  provided  in  the  section. 

In  the  case  of  People  ex  rel.  Guernsey  v.  Pierson,  35  Misc.  406,  71  N.  Y.  Supp. 
993,  it  was  held  that  town  elections  are  governed  generally  by  the  Town  Law 
and  not  by  the  Election  Law. 

The  provisions  of  this  section,  that  “ The  void  and  protested  ballots,  and  the 
voted  ballots  other  than  void  and  protested,  shall  be  preserved  and  disposed  of 
by  the  inspectors,  in  the  manner  provided  by  section  one  hundred  and  eleven 
of  the  Election  Law,”  does  not  operate  to  give  the  right  of  review  under  the 
provisions  of  section  381  of  the  Election  Law,  save  where  the  town  election  is 
held  at  the  same  time  as  the  general  election  in  the  fall  of  the  year.  Matter  of 
Baldwin  (1913),  80  Misc.  263. 

Statement  of  result.  It  is  intended  by  the  statute  that  the  statement  read  by 
the  clerk  of  the  result  of  the  canvass  shall  be  a sufficient  certificate  and  evidence 
of  the  election.  Matter  of  Baker,  11  How.  Pr.  418;  Matter  of  Case  v.  Campbel, 
16  Abb.  N.  C.  270. 

Statement  of  the  result  of  the  canvass,  under  the  Election  Law,  must  be 


TOWN  MEETINGS. 


267 


Town  Law,  § 65. 

meetings  shall  thereafter  be  held  in  the  several  election  districts  of  their 
town,  to  be  therein  conducted  by  the  inspectors  of  election  thereof,  instead 
■of  the  justices  of  the  peace  of  the  town;  or  may  authorize  the  town  board 
to  divide  such  town  into  two  or  more  joint  election  districts,  as  provided 
in  this  section.28  The  town  board  of  any  town  which  has  been  authorized 
may  divide  such  town  into  two  or  more  joint  election  districts,  for  the 
purpose  of  holding  town  meetings  therein,  but  such  districts  shall  be  con- 
stituted by  combining  the  election  districts  in  such  town.  If  the  town 
board  of  any  town  shall  divide  such  town  into  joint  election  districts  in 
pursuance  of  this  section,  such  board  shall  select  from  the  inspectors  of 
election  for  such  town  four  inspectors  residing  therein,  not  more  than  two  of 
whom  shall  belong  to  the  same  political  party,  for  each  of  such  election  dis- 
tricts as  so  constituted.  If  a town  shall  hold  its  town  meeting  in  more  than 
one  district,  the  inspectors  of  each  of  such  districts  shall  appoint  one  poll 
clerk,  and  in  the  conduct  of  such  meetings  they  shall  have  the  same  powers 
and  duties  as  the  justices  of  the  peace  and  town  clerk  have  at  the  biennial 
town  meetings  presided  over  by  them.  No  town  officer  shall  be  required  to 
make  or  render  any  report,  statement  or  abstract  at  a town  meeting  when 
held  in  separate  or  joint  election  districts.  At  the  close  of  the  polls,  the 
inspectors  shall  forthwith  publicly  canvass  the  ballots  cast,  and,  without 
postponement  or  adjournment,  make  a full  and  true  statement  of  the 
whole  number  so  cast  for  each  and  every  candidate  for  an  office  balloted 
for,  and  of  the  whole  number  of  votes  for  and  against  every  question 
or  proposition  voted  upon  at  such  town  meeting.  The  void  and  pro- 
tested ballots,  and  the  voted  ballots  other  than  void  and  protested,  shall 
be  preserved  and  disposed  of  by  the  inspectors  in  the  manner  provided  by 
section  three  hundred  and  fifty-three  of  the  election  law.  Such  statement 


signed  by  the  four  justices,  they  certifying  at  the  end  that  “ the  foregoing 
statement  is  correct.”  People  ex  rel.  Leonard  v.  Hamilton,  27  Misc.  308,  312,  58 
N.  Y.  Supp.  584,  affd.  in  42  App.  Div.  212,  59  N.  Y.  Supp.  943. 

Count  and  canvass  may  be  compelled.  When  inspectors  of  election  fail  to 
count  and  canvass  the  ballots  and  the  town  clerk  has  not  entered  the  result  upon 
his  minutes,  the  inspectors  and  clerks  may  be  compelled  by  mandamus  to  con- 
vene and  discharge  their  statutory  dutios.  People  ex  rel.  Sturtevant  v.  Arm- 
strong, 116  App.  Div.  103,  101  N.  Y.  Supp.  712. 

28.  Application  and  submission  of  proposition.  The  application  for  the 
submission  of  a proposition  under  this  section  must  be  written  and  signed  by 
at  least  twenty-five  electors  of  the  town.  Such  application  must  be  filed  with 
the  town  clerk  at  least  twenty  days  before  the  town  meeting,  and  must  plainly 
and  definitely  state  the  question  to  be  voted  upon  and  must  request  that  a vote 
be  taken  at  a specified  town  meeting.  See  section  48  of  the  Town  Law,  ante. 
The  proposition  is  to  be  submitted  in  the  same  manner  as  other  town 
propositions.  For  form  of  application  for  holding  town  meeting  in  election 
districts,  see  Form  No.  18,  post. 


268  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 65. 

shall  be  made  in  the  same  form  as  statements  by  such  inspectors  of  the 
votes  cast  at  general  elections,  and  shall  be  signed  by  the  inspectors  and 
delivered  by  one  of  their  unmber,  selected  by  them,  for  that  purpose,  to 
the  justices  of  the  peace  and  town  clerk  of  the  town,  who  shall  convene 
and  receive  the  same  at  the  office  of  the  town  clerk,  on  the  day  next  fol- 
lowing the  town  meeting,  at  ten  o’clock  in  the  forenoon.  Such  justices 
and  clerk  shall  then  and  there  recanvass  such  votes  from  the  statements  of 
the  inspectors  of  the  several  separate  or  joint  election  districts  so  delivered 
to  them,  and  thereupon  appoint  in  writing  the  inspectors  of  election,  and 
read  and  enter  the  results  in  the  same  manner  as  required  of  them  at  the 
close  of  the  canvass  of  a town  meeting  presided  over  by  them.29  When 
the  electors  of  a town  have  determined  to  hold  their  town  meetings  in 
separate  or  joint  districts,  they  may  again,  upon  the  written  application 
of  twenty-five  electors,  at  a biennial  town  meeting,  determine  by  ballot 
to  return  to  the  former  system  of  holding  but  one  poll  at  their  town  meet- 
ings, and  thereupon  their  town  meetings  shall  be  held  at  but  one  polling 
place  in  said  town,  but  such  changes  shall  not  be  made  oftener  than  once 
in  five  years.  [Town  Law,  § 65;  B.  C.  & G.  Cons.  L.,  p.  6153.] 

§ 24.  VOTE  UPON  PROPOSITIONS  NOT  REQUIRING  A BALLOT; 

VOTE  TO  BE  BY  DIVISION  OF  ELECTORS  PRESENT;  IN- 
SPECTORS TO  ENTER  STATEMENT  OF  RESULT;  NOTICE  OF 
SUBMISSION  OF  PROPOSITION. 

Any  proposition  to  be  submitted  to  and  voted  upon  by  the  electors  of  a 
town  at  any  town  meeting,  which  is  not  required  to  be  voted  upon  by  ballot, 


29.  Canvass  of  votes  by  justices  of  the  peace  and  town  clerk.  Where  town 
meetings  are  held  in  election  districts,  under  the  provisions  of  this  section,  the 
justices  of  the  peace  and  town  clerk  are  required  to  meet  on  the  day  following 
the  town  meeting,  at  the  office  of  the  town  clerk,  at  10  o’clock  in  the  forenoon, 
and  recanvass  the  votes  on  the  statements  returned  by  the  inspectors  of  the 
several  districts.  Such  justices  and  town  clerk  are  required  to  read  and  enter 
the  results  in  the  manner  required  when  town  meetings  are  not  held  in  election 
districts.  In  the  case  of  People  ex  rel.  Guernsey  v.  Pierson,  35  Misc.  406;  75 
N.  Y.  Supp.  993,  aff’d.  64  App.  Div.  624,  72  N.  Y.  Supp.  1123,  it  was  held  that 
a town  canvassing  board  cannot  be  directed  to  recanvass  the  votes  cast  at  a 
town  meeting  held  in  election  districts  and  reject  for  irregularity  certain  re- 
turns unless  such  returns  are  wholly  void.  The  following  defects  were  held 
as  not  necessarily  fatal: — That  the  inspectors  in  certain  districts  selected  one  of 
their  number  as  poll  clerk;  that  in  some  districts  the  poll  lists  were  not  sub- 
scribed as  required  by  the  statute;  that  in  one  district  the  inspectors  did  not 
return  the  number  of  ballots  which  were  void,  but  inclosed  them  in  a sealed 
package  which  they  filed  with  a statement  of  the  canvass;  that  the  supervisor 
of  the  town  who  took  no  part  in  the  canvass  was  present  and  signed  the 
statement. 


TOWN  MEETINGS. 


269 


Town  Law,  §§  66,  67. 

may  be  submitted  to  the  electors  of  the  town  voting  in  separate  or  joint 
election  districts  of  the  town  meeting,  but  the  vote  upon  any  proposition 
shall  be  taken  by  the  division  of  the  electors  present  and  voting  thereon; 
and  the  inspectors  shall  count  the  number  of  electors  so  voting  in  favor 
of  such  proposition,  and  the  number  so  voting  against  the  same,  and  shall 
enter  in  the  statement  of  the  result  of  the  town  meeting  held  in  such 
district  a statement  of  the  proposition  so  voted  upon,  and  the  number 
of  votes  so  cast  in  favor  of  and  against  the  same  and  certify  with  the  state- 
ment that  they  are  required  to  certify  and  return  to  the  justices  of  the 
peace  and  town  clerk  of  the  town.  No  such  proposition  shall  be  so  voted 
upon  unless  notice  that  such  vote  will  be  taken  has  been  published  by 
the  town  clerk  at  least  one  week  before  the  town  meeting,  in  a newspaper 
published  in  the  town,  if  any  such  is  published  therein,  and  such  notice  shall 
also  be  posted  for  the  same  length  of  time  at  the  place  where  the  poll 
of  the  town  meeting  is  to  be  held,  in  each  separate  or  joint  election  district, 
and  shall  be  publicly  read  by  the  inspectors  to  the  voters  present  before 
any  such  vote  is  taken.30  Any  elector  of  the  town  may,  by  a written 
application  filed  with  the  town  clerk  at  least  ten  days  before  the  town 
meeting  is  to  be  held,  require  such  notice  to  be  given  by  the  town  clerk. 
Every  such  proposition  shall  be  submitted  to  a vote,  commencing  at  the 
hour  of  twelve,  noon,  and  continuing  until  all  such  propositions  have  been 
voted  upon,  and  every  such  proposition  shall  be  submitted  to  the  vote 
of  the  electors  of  the  town  at  the  poll  of  every  separate  or  joint  election 
district  in  the  town.  [Town  Law,  § 66;  B.  C.  & G.  Cons.  L.,  p.  6154.] 

§ 25.  TOWN  MEETINGS  HELD  AT  THE  TIME  OF  GENERAL  ELEC- 
TION; CANVASS  OF  VOTES. 

If,  in  any  town,  the  biennial  town  meeting  is  held  at  the  same  time 
as  the  general  election,  such  town  meeting  shall  be  held  in  the  election 
districts  of  such  town,  and  be  conducted  by  the  inspectors  of  election 
thereof.  At  the  close  of  the  polls  at  any  such  town  meeting,  the  inspectors 
shall  proceed  to  canvass  the  votes  for  the  candidates  for  the  several  town 
offices  in  the  election  districts  where  such  town  meeting  was  held,  in  the 
same  manner  as  the  votes  for  other  candidates  cast  at  the  general  election 
are  canvassed.  They  shall  make  a statement  of  the  whole  number  of 
votes  cast  for  each  candidate  for  a town  office,  deliver  the  same  to  one 


30.  Notice  of  a proposition  not  requiring  a ballot  to  be  voted  upon  at  a town 
meeting  held  in  election  districts  must  be  given  as  prescribed  in  the  above  sec- 
tion. It  would  seem  that  where  town  meetings  are  not  held  in  election  districts 
such  propositions  may  be  submited  without  prior  notice.  See  Town  Law, 
sec.  60,  ante. 


270 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 68. 

of  the  justices  of  the  peace  of  the  town,  and,  on  the  Thursday  succeeding* 
such  town  meeting,  such  votes  shall  be  recanvassed,  the  additional  inspector 
of  election  in  each  district  shall  be  appointed,  and  the  result  of  the  election 
declared  as  provided  by  section  sixty-five  of  this  chapter.31 

In  case  of  a contest  or  other  proceeding  in  which  the  validity  of  the 
election  of  a town  officer  in  any  such  town,  is  in  controversy,  the  ballots 
cast  at  any  town  meeting  and  election  may  be  examined  and  recounted,  as 
provided  by  law,  in  case  of  other  officers  elected  at  general  elections. 
[Town  Law,  § 67;  B.  C.  & G.  Cons.  L.,  p.  6155.] 

§ 26.  BALLOTS  AT  TOWN  MEETING  HELD  AT  TIME  OF  GENERAL 
ELECTION. 

At  town  meetings  in  towns  held  at  the  same  time  as  general  elections, 
the  names  of  all  candidates  for  town  offices  shall  be  voted  for  in  the  same 
manner  and  on  the  same  ballot  as  candidates  for  other  offices  voted  for 
thereat.32  [Town  Law,  § 68;  B.  C.  & G.  Cons.  L.,  p.  6156.] 


31.  Canvass  of  votes  by  justices  of  the  peace  and  town  clerk.  Where  town 
meetings  are  held  at  the  time  of  general  elections  the  returns  of  the  inspectors 
of  election  of  the  several  election  districts  are  to  he  made  and  the  votes  are  to 
he  recanvassed  in  the  manner  provided  by  section  65  of  the  Town  Law,  ante. 

Provisions  of  this  section  relating  to  the  recanvass,  when  read  in  connection 
with  section  65  of  the  Town  Law,  do  not  permit  the  justices  of  the  peace  and 
town  clerk  who  made  the  recanvass  to  recount  the  vote;  they  must  declare 
the  result  as  it  appears  from  the  statements  made  by  the  inspectors  of  election, 
who,  under  the  statute,  make  the  canvass  itself.  Matter  of  Park,  37  Misc.  133; 
74  N.  Y.  Supp.  915. 

Examination  of  ballots.  The  provisions  of  this  section  relating  to  an  examination 
and  recount  of  ballots  in  case  of  contests  provide  a wholly  distinct  and  different 
remedy  from  section  374  of  the  Election  Law  which  is  broad  enough  in  its  terms  to 
entitle  any  candidate  voted  for  at  the  time  of  a general  election  to  an  examination 
as  of  right  in  a proper  case  of  any  ballots  upon  which  his  name  lawfully  appears 
as  that  of  a candidate  whether  the  validity  of  the  election  is  in  controversy  or  not. 
Matter  of  Quinn  (1917),  220  N.  Y.  624,  115  N.  E.  422,  affg.  (1916),  175  App.  Div. 
681,  160  IS.  Y.  Supp.  867. 

A candidate  for  the  office  of  town  clerk  who  was  defeated  at  the  biennial  town 
election  is  entitled  to  an  examination  of  the  ballots  under  section  374  of  the  Election 
Law,  if  his  moving  affidavits  disclose  facts  which  entitle  him'  to  such  examination. 
Matter  of  Quinn  (1916),  175  App.  Div.  681,  160  N.  Y.  Supp.  867,  affd.  (1917),  220 
N.  Y.  624,  115  N.  E.  442. 

32.  This  section  was  formerly  part  of  § 12  of  the  Town  Law. 

Ballots  at  town  meetings.  Under  this  section  the  election  of  town  officers  is  by 
ballot.  The  provisions  of  the  election  Law  relating  to  the  nomination  of  town  offi- 
cers (Election  Law,  secs.  120-126;  Jewett’s  Election  Manual,  1918),  and  to  the  cer- 
tificates of  nominations  (Election  Law,  secs.  127,  128;  Jewett’s  Election  Manual), 
apply  to  town  meetings.  Section  132  of  the  Election  Law  (Jewett’s  Election 
Manual,  1918),  provides  that  each  town  clerk  shall  cause  at  least  ten  copies  of  a 
list  of  all  nominations  to  office  filed  with  him  to  be  conspicuously  posted  in  ten 
public  places  in  the  town  at  least  one  day  before  the  town  meeting,  one  of  which 
copies  shall  be  so  posted  at  each  polling  place  of  such  town  meeting. 


TOWN  MEETINGS. 


271 


Election  Law,  § 316. 

Ballot  Boxes. — Separate  ballot  boxes  appropriately  and  conspicuously 
marked  must  be  provided  as  occasion  shall  require,  to  receive, 

1.  Ballots  for  presidential  electors. 

2.  Ballots  for  general  officers. 

3.  Ballots  upon  constitutional  amendments  and  questions  submitted. 

4.  Ballots  upon  town  propositions  and  upon  town  appropriations. 

5.  Ballots  defective  in  printing  or  spoiled  and  mutilated. 

6.  Stubs  detached  from  ballots. 

Each  box  shall  be  supplied  with  a sufficient  lock  and  key  and  with  an 
opening  in  the  top  large  enough  to  allow  a single  folded  ballot  to  be  easily 
passed  through  the  opening,  but  no  larger.  It  shall  be  large  enough  to 
receive  all  the  ballots  which  may  be  lawfully  deposited  therein  at  any  elec- 
tion, and  it  shall  be  well  and  strongly  made  and  be  free  from  checks  and 
blemishes. 

Each  and  every  inspector  of  elections  shall  be  personally  responsible  for 
the  custody  of  each  box  and  its  contents  from  the  time  the  election  begins 
until  the  box  is  delivered,  according  to  law,  to  the  person  entitled  to  receive 
it.  Upon  making  any  such  delivery  each  inspector  of  elections  shall  be 
entitled  to  a receipt  for  each  box  delivered.  [Election  Law,  § 316,  as 
amended  by  L.  1911,  ch.  649,  L.  1913,  ch.  821,  and  L.  1917,  ch.  703;  B. 
C.  & Gr.  Cons.  L.,  p.  1506.] 

Payment  of  Election  Expenses. — The  expense  of  providing  polling 
places,  voting  booths,  supplies  therefor,  guard-rails  and  other  furniture  of 


Ballots  to  be  voted  at  town  meetings  are  to  be  prepared  in  conformity  with  sec- 
tion 331,  as  amended  by  L.  1915,  ch.  87,  and  L.  1916,  ch.  537,  of  the  Election  Law. 
Jewett’s  Election  Manual,  1918.  The  above  section  of  the  Town  Law  provides  that 
when  town  meetings  in  towns  are  held  at  the  same  time  as  geneial  elections,  the 
names  of  candidates  for  town  offices  shall  be  on  the  same  ballot  as  candidates  for 
other  offices  voted  for  thereat.  This  provision  is  now  in  conformity  with  a similar 
provision  contained  in  section  341,  as  amended  by  L.  1916,  ch.  454,  of  the  Election 
Law. 

Section  318  of  the  Election  Law,  as  amended  by  L.  1918,  ch.  323,  (Jewett’s  Elec- 
tion Manual,  1918),  contains  the  following  provisions:  “The  expense  of  printing 

and  delivering  the  official  ballots,  sample  ballots,  affidavits  for  proof  of  citizenship 
by  marriage,  cards  of  instruction,  poll  books,  tally  sheets,  return  sheets  for  inspec- 
tors and  ballot  clerks  and  distance  markers,  to  be  used  at  a town  meeting  or  city  or 
village  election  not  held  at  the  same  time  as  a general  election,  and  of  printing  the 
lists  of  nominations  therefor,  shall  be  a charge  upon  the  town,  city  or  village  in 
which  the  meeting  or  the  election  is  held.” 

Registration.  No  registration  of  voters  shall  be  required  for  town  or  village 
elections,  except  as  provided  in  the  Village  Law,  and  except  that  when  a town  or 
village  election  is  held  at  the  same  time  with  a general  election  all  voters  in  such 
town  or  village  to  be  entitled  to  vote  at  such  town  or  village  election  must  be 
registered  as  provided  by  law  for  the  registration  of  voters  for  any  general  election 
in  such  town  or  village.  [Election  Law,  § 161,  as  amended  by  L.  1910,  ch.  424;  B. 
C.  & G.  Cons.  L.,  p.  1450.] 

Town  superintendents  of  highways  are  elected  or  appointed  for  terms  of  two 
years,  under  the  Highway  Law  of  1909,  secs.  40-42.  By  sec.  43  of  such  Highway  Law 
the  office  of  highway  commissioner  is  abolished  on  and  after  November  1,  1909. 


272  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Election  Law,  § 318. 

the  polling  place,  and  distance  markers,  and  the  compensation  ®f  the 
election  officers  in  each  election  district,  shall  be  a charge  upon  the  town 
or  city  in  which  such  election  district  is  situated,  except  that  such  expenses 
incurred  for  the  purpose  of  conducting  a village  election  not  held  at  the 
same  time  as  a general  election  shall  be  a charge  upon  the  village. 

The  expense  of  printing  and  delivering  the  official  ballots,  sample  ballots 
and  cards  of  instruction,  poll  books,  tally  sheets,  return  sheets  for  inspec- 
tors and  ballot  clerks,  and  distance  markers  to  be  used  at  a town  meeting  or 
city  or  village  election  not  held  at  the  same  time  as  a general  election,  and 
of  printing  the  lists  of  nominations  therefor  shall  be  a charge  upon  the 
town,  city  or  village  in  which  the  meeting  or  election  is  held.  The  expense 
of  printing  and  delivering  the  official  ballots,  sample  ballots,  affidavits  for 
proof  of  citizenship,  by  marriage,  and  cards  of  instruction,  poll  books,  tally 
sheets,  return  sheets  for  inspecors  and  ballot  clerks  and  distance  markers 
to  be  used  in  any  county,  except  such  counties  or  portions  thereof  as  are 
included  within  the  city  of  New  York,  at  any  other  election,  if  no  town 
meeting  or  city  or  village  election  be  held  a the  same  time  therewith,  and 
of  printing  the  lists  of  nominations  therefor,  shall  be  a charge  upon  such 
county.  The  expense  of  printing  and  delivering  the  official  ballots,  sample 
ballots,  affidavits  for  proof  of  citizenship  by  marriage  and  cards  of 
instruction,  poll  books,  tally  sheets,  return  sheets  for  inspectors  and 
ballot  clerks,  and  distance  markers,  to  be  used  in  any  such  county 
at  any  other  election,  and  of  printing  tire  lists  of  nominations 
therefor,  if  the  town  meeting  or  city  or  village  election  be  held  in  such 
county  at  the  same  time  therewih,  shall  be  apportioned  by  the  county  clerk 
between  such  town,  city  or  village  and  such  county,  in  the  proportion  of  the 
number  of  candidates  for  town,  city  or  village  officers  on  such  ballots,  re- 
spectively, to  the  whole  number  of  candidates  thereon,  and  the  amount  of 
such  expense  so  apportioned  to  each  such  municipality  shall  be  a charge 
thereon. 

Whenever  voting  machines  are  used  in  an  election  by  any  city,  town  or 
village,  only  such  expenses  as  are  caused  by  the  use  of  such  machines,  and 
such  as  are  necessary  for  the  proper  conduct  of  the  elections  as  required  by 
this  chapter  shall  be  charged  to  such  city,  town  or  village.33.  . . [Election 
Law,  § 318,  as  amended  by  L.  1918,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  1508.] 

The  county  clerk  of  each  county,  not  salaried,  shall  be  paid  by  such 
county  a reasonable  compensation  for  his  services  in  carrying  out  the 
provisions  of  this  chapter,  to  be  fixed  by  the  board  of  supervisors  of  the 
county,  or  the  board  acting  as  such  board  of  supervisors.  The  town 
clerk  of  each  town  shall  be  paid  by  such  town  a reasonable  compensation 
for  his  services  in  carrying  out  the  provisions  of  this  chapter,  to  be  fixed 


33.  Provision  as  to  compensation  of  inspectors  in  cities  of  the  first  class  omitted 


TOWN  MEETINGS. 


273 


Election  Law,  § 127. 

by  the  other  members  of  the  town  board  of  the  town.  Ballot  clerks  shall 
receive  the  same  compensation  for  their  attendance  at  an  election  as  in- 
spectors of  election  for  the  election  and  be  paid  in  like  manner.  Poll  clerks 
shall  receive  the  same  compensation  for  their  attendance  at  an  election  and 
canvass  of  the  votes  as  inspectors  of  election  and  be  paid  in  like  manner. 
An  inspector  of  election  lawfully  required  to  file  papers  in  the  county  clerk’s 
office  shall,  unless  he  resides  in  the  county  if  within  the  city  of  New  York, 
or  in  any  other  city  or  town  in  which  such  office  is  situated,  be  entitled  to 
receive  as  compensation  therefor  five  dollars,  and  also  four  cents  a mile  for 
every  mile  actually  and  necessarily  traveled  between  his  residence  and  such 
county  clerk’s  office  in  going  to  and  returning  from  such  office.34  * * * 

Election  officers  required  to  meet  at  a different  time  from  the  regular 
count  of  the  votes  cast  at  a general  election  for  the  purpose  of  counting 
and  returning  the  votes  of  electors  absent  from  their  election  districts  in 
time  of  war  in  the  actual  military  or  naval  service  of  this  state  or  of  the 
United  States  shall  be  paid  five  dollars  each.  [Election  Law,  § 319,  as 
amended  by  L.  1915,  ch.  678,  and  L.  1918,  ch.  323;  B.  C.  & G.  Cons.  L.,  p. 
1508.] 

Places  of  filing  independent  certificates  of  nomination . — Independ- 
ent certificates  of  nomination  of  candidates  for  office  to  be  filled  by  the 
voters  of  the  entire  state,  or  of  any  division  or  district  greater  than  a 
county,  shall  be  filed  with  the  secretary  of  state,  except  that  each  certi- 
ficate of  nomination  of  a candidate  for  member  of  assembly  for  the  as- 
sembly district  composing  the  counties  of  Eulton  and  Hamilton  shall 
be  filed  in  the  office  of  the  board  of  elections  of  Fulton  county,  and  a 
copy  thereof  certified  by  the  board  of  elections  of  Fulton  county  shall 
be  filed  in  the  office  of  the  board  of  elections  of  Hamilton  county,  sc 
long  as  the  said  counties  constitute  one  assembly  district,  and  except 
that  such  certificates  of  nomination  of  candidates  for  offices  to  be  filled 
only  by  the  voters  or  a portion  of  the  voters  of  the  city  of  New  York 
shall  be  filed  with  the  board  of  elections  of  the  city  of  New  York. 

Independent  certificates  of  nomination  of  candidates  for  offices  to  be 
filled  only  by  the  votes  of  voters,  part  of  whom  are  of  New  York  city  and 
part  of  whom  are  of  a county  not  wholly  within  the  city  of  New  York, 
shall  be  filed  with  the  board  of  elections  of  such  county  and  in  the  office 
of  the  board  of  elections  of  said  city.  Such  certificates  of  nomination 
of  candidates  for  offices  of  any  other  city,  to  be  elected  at  the  same  time 
at  which  a general  election  is  held  shall  be  filed  with  the  board  of  elec- 
tions of  the  county  in  which  such  city  is  located.  Certificates  of  nomi- 
nation of  candidates  for  offices  of  a city,  village  or  town  to  be  elected  at 
a different  time  from  a general  election  shall  be  filed  with  the  clerk  of 
such  city,  village  or  town  respectively. 

34.  Provision  omitted  as  to  compensation  of  election  officers  in  cities  of  the 
first  class. 


274  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Election  Law,  §§  127,  128. 

In  towns  in  which  town  meetings  are  held  at  the  time  of  general  elec- 
tions, independent  certificates  of  nomination  of  candidates  for  towm 
offices  shall  be  in  duplicate,  one  of  which  shall  be  filed  with  the  town 
clerk  of  the  town  in  which  such  officers  are  to  be  voted  for,  and  the  other 
with  the  board  of  elections  of  the  county  in  which  such  town  is  located. 
All  other  independent  certificates  of  nomination  shall  be  filed  with  the 
board  of  elections  of  the  county  in  which  the  candidates  so  nominated 
are  to  be  voted  for. 

All  such  filed  certificates  and  corrected  certificates  of  nomination,  all 
objections  to  such  certificates  and  all  declinations  of  nomination  are 
hereby  declared  to  be  public  records ; and  it  shall  be  the  duty  of  every 
officer  or  board  to  exhibit  without  delay  every  such  paper  to  any  person 
who  shall  request  to  see  the  same.  It  shall  also  be  the  duty  of  each  such 
officer  or  board  to  keep  a book  which  shall  be  open  to  public  inspection, 
in  which  shall  be  correctly  recorded  the  names  of  all  candidates  nomi- 
nated by  independent  certificates  issued  by  or  filed  in  the  office  of  such 
officer  or  board  or  certified  thereto,  the  title  of  the  office  for  which  any 
such  nomination  is  made,  the  name  and  emblem  of  the  independent  body 
making  such  nomination,  and  in  which  shall  also  be  stated  all  declina- 
tions of  nominations  or  objections  to  such  nominations,  and  the  time  of 
filing  each  of  the  said  papers.  [Election  Law,  § 127,  as  amended  by 
L.  1911,  ch.  891,  and  L.  1913,  ch.  820;  B.  C.  & G.  Cons.  L.,  p.  1430.] 

Times  of  filing  independent  certificates  of  nomination. — Independent 
certificates  of  nomination,  except  those  for  the  nomination  of  candidates  to 
be  elected  at  a different  time  from  a general  election,  shall  be  filed  not 
earlier  than  the  ninth  Tuesday,  and  not  later  than  two  days  after  the  eighth 
Tuesday  preceding  the  day  of  the  general  election.  Independent  certifi- 
cates of  nomination  of  candidates  to  be  elected  at  a different  time  from  a 
general  election  shall  be  filed  at  least  fifteen,  and  not  more  than  thirty  days 
before  the  day  of  the  election. 

In  case  of  a special  election  ordered  by  the  governor  under  the  provi- 
sions of  section  two  hundred  and  ninety-two  of  this  chapter,  independent 


TOWN  MEETINGS. 


275 


Election  Law,  § 332. 

certificates  of  nomination  for  the  office  or  offices  to  be  filled  at  such  special 
election  shall  be  filed  with  the  proper  officers  or  boards  not  less  than  ten 
days  before  such  special  election.35  [Election  Law,  § 128,  as  amended  by 
L.  1911,  ch.  891,  L.  1913,  ch.  820,  and  L.  1918,  ch.  298;  B.  C.  & G.  Cons. 
L.,  p.  1431.] 

Form  of  ballot  for  questions  submitted. — The  reading  form  of  each 
proposed  constitutional  amendment36  or  other  question  submitted  as 
provided  in  section  two  hundred  and  ninety-five  of  this  chapter  shall 
•be  printed  in  a separate  section.  At  the  left  of  each  question  shall  ap- 
pear two  voting  squares,  one  above  the  other,  each  at  least  one-half  inch 


35.  Time  of  filing1.  Statute  is  mandatory.  Matter  of  Cuddeback.  3 App.  Div. 
103,  39  N.  Y.  Supp.  388.  But  certificate  may  be  filed  at  any  hour  of  last*&ay.  Need 
not  be  filed  within  hours  during  which  clerk’s  office  is  open.  Matter  of  Norton, 
34  App.  Div.  79,  53  N.  Y.  Supp.  1093;  appeal  dismissed,  158  N.  Y.  130. 

When  the  last  day  for  filing  the  certificate  falls  on  Sunday  it  must  be  filed  on 
the  day  preceding.  Rept.  of  Atty.  Genl.  (1902)  318. 

An  official  ballot  is  not  invalid  because  it  contains  the  name  of  a candidate 
whose  certificate  of  nomination  was  not  filed  until  after  the  fixed  date.  Rept.  of 
Atty.  Genl.  (1895)  293. 

When  court  may  give  relief.  The  statutory  requirement  as  to  the  time  when 
certificates  of  nomination  should  be  filed  in  mandatory,  yet  there  m’ay  occur  acci- 
dents and  mistakes,  causing  delay  in  such  filing,  and  from  the  effects  of  which  the 
supreme  court  may  give  relief,  provided  it  finds  that  the  delay  was  not  due  to  the 
negligence  of  the  convention  making  the  nomination,  but  to  the  party  to  whom  the 
filing  of  the  certificate  was  intrusted;  but  the  question  in  each  case,  as  to  whether 
there  has  been  excusable  default  or  misfortune  depend  upon  the  particular  facts, 
and  the  determination  of  the  question  rests  in  the  supreme  court.  Matter  of  Dar- 
ling, 189  N.  Y.  570,  affg.  121  App.  Div.  656,  106  N.  Y.  Supp.  430. 

Default  in  filing  nominations  may  be  remedied  by  the  Supreme  Court,  where 
it  appears  that  the  certificates  were  mailed  by  the  proper  officers  so  that  in  the 
ordinary  course  of  mail  they  would  reach  the  office  of  the  secretary  of  state  in 
time,  but  for  some  unaccountable  reason  they  did  not  reach  such  office  until  the 
following  day.  Matter  of  Bayne,  69  Misc.  579,  127  N.  Y.  Supp.  915. 

Mandamus  will  not  issue  to  compel  the  acceptance  and  filing  of  a certificate  of 
nomination,  if  it  was  not  tendered  for  filing  twenty  days  before  the  election,  as 
required  by  this  section.  People  ex  rel.  Steinert  v.  Britt,  146  App.  Div. 
684.  So,  where  an  original  certificate  of  nomination  has  been  held  to  be 
valid  notwithstanding  the  fact  that  the  person  designated  to  call  the  convention  to 
order  was  not  present  owing  to  illness,  the  court  will  not  compel  the  board  of  elec- 
tions to  accept  a second  certificate  made  at  a subsequent  convention  where  the  time 
for  filing  the  certificate  of  the  original  nomination  has  expired.  Matter  of  People  ex 
rel.  McGrath  v.  Dooling,  141  App.  Div.  29,  127  N.  Y.  Supp.  748. 

36.  Liquor  Tax  Law  propositions  may  properly  be  included  on  same  ballot  with 
constitutional  amendments.  Matter  of  Arnold,  32  Misc.  439,  66  N.  Y.  Supp.  557 ; 
but  see  Matter  of  Webster,  50  Misc.  253,  100  N.  Y.  Supp.  508,  and  opinion  of  attor- 
ney-general, 1903,  p.  300. 


276  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS, 

Election  Law,  § 340. 

square.  At  the  left  of  the  upper  square  shall  he  printed  the  word 
“ Yes,”  and  at  the  left  of  the  lower  square  shall  be  printed  the  word 
“ No.”  On  the  stub  at  the  top  of  the  ballot  shall  be  printed  the  follow- 
ing directions  to  the  voter: 

1.  To  vote  “ Yes  ” on  any  question  make  a cross  X mark  in  the 
square  opposite  the  word  “ Yes.” 

2.  To  vote  “ No,”  make  a cross  X mark  in  the  square  opposite  the 
word  “ No.” 

3.  M-ark  only  with  a pencil  having  black  lead. 

4.  Any  other  mark,  erasure  or  tear  on  the  ballot  renders  it  void. 

5.  If  you  tear,  or  deface,  or  wrongly  mark  this  ballot,  return  it  and 
obtain  another. 

The  questions  shall  be  numbered  consecutively  on  the  face  of  the  bal- 
lot, and  on  the  back  of  each  voting  section  shall  be  printed  the  number 
of  the  question  which  it  contains. 

So  far  as  possible  the  ballots  upon  town  propositions  shall  conform  to 
the  directions  herein  contained  respecting  the  ballot  on  constitutional 
amendments  and  questions  submitted. 

All  ballots  for  the  submission  of  town  propositions  for  raising  or  ap- 
propriating money  for  town  purposes,  or  for  incurring  a town  liability, 
to  be  voted  at  any  town  meeting  in  any  town,  shall  be  separate  from  all 
other  ballots  for  the  submission  of  other  propositions  or  questions  to 
the  electors  of  such  town  to  be  voted  at  the  same  town  meeting  or  elec- 
tion. Such  ballots  shall  be  indorsed  “ ballot  upon  town  appropria- 
tions.”37 [Election  Law,  § 332,  as  amended  by  L.  1913,  ch.  821;  B. 
C.  & G.  Cons.  L.,  p.  1514.] 

Number  of  official  ballots. — The  number  of  official  ballots  of  each 
kind  to  be  provided  for  each  polling  place  for  each  election  to  be  held 
thereat,  except  a village  election  held  at  a different  time  from  a general 


37.  Additional  matter  improperly  placed  upon  a ballot  for  the  submission  of 
a proposition,  does  not  necessarily  render  the  ballot  void.  People  ex  rel.  Wil- 
liams v.  Board  of  Canvassers,  105  App.  Div.  197,  94  N.  Y.  Supp.  996. 

A proposition  to  change  the  site  of  a county  building  is  not  a town  proposition, 
within  the  meaning  of  this  section,  but  is  a county  proposition  and  must  be  sub- 
mitted to  the  voters  upon  the  same  ballot  with  the  constitutional  amendments  and 
other  questions  submitted.  Opinion  of  Atty.  General  (1916),  9 State  Dept.  Reports,. 
427. 


TOWN  MEETINGS. 


277 


Election  Law,  § 341. 

election,  shall  be  one  and  one-half  times  as  many  ballots  as  near  as  may 
be  as  there  were  names  of  voters  on  the  register  of  voters  of  such  district 
for  such  election  at  the  close  of  the  final  regular  meeting  for  such  regis- 
tration. In  cities  of  the  first  class  the  officer  or  board  charged  with  the 
duty  of  furnishing  official  ballots  shall  furnish  one  and  one-fourth  times 
as  many  official  ballots,  of  each  kind  to  be  provided  for  such  election  as 
there  are  voters  entitled  to  vote  thereat,  as  nearly  as  can  be  estimated  by 
such  officer  or  board.  The  number  of  official  ballots  of  each  kind  to  be 
provided  for  each  polling  place  for  a town  meeting  held  at  any  time  or 
a village  or  city  election  held  at  a different  time  from  a general  election, 
shall  be  one  and  one-fourth  times  the  number  of  persons  who  will  be  en- 
titled to  vote  thereat,  as  nearly  as  can  be  estimated  by  the  officer  charged 
with  the  duty  of  providing  such  ballots.  [Election  Law,  § 340,  as 
amended  by  L.  1913,  ch.  820 ; B.  C.  & G.  Cons.  L.,  p.  1522.] 

Officers  providing  ballots  and  stationery.  — The  county  clerk,  in  each 
of  the  counties  of  Oneida  and  Broome,  the  commissioner  of  elections  in 
any  county  having  one  commissioner  of  elections,  the  board  of  elections 
in  every  other  county  except  a county  within  the  city  of  New  York,  and 
in  any  such  county  the  board  of  elections  of  such  city,  shall  provide  the 
requisite  number  of  official  and  sample  ballots,  cards  of  instruction,  two 
poll  books,  distance  markers,  two  tally  sheets  of  each  kind,  three  return 
blanks  of  each  kind,  pens,  penholders,  red  and  black  ink,  pencils  having 
black  lead,  blotting  paper,  sealing  wax  and  such  other  articles  of  station- 
ery as  may  be  necessary  for  the  proper  conduct  of  the  election  and  the 
canvass  of  the  votes,  for  each  election  district  in  the  county,  for  each 
election  to  be  held  thereat,  except  that  when  town  meetings,  city  or 
village  elections  and  elections  for  school  officers  are  not  held  at  the  same 
time  as  a general  election,  the  clerk  of  such  town,  city  or  village,  re- 
spectively, shall  provide  such  official  and  sample  ballots  and  stationery 
for  such  election  or  town  meeting.38  If  the  town  meeting  is  held  on  general 
election  day  ballots  and  sample  ballots  for  town  propositions  and  official 
and  sample  general  ballots  on  which  town  officers  only  are  to  be  voted  for 
shall  be  provided  by  the  town  clerk  in  like  manner  and  in  the  same  form 
as  at  a town  meeting  held  at  any  other  time,  and  such  town  clerk  shall 
also  furnish  blanks  for  making  returns  on  town  propositions  or  questions 
and  for  making  returns  of  votes  cast  for  candidates  for  town  offices  at  such 
an  election,  and  the  expense  of  furnishing  such  ballots,  sample  ballots  and 
return  blanks  shall  be  a town  charge.  And  the  board  of  elections  of  the 
city  of  New  York  shall  provide  such  articles  for  each  election  to  be  held  in 
said  city.  [Election  Law,  § 341,  as  amended  by  L.  1911,  ch.  649,  L.  1913, 
ch.  821,  and  L.  1916,  ch.  454;  B.  C.  & G.  Cons.  L.,  p.  1522.] 

38.  The  exception  as  to  furnishing  ballots  at  town  meetings  other  than  those  held 
at  the  time  of  a general  election,  has  no  application  to  a town  meeting  held  at  the 
same  time  as  a general  election,  and  ballots  furnished  for  a local  option  election 
thereat  are  valid.  Matter  of  Town  of  Bath,  (1916)  93  Misc.  575,  157  N.  Y.  Supp. 
205. 


278  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Election  Law,  §§  342,  393,  394. 

Public  inspection  ballots. — Each  officer  or  board  charged  with  the  duty 
of  providing  official  ballots  for  any  polling  place,  shall  have  sample  ballots 
and  official  ballots  provided,  and  in  the  possession  of  such  officer  or  board, 
and  open  to  public  inspection  as  follows:  The  sample  ballots  five  days 

before  the  election,  and  the  official  ballots  four  days  before  the  election 
for  which  they  are  prepared,  unless  prepared  for  a village  election  or  town 
meeting  held  at  a different  time  from  a general  election,  in  which  case  the 
official  ballot  shall  be  so  printed  and  in  possession  at  least  one  day,  and  the 
sample  ballots  at  least  two  days,  before  such  election  or  town  meeting. 
During  the  times  within  which  the  same  are  open  for  inspection  as  afore- 
said, it  shall  be  the  duty  of  the  officer  or  board  charged  by  law  with  the 
duty  of  preparing  the  same,  to  deliver  a sample  ballot  of  the  kind  to  be 
voted  in  his  district  to  each  qualified  elector  who  shall  apply  therefor,  so 
that  each  elector  who  may  desire  the  same  may  obtain  a sample  ballot 
similar,  except  as  regards  color  and  the  number  on  the  stub,  to  the  official 
ballot  to  be  voted  at  the  polling  place  at  which  he  is  entitled  to  vote. 
[Election  Law,  § 342;  B.  C.  & G.  Cons.  L.,  p.  1524.] 

§ 27.  THE  USE  AND  PURCHASE  OF  VOTING  MACHINES. 

Adoption  of  voting  machine. — The  board  of  elections  of  the  city  of 
New  York,  the  common  council  of  any  other  city,  the  town  board  of  any 
town,  or  the  board  of  trustees  of  any  village  may  adopt  for  use  at  elections 
any  kind  of  voting  machine  approved  by  the  state  board  of  voting  machine 
commissioners,  or  the  use  of  which  has  been  specifically  authorized  by  law ; 
and  thereupon  such  voting  machine  may  be  used  at  any  or  all  elections 
held  in  such  city,  town  or  village,  or  in  any  part  thereof,  for  voting,  regis- 
tering and  counting  votes  cast  at  such  elections.  Voting  machines  of  dif- 
ferent kinds  may  be  adopted  for  different  districts  in  the  same  city,  town 
or  village.  [Election  Law,  § 393 ; B.  C.  & G.  Cons.  L.,  p.  1556.] 

Experimental  use  of  voting  machines. — The  authorities  of  a city,  town 
or  village  authorized  by  the  last  section  to  adopt  a voting  machine  may 
provide  for  the  experimental  use,  at  an  election  in  one  or  more  districts, 
of  a machine  which  it  might  lawfully  adopt,  without  a formal  adoption 
thereof;  and  its  use  at  such  elections  shall  be  as  valid  for  all  purposes  as 
if  it  had  been  lawfully  adopted.  [Election  Law,  § 394 ; B.  C.  & G.  Cons. 
L.,  p.  1556.] 

Providing  machines. — The  local  authorities  adopting  a voting  machine 
shall,  as  soon  as  practicable  thereafter,  provide  for  each  polling  place  one 
or  more  voting  machines  in  complete  working  order,  and  shall  thereafter 
preserve  and  keep  them  in  repair,  and  shall  have  the  custody  thereof  and 


TOWN  MEETINGS. 


279 


Election  Law,  §§  396,  419. 

■of  the  furniture  and  equipment  of  the  polling  place  when  not  in  use 
at  an  election.  If  it  shall  be  impracticable  to  supply  each  and  every 
election  district  with  a voting  machine  or  voting  machines  at  any  election 
following  such  adoption,  as  many  may  be  supplied  as  it  is  practicable  to 
procure,  and  the  same  may  be  used  in  such  election  district  or  districts 
within  the  city,  town  or  village  as  the  officers  adopting  the  same  may 
direct.  [Election  Law,  § 395;  B.  C.  & G.  Cons.  L.,  p.  1556.] 

Payment  for  machines. — The  local  authorities,  on  the  adoption  and 
purchase  of  a voting  machine,  may  provide  for  the  payment  therefor  in 
such  manner  as  they  may  deem  for  the  best  interest  of  the  locality  and 
may  for  that  purpose  issue  bonds,  certificates  of  indebtedness  or  other 
obligations  which  shall  be  a charge  on  the  city,  town  or  village.  Such 
bonds,  certificates  or  other  obligations  may  be  issued  with  or  without  in- 
terest, payable  at  such  time  or  times  as  the  authorities  may  determine, 
but  shall  not  be  issued  or  sold  at  less  than  par.  [Election  Law,  § 396 ; 
B.  C.  & G.  Cons.  L.,  p.  1556.] 

Number  of  voters  in  election  districts. — For  any  election  in  any  city,  town  or 
village  in  which  voting  machines  are  to  be  used,  the  election  districts  in  which  such 
machines  are  to  be  used  may  be  created  by  the  officers  charged  with  the  duty  of 
creating  election  districts,  so  as  to  contain  as  near  as  may  be  in  districts  in  which 
one  such  machine  is  used,  six  hundred  voters  each,  and  in  districts  in  which  two  or 
more  such  machines  are  used,  nine  hundred  voters  each.  Such  redistricting  or  redi- 
vision may  be  made  at  any  time  after  any  November  election  and  on  or  before 
August  fifteenth  following,  to  take  effect  on  the  sixth  Wednesday  before  the  next 
general  election.  Where  such  redistricting  or  redivision  shall  be  made  in  any  town, 
the  board  making  the  same  shall,  on  or  before  September  first  following,  appoint 
from  the  inspectors  of  election  then  in  office  (if  sufficient  therefor  are  then  in  office, 
and,  if  not,  from  persons  not  in  office,  sufficient  to  make  up  the  requisite  number), 
to  take  effect  on  or  before  the  first  day  of  registration  thereafter  and  not  earlier 
than  the  sixth  Wednesday  preceding  the  next  general  election,  four  inspectors  of 
election  for  each  election  district  thus  created,  who  shall  be  equally  divided  between 
the  two  parties  entitled  to  representation  on  said  boards  of  inspectors.  Thereafter 
no  redivision  of  such  election  districts  shall  be  made  for  elections  by  such 
machines  until  at  some  general  election  the  number  of  votes  cast  in  one  or  more  of 
such  districts  in  which  such  machine  is  used  shall  exceed  six  hundred  and  fifty,  or  in 
which  two  or  more  such  machines  are  used  shall  exceed  one  thousand.  But  the  town 
board  of  a town  in  which  such  machines  are  used  may  alter  the  boundaries  of  the 
election  districts  at  any  time  after  a general  election  and  on  or  before  August  fif- 
teenth following,  to  take  effect  on  the  sixth  Wednesday  before  the  next  general 
election,  provided  that  the  number  of  such  election  districts  in  such  town  shall  not 
be  increased  or  reduced,  and  the  number  of  votes  to  be  cast  in  any  district  whose 
boundaries  are  so  altered  shall  not  exceed  six  hundred  and  fifty  in  a district  in  which 
one  machine  is  used,  or  one  thousand  in  a district  in  which  two  or  more  machines 
are  used. 

If  the  creation,  division  or  alteration  of  an  election  district  is  rendered  necessary 
by  the  creation,  division  or  alteration  of  a town,  ward  or  city  or  rendered  necessary 
or  occasioned  by  the  division  of  a county  into  assembly  districts  after  a reappor- 
tionment by  the  legislature  of  members  of  assembly,  such  creation,  division  or 
alteration  of  an  election  district  shall  be  made  and  shall  take  effect  immediately; 
and  inspectors  of  election  for  the  new  election  districts,  as  so  created,  divided  or 
altered,  shall  be  appointed,  in  the  manner  provided  by  law,  a reasonable  time 
before  the  next  official  primary  or  meeting  for  registration  and  such  appointments 
shall  take  effect  immediately.  [Election  Law,  § 419,  amended  by  L.  1911,  ch.  542, 
L.  1914,  ch.  244,  L.  1916,  ch.  537,  and  L.  1918,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  1568.] 


280 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Explanatory  note. 


CHAPTER  XX. 

TOWN  OFFICERS;  ELECTION  AND  TERMS. 

EXPLANATORY  NOTE. 

Election  of  Town  Officers. 

Town  officers  consist  of  supervisor,  town  clerk,  four  justices  of  the 
peace,  three  assessors,  collector,  one  or  two  overseers  of  the  poor,  not 
more  than  five  constables,  and  one  superintendent  of  highways.  Other 
town  officers  exist  in  some  towns,  as  where  town  auditors  are  elected  or 
provision  is  made  for  the  election  of  pound  keepers.  Elective  town 
officers  are  to  be  elected  by  ballot  at  biennial  town  meetings.  In  case  of 
a failure  to  elect,  the  town  officer  in  office  continues  in  office  until  the 
vacancy  is  filled  by  appointment. 

The  Highway  Law,  § 41,  as  amended  by  L.  1916,  ch.  47,  provides 
for  the  adoption  of  a proposition  at  a town  meeting  to  appoint  a town 
superintendent  of  highways.  Where  such  a proposition  is  adopted,  the 
town  board  is  to  appoint  such  superintendent  for  the  term  prescribed  by 
law. 

Terms  of  Office. 

The  terms  of  town  officers,  except  justices  of  the  peace,  are  fixed  by 
law  at  two  years.  Justices  of  the  peace  are  required  by  the  constitution 
to  be  elected  for  terms  of  four  years.  If  town  meetings  are  held  at 
times  other  than  general  election  day  they  take  office  immediately  upon 
taking  the  required  oath.  If  such  meetings  are  held  on  general  election 
day,  the  terms  of  town  officers  begin  on  the  first  day  of  January  follow- 
ing their  election.  If  a town  superintendent  of  highways  is  elected 
at  a town  meeting  held  on  election  day,  Lis  term  begins  on  the  Thursday 
succeeding  his  election ; if  elected  at  a town  meeting  held  at  any  other 
time,  his  term  begins  on  November  first,  following  his  election. 


TOWN  OFFICERS;  ELECTION  AND  TERMS. 


281 


Town  Law,  § 80. 

Section  1.  Election  of  town  officers. 

2.  Power  of  town  meeting  to  fill  vacancy  in  office  of  justice  of  the  peace. 

3.  Term  of  office  of  town  officers;  when  town  meetings  are  held  at 

time  of  general  election,  term  to  begin  on  January  1,  following; 
collector  to  complete  duties  of  office. 

4.  Terms  of  supervisors  in  certain  counties. 

5.  Holding  over  after  expiration  of  term. 

6.  Number  and  terms  of  justices  of  the  peace. 

7.  Justices  of  the  peace;  ballots  for  full  term  and  vacancies;  officers 

in  new  towns. 

8.  Justices  in  new  towns;  upon  erection  of  new  town,  or  annexation, 

justices  of  the  peace,  how  to  hold  office. 

8-a.  Reduction  of  number  of  justices  in  towns  of  Monroe  county  to  one; 
election  and  powers  of  town  trustees. 

9.  Certificates  of  election  of  justice  of  the  peace. 

10.  Town  superintendents  of  highways,  election  and  term  of  office;  vacan- 

cies; office  of  highway  commissioner  abolished;  deputies. 

11.  Overseers  of  poor;  determination  of  number;  resolution  to  be  voted  for; 

appointment  of  overseer  by  town  board. 

12.  Special  constables;  appointment  and  powers. 

13.  Election  officers;  their  designation,  number  and  qualifications. 

14.  Election  officers  in  towns  at  general  elections;  poll  clerks  and  ballot 

clerks. 

15.  Erection  or  discontinuance  of  pounds;  election  of  poundmasters. 

§ 1.  ELECTION  OF  TOWN  OFFICERS. 

Except  as  otherwise  provided  in  this  section,  there  shall  be  elected  at  the 
biennial  town  meeting  in  each  town,  by  ballot,  one  supervisor,  one  town 
clerk,  two  justices  of  the  peace,  two  assessors,  one  collector,  one  or  two  over- 
seers of  the  poor,  not  more  than  five  constables  and  one  superintendent 


Election  of  town  officers.  This  section  applies  to  town  and  not  to  city  super- 
visors. People  ex  rel.  Clancy  v.  Supervisors,  139  N.  Y.  524;  34  N.  E.  1106. 

Town  clerks  can  only  be  elected  at  town  meetings.  Matter  of  Foley,  8 Misc.  196; 
28  N.  Y.  Supp.  611. 

Additional  supervisors  in  certain  counties,  see  §§  450-456,  Town  Law,  as  added  by 
L.  1918,  ch.  289. 

Election  of  justices  of  the  peace.  The  constitution  provides  that  electors 
of  the  several  towns  shall,  at  their  annual  town  meetings,  or  at  such  other  time 
and  in  such  manner  as  the  legislature  may  direct,  elect  justices  of  the  peace,  whose 
term  of  office  shall  be  four  years.  ConstiUition,  art.  6,  sec.  17.  The  designation  con- 
tained in  such  constitutional  provision  of  the  “ annual  town  meeting  ” as  the  time 
when  justices  of  the  peace  are  to  be  elected,  is  equivalent  to  a prohibition  against 
electing  them  at  any  other  time,  and  while  the  legislature  may  fix  the  day  upon 
which  town  meetings  may  be  held,  it  cannot  prohibit  the  election  of  justices  of  the 
peace  at  such  meeting,  or  provide  for  their  election  at  any  other  time  or  place.  Peo- 
ple ex  rel.  Smith  v.  Schiellein,  95  N.  Y.  124.  See,  also,  Ex  parte  Quackenbush,  2 
Hill,  369;  People  v.  Keeler,  17  N.  Y.  370. 

Where  a vacancy  exists  in  the  office  of  justice  of  the  peace  for  a term  which 
would  have  expired  December  31,  1913,  and  in  August,  1912,  such  vacancy  was 
filled,  the  town  being  one  in  which  its  biennial  town  meetings  are  held  in  the  spring, 
the  person  appointed  to  fill  the  vacancy  holds  his  office  until  the  biennial  town 
meeting  in  1913,  at  which  time  the  vacancy  is  filled  by  election  for  the  balance  of 
the  unexpired  term.  Opinion  of  Atty.  Genl.,  Mch.  11,  1913. 

Election  of  constables.  Under  section  43  of  the  Town  Law,  post,  a town 
meeting  may  determine  the  number  of  constables  — a number  not  exceeding 
five.  Where  a town  meeting  fixes  the  number  of  constables  at  three,  but 


282 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  44,  82. 

of  highways,  excepting  that  in  towns  which  shall  have  adopted  a resolution 
that  thereafter  such  town  superintendent  shall  be  appointed  by  the  town 
board,  pursuant  to  the  provisions  of  section  forty-one  of  the  highway  law, 
he  shall  be  appointed  as  therein  prescribed.  Provided,  however,  that  in 
towns  in  a county  containing  two  hundred  thousand  or  less  inhabitants, 
according  to  the  last  federal  census  or  state  enumeration,  adjoining  a city 
of  the  first  class  containing  a population  of  over  one  million,  the  town 
superintendent  of  highways  hereafter  elected  or  appointed  shall  hold  office 
for  the  term  of  four  years ; and  provided  further  that  in  a town  of  any  such 
county  not  more  than  four  constables  shall  be  hereafter  elected  at  the 
biennial  town  meeting.  At  the  first  biennial  town  meeting  in  each  town, 
after  this  section  as  hereby  amended  takes  effect,  two  assessors  shall  be 
elected  to  hold  office  for  two  years  and  one  assessor  to  hold  office  for  four 
years.  Of  the  two  assessors  chosen  at  any  subsequent  biennial  town  meeting 
in  each  town,  one  shall  be  elected  to  hold  office  for  two  years  and  one  to  hold 
office  for  four  years.  [Town  Law,  § 80,  as  amended  by  L.  1909,  ch.  491,  L. 
1910,  ch.  271,  L.  1916,  ch.  346,  and  L.  1917,  ch.  44;  B.  C.  & G.  Cons.  L., 
p.  6157.] 

« 

§ 2.  POWER  OF  TOWN  MEETING  TO  FILL  VACANCY  IN  OFFICE  OF 
JUSTICE  OF  THE  PEACE. 

If  there  shall  be  any  vacancies  in  the  office  of  justice  of  the  peace  of 
any  town  at  the  time  of  holding  its  biennial  town  meeting,  persons  shall 
then  also  be  chosen  to  fill  such  vacancies,  who  shall  hold  their  offices  for 
the  residue  of  the  unexpired  term  for  which  they  are  respectively 
elected.* 2  [Town  Law,  § 44;  B.  C.  & G.  Cons.  L.,  p.  6144.] 

§ 3.  TERM  OF  OFFICE  OF  TOWN  OFFICERS;  WHEN  TOWN  MEET- 
INGS ARE  HELD  AT  TIME  OF  GENERAL  ELECTION,  TERM 
TO  BEGIN  ON  JANUARY  1 FOLLOWING;  COLLECTOR  TO 
COMPLETE  DUTIES  OF  OFFICE. 

Supervisors,  town  clerks,  town  superintendents  of  highways,  collectors, 
overseers  of  the  poor,  inspectors  of  election  and  constables,  when  elected, 
shall  hold  their  respective  offices  for  two  years.  The  terms  of  office  of 


only  elects  two,  the  two  elected  oust  all  those  in  office  at  the  time  of  such 
election.  People  ex  rel.  Platner  v.  Jones,  17  Wend.  81;  People  v.  Loomis,  8 
Wend.  396;  People  v.  Adams,  9 Wend.  333. 

Effect  of  tie  vote.  When  an  election  for  a town  officer  results  in  a tie,  the 
person  then  holding  office  holds  over  until  his  successor  shall  be  elected.  Rept. 
of  Atty.  Genl.  (1895)  93;  Rept.  of  Atty.  Genl.  (1897)  340. 

2.  Election  to  fill  vacancies.  Since  the  amendment  of  the  former  Town  Law 
by  ch.  481  of  the  L.  of  1897,  providing  for  biennial  in  place  of  annual  town 
meetings,  which  also  made  the  terms  of  office  of  all  town  officers,  except 
justices  of  the  peace,  two  years,  the  only  town  office  in  which  a vacancy  can 
be  filled  by  election  at  a town  meeting  is  that  of  justice  of  the  peace.  If 
the  office  of  justice  of  the  peace  is  vacant  at  the  time  of  holding  town  meet- 
ings, it  may  be  filled  by  the  electors  voting  at  such  town  meeting,  and  the 
person  elected  shall  hold  his  office  for  the  residue  of  the  unexpired  term. 
Upon  the  election  and  qualification  of  such  a justice  to  fill  a vacancy,  the 
term  of  office  of  the  person  appointed  to  fill  such  vacancy  expires.  People 
ex  rel.  Lovett  v.  Randall,  151  N.  Y.  497;  45  N.  E.  841. 


TOWN  OFFICERS;  ELECTION  AND  TERMS. 


283 


Town  Law,  § 82. 

assessors  shall  be  two  }^ears  for  one  assessor  and  four  years  each  for  two 
assessors.3  But  whenever  there  is  or  shall  be  a change  in  the  time  of  hold- 
ing town  meetings  in  any  town,  persons  elected  to  such  offices  at  the  next 
biennial  town  meeting  after  such  change  has  been  authorized  as  provided 
by  law,  shall  enter  upon  the  discharge  of  their  duties  at  the  expiration  of 
the  term  of  their  predecessors  and  serve  until  the  next  biennial  town  meet- 
ing thereafter  or  until  their  successors  are  elected  and  have  qualified,  except 
that  the  assessor  elected  for  four  years  shall  serve  until  the  second  biennial 
town  meeting  thereafter,  or  until  his  successor  is  elected  and  has  qualified. 
Whenever  the  time  of  holding  town  meetings  in  any  town  is  changed  to  the 
first  Tuesday  after  the  first  Monday  in  November,  except  when  changed  as 
provided  in  section  forty-one  of  this  chapter,4  the  town  officer  selected  thereat 
shall  take  office  on  the  first  day  of  January  succeeding  their  election.  Ex- 
cept that  the  collector  elected  at  such  town  meeting  shall  take  office  imme- 
diately upon  his  election  and  qualification  as  prescribed  by  law.  Except  as 
otherwise  provided  in  this  section,  in  case  the  time  of  the  holding  of 
town  meetings  in  any  county  is  changed  by  resolution  of  the  board  of 
supervisors  of  the  county  to  the  first  Tuesday  after  the  first  Monday 

3.  Extension  of  term.  It  is  a general  rule  that  the  term  of  office  of  a town 

officer  cannot  be  extended  by  an  act  of  the  legislature.  In  the  case  of  People  ex  rel. 

Le  Roy  v.  Foley,  148  N.  Y.  679,  682;  43  N.  E.  171,  the  court  said:  “ The  legislature 

cannot  extend  the  term  of  a town  officer  after  his  election,  since  that  would  virtually 
be  an  appointment  to  the  office  during  the  period  of  extension.  The  legislature  can- 
not appoint  town  officers.  They  must  either  be  elected  by  the  people  of  the  town  or 
appointed  by  such  town  authorities  as  the  legislature  may  designate  for  that  pur- 
pose. Constitution,  art.  10,  sec.  2.  The  power  of  appointment  in  such  cases  can- 
not be  directly  exercised  by  the  legislature  nor  indirectly  by  extending  the  term 

of  a town  officer  after  his  election.  It  can,  of  course,  enlarge  the  official  term  of 
town  officers,  but  such  action  can  operate  only  upon  officers  thereafter  elected.  Where 
the  office  is  to  be  filled  by  one  authority  and  the  duration  of  the  term  is  to  be  de- 
termined by  another,  the  declaration  of  such  duration  must  go  before  the  filling, 
so  that  each  authority  may  have  its  legitimate  exercise.”  See,  also,  People  ex  rel. 
Williamson  v.  McKinney,  52  N.  Y.  374;  People  ex  rel.  Lord  v.  Crooks,  53  N.  Y.  648. 
When  the  duration  of  the  term  of  office  is  once  declared  by  law  the  legislature  can- 
not extend  such  term  so  as  to  affect  the  term  of  the  incumbent  at  the  time  of  the 
passage  of  the  act.  People  ex  rel.  Fowler  v.  Bull,  46  N.  Y.  57.  See  also,  People 
ex  rel.  Lovett  v.  Randall,  151  N.  Y.  497;  45  N.  E.  841. 

A board  of  supervisors  has  no  authority  to  #o  change  the  time  of  town  meetings 
as  to  extend  the  terms  of  the  supervisors  in  office  at  the  time  of  the  adoption  of 
the  resolution.  Rept.  of  Atty.  Genl.,  Feb.  15,  1912.  But  see  People  ex  rel.  Fluckiger 
v.  Huftalen,  158  App.  Div.  44,  and  People  ex  rel.  Perkins  v.  Pelcher,  81  Misc.  423, 
in  which  case  it  was  in  effect  held  that  town  officers  in  office  at  the  time  the  election 
would  have  been  held  if  the  time  had  not  been  changed  continue  in  office  until  the 
vac3ncirs  caused  by  expiration  of  term  are  filled  either  by  appointment  or  election. 

Election  and  qualification  of  successor.  Supervisor  to  serve  until  successor 
is  elected  and  has  filed  the  constitutional  oath.  Matter  of  Bradley,  49  N.  Y.  St.  Rep, 
531',  21  N.  Y.  Supp.  167. 


26-i  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  §§  82,  102. 

in  November,  all  town  officers  in  any  town  of  such  county  elected  at  the 
first  biennial  town  meeting  held  after  the  adoption  of  such  resolution 
shall  hold  office  until  the  first  day  of  January  succeeding  the  biennial 
town  meeting  first  held  pursuant  to  such  resolution.  No  resolution 
changing  the  time  of  holding  town  meetings  to  the  first  Tuesday  after 
the  first  Monday  in  November  shall  be  effectual  to  dispense  with  the 
holding  of  the  first  biennial  town  meeting  after  the  adoption  of  such 
resolution  at  the  time  fixed  when  such  resolution  was  adopted.  But  the 
collector  in  each  town  shall  complete  the  duties  of  his  office  in  respect 
to  the  collection  of  taxes,  and  the  payment  and  return  thereof,  upon  any 
warrant  received  by  him  during  his  term  of  office,  notwithstanding  the 
fact  that  his  successor  has  entered  upon  the  duties  of  his  office.  [Town 
Law,  § 82,  as  amended  by  L.  1909,  c-h.  491,  L.  1910,  ch.  271,  L.  1913,  ch. 
231.  and  bv  L.  1918,  ch.  372;  B.  C.  & G.  Cons.  L.,  p.  6159.] 


§ 4.  TERMS  OF  SUPERVISORS  IN  CERTAIN  COUNTIES. 

In  each  of  the  counties  of  this  state  containing  over  three  hundred  thou- 
sand inhabitants  and  less  than  six  hundred  thousand  inhabitants  as  now 
appears  or  as  may  hereafter  appear  by  the  latest  federal  or  state  enumera- 
tion of  inhabitants,  and  within  which  is,  or  may  be,  a city  divided  into 
wards  from  which  supervisors  are  elected  for  a longer  term  than  one  year, 
the  term  of  office  of  supervisors  of  the  respective  towns  shall  be  as  long  as 
the  term  of  office  of  the  city  supervisors.  The  terms  of  office  of  all  such 
supervisors  shall  begin  on  the  first  day  of  January  next  succeeding  their 
election.4 5  [Town  Law,  § 102 ; B.  C.  & G.  Cons.  L.,  p.  6170.] 


§ 5.  HOLDING  OVER  AFTER  EXPIRATION  OF  TERM. 

Every  officer  except  a judicial  officer,  a notary  public,  a commissioner 
of  deeds  and  an  officer  whose  term  is  fixed  by  the  constitution,  having  duly 
entered  on  the  duties  of  his  office,  shall,  unless  the  office  shall  terminate  or 
be  abolished,  hold  over  and  continue  to  discharge  the  duties  of  his  office, 
after  the  expiration  of  the  term  for  which  he  shall  have  been  chosen,  until 
his  successor  shall  be  chosen  and  qualified ; but  after  the  expiration  of  such 
term,  the  office  shall  be  deemed  vacant  for  the  purpose  of  choosing  his 
successor.  An  officer  so  holding  over  for  one  or  more  entire  terms,  shall, 
for  the  purpose  of  choosing  his  successor,  be  regarded  as  having  been  newly 


4.  Section  41  of  the  Town  Law  {ante,  p.  246),  referred  to  in  the  above 
section  authorizes  a town  to  adopt  a proposition  at  a regular  town  meeting 
changing  the  date  of  its  town  meeting  to  the  first  Tuesday  after  the  first 
Monday  in  November,  known  as  general  election  day.  If  such  a proposition 
is  so  adopted,  the  term  of  office  of  all  officers,  except  justices  of  the  peace, 
is  two  years  from  the  date  of  their  election. 

5.  This  section  was  derived  from  L.  1893,  ch.  130,  § 1,  as  amended  by  L.  1895, 
ch.  266,  and  only  applies  to  Erie  Co. 


TOWN  OFFICERS;  ELECTION  AND  TERMS. 


$85 


Public  Officers  Law,  § 5. 

chosen  for  such  terms.  An  appointment  for  a term  shortened  by  reason 
of  a predecessor  holding  over,  shall  be  for  the  residue  of  the  term  only.6 
[Public  Officers  Law,  § 5;  B.  C.  & G.  Cons.  L.,  p.  4621.] 


6.  Application  of  section.  Unless  expressly  authorized  by  statute  an  officer 
is  not  permitted  to  hold  over  after  the  expiration  of  his  term.  People  v. 
Tiernan,  30  Barb.  193;  8 Abb.  359.  In  the  case  of  People  ex  rel.  Woods  v. 
Crissell,  91  N.  Y.  616,  it  appeared  that  at  a general  election  two  persons  were 
candidates  for  office  of  alderman.  Two  of  the  four  inspectors  signed  a state- 
ment certifying  that  one  of  them  had  received  a majority  of  the  votes  cast. 
The  other  two  inspectors  refused  to  sign  the  statement.  It  was  held  that  until 
the  rights  of  the  parties  were  decided  in  the  courts  and  the  result  settled  the 
election  was  to  be  treated  as  a failure  so  far  as  either  of  such  candidates  were 
concerned,  and  neither  could  claim  any  benefit  therefrom;  and  that  since,  at 
such  election,  no  successor  was  elected  to  the  alderman  in  office,  that  he  held 
over  until  the  official  determination  of  the  result  of  the  election  and  until  his 
successor  duly  qualified.  In  the  case  of  People  ex  rel.  Kehoe  v.  Fitchie,  76 
Hun,  80;  28  N.  Y.  Supp.  600,  it  was  held  that  the  failure  to  elect  a successor  of 
an  officer  does  not  render  the  office  vacant,  and  when  a supervisor  of  a city  ward 
is  elected  he  continues  to  hold  office  until  his  successor  is  elected  either  at  a 
general  or  at  a special  election  ordered  as  provided  by  law.  In  the  case  of 
People  ex  rel.  Williamson  v.  McKinney,  52  N.  Y.  374,  it  was  held  that  until  a 
town  collector  shall  take  and  subscribe  an  oath  of  office  he  is  not  qualified 
within  the  meaning  of  this  section,  and  the  incumbent  of  the  office  is  entitled 
to  hold  over.  See,  also,  Montgomery  v.  O’Dell,  67  Hun,  169,  178;  22  N.  Y.  Supp. 
412.  The  term  “ qualified,”  as  used  in  this  section  and  in  section  82  of  the  Town 
Law,  means  to  take  an  oath  of  office  and  to  file  an  official  undertaking  as 
required  by  law.  People  ex  rel.  Williamson  v.  McKinney,  52  N.  Y.  374,  380. 

Where  a town  officer  is  lawfully  holding  over  after  the  expiration  of  his 
term  the  office  is  to  be  deemed  vacant  for  the  purpose  of  electing  a successor, 
from  and  after  the  expiration  of  the  term  for  which  the  incumbent  was  chosen, 
although  the  term  of  the  office,  as  distinguished  from  the  term  for  which  he 
was  chosen,  may  have  been  in  the  meantime  enlarged.  People  ex  rel.  Lovett 
v.  Randall,  151  N.  Y.  497;  45  N.  E.  841.  The  town  officer  holding  over  after 
the  expiration  of  his  term  is  a de  facto  officer.  People  v.  Cooper,  57  How. 
Pr.  416;  People  ex  rel.  Rumph  v.  Supervisors,  89  Hun,  38,  41;  34  N.  Y.  Supp.  1, 
128. 

Officer  holding  over  is  entitled  to  salary.  DeLacey  v.  City  of  Brooklyn,  12  N. 
Y.  Supp.  540,  36  N.  Y.  St.  Rep.  95. 

Where  an  election  held  to  fill  the  office  of  trustee  in  a village,  whose  term 
expired  on  the  day  of  the  election,  results  in  a tie  vote,  the  trustee  whose  term 
has  expired  will  hold  over  by  virtue  of  the  above  section  until  his  successor  is 
duly  elected,  as  provided  by  the  village  charter,  at  a special  election  held  therefor. 
Matter  of  Travis,  87  App.  Div.  554,  84  N.  Y.  Supp.  534. 

Justices  of  the  peace  are  not  within  the  provisions  of  this  section.  Rept.  of 
Atty.  Genl.  (1903)  298. 

A supervisor  holding  over  cannot  vote  as  a member  of  the  town  hoard  to  fill  a 
vaeancv  in  the  office.  Matter  of  Smith,  116  App.  Div.  665,  101  N.  Y.  Supp.  992 
afFd.  188  N.  Y.  549. 

A town  assessor  holds  over  until  his  successor  is  elected.  Rept.  of  Atty.  Genl.. 
May  25,  1911. 


286  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 103. 

§ 6.  NUMBER  AND  TERMS  OF  JUSTICES  OF  THE  PEACE. 

There  shall  be  four  justices  of  the  peace  in  each  town,  divided  into  two 
classes,  two  of  whom  shall  be  elected  biennially.  Such  justices  shall  hold 
office  for  a term  of  four  years  commencing  on  the  first  day  of  January 
succeeding  their  election.  In  each  county  in  the  state  having  within  its 
boundaries  a city  having  a population  of  not  less  than  three  hundred  thou- 
sand and  not  more  than  four  hundred  thousand,  according  to  the  last  federal 
enumeration,  the  justices  of  the  peace  heretofore  elected  shall  hold  their 
offices  for  the  terms  for  which  they  were  respectively  elected,  but,  except 
as  hereinafter  provided,  no  successors  to  them  shall  be  elected.  In  each  of 
said  counties  there  shall  be  elected  at  the  biennial  town  meeting  in  nine- 
teen hundred  and  three,  two  justices  of  the  peace  whose  terms  of  office  shall 
begin  on  the  first  day  of  January  succeeding  their  election,  and  who  shall 
hold  office  for  the  term  of  four  years.  At  the  biennial  town  meeting  in 
each  of  said  counties  held  in  nineteen  hundred  and  five,  there  shall  be 
elected  two  justices  of  the  peace  whose  terms  of  office  shall  begin  January 
first,  succeeding  their  election,  and  who  shall  hold  office  for  four  years. 
At  each  biennial  town  meeting  thereafter,  there  shall  be  elected  two  justices 
of  the  peace  for  the  full  terms  of  four  years,  commencing  on  the  first  day  of 
January  succeeding  the  town  meeting.* * * * * * 7  [Town  Law,  § 103;  B.  C.  & G. 
Cons.  L.,  p.  6170.] 

Inspectors  of  election  hold  over  the  same  as  other  town  officers.  Rept.  of 
Atty.  Genl.  (1903)  357. 

Expiration  of  term.  Notwithstanding  the  determination  at  an  annual  town 

meeting  that  the  number  of  constables  of  the  town  shall  be  three,  the  election 
of  only  two  ousts  the  three  elected  the  preceding  year.  People  ex  rel.  Platner  v. 
Jones,  17  Wend.  81. 

Authority  of  a deputy  clerk,  who  discharges  duties  of  county  clerk  in  con- 
sequence of  the  death  of  his  principal,  ceases  on  the  appointment  by  the  governor 
of  another  county  clerk.  People  ex  rel.  Smith  v.  Fisher,  24  Wend.  215. 

Successor  duly  qualified.  Before  a successor  can  be  duly  qualified  to  take  an 
office,  there  must  be  united  an  appointment  by  competent  authority,  and  such 
other  proceedings  as  the  law  requires.  People  v.  Woodruff,  32  N.  Y.  355,  361; 

Pell  v.  Ulmar,  21  Barb.  500;  Tappan  v.  Gray,  9 Paige,  507;  People  v.  Van  Horne, 
18  Wend.  515,  518. 

7.  Constitutional  provision  as  to  justice  of  the  peace.  The  constitution 
provides  (art.  6,  sec.  17),  as  follows:  “ The  electors  of  the  several  towns,  shall, 

at  their  annual  town  meetings,  or  at  such  other  time  and  in  such  manner  as 
the  legislature  may  direct,  elect  justices  of  the  peace,  whose  term  of  office  shall 
be  four  years.  In  case  of  the  election  to  fill  a vacancy  occurring  before  the 
expiration  of  the  full  term,  they  shall  hold  for  the  residue  of  the  unexpired 
term.  Their  number  and  classification  may  be  regulated  by  law.  Justices  of 
the  peace  and  judges  or  justices  of  inferior  courts  not  of  record,  and  their 
clerks  may  be  removed  for  cause,  after  due  notice  and  an  opportunity  of  being 
heard,  by  such  courts  as  are  or  may  be  prescribed  by  law.” 

Power  of  legislature  as  to  office  of  justice  of  the  peace.  The  office  of  justice 
of  the  peace  in  towns  is  a constitutional  office  and  cannot  be  abolished  by  the 


TOWN  OFFICERS;  ELECTION  AND  TERMS. 


287 


Town  Law,  § 56. 

§ 7.  JUSTICES  OF  THE  PEACE;  BALLOTS  FOR  FULL  TERM  AND 
VACANCIES;  OFFICERS  IN  NEW  TOWNS. 

When  the  electors  of  any  town  are  entitled  to  vote  for  a justice  of  the 
peace,  to  fill  a vacancy  caused  otherwise  than  by  expiration  of  term,  each 
elector  may  designate  upon  his  ballot  the  person  intended  for  a full  term 
and  for  a vacancy,  and  if  there  are  two  vacancies,  they  may  be  designated 
as  the  longer  and  the  shorter  vacancy;  and  if  three  vacancies,  the  longer, 
shorter  and  shortest  vacancy;  and  each  person  having  the  greatest  number 
of  votes  with  reference  to  each  designation  shall  be  deemed  duly  elected 
for  the  term  or  vacancy  designated.  If  ballots  are  voted  without  designa- 
tion, the  first  name  on  the  ballot  shall  be  deemed  as  intended  for  the  full 
term  of  the  office  voted  for,  the  second  name  for  the  longer  vacancy,  the 
third  name  for  the  shorter  vacancy  and  the  fourth  name  for  the  shortest 


legislature  either  directly  or  indirectly,  so  long  as  the  town  exists.  Not  only  is 
the  office  itself  placed  beyond  the  reach  of  hostile  legislation,  hut  also  the  term 
thereof,  the  method  of  filling  it,  and,  by  implication,  the  method  of  removing  the 
incumbent.  People  ex  rel.  Burby  v.  Howland,  155  N.  Y.  270;  49  N.  E.  775. 
In  this  case  chapter  22  of  the  Laws  of  1896,  entitled  “ An  act  to  provide  for  the 
better  administration  of  justice  in  the  town  of  Fort  Edward,  in  the  county  of 
Washington,”  was  under  consideration.  This  act  created  the  office  of  police 
justice  in  the  town  of  Fort  Edward  and  by  depriving  the  justices  of  the  peace  in 
that  town  of  fees,  and  by  providing  that  such  justices  should  not  be  compelled 
to  take  cognizance  of  criminal  proceedings  therein  it  indirectly  deprived  such 
justices  of  their  jurisdiction,  and  it  was  held  to  constitute  a pro  tanto  abolition 
of  the  office  of  justice  of  the  peace,  and  it  was  to  that  extent  unconstitutional. 
The  court,  in  effect,  decided  that  it  is  not  in  the  power  of  the  legislature  to 
enact  that  justices  of  the  peace  in  the  state  at  large  shall  have  certain  powers 
and  duties,  except  in  one  certain  town,  and  that  there  only  they  shall  not  have 
those  duties,  and  if  they  voluntarily  attempt  to  discharge  them,  they  shall  have 
no  power  to  enforce  their  judgment. 

In  the  case  of  Matter  of  Gertum,  109  N.  Y.  170;  16  N.  E.  28,  the  court  said: 
“ It  is  undoubtedly  beyond  the  power  of  the  legislature  by  direct  legislation, 
to  abolish  the  office  of  justice  of  the  peace  in  towns,  or  shorten  their  term  of 
office  so  long  as  the  town  exists,  but  they  have  an  unquestioned  right  to  alter 
and  change  the  limits  of  their  jurisdiction  or  abolish  the  town  organization 
altogether,  provided  it  be  done  in  good  faith  and  for  proper  constitutional 
objects.  The  whole  force  and  effect  of  the  provision  in  relation  to  justices 
is  satisfied  by  enforcing  it,  so  long  as  there  is  a town  organization  in  ex- 
istence authorized  under  the  constitution  to  elect  justices  of  the  peace  and 
requiring  the  performance  of  their  functions  in  the  government  of  the 
town.” 

In  the  case  of  People  ex  rel.  Clark  v.  Treacy,  46  App.  Div.  216;  61  N.  Y. 
Supp.  288,  which  arose  under  chapter  439  of  the  Laws  of  1897,  providing  for 
the  holding  of  town  meetings  in  the  towns  in  the  counties  of  Grange,  Rock- 
land and  Sullivan,  it  was  held  that  the  provisions  of  that  act  for  the  election 
of  a justice  of  the  peace  to  take  office  before  the  expiration  of  the  full  term 
of  his  predecessor  was  unconstitutional.  This  act  also  contained  a provision 
for  the  election  of  a justice  of  the  peace  at  a town  meeting  to  be  held  in  the 


288 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 105. 

vacancy.* * * * * * 7 8  The  provisions  of  this  section  shall  apply  to  new  towns  erected; 
and  officers  to  be  elected  in  such  towns,  except  for  a full  term,  shall  be 
deemed  elected  to  fill  vacancies.  [Town  Law,  § 56;  B.  C.  & G.  Cons.  L., 
p.  6149.] 

§ 8.  JUSTICES  IN  NEW  TOWNS;  UPON  ERECTION  OF  NEW  TOWNS, 
OR  ANNEXATIONS,  JUSTICES  OF  THE  PEACE,  HOW  TO  HOLD 
OFFICE. 

If  there  be  one  or  more  justices  of  the  peace  residing  in  a new  town,  when 
erected,  they  shall  be  deemed  justices  of  the  peace  thereof,  and  shall  hold 
their  offices  according  to  their  respective  classes ; and  only  so  many  shall  be 
elected  as  shall  be  necessary  to  complete  the  number  of  four  for  the  town. 
[Town  Law,  § 104;  B.  C.  & G.  Cons.  L.,  p.  6171.] 

If  by  the  election  of  a new  town  or  the  annexation  of  a part  of  one  town 
to  another,  there  shall  at  any  time  be  more  than  four  justices  of  the  peace 
residing  in  any  town,  they  shall  hold  and  exercise  their  offices  in  the  town 
in  which  they  reside,  according  to  their  classes  respectively;  but  on  the 
expiration  of  the  term  of  office  of  two  or  more  justices,  being  in  the  same 
class,  only  one  person  shall  be  elected  to  fill  the  vacancy  in  that  class. 
Whenever  by  the  erection  of  a new  town,  or  the  annexation  of  a part  of  one 
town  to  another,  any  town  shall  be  deprived  of  one  or  more  justices  of  the 
peace,  by  their  residence  being  within  the  part  set  off,  the  inhabitants  of 
such  town  shall,  at  its  next  annual  town  meeting,  supply  the  vacancy  bo 
produced  in  the  classes  to  which  such  justices  belong.  [Town  Law,  § 105; 
B.  C.  & G.  Cons.  L.,  p.  6171.] 


year  1897,  to  take  office  on  the  first  of  January,  1899,  instead  of  at  a town  meeting 

held  immediately  preceding  such  first  day  of  January,  1899.  The  court  intimated 

that  the  legislature  could  not  direct  the  election  of  a constitutional  officer  at  a date 

earlier  than  that  of  the  election  which  next  precedes  the  expiration  of  the  term  of 

the  existing  incumbent,  and  that,  therefore,  such  provision  of  the  statute  was  in- 

valid. 

7.  Removal  of  justice  of  the  peace.  Section  18,  art.  6,  of  the  constitution  provides 
that  justices  of  the  peace  may  be  removed  from  office  by  such  courts  as  may  be 
prescribed  by  law,  and  the  legislature  by  law  prescribed  the  Appellate  Division  of 
the  Supreme  Court  as  the  court  to  be  vested  with  such  power  (see  sec.  132  of  the 
Code  of  Criminal  Procedure),  and  it  is  the  only  court  that  the  legislature  has  vested 
with  such  power.  Matter  of  Prescott,  77  Hun,  518;  28  N.  Y.  Supp.  928. 

8.  Ballots  for  full  term  and  vacancies.  The  provisions  of  the  above  section 
of  the  Town  Law  relating  to  ballots  containing  the  names  of  candidates  for 


TOWN  OFFICERS;  ELECTION  AND  TERMS. 


289 


Town  Law,  § 105a. 

§ 8a.  REDUCTION  OF  NUMBER  OF  JUSTICES  IN  TOWNS  OF  MON- 
ROE COUNTY  TO  ONE;  ELECTION  AND  POWERS  OF  TOWN 
TRUSTEES. 

Registered  voters  of  a town  in  Monroe  county,  constituting  at  least  five 
per  centum  of  the  total  number  registered,  may,  by  written  application 
addressed  to  the  town  clerk,  and  filed  with  him  at  least  thirty  days  prior 
to  a biennial  town  meeting  or  general  election,  require  the  submission  in 
such  town  to  such  biennial  town  meeting  or  general  election  of  the  follow- 
ing proposition : “ Shall  the  number  of  justices  of  the  peace  in  the  town 

of (naming  the  town)  be  reduced  to  one  and  town 

trustees  elected  therein?”  Notice  of  the  submission  of  such  proposition 
shall  be  given  in  the  manner  provided  by  law  for  the  submission  of  proposi- 
tions at  biennial  town  meetings  or  general  elections,  as  the  case  may  be.  If 
a majority  of  the  votes  cast  on  such  proposition  be  in  the  affirmative,  no 
justice  of  the  peace  shall  thereafter  be  elected  in  such  town  except  as  pro- 
vided in  this  section,  but  justices  of  the  peace  of  such  town  shall  continue  in 
office  until  the  expiration  of  their  terms,  respectively.  At  the  biennial 
town  meeting  held  next  preceding  the  expiration  of  the  term  or  terms  of  a 
justice  or  justices  having  the  shortest  term  or  terms  to  serve,  there  shall 
be  elected  one  justice  of  the  peace  to  hold  office  for  a term  of  four  years 
from  the  expiration  of  such  term  or  terms.  A successor  to  such  justice 
shall  in  like  manner  and  for  a like  term  be  elected  at  the  biennial  town 
meeting  next  preceding  the  expiration  of  his  term  of  office.  A justice  of 
the  peace  elected  in  such  town  pursuant  to  this  section,  or  theretofore 
elected,  shall  be  a member  of  the  town  board  of  such  town  and  shall  other- 
wise have  all  the  powers  and  duties  conferred  or  imposed  by  law  on  justices 
of  the  peace  in  towns.  When  the  number  of  justices  of  the  peace  in  such 
town  shall  be  reduced  to  one,  as  provided  by  this  section,  such  justice  shall 
in  addition  have  power  to  act  in  bastardy  proceedings  without  associating 
with  himself  another  magistrate  of  the  same  county,  as  required  by  statute. 
When  the  number  of  the  justices  of  the  peace  in  such  town  shall  have  been 
reduced  to  one,  pursuant  to  this  section,  the  town  board  of  such  town  may, 
by  resolution,  determine  that  the  justice  of  the  peace  thereof  shall  receive 
an  annual  salary  and  may  fix  such  salary,  and  thereupon  all  fees  to  which 
such  justice  may  be  entitled  shall  be  collected  by  him  and  paid  to  the  super- 
visor of  the  town,  and  be  applicable  to  general  town  purposes.  There  shall 
be  elected  in  such  town  at  the  biennial  town  meeting  first  held  after  the 


vacancies  in  the  office  of  justice  of  the  peace  is  to  be  construed  in  connection  with 
sec.  331,  as  amended  by  L.  1916,  ch.  537,  of  the  Election  Law. 


290 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 94;  Highway  Law,  § 40. 

adoption  of  such  proposition  two  town  trustees  to  hold  office  for  terms  of 
four  years  from  the  expiration  of  the  term  or  terms  of  the  justices  of  the 
peace  of  such  town  having  on  the  date  of  such  town  meeting  the  shortest 
term  or  terms  to  serve.  There  shall  also  be  elected  in  such  town  at  the 
second  biennial  town  meeting  after  the  adoption  of  such  proposition  two 
town  trustees  to  hold  office  for  terms  of  four  years  from  the  expiration  of 
the  term  or  terms  of  the  justices  of  the  peace  of  such  town  having  on  the 
date  of  such  town  meeting  the  shortest  term  or  terms  to  serve.  Successors 
of  such  town  trustees  shall  be  elected  for  full  terms  of  four  years  at  the 
biennial  town  meeting  next  preceding  the  expiration  of  the  terms  of  their 
predecessors  in  office.  Town  trustees  shall  be  members  of  the  town  board 
of  such  town,  and  as  such  members  shall  have  all  the  powers  and  duties  and 
receive  the  same  compensation  as  the  town  clerk  of  such  town  is  entitled  to 
receive  as  a member  of  the  town  board.  Such  a town  trustee  shall  also, 
within  the  town,  have  all  the  powers  of  a justice  of  the  peace  to  administer 
oaths  and  affidavits  and  take  acknowledgments,  upon  filing  his  autograph 
signature  with  the  county  clerk  of  the  county  in  which  such  town  is  located, 
and  also  with  the  register  of  such  county,  if  there  be  one.  [Town  Law, 
§ 105a,  as  added  by  L.  1918,  ch.  302.] 

§ 9.  CERTIFICATE  OF  ELECTION  OF  JUSTICE  OF  THE  PEACE. 

The  town  clerk  of  each  town  shall,  within  ten  days  after  the  election 
of  a justice  of  the  peace  has  been  declared,  transmit  to  the  clerk  of  his 
county  a certificate  showing  the  result  of  such  election  under  his  hand, 
which  shall  be  presumptive  evidence  of  the  fact  therein  certified.9  [Town 
Law,  § 94;  B.  C.  & G.  Cons.  L.,  p.  6166.] 

§ 10.  TOWN  SUPERINTENDENTS  OF  HIGHWAYS,  ELECTION  AND 
TERM  OF  OFFICE,  VACANCIES;  OFFICE  OF  HIGHWAY 
COMMISSIONER  ABOLISHED;  DEPUTIES. 

Election  of  town  superintendent  of  highways.  At  the  biennial  town 
meeting  held  next  after  the  taking  effect  of  this  chapter,  there  shall  be 
elected  in  each  town  a town  superintendent  of  highways. . A successor  to 
the  town  superintendent,  so  elected,  shall  be  elected  at  each  biennial  town 
meeting  held  thereafter  in  such  town,  unless  the  town  shall  have  adopted 
as  provided  in  section  forty-one  a resolution  that  thereafter  the  town  super- 

9.  For  form  of  certificate  of  election  of  justices,  see  Form  No.  19,  post. 

Duties  of  county  clerk.  The  clerk  of  each  county  is  required  by  section  14 
of  the  Town  Law,  post , to  report  to  the  district  attorney  of  the  county  an  omission 
of  a town  clerk  to  transmit  a certificate  of  the  election  of  a justice  of  the  peace  as 
required  by  the  above  section. 


TOWN  OFFICERS ; ELECTION  AND  TERMS. 


290a 


Highway  Law,  §§  41,  42,  43. 

intendent  shall  be  appointed  by  the  town  board.  [Highway  Law,  § 40; 
B.  C.  & G.,  Cons.  L.,  p.  2181.] 

Submission  of  proposition  for  appointment  of  town  superintendent. 
Upon  the  written  request  of  twenty-five  taxpayers  of  any  town,  made  and 
filed  as  provided  in  the  town  law,  the  electors  thereof  may,  at  a special  or 
biennial  town  meeting,  vote  by  ballot  upon  a proposition  providing  for  the 
appointment  of  a town  superintendent  in  such  town.  Such  proposition 
shall  be  submitted  in  the  manner  provided  by  law  for  the  submission  of 
questions  or  propositions  at  a town  meeting.  If  such  proposition  be  adopted, 
the  town  board  of  the  town  shall,  upon  the  expiration  of  the  term  of  office 
of  the  elected  town  superintendent,  appoint  a town  superintendent  therefor, 
who  shall  take  and  hold  office  for  the  term  hereinafter  prescribed.  Upon 
like  request  the  electors  of  any  town  in  which  the  office  of  superintendent  of 
highways  is  appointed  may,  in  like  manner,  determine  that  the  superin- 
tendent of  highways  for  such  town  shall  thereafter  be  elected,  as  provided 
in  section  forty  of  the  highway  law.9a  [Highway  Law,  § 41,  as  amended 
by  L.  1916,  ch.  47 ; B.  C.  & G.  Cons.  L.,  p.  2181.] 

Term  of  office  of  town  superintendent.  The  term  of  office  of  a town 
superintendent  elected  or  appointed,  as  provided  in  this  article,  shall  be 
two  years.  If  such  town  superintendent  be  elected  at  a town  meeting  held 
at  the  time  of  a general  election,  his  term  shall  begin  on  the  first  day  of 
January  succeeding  his  election.  If  such  town  superintendent  shall  have 
been  elected  at  a town  meeting  held  at  any  other  time,  his  term  of  office 
shall  begin  on  the  first  Monday  succeeding  his  election.  If  such  town 
superintendent  shall  have  been  appointed  pursuant  to  a proposition  adopted, 
as  provided  in  the  preceding  section,  his  term  shall  begin  on  the  first  day  of 
January  succeeding  his  appointment,  and  the  town  board  shall  meet  prior 
to  that  day,  for  the  appointment  of  such  town  superintendent.  [Highway 
Law,  § 42,  as  amended  by  L.  1917,  ch.  562;  and  L.  1918,  ch.  372;  B.  C.  & 
G.  Cons.  L.,  p.  2182.] 

Vacancies ; office  of  highway  commissioner  abolished.  Vacancies  in  the 
office  of  town  superintendent  shall  be  filled  for  the  balance  of  the  unexpired 
term.  The  office  of  highway  commissioner  in  each  town  is  hereby  abolished, 
to  take  effect  on  and  after  November  first,  nineteen  hundred  and  nine. 


9a.  Effect  of  vote.  This  section  does  not  have  the  effect  of  making  the  office  of 
town  superintendent  of  highways  permanently  appointive  when  such  proposition  has 
been  approved  by  the  electors.  A subsequent  election  may  again  make  the  posi- 
tion elective.  People  ex  rel.  Dare  v Howell  (1916),  174  App.  Div.  118,  160  N.  Y. 
Supp.  959. 


290b 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Highway  Law,  § 44;  Town  Law,  § 112. 

Where  the  office  of  highway  commissioner  shall  become  vacant  by  expiration 
of  term  or  otherwise,  after  the  taking  effect  of  this  chapter,  and  prior  to  the 
said  first  day  of  November,  nineteen  hundred  and  nine,  such  vacancies 
shall  be  filled  for  a term  to  expire  on  such  date.  Highway  commissioners 
in  office  when  this  chapter  or  any  section  hereof  takes  effect  shall  exercise 
the  powers  and  perform  the  duties  hereby  conferred  and  imposed  upon 
town  superintendents  until  the  said  first  day  of  November,  nineteen  hun- 
dred and  nine,  and  until  their  successors  shall  have  duly  qualified,  where- 
upon such  powers  and  duties  shall  cease  and  determine.  [Highway  Law*, 
§ 43;  B.  C.  & G.  Cons.  L.,  p.  2183.] 

Deputy  town  superintendent.  The  town  board  of  a town  may,  in  its 
discretion,  upon  the  written  recommendation  of  the  town  superintendent, 
appoint  a deputy  tow*n  superintendent,  to  be  nominated  by  such  town  super- 
intendent, to  assist  him  in  the  performance  of  his  duties.  Such  deputy 
superintendent  shall  act  as  such  during  the  pleasure  of  the  town  superin- 
tendent.10 [Highway  Law*,  § 44;  B.  C.  & G.  Cons.  L.,  p.  2184.] 

§11.  OVERSEERS  OF  POOR;  DETERMINATION  OF  NUMBER;  RES- 
OLUTION TO  BE  VOTED  FOR;  APPOINTMENT  OF  OVER- 
SEER BY  TOWN  BOARD. 

The  electors  of  each  town  may,  at  their  biennial  tow*n  meeting,  determine 
by  resolution  whether  they  will  elect  one  or  two  overseers  of  the  poor,  and 
the  number  so  determined  upon  shall  be  thereafter  biennially  elected  for  a 
term  of  two  years. 

Whenever  any  towm  shall  have  determined  upon  having  two  overseers  of 
the  poor,  the  electors  thereof  may  determine  by  a resolution  at  a biennial 
tow*n  meeting,  to  thereafter  have  but  one,  and  if  they  so  determine  there- 
after no  other  overseer  shall  be  elected  or  appointed,  until  the  term  of  the 
overseer  continuing  in  office  at  the  time  of  adopting  the  resolution  shall 
expire  or  become  vacant,  and  the  overseer  in  office  may  continue  to  act 
until  his  term  shall  expire  or  become  vacant.* 11  The  electors  of  any  town 


10.  Superintendent  of  highways  may  not  appoint  a deputy.  He  must  be  ap- 
pointed, if  at  all,  in  the  manner  prescribed  in  this  section.  If  appointed  otherwise 
his  acts  may  not  be  imputed  to  the  superintendent,  nor  is  the  town  liable  therefor. 
Lynch  v.  Town  of  Rhinebeck  (1913),  210  N.  Y.  101,  103  N.  E.  888. 

11.  A resolution  for  the  determination  of  the  question  as  to  whether  one  or 


TOWN  OFFICERS;  ELECTION  AND  TERMS. 


291 


Town  Law,  § 112. 

may,  at  any  biennial  or  regularly  called  special  town  meeting  on  the  ap- 
plication of  at  least  twenty-five  resident  taxpayers  whose  names  appear 
upon  the  then  last  preceding  town  assessment-roll,  adopt  by  ballot  a reso- 
lution that  there  shall  be  appointed  in  and  for  such  town  one  overseer  of 
the  poor.12  If  a majority  of  the  ballots  so  cast  shall  be  in  favor  of  ap- 
pointing an  overseer  of  the  poor,  no  overseer  of  the  poor  shall  thereafter 
be  elected  in  such  town  except  as  hereinafter  provided,  and  the  overseers 
of  the  poor  of  such  town  elected  at  the  town  meeting  at  which  such  reso- 
lution is  adopted  or  who  shall  then  be  in  office  shall  continue  to  hold 
office  for  the  terms  for  which  they  were  respectively  chosen ; and  within 
thirty  days  before  the  expiration  of  the  term  of  office  of  such  elected 
overseer  whose  term  expires  latest,  the  town  board  of  such  town  shall 
meet  and  appoint  one  overseer  of  the  poor  for  such  town,  who  shall  hold 
office  for  one  year  from  the  first  day  of  May  next  after  his  appointment ; 
and  annually  in  the  month  of  April  in  each  year  thereafter  an  overseer 
of  the  poor  shall  be  appointed  by  the  town  board  of  such  town  for  the 
term  of  one  year  from  the  first  day  of  May  next  following  such  month 
of  April.  Each  overseer  of  the  poor  so  appointed  shall  execute  and  file 
with  the  town  clerk  an  official  undertaking  in  such  form  and  for  such 
sum  as  the  town  board  may  by  resolution  require  and  approve.13 
by  resolution  require  and  approve.13 

An  overseer  of  the  poor,  so  appointed,  shall  not  hold  any  other  town 
office  during  the  term  for  which  he  is  so  appointed,  and  if  he  shall  accept 
an  election  or  appointment  to  any  other  town  office  he  shall  immediately 
cease  to  be  an  overseer  of  the  poor.  If  a vacancy  shall  occur  in  the  office  of 
an  overseer  of  the  poor,  so  appointed,  such  vacancy  shall  be  filled  by 
the  town  board,  by  appointment,  for  the  balance  of  the  unexpired  term. 
The  compensation  of  an  overseer  of  the  poor  so  appointed,  shall  be  fixed 
by  the  town  board  of  such  town,  but  shall  not  exceed,  in  any  one  year,  the 


two  overseers  of  the  poor  shall  be  elected  in  the  town  may  be  submitted  to  the 
electors  upon  motion  without  a ballot  under  sec.  60  of  the  Town  Law,  ante. 

12.  The  question  of  the  appointment  of  an  overseer  of  the  poor  must  be 
be  submitted  on  a written  application  of  at  least  twenty-five  resident  taxpayers 
and  must  be  voted  upon  by  ballot.  The  provisions  of  section  48  of  the  Town 
Law,  ante,  relating  to  the  submission  of  propositions  to  be  voted  upon  by  ballot 
at  a town  meeting  are  applicable  to  the  submission  of  such  question. 

13.  Undertaking  of  overseer.  The  above  section  requires  an  undertaking 
of  an  overseer  of  the  poor  appointed  as  provided  therein,  which  must  be  in  such 
form  and  for  such  sum  as  the  town  board  may  by  resolution  require  and 
approve.  A provision  for  the  approval  of  the  undertaking  of  an  overseer  so 
appointed  by  the  town  board  would,  therefore,  seem  to  supersede  the  provisions 
of  section  113  of  the  Town  Law  (see  post , p.  307),  to  the  effect  that  an  under- 
taking of  an  elected  or  appointed  overseer  must  be  approved  by  the  supervisor. 
The  undertaking  of  an  overseer  elected  under  the  above  section  of  the  Town 
Law  would  be  subject  in  every  respect  to  the  provisions  of  such  section  113.  The 


292  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 117. 

sum  of  one  thousand  dollars  and  shall  he  a town  charge.14  At  any  sub- 
sequent town  meeting  after  the  expiration  of  three  years  from  the  adop- 
tion of  a resolution  by  any  town  to  appoint  an  overseer  of  the  poor,  the 
electors  of  the  town  may  determine  by  ballot  to  thereafter  elect  one  or 
more  overseers  of  the  poor,  and  if  they  determine  so  to  elect,  then  at  the 
next  biennial  town  meeting  thereafter  one  or  more  overseers  of  the  poor 
shall  be  elected  in  pursuance  of  the  laws  regulating  the  election  of  over- 
seers of  the  poor,  and  the  term  or  terms  of  the  overseer  or  overseers  first 
so  elected  shall  commence  upon  the  expiration  of  the  term  of  office  of 
the  overseer  of  the  poor  last  theretofore  appointed  in  pursuance  of  law, 
and  shall  expire  as  though  each  such  term  commenced  at  the  time  of 
election ; and  their  successors  shall  thereafter  be  elected  in  pursuance  of 
law. 

In  each  town  having  a population  of  twenty  thousand  or  over,  the 
town  board  may  fix  the  compensation  of  overseers  of  the  poor  at  not  to 
exceed  twelve  hundred  dollars  per  year,  and  which  shall  be  a town 
charge. 

The  compensation  so  fixed  shall  be  taken  and  accepted  by  such  over- 
seer of  the  poor  in  lieu  of  any  per  diem  or  fees  from  the  town  from  the 
time  such  salary  shall  go  into  effect.  [Town  Law,  § 112,  as  amended 
by  L.  1912,  ch.  203  ; B.  C.  & G.  Cons.  L.,  p.  6174.] 

§12.  SPECIAL  CONSTABLES;  APPOINTMENT  AND  POWERS. 

The  supervisor  and  two  justices  of  the  peace  of  any  town  may,  when 
in  their  judgment  necessary  for  the  preservation  of  the  public  peace 
during  any  period  of  ninety  days  or  less,  appoint  five  or  less  special  con- 
stables of  such  town  for  such  period.  Duplicate  certificates  of  the  ap- 
pointment, signed  by  such  supervisor  and  such  justices  of  the  peace  as 
such,  shall  be  delivered  to  each  of  such  special  constables,  specifying 
the  days  for  which  he  is  so  appointed,  and  one  of  such  duplicates  shall 
be  by  such  special  constables  filed  with  the  town  clerk  of  said  town.  The 
supervisor  of  such  town  shall  cause  to  be  provided  and  furnished  to  each 
of  such  special  constables  a badge  on  which  shall  be  plainly  printed  the 
words  “ special  constable,”  which  shall  be  worn  conspicuously  by  each  of 
such  special  constables  while  serving  as  such,  and  be  delivered  by  him 
on  the  completion  of  his  service  to  the  supervisor  of  such  town,  who 
shall  preserve  the  same  for  future  use  and  deliver  the  same  to  his  suc- 
cessor in  office  who  shall  preserve  the  same  when  not  in  use.  The  town 
board  in  any  town  where  the  assessed  valuation  of  property  exceeds  eight 
million  dollars  may  by  resolution  appoint  such  number  of  special  con- 
stables of  such  town  as  there  shall  be  election  districts  therein  to  pre- 
serve the  public  peace  at  the  polls  in  such  election  districts  throughout 
the  holding  of  any  general  election,  one  such  constable  to  serve  at  each 
said  polling  place,  whose  compensation  shall  be  five  dollars  for  such  ser- 

provisions  of  section  113  of  the  Town  Law,  post,  apply  to  the  undertaking  of  an 
overseer  of  the  poor,  whether  elected  or  appointed. 

14.  Compensation  of  overseer.  The  compensation  of  an  overseer  appointed 

under  the  above  section  may  be  fixed  by  the  town  board.  The  compensation  of 
elected  overseers  is  fixed  by  section  85,  as  amended  by  L.  1909',  cli.  491,  L.  1915, 
chs.  73,  452,  L.  1916,  ohs.  93,  554,  and  L.  1918,  clis.  117,  123,  359,  360,  387,  of  the 
Town  Law  at  $2.00  per  day. 


TOWN  OFFICERS;  ELECTION  AND  TERMS. 
Town  Law,  § 118;  Election  Law,  § 302. 


293 


vice.  The  town  clerk  shall  issue  a certificate  of  appointment  to  each  of 
such  special  constables  specify  the  time  for  which  he  is  so  appointed  and 
there  shall  be  provided  to  each  of  such  special  constables,  a badge  on 
which  shall  be  plainly  printed  the  words  “ special  constable,”  which  shall 
be  worn  conspicuously  by  each  of  such  special  constables  while  serving 
as  such  and  delivered  by  him  on  the  completion  of  his  service  to  the 
town  clerk  who  shall  preserve  the  same  for  future  use.  Such  compensa- 
tion and  the  cost  of  such  badges  are  hereby  declared  to  be  town  charges. 
[Town  Law,  § 117,  as  amended  by  L.  1913,  ch.  148,  and  L.  1915,  ch.  23 ; 
B.  C.  & G.  Cons.  L.,  p.  6178.] 

Each  of  the  special  constables,  appointed  pursuant  to  section  one  hun- 
dred and  seventeen  of  this  chapter,  while  in  office  as  such,  shall  be  a 
peace  officer,  and  have  all  the  powers  and  be  subject  to  all  the  duties 
and  liabilities  of  a constable  of  such  town  in  all  criminal  actions  and 
proceedings  and  special  proceedings  of  a criminal  nature,  and  shall  be 
entitled  to  receive  compensation  from  the  town  at  the  rate  of  wages  pre- 
viously established  by  the  town  board  for  such  services.  [Town  Law, 
§ 118,  as  amended  by  L.  1913,  ch.  148 ; B.  C.  & G.  Cons.  L.,  p.  6178.] 


§13.  ELECTION  OFFICERS;  THEIR  DESIGNATION,  NUMBER  AND 
QUALIFICATIONS. 

There  shall  be  in  every  election  district  of  this  state  the  following  election  offi- 
cers namely,  four  inspectors,  two  poll  clerks  and  two  ballot  clerks,  whose  terms  of 
office,  except  as  hereinafter  prescribed,  shall  be  for  one  year  from  the  date  of  their 
appointment  or  election,  and  who  shall  serve  at  every  general,  special  or  other  elec- 
tion held  within  their  districts  during  such  term.  The  term  of  office  of  inspectors  of 
election  in  towns  shall  be  for  two  years.  In  a city  of  over  one  million  inhabitants, 
tnere  shall  be  in  every  election  district  four  additional  inspectors,  who  shall  serva 
at  every  such  election  after  the  closing  of  the  polls  and  until  the  canvass  is  com- 
pleted and  returns  thereof  made  as  provided  by  law.  They  shall  be  designated  in 
the  appointment  as  canvassing  inspectors,  and  the  same  person  shall  not  be  eligible 
to  serve,  under  an  original  appointment  or  vacancy  appointment,  at  both  the  taking 
and  canvassing  of  the  vote.  Such  canvassing  inspectors,  at  the  closing  of  the  polls, 
shall  take  the  place  of  the  inspectors,  poll  clerks  and  ballot  clerks  who  have  served 
prior  thereto,  except  as  otherwise  provided  in  section  three  hundred  and  sixty-six-a. 

Iso  person  shall  be  appointed  or  elected  an  inspector  of  election,  poll  clerk  or 
ballot  clerk  who  is  not  a qualified  voter  of  the  county  if  within  the  city  of  New 
York,  or  of  the  city  if  in  any  other  city,  or  of  the  election  district  of  the  town  in 
which  he  is  to  serve,  of  good  character,  able  to  speak  and  read  the  English  language 
understandingly,  and  to  write  it  legibly,  and  who  does  not  possess  a general  knowl- 
edge of  the  duties  of  the  office  to  which  he  is  elected  or  appointed,  or  who  is  a 
candidate  for  any  office  to  be  voted  for  by  the  voters  of  the  district  in  which  he  is 
to  serve,  or  who  has  been  convicted  of  a felony  and  not  restored  to  citizenship,  or 
who  holds  any  public  office  except  that  of  notary  public  or  commissioner  of  deeds, 
town  or  village  assessor,  justice  of  the  peace,  police  justice  of  a village,  village 
trustee,  water  commissioner,  officer  of  a school  district,  or  overseer  of  highways, 
whether  elected  or  appointed,  or  who  is  employed  in  any  public  office  or  by  any 
public  officer  whose  services  are  paid  for  out  of  the  public  money  other  than  is 
excepted  herein. 15 

Each  class  of  such  officers  shall  be  equally  divided  between  the  two  political 
parties  which  at  the  general  election  next  preceding  that  for  which  such  officers  are 


15.  Who  may  serve  as  election  officer.  An  elector,  resident  of  a city,  who  is 
otherwise  qualified,  may  serve  as  an  inspector,  poll  clerk  or  ballot  clerk  in  a district 
of  the  city  other  than  that  in  which  he  resides.  Rept.  of  Atty.  Genl.  (1896)  229. 


294 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Election  Law,  § 311. 


to  serve,  cast  the  highest  and  the  next  highest  number  of  votes.ie  The  canvassing 
inspectors,  in  a city  of  over  one  million  inhabitants,  shall  be  so  equally  divided 
between  such  parties.  Where  election  officers  are  appointed  the  qualifications  re- 
quired of  them  by  this  section  shall  be  determined  by  an  examination  as  provided 
in  this  chapter.  [Election  Law,  § 302,  as  amended  by  L.  1914,  cfi.  239,  and  by  L. 
1918,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  1497.] 

§ 14.  ELECTION  OFFICERS  IN  TOWNS  AT  GENERAL  ELECTIONS; 

POLL  CLERKS  AND  BALLOT  CLERKS. 

Except  as  provided  in  section  two  hundred  and  ninety-six,  inspectors  of 
election  in  towns  shall  be  appointed  by  the  town  board  in  each  year  in 
which  a town  meeting  is  held  for  the  election  of  town  officers,  and  within 
thirty  days  thereafter.  Such  appointments  shall  he  made  from  lists  to  he 
prepared,  certified  and  filed  in  the  manner  hereinafter  provided,  by  the 
two  political  parties  entitled  to  representation  on  a board  of  election 
officers.  The  town  caucus  or  primary  held  by  each  such  political  party 
for  the  purpose  of  nominating  town  officers  shall  prepare  a list  contain- 
ing the  names  of  at  least  two  persons,  qualified  to  serve  as  inspectors  of 
election,  for  each  election  district  in  said  town,  which  lists  shall  he 
certified  by  the  presiding  officer  and  a secretary  of  said  caucus  or 
primary,  and  filed  with  the  town  clerk  in  the  same  manner  and  at  the 
same  time  as  the  party  certificate  of  nomination  filed  by  said  party. 
From  each  of  the  two  lists  so  filed,  the  town  board  shall  appoint  two 
persons  who  possess  the  qualifications  prescribed  by  law  for  election 
officers.  If  in  any  town  more  than  one  such  list  be  submitted  on  be- 
half or  in  the  name  of  the  same  political  party,  only  that  list  can  be 
accepted  which  is  certified  by  the  proper  officer  or  officers  of  the  fac- 
tion of  such  party  which  was  recognized  as  regular  by  the  last  preced- 
ing state  convention  of  such  party;  or  if  no  such  convention  was  held 
during  the  year,  by  the  proper  officer  or  officers  of  the  faction  of 

Ballot  clerks  and  poll  clerks  are  election  officers.  Rept.  of  Atty.  Genl.  (1896)  230. 

Candidates  for  office  cannot  serve  as  election  officers.  Rept.  of  Atty.  Genl.  (1903) 
463;  Rept.  of  Atty.  Genl.  (1905)  533;  Rept.  of  Atty.  Genl.  (1901)  296. 

This  section  does  not  apply  to  a person  who  is  employed  by  a public  officer  in  a 
private  capacity,  clerk  in  store,  coachman,  gardener,  etc.  Rept.  of  Atty.  Genl. 
(1896)  221. 

Inspector,  employee  of  public  officer  ineligible.  Rept.  of  Atty.  Genl.  (1899)  323. 

An  inspector  of  election  in  a town  or  village  may  accept  the  office  of  village  clerk. 
Rept.  of  Atty.  Genl.  (1898)  261. 

A deputy  sheriff  is  a public  officer  within  the  meaning  of  this  section.  Rept.  of 
Atty.  Genl.  (1897)  246. 

A person  appointed  to  the  office  of  inspector  of  election,  who  is  later  chosen  to 
and  serves  in  the  office  of  village  treasurer,  may  perform  the  duties  of  inspector 
of  election  while  holding  the  other  office.  Rept.  of  Atty.  Genl.,  May  6,  1911. 

A postmaster  is  a public  officer.  Rept.  of  Atty.  Genl.  (1897)  247. 

This  provision  extends  to  persons  holding  office  under  the  laws  of  the  United 
States,  as  a postmaster.  It  is  not  retroactive.  Rept.  of  Atty.  Genl.  (1896)  226. 

16.  This  provision  as  to  “the  highest  and  the  next  highest  number  of  votes  ** 
refers  to  the  votes  in  the  state.  Matter  of  Knollin,  59  Misc.  373,  112  N.  Y.  Supp. 
332. 

Acts  of  election  officers  not  reviewable  by  certiorari.  Inspectors  of  elec- 
tions are  simply  ministerial  officers,  their  acts  and  conduct  cannot  be  reviewed  by 
certiorari.  People  ex  rel.  Brooks  v.  Bush,  22  App.  Div.  363;  48  N.  Y.  Supp.  13, 
and  cases  there  cited.  See  also  People  ex  rel.  Stapleton  v.  Bell,  119  N.  Y.  175. 

An  irregularity  in  the  appointment  of  inspectors  will  not  invalidate  the  election, 
at  wihich  they  officiate.  Rept.  of  Atty.  Genl.  (1895)  253. 


TOWN  OFFICERS;  ELECTION  AND  TERMS. 


295 


Election  Law,  § 312. 

such  party,  which  at  the  time  of  the  filing  of  such  list  is  recognized  as 
regular  by  the  state  committee  of  such  party. 

Such  appointment  shall  be  made  in  writing  and  filed  with  the  town 
clerk,  who  shall  forthwith  notify  each  person  so  appointed  of  his  appoint- 
ment to  said  office,  in  the  manner  in  which  he  is  now  by  law  required  to  give 
notice  to  a person  of  his  election  to  a town  office  when  his  name  does  not 
appear  upon  the  poll  list  at  the  town  meeting  at  which  he  was  elected  to 
said  office.  From  the  additional  names,  if  any,  contained  on  the  lists  so 
filed,  of  persons  qualified  to  serve  as  such,  the  town  board  shall  appoint 
inspectors  of  election  in  case  of  the  resignation,  declination  or  other  in- 
capacity of  persons  appointed  to  such  office.  If  such  lists  contain  no  ad- 
ditional names  of  such  persons,  the  town  board  shall  fill  vacancies  caused 
by  such  resignation,  declination  or  other  incapacity  by  appointing  persons 
known,  or  proved  to  the  satisfaction  of  a majority  of  the  members  of  said 
board  to  be  members  of  the  same  political  party  in  which  such  vacancy 
occurred.  All  appointments  to  fill  vacancies  shall  be  made  in  writing  and 
filed  with  the  town  clerk,  and  notices  thereof  given  by  him  as  hereinbefore 
provided  in  the  case  of  an  original  appointment.16  [Election  Law,  § 311; 
B.  C.  & G.  Cons.  L.,  p.  1503.] 

At  the  first  meeting  in  each  year  of  the  board  of  inspectors  in  every 
district  in  a town,  one  poll  clerk  and  one  ballot  clerk  shall  be  appointed 
by  the  two  inspectors  of  election  representing  one  of  the  political  parties 
entitled  to  representation  on  such  board,  and  one  poll  clerk  and  one  ballot 
clerk  shall  be  appointed  by  the  two  inspectors  representing  the  other 
political  party.  Such  appointments  shall  be  in  writing,  signed  by  the 
inspectors  making  the  appointments  respectively,  and  shall  be  filed  by  them 
with  the  town  clerk  of  the  town  in  which  such  election  district  is  situated, 
and  a copy  thereof  with  the  post-office  address  of  each  person  so  appointed 
shall  be  mailed  to  the  clerk  of  the  county. 

The  poll  clerks  and  ballot  clerks  so  appointed  shall  hold  their  office 
during  the  term  of  office  of  the  inspectors  appointing  them,  except  as  here- 
inafter provided.  The  persons  so  appointed  as  poll  clerks  and  ballot  clerks 
shall  be  voters  in  the  district  in  which  they  are  appointed  to  serve,  and 
shall  possess  the  qualifications  required  of  such  officers  by  section  three 
hundred  and  two  of  this  article. 

If  at  the  time  of  any  election  at  which  poll  clerks  and  ballot  clerks  are 
required  to  be  present  at  the  polling  place  in  any  election  district,  the  office 
of  a poll  clerk  or  of  a ballot  clerk  of  such  district  shall  be  vacant,  or  a poll 
clerk  or  a ballot  clerk  shall  be  absent,  the  inspectors  of  election  in  such 
district  shall  forthwith  appoint  a person  to  fill  such  vacancy.  Such  person 
so  appointed  shall,  before  he  acts  as  such  poll  clerk  or  ballot  clerk,  take  the 
constitutional  and  statutory  oaths  of  office.  [Election  Law,  § 312;  B.  C.  & 
G.  Cons.  L.,  p.  1504.] 


29  6 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 411. 

§ 15.  ERECTION  OR  DISCONTINUANCE  OE  POUNDS;  ELECTION  OF 
POUNDMASTERS. 

Whenever  the  electors  of  any  town  shall  determine  at  a biennial  town 
meeting,  to  erect  one  or  more  pounds  therein,  and  whenever  a pound  shall 
now  be  erected  in  any  town,  the  same  shall  be  kept  under  the  care  and 
direction  of  a pound-master,  to  be  elected  or  appointed  for  that  purpose. 
The  electors  of  any  town  may,  at  a biennial  town  meeting,  discontinue  any 
pounds  therein.  [Town  Law,  § 410;  B.  C.  & G.  Cons.  L.,  p.  6241.] 

Pound-masters  may  be  elected  either  (1)  by  ballot;  (2)  by  ayes  and 
noes,  or  (3)  by  the  rising  or  dividing  of  the  electors,  as  the  electors  may 
determine.  [Town  Law,  § 411;  B.  C.  & G.  Cons.  L.,  p.  6241.] 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS. 


297 


Explanatory  note. 


CHAPTER  XXI. 

TOWN  OFFICERS;  ELIGIBILITY,  OATHS  OF  OFFICE,  UNDERTAKINGS, 
VACANCIES,  RESIGNATIONS. 

EXPLANATORY  NOTE. 

Persons  Eligible  to  Town  Office. 

Every  elector  of  the  town  is  eligible  to  any  town  office.  Inspectors 
of  election  must  be  able  to  read  and  write. 

A county  treasurer,  superintendent  of  the  poor,  school  commissioner 
trustee  of  a school  district,  or  a United  States  loan  commissioner  is  not 
eligible  to  the  office  of  supervisor.  The  courts  have  held  that  a school 
trustee  who  seeks  election  as  supervisor  must  resign  prior  to  election. 
It  will  not  do  for  him  to  wait  until  after  election  upon  the  assumption 
that  he  may  not  be  elected  as  supervisor. 

There  are  certain  general  provisions  as  to  the  qualification  to  hold 
public  office  which  apply  to  town  offices  as  well  as  all  other  public 
offices.  For  instance  the  person  elected  to  a town  office  must  he  of 
full  age,  a citizen  of  the  United  States,  a resident  of  the  state  and  town 
for  which  he  is  chosen. 

Oaths  of  Office. 

Every  person  elected  or  appointed  to  town  office  must  take  and 
subscribe  the  constitutional  oath  of  office,  within  ten  days  after  receiving 
notice  of  his  election.  Such  oath  must  be  filed  in  the  town  clerk’s 
office  within  eight  days  after  the  taking  thereof.  A failure  to  so 
take  and  file  the  oath  of  office  will  be  deemed  a refusal  to  serve  and 
the  office  may  be  filled  by  appointment  by  the  town  board.  It  has  been 
held  by  the  courts  that  if  a town  officer  takes  and  files  his  oath  before 
his  term  begins  there  is  no  vacancy  which  the  town  board  can  appoint. 

The  form  of  the  oath  is  prescribed  by  Constitution  Art.  XIII,  § 1. 
No  other  test  or  oath  may  be  required. 


298 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Explanatory  note. 

Official  Undertakings. 

Supervisors,  justices  of  the  peace,  town  superintendents  of  highways,., 
overseers  of  the  poor,  collectors  and  constables  are  required  within  a 
prescribed  time  after  entering  upon  the  duties  of  their  offices  to  make 
and  deliver  to  the  town  clerk,  official  undertakings  in  such  amounts, 
with  such  sureties  and  upon  such  conditions  as  are  prescribed  by  statute. 
All  of  these  officers  are  under  certain  circumstances  the  custodians  of, 
or  are  responsible  for,  moneys  belonging  to  the  town  or  its  inhabitants ; 
the  town  is  therefore  protected  by  means  of  undertakings. 

A supervisor  is  required  to  give  three  separate  undertakings:  one 
a general  undertaking  securing  generally  the  faithful  discharge  of  his 
official  duties,  and  the  payment  of  moneys  in  his  hands  belonging  to  the 
town  (Town  Law,  § 100);  one  for  the  “ faithful  disbursement,  safe 
keeping  and  accounting  ” of  highway  moneys  (Highway  Law,  § 104)  ; 
and  one  for  the  disbursement  and  accounting  of  school  moneys 
(Education  Law,  § 363).  The  form  and  effect  of  the  undertakings 
of  other  town  officers  are  prescribed  by  the  several  sections  of  the 
town  law  applicable  thereto. 

Resignations  ; Removal. 

Resignations  of  town  officers  should  be  made  to  the  justices  of  the' 
peace  of  the  town.  Such  resignations  take  effect  when  accepted  by 
three  of  the  justices,  when  so  accepted  notices  are  to  be  filed  with  the 
tow'n  clerk.  The  resignations  should  be  in  writing  addressed  to  the 
justices  or  the  town  clerk.  There  is  an  apparent  discrepancy  between 
§ 84  of  the  Town  Law  and  § 31  of  the  Public  officers  Law  as  to  how  a 
town  officer  should  resign.  The  latter  section  indicates  that  a 
resignation  takes  effect  upon  its  delivery  to  the  town  clerk,  while  the 
Town  Law  seems  to  require  acceptance  by  the  justices  before  a resigna- 
tion takes  effect.  The  safer  procedure  would  be  to  deliver  the  resigna- 
tion to  the  town  clerk,  and  then  request  an  acceptance  by  the  justices. 

A town  officer  may  be  removed  by  proceedings  brought  in  the 
Supreme  Court,  as  provided  in  § 36  of  the  Public  Officers  Law.  Justices 
of  the  Peace  are  removable  by  the  Appellate  Division  of  the  Supreme 
Court  as  provided  in  § 132  of  the  Code  of  Criminal  Procedure. 
Town  superintendents  of  highways  are  removable  by  the  town  board 
as  provided  in  § 46  of  the  Highway  Law. 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS,  £99 

Town  Law,  § 81. 

Vacancies. 

Vacancies  are  created  by  death,  resignation,  removal  from  office, 
removal  from  the  town,  conviction  of  a crime  involving  a violation  of 
an  oath  of  office,  or  refusal  or  neglect  to  file  an  official  oath  or  under- 
taking. Such  vacancies  are  filed  by  appointment  of  the  town  board. 


Section  1. 

2. 

3. 


4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 


13. 

14. 

15. 


16. 


17. 

18. 

19. 

20. 
21. 
22. 


Eligibility  of  town  offices;  supervisors. 

Qualifications  for  holding  office;  general  provisions. 

Oaths  of  office  of  town  officers;  how  administered;  filed  in  town 
clerk’s  office;  effect  of  failure  to  execute  and  file  oath  and 
undertaking. 

Town  officers  to  administer  oaths. 

Supervisor’s  undertaking. 

Bonds  to  indemnify  supervisor  against  loss  of  deposits. 

Justice’s  undertaking;  oath  of  office  to  be  taken  before  county 
clerk;  certificate  that  he  has  filed  undertaking. 

Official  acts  legalized  when  justice  of  the  peace  fails  to  take  official 
oath  or  give  undertaking. 

Undertaking  of  town  superintendent  of  highways. 

Undertaking  of  overseer  of  the  poor. 

Collector’s  undertaking. 

Filing  of  collector’s  undertaking;  lien  on  property  of  collector 
and  sureties. 

Constable’s  undertaking. 

Form  of  undertaking  and  liability  thereon. 

Conditions,  generally,  of  official  undertakings;  form  and  manner 
of  executing;  justification. 

Officer  not  to  perform  duties  until  undertaking  is  given;  property 
or  money  not  to  be  delivered;  liability  of  sureties  if  officer 
enters  on  duties  before  giving  undertaking;  duration  of  un- 
dertaking. 

Validation  of  official  acts  before  filing  oath  or  undertaking. 

Resignation  of  town  officers;  notice. 

Removal  of  town  officers;  application  to  appellate  division;  notice. 

Vacancies,  how  created. 

Vacancies,  appointment  to  fill,  how  made  and  when  filled. 

County  clerk  to  report  omissions  of  town  officers  to  district  at- 
torney. 


§ 1.  ELIGIBILITY  OF  TOWN  OFFICERS;  SUPERVISORS. 

Every  elector  of  the  town  shall  be  eligible  to  any  town  office,  except  that 
inspectors  of  election  shall  also  be  able  to  read  and  write.1 


1.  Constitutional  provision.  Article  13,  sec.  1,  of  the  constitution  prescribes 
the  constitutional  oath  of  office  and  declares  that  “ no  other  oath,  declaration  or 
test  shall  be  required  as  a qualification  for  any  office  of  public  trust.” 


300 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Town  Law,  § 81. 


But  no  county  treasurer,  superintendent  of  the  poor,  school  commis- 
sioner, trustee  of  a school  district,  or  United  State  loan  commissioner, 
shall  be  eligible  to  the  office  of  supervisor  of  any  town  or  ward  in  this 
state.2  [Town  Law,  § 81 ; B.  C.  & G.  Cons.  L.,  p.  6158.] 

Inspectors  of  election.  Qualifications  of  inspectors  of  election  are  prescribed  by 
the  Election  Law,  par.  2 of  § 302,  as  amended  by  L.  1914,  ch.  239’,  and  L.  1918,  ch. 
323  (Jewett’s  Election  Manual,  1918),  which  provides  as  follows:  “No  person  shall 

be  appointed  or  elected  an  inspector  of  election,  poll  clerk  or  ballot  clerk  who'  is 
not  a qualified  voter  of  the  county  if  within  the  city  of  New  York,  or  of  the  city 
if  in  any  other  city,  or  of  the  election  district  of  the  town  in  which  he  is  to 
serve,  of  good  character,  able  to  speak  and  read  the  English  language  under- 
standing^, and  to  write  it  legibly,  and  who  does  not  possess  a general  knowl- 
edge of  the  duties  of  the  office  to  which  he  is  elected  or  appointed,  or  who  is  a 
candidate  for  any  office  to  be  voted  for  by  the  electors  of  the  district  in  which 
he  is  to  serve,  or  who  has  been  convicted  of  a felony  and  not  restored  to  citizen- 
ship, or  who  holds  any  public  office  except  that  of  notary  public  or  commissioner  of 
deeds,  town  or  village  assessor,  justice  of  the  peace,  police  justice  of  a village, 
village  trustee,  water  commissioner,  officer  of  a school  district,  overseer  of  highway, 
whether  elected  or  appointed,  or  who  is  employed  in  any  public  office  or  by  any 
public  officer  whose  services  are  paid  for  out  of  public  money  other  than  is  ex- 
cepted herein.” 

Assessor  need  not  be  a taxpayer.  Rept.  of  Atty.  Genl.  (1894)  150. 

Justice  of  tlie  peace.  Offices  of  a justice  of  the  peace  and  of  a deputy  sheriff 
are  incompatible.  Rept.  of  Atty.  Genl.  (1895)  106. 

Town  auditor  need  not  be  a taxpayer.  Rept.  of  Atty.  Genl.  (1894)  261. 

Town  clerk.  A deputy  postmaster  is  eligible  to  hold  the  office  of  town  clerk. 
Rept.  of  Atty.  Genl.  (1892)  110. 

Town  superintendent  of  highways.  A resident  of  an  incorporated  village 
within  the  boundary  of  a town  is  eligible  to  the  office  of  town  superintendent  of 
highways.  Rept.  of  Atty.  Genl.,  March  14,  1911. 

2.  Eligibility  of  supervisor.  The  disqualification  imposed  by  the  above  sec- 
tion that  “ no  trustee  of  a school  district  shall  be  eligible  to  the  office  of  supervisor 
of  any  town  or  ward  in  this  state,”  applies  to  the  capacity  of  a candidate  for  elec- 
tion, as  well  as  for  holding  the  office.  The  intention  of  the  statute  is  that  the 
electors,  in  making  the  choice  of  a person  for  the  office  of  supervisor,  must  be  con- 
fined to  the  selection  of  such  person  only  as  it  is  not  then  under  any  legal  disquali- 
fication to  exercise  its  powers  and  perform  its  duties.  As  a trustee  of  a school  dis- 
trict is  incapable  of  being  elected  supervisor  of  a town  as  well  as  of  holding  the 
office  of  supervisor,  no  right  to  that  office  is  acquired  by  resigning  the  office  of  trusr 
tee  after  having  received  a majority  of  the  votes  cast  for  the  office  of  supervisor 
at  a town  meeting,  and  before  qualifying  as  supervisor.  People  v.  Purdy,  154  N.  Y, 
439;  48  N.  E.  821.  It  follows  from  this  decision  that  a school  trustee  who  has 
been  nominated  for  the  office  of  supervisor  should  resign  such  office  before  the  town 
meeting.  The  court  in  discussing  this  question  says:  “ The  statute,  we  think,  does 
not  contemplate  that  a person  who  is  disqualified  to  hold  the  office  may,  neverthe- 
less, be  lawfully  elected  upon  the  chance  that  subsequently  he  may,  by  his  own  act, 
or  by  the  happening  of  some  event,  remove  the  disqualification,  and  thus  become 
entitled  to  fill  it.  The  general  rule  is  that  the  electors,  in  making  the  choice,  must 
be  confined  to  the  selection  of  such  persons  only  as  are  not  then  under  any  legal 
disqualification  to  exercise  its  powers  and  perform  its  duties.  The  electors  can 
then  know  that  when  the  choice  is  made  and  legally  declared  the  object  for  which 
the  election  was  held  has  been  accomplished,  and  that  there  is  no  legal  obstruction 
in  the  way  to  prevent  their  will,  as  thus  expressed,  from  becoming  effective.” 

In  respect  to  the  eligibility  of  a school  trustee  to  hold  the  office  of  supervisor 
reference  must  be  made  to  section  222  of  the  Education  Law,  as  amended  by 
L.  1910,  ch.  140,  which  provides  that  no  supervisor  is  “ eligible  to  the  office  of 
trustee  or  member  of  a board  of  education.”  It  has  been  held  that  since  this  pro- 
vision as  amended  is  a later  enactment  than  the  Town  Law,  it  supersedes  such  law, 
and  that  therefore  the  law  is  complied  with  if  the  supervisor  resigns  his  office  as 
trustee  prior  to  taking  his  office  as  supervisor.  People  ex  rel.  Martin  v.  Kenyon, 
152  App.  Div.  898. 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS. 


301 


Public  Officers  Law,  § 3. 

§ 2.  QUALIFICATION  FOR  HOLDING  OFFICE;  GENERAL  PROVI- 
SIONS. 

No  person  shall  be  capable  of  holding  a civil  office  who  shall  not,  at  the 
time  he  shall  be  chosen  thereto,  be  of  full  age,  a citizen  of  the  United 
States,  a resident  of  the  state,  and  if  it  be  a local  office,  a resident  of  the 
political  subdivision  or  municipal  corporation  of  the  state  for  which  he 
shall  be  chosen,  or  within  which  the  electors  electing  him  reside,  or  within 
which  his  official  functions  are  required  to  be  exercised.* * 3  [Public  Officers 
Law,  § 3 ; B.  C.  & G.  Cons.  L.,  p.  4620.] 


§ 3.  OATHS  OF  OFFICE  OF  TOWN  OFFICERS;  HOW  ADMINIS- 
TERED; FILED  IN  TOWN  CLERK’S  OFFICE;  EFFECT  OF  FAIL- 
URE TO  EXECUTE  AND  FILE  OATH  AND  UNDERTAKING. 

Every  person  elected  or  appointed  to  any  town  office,  except  justice  of 
the  peace,  shall  before  he  enters  on  the  duties  of  his  office,  and  within  ten 
days  after  he  shall  be  notified  of  his  election  or  appointment,  take  and 


The  provision  that  no  trustee  of  a school  district  shall  be  eligible  to  the  office 
of  supervisor  of  any  town  or  ward  in  this  state  applies  to  the  qualifications  of  the 
candidate  to  be  voted  for,  as  well  as  to  his  qualifications  to  fill  the  office.  Rept. 
of  Atty.  GenL  (1911),  vol.  2,  p.  673.  But  see  People  ex  rel.  Martin  v.  Kenyon, 
152  App.  Div.  898;  Purdy  v.  Purdy,  154  N.  Y.  439,  and  Atty.  Genl.  Opinion,  1916,  7 
Dept.  Repts.  80. 

The  supervisor  must  reside  in  the  town  he  represents.  Bacon  v.  Hanna,  43 
N.  Y.  St.  Rep.  906. 

Supervisor  who  has  been  elected  county  treasurer  is  made  eligible  to  the  latter 
office  by  resigning  his  supervisor  ship  prior  to  entering  upon  the  discharge  of  his 
duties  as  treasurer.  Rept.  of  Atty.  Genl.  (1893)  356;  Rent,  of  Atty.  Genl.  (1894) 
239. 

Section  106,  of  the  Town  Law,  recognizes  the  right  of  a justice  of  the  peace  to 
hold  the  office  of  supervisor  (dissenting  opinion).  People  ex  rel.  Earwicker  v. 
Dillin,  38  App.  Div.  539,  543,  56  N.  Y.  Supp.  416. 

Coroner  cannot  hold  the  office  of  supervisor.  Rept.  of  Atty.  Genl.  (1903)  460 

3.  Citizen  of  state,  public  officer  must  be.  Lambert  v.  People,  76  N.  Y.  220, 
230.  Attorneys  must  be  citizens.  Matter  of  O’Neil,  90  N.  Y.  584,  affg.  27  Hun  599. 

Residents.  Residence  is  equivalent  to  domicile  for  the  purpose  of  determining 
whether  a public  officer  is  a resident  of  the  political  subdivision  which  he  serves. 
People  v.  Platt,  117  N.  Y.  159. 

Supervisor  must  reside  in  town  in  which  he  is  elected.  Bacon  v.  Hanna,  17  N.  Y. 
Supp.  431,  43  N.  Y.  St.  Rep.  906. 

Notary  public  by  moving  his  residence  to  another  state  forfeits  his  office.  Rept. 
of  Atty.  Genl.,  Feb.  20,  1911. 

Forfeiture  of  office.  All  candidates  for  town  offices  elected  at  a town  meeting 
are  required  to  file  a statement  of  their  election  expenses  with  the  town-  clerk, 
within  ten  days  after  the  town  meeting.  If  the  person  has  beeiuelected  to  a town 
office  and  fails  to  file  such  statement,  he  is  guilty  of  a misdemeanor,  and  forfeits 
his  office.  Penal  Law,  § 776,  as  amended  by  L.  1910,  ch.  439.  (Jewett’s  Election 
Manual,  1918.) 

A person  who  asks  or  receives  any  gratuity  or  reward  for  appointing  or 
procuring  the  appointment  of  another  person  to  a public  office,  or  to  a sub- 
ordinate position  in  such  an  office  is  guilty  of  a misdemeanor,  and  if  such  person 
is  a public  officer,  upon  conviction  he  also  forfeits  his  office.  Penal  Law,  § 1832. 
A public  officer,  who,  for  any  gratuity  or  reward  grants  to  another  the  right  to 
discharge  any  function  of  his  office,  or  permits  another  to  make  appointments 


302  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 83. 

subscribe  before  some  officer  authorized  by  law  to  administer  oaths  in  his 
county,  the  constitutional  oath  of  office,  and  such  other  oath  as  may  be 
required  by  law,  which  shall  be  administered  and  certified  by  the  officer 
taking  the  same  without  reward,  and  shall  within  eight  days  be  filed  in 
the  office  of  the  town  clerk,  which  shall  be  deemed  an  acceptance  of  the 
office;  and  a neglect  or  omission  to  take  and  file  such  oath,  or  a neglect  to 
execute  and  file,  within  the  time  required  by  law,  any  official  bond  or  under- 
taking, shall  be  deemed  a refusal  to  serve,  and  the  office  may  be  filled  as  in 
case  of  vacancy.* * * 4  [Town  Law,  § 83;  B.  C.  & G.  Cons.  L.,  p.  6160.] 


or  perform  any  of  its  duties,  is  guilty  of  a misdemeanor,  and  upon  conviction 

forfeits  his  office.  Penal  Law,  § 1833.  The  acceptance  of  bribes  by  the  executive 
officer  is  punishable  by  imprisonment  in  the  state  prison  not  exceeding  ten 
years,  or  by  a fine  not  exceeding  $5,000,  or  by  both;  and  in  addition  thereto, 
the  officer  if  convicted  forfeits  his  office  and  is  forever  disqualified  from  holding 
any  public  office  in  this  state.  Penal  Law,  §§  1823,  382.  If  a public  officer  is  con- 
victed of  a felony  his  office  is  forfeited.  Penal  Law,  §§  510,  511. 

Acting  as  public  officer  without  having  qualified.  A person  who  executes 
any  of  the  functions  of  a public  office  without  having  taken  and  duly  filed  the 
required  oath  of  office,  or  without  having  executed  and  duly  filed  the  required 
security,  is  guilty  of  a misdemeanor.  Penal  Law,  § 1820.  But  this  section 
of  the  Penal  Law  is  not  construed  to  affect  the  validity  of  acts  done  by  a person 
exercising  the  functions  of  a public  office  in  effect  where  other  persons  than 
himself  are  interested  in  maintainging  the  validity  of  such  acts. 

4.  Constitutional  oath.  The  form  of  an  official  oath  as  prescribed  by  the 
constitution,  art.  13,  sec.  1,  is  as  follows:  “I  do  solemnly  swear  (or  affirm) 
that  I will  support  the  constitution  of  the  United  States,  and  the  constitution 
of  the  state  of  New  York,  and  that  I will  faithfully  discharge  the  duties  of  the 
office  of , according  to  the  best  of  my  ability.”  And  the  constitu- 

tion also  provides  in  this  section  that  all  such  officers  who  shall  have  been 
chosen  at  any  election  shall,  before  they  enter  on  the  duties  of  their  respective 
offices,  take  and  subscribe  the  oath  or  affirmation  above  prescribed,  together 
with  the  following  addition  thereto:  “And  I do  further  solemnly  swear  (or 

affirm)  that  I have  not  directly  or  indirectly  paid,  offered  or  promised  to  pay, 
contributed,  or  offered  or  promised  to  contribute  any  money  or  other  valuable 
thing  as  a consideration  or  reward  for  the  giving  or  withholding  a vote  at 
the  election  at  which  I was  elected  to  said  office,  and  have  not  made  any 
promise  to  influence  the  giving  or  withholding  any  such  vote.” 

Filing  oath  of  office.  The  provisions  of  the  above  section  as  to  the  time 
within  which  a town  clerk  must  take  and  file  his  constitutional  oath  of  office 
are  directory  merely.  If  he  takes  and  files  such  oath  before  his  term  begins, 
and  before  his  office  is  declared  forfeited  by  judicial  action  no  vacancy  exists, 
and  the  town  board  cannot  appoint.  Matter  of  Drury,  39  Misc.  288,  79  N.  Y. 
Supp.  498. 

Oath  of  justice  of  the  peace.  A justice  of  the  peace  is  required  to  take  his 
oath  of  office  before  the  county  clerk  after  filing  a certificate  of  the  town  clerk 
that  he  has  filed  the  required  undertaking.  See  Town  Law,  sec.  106,  post. 

General  provision  as  to  oath  of  office.  Public  Officers  Law,  § 10  as  amended 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS. 
Town  Law,  § 88. 


803 


§ 4.  TOWN  OFFICERS  TO  ADMINISTER  OATHS. 

Any  town  officer  may  administer  any  necessary  oath  in  any  matter  or 


by  L.  1913,  ch.  59,  is  in  effect  the  same  as  the  above  section  of  the  Town  Law. 
Under  section  13  of  the  Public  Officers  Law  it  is  made  the  duty  of  the  officer 
with  whom  an  oath  of  office  is  to  be  filed,  in  the  case  of  .own  officers  the  town 
clerk,  to  give  notice  to  the  town  board  of  the  failure  of  a town  officer  to  take 
and  file  an  official  oath  within  the  time  required  by  law.  The  failure  to  file 
the  official  oath  creates  a vacancy  which  the  town  board  may  fill.  (See  Town 
Law,  sec.  130,  post;  Public  Officers  Law,  sec.  30,  sub.  7,  post.) 

Effect  of  failure  to  file  an  oath.  The  failure  of  a town  officer  to  take 
and  file  his  oath  as  required  in  the  above  section  does  not  affect  his  powers  and 
rights  as  such  officer.  See  Horton  v.  Parson,  37  Hun  42,  45,  where  the  court 
says : “ It  may  not  appear  entirely  clear  that  a person  elected  to  the  office  of 

overseer  of  the  poor,  who  has  failed  to  take  the  oath  of  office,  and  for  that  reason 
is  charged  with  refusal  to  serve,  which  permits  an  election  to  fill  the  vacancy 
thereby  occasioned,  is  an  officer  de  jure  in  the  strict  sense  of  that  term,  since 
by  the  terms  of  the  statute  his  right  to  perform  the  duties  of  the  office  seems 
dependent  on  his  taking  the  oath.  But  it  has  been  held  in  effect  that  the  statute 
is  not  self-executing,  and  does  not  work  a forfeiture  for  the  cause  it  affords,  but 
that  it  must  come  from  some  act,  judicial  or  otherwise,  which  effectually  ousts 
him  and  severs  his  relation  to  the  office  and  that  until  then  he  is  practically  an 
officer  de  jure,  having  defeasible  title  to  the  office.”  This  proposition  seems  to  have 
been  sustained  in  the  case  of  Foot  v.  Stiles,  57  N.  Y.  399,  where  it  was  held  that 
a failure  to  file  an  official  bond  did  not  ipso  facto  affect  the  office,  and  the  rule  was 
laid  down  that  in  such  a case  the  officer  holds  by  defeasible  title  and  until  the  for- 
feiture is  judicially  declared,  he  is  rightfully  in  office,  at  least  so  far  as  the  rights 
of  third  persons  are  concerned,  and  the  question  cannot  be  raised  collaterally.  See, 
also,  People  v.  Crissey,  91  N.  Y.  635;  In  re  Kendall,  85  N.  Y.  305;  People  ex  rel. 
Conlin  v.  Martin,  23  N.  Y.  Supp.  730;  Adams  v.  Tator,  42  Hun,  384. 

It  was  expressly  held  in  the  case  of  People  ex  rel.  Brooks  v.  Watts,  73  Hun 
404 ; 26  N.  Y.  Supp.  280,  that  the  rule,  as  it  existed  under  the  revised  statutes, 
with  reference  to  vacancies  in  office  by  reason  of  the  neglect  or  omission  of  a 
person  elected  to  a town  office  to  take  and  file  an  oath  of  office  was  not  changed 
by  the  provisions  of  the  above  section  of  the  Town  Law.  It  therefore  follows  that 
the  cases  above  cited  are  still  controlling,  and  the  rule  now  is  that  the  defect 
or  omission,  if  any,  in  regard  either  to  an  official  bond  or  an  official  oath  makes 
the  officer’s  title  defeasible  and  affords  a cause  for  forfeiture,  but  does  not  create 
a vacancy.  A vacancy  in  such  case  can  only  be  effected  by  a direct  proceeding  for 
that  purpose. 

Failure  to  file  oath  deemed  a refusal  to  serve  and  authorizes  the  filling  of  the 
vacancy.  People  ex  rel.  Williamson  v.  McKinney,  52  N.  Y.  374.  See,  also,  Rept. 
of  Atty.  Genl.  (1896)  120. 

It  has  been  held  that  the  failure  of  the  oath  of  office,  filed  by  one  duly  elected 
to  a town  office,  to  state  that  he  did  not  buy  any  votes  as  required  by  section  1 
of  article  13  of  the  Constitution,  precludes  him  from  entering  upon  the  duties  of 
his  office,  and  he  is  not  therefore  entitled  to  maintain  an  action  to  oust  one  duly 
appointed  to  fill  the  vacancy.  People  ex  rel.  Ketor  v.  Preston,  169  App.  Div.  368, 
154  N.  Y.  Supp.  1007. 

Acceptance  of  office.  Under  the  above  section  of  the  Town  Law  the  filing 
of  an  official  oath,  as  required  therein,  is  to  be  deemed  an  acceptance  of  the 
office,  and  an  omission  to  take  and  file  such  oath  within  the  time  required  by 
law  is  a refusal  to  serve,  and  the  office  may  be  filled  as  in  case  of  vacancy.  In 
construing  such  provisions  with  the  provisions  of  section  100  of  the  Town  Law, 


304  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 100. 

proceeding  lawfully  before  him,  or  to  any  paper  to  be  filed  with  him  as 
such  officer.* * * * 5  [Town  Law,  § 88;  B.  C.  & G.  Cons.  L.,  p.  6163.] 


§ 5.  SUPERVISOR’S  UNDERTAKING. 

Every  supervisor  hereafter  elected  or  appointed  shall,  within  thirty 
days  after  entering  upon  his  office,  make  and  deliver  to  the  town  clerk  of 
the  town  his  undertaking,  with  such  sureties  as  the  town  board  shall 
prescribe,  to  the  effect  that  he  will  well  and  faithfully  discharge  his  official 
duties  as  such  supervisor,  and  that  he  will  well  and  truly  keep,  pay  over 
and  account  for  all  moneys  and  property,  including  the  local  school  fund, 
if  any,  belonging  to  his  town  and  coming  into  his  hands  as  such  supervisor ; 
and  such  undertaking  shall,  after  its  execution,  be  presented  to  the  town 
board  for  their  approval  as  to  its  form,  and  the  sufficiency  of  the  sureties 
therein,  and  until  the  same  shall  be  so  approved,  none  of  the  moneys,  books, 
documents,  papers  or  property  of  the  town  shall  be  turned  over  or  delivered 
to  such  supervisor  elect.6  [Town  Law,  § 100;  B.  C.  & G.  Cons.  L.,  p. 
6169.] 


providing  that  every  supervisor  shall  within  thirty  days  after  entering  upon 
his  office,  deliver  his  undertaking  to  the  town  clerk,  which  shall  be  presented 

to  the  town  board  for  approval,  and  until  approved  none  of  the  moneys,  etc., 
of  the  town  shall  be  delivered  over  to  the  supervisor  elect,  the  Court  of 

Appeals,  in  the  case  of  Matter  of  Bradley,  141  N.  Y.  527;  36  N.  E.  598,  said: 
“ It  is  very  clear  that  the  law  contemplates  two  steps  by  the  candidate  elected 

to  office,  the  first  to  be  taken  on  his  filing  of  his  oath  of  office.  When  that 
has  been  done,  the  office  is  deemed  to  have  been  accepted  and  that  is  equivalent 
to  saying  that  the  officer  elect  has  entered  upon  its  duties.  It  is  after  so  enter- 
ing upon  his  office,  and  within  a specified  time  thereafter,  that  he  is  required  to 
execute  and  submit  his  undertaking.  That  he  is  regarded  as  in  office  when  he 
has  filed  his  oath,  is  perfectly  clear  from  the  provision  that  neglect  to  file  the 
oath  within  the  prescribed  time  causes  a vacancy.  When  he  has  evidenced  in 
the  required  manner  his  acceptance  of  the  office  to  which  elected,  his  predecessor 
is  out  and  has  no  further  standing  as  a member  of  the  town  board.” 

5.  A constitutional  oath  of  office  may  be  taken  “ before  some  officer  author- 
ized by  law  to  administer  oaths;”  it  is  probable  that  a constitutional  oath  of 
office  may  be  taken  before  a town  clerk. 

6.  Official  bond  of  supervisor.  A supervisor  upon  receiving  the  school  commis- 
sioner’s certificate  of  appointment  and  before  receiving  the  school  moneys  so  appor- 
tioned to  his  town,  must  give  a bond  to  the  county  treasurer  conditioned  for  the 
faithful  disbursement,  safe  keeping  and  accounting  of  such  moneys.  Education 
Law,  § 373. 

A supervisor,  before  receiving  or  disbursing  any  funds  on  account  of  the  bonded 
railroad  debt  of  a town,  is  required  to  give  a bond,  with  sureties,  who  may  justify 
in  a sum  double  the  amount  received,  to  be  approved  by  the  town  clerk. 

Sureties  on  the  general  bond  of  a supervisor  will  not  be  held  liable  for  defaults 
covered  by  a special  bond  which  was  not  given.  Town  of  Whitestown  v.  Title 
Guaranty  & Surety  Co..  72  Misc.  498. 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS. 


305 


Town  Law,  §§  101,  106. 

$ 6.  BONDS  TO  INDEMNIFY  SUPERVISOR  AGAINST  LOSS  OF  DE- 
POSITS. 

The  supervisor  of  any  town  may  purchase  a surety  bond  of  some  solvent 
surety  company,  authorized  to  do  business  in  the  state  of  New  York,  secur- 
ing to  such  supervisor  the  safety  of  town  funds  deposited  by  him  in  any 
bank  or  banking  institution  in  this  state,  and  indemnifying  him  against 
the  loss  thereof  through  the  failure  or  insolvency  of  such  bank  or  banking 
institution,  and  the  cost  of  such  bond  shall  be  a town  charge  and  shall  be 
audited  and  paid  in  the  same  manner  as  other  town  charges.  [Town  Law, 
§ 101;  B.  C.  & G.  Cons.  L.,  p.  6170.] 

§ 7.  JUSTICE’S  UNDERT AKIKNG ; OATH  OF  OFFICE  TO  BE  TAKEN 
BEFORE  COUNTY  CLERK;  CERTIFICATE  THAT  HE  HAS 
FILED  UNDERTAKING. 

Every  justice  of  the  peace  elected  or  appointed  in  any  of  the  towns 
or  cities  of  this  state,  except  the  city  of  New  York  and  any  city  whose 


Form  of  undertaking'.  The  form  and  contents  of  an  undertaking,  the  force 
and  effect  thereof,  and  the  validation  of  the  official  acts  of  the  officer  before 
filing  his  oath  of  office  and  making  an  undertaking  are  prescribed  in  the 
Public  Officers  Law,  secs.  11,  12,  15,  post.  See,  also.  Town  Law,  sec.  13,  post, 
p.  311.  For  form  of  undertaking  of  a supervisor,  see  Form  No.  20,  post. 

Sufficiency  and  approval  of  undertaking.  In  the  case  of  Sutherland  v.  Carr, 
85  N.  Y.  105,  a bond  was  given  by  a supervisor  to  a person  holding  the  office  of 
town  clerk  who  was  named  therein  as  obligee,  and  was  described  as  “ town 
clerk,”  and  the  penal  sum  of  the  undertaking  was  made  payable  “ to  the  said 
town  clerk  or  his  successor  in  office.”  In  an  action  upon  the  undertaking  it 
was  held  that  the  bond  was  not  to  the  individual,  but  to  the  officer;  and  so 
was  in  compliance  with  the  requirements  of  the  statute  and  was  valid.  As  to 
the  interpretation  of  an  official  undertaking  of  a supervisor,  see  People  ex  rel. 
Johnson  v.  Martin,  62  Barb.  570;  43  How.  52. 

A supervisor  is  deemed  to  have  accepted  his  office  upon  the  filing  of  his  oath, 
and  at  such  time  he  has  in  legal  effect  entered  upon  the  performance  of  the 
duties  of  his  office.  The  execution  and  filing  of  an  undertaking  is  not  necessarily 
a condition  precedent  to  the  entering  upon  his  duties.  Upon  filing  his  oath  he 
becomes  a member  of  the  town  board.  The  undertaking  executed  by  him  must 
be  presented  to  the  town  board  for  its  approval,  but  he  should  not  act  with 
the  town  board  in  the  approval  of  his  own  bond.  Such  approval  should  be 
given  by  the  other  members  of  the  board.  Matter  of  Bradley,  141  N.  Y.  527;  36 
N.  E.  598;  affg.  21  N.  Y.  Supp.  167. 

The  execution  of  an  undertaking  by  a supervisor  and  its  approval  by  the 
town  board  is  a condition  precedent  to  the  right  of  the  supervisor  to  take  over 
the  town  moneys,  books,  etc.,  into  his  custody. 

An  action  on  an  official  undertaking  of  the  supervisor  for  a failure  to  pay  over 
moneys  for  the  local  school  fund  must  be  maintained  by  a county  treasurer. 
Palmer  v.  Roods,  116  App.  Div.  66,  101  N.  Y.  Supp.  186. 


TO  WINS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Town  Law,  § 15. 


306 


charter  requires  such  officer  to  give  a bond  or  undertaking,  shall,  before 
he  enters  upon  the  duties  of  his  office,  execute  an  undertaking  with  two 
sureties  to  be  approved  by  the  supervisor  of  the  town,  or  the  town  clerk 
thereof,  where  the  justice  of  the  peace  is  also  supervisor  of  the  town,7 
or  the  common  council  of  the  city  in  which  the  justice  shall  reside,  to  the 
effect  that  he  will  pay  over  on  demand,  to  the  officer,  person  or  persons 
entitled  to  the  same,  all  moneys  received  by  him  by  virtue  of  his  office,  and 
file  the  undertaking  in  the  office  of  the  clerk  of  the  city  or  town  in  which  he 
resides.8 

Every  justice  shall  also,  on  or  before  the  fifteenth  day  of  January  next 
succeeding  his  election,  file  with  the  county  clerk  a certificate  of  the  clerk 
of  the  city  or  town  in  which  he  resides,  that  he  has  filed  such  undertaking. 
Such  justice  of  the  peace  shall  take  and  subscribe  before  some  officer 
authorized  by  law  to  administer  oaths  in  his  county,  the  constitutional  oath 
of  office,  upon  blanks  to  be  furnished  by  the  county  clerk.  Such  oath  shall 
be  in  duplicate,  one  of  which  shall  be  filed  in  the  office  of  the  county  clerk 
and  one  in  the  office  of  the  town  clerk.  If  elected  or  appointed  to  fill 
a vacancy,  at  the  time  existing  or  in  any  new  town,  he  shall  file  such  under- 
taking and  certificate  and  take  the  oath  of  office,  and  enter  upon  the 
duties  thereof,  within  fifteen  days  after  notice  of  his  election  or  appoint- 
ment. No  justice  of  the  peace  shall  take  his  oath  of  office  until  he  shall 
have  filed  such  certificate  with  the  county  clerk.  [Town  Law,  § 106;  B. 
C.  & G.  Cons.  L.,  p.  6172.] 

§ 8.  OFFICIAL  ACTS  LEGALIZED  WHEN  JUSTICE  OF  THE  PEACE 
FAILS  TO  TAKE  OFFICIAL  OATH  OR  GIVE  UNDERTAKING 

The  official  acts  heretofore  done  of  every  justice  of  the  peace,  duly 
elected  or  appointed  to  the  office,  so  far  as  such  official  acts  may  be  af- 
fected, impaired  or  questioned,  by  reason  of  the  failure  of  any  such 
justice  to  take  and  subscribe  the  official  oath,  or  give  dn  official  bond  as 
required  by  law,  are  hereby  legalized,  ratified  and  confirmed.9  [Town 
Law,  § 15 ; B.  C.  & G.  'Cons.  L.,  p.  6137.] 

7.  Justice  of  tile  peace  may  be  supervisor.  This  section  recognizes  the  right 
of  a justice  of  the  peace  to  hold  the  office  of  supervisor  (dissenting  opinion).  Peo- 
ple ex  rel.  Easwicker  v.  Dillon,  38  App.  Div.  539,  543,  56  N.  Y.  Supp.  416. 

8.  Undertaking  of  justice  of  the  peace.  As  to  general  provisions  relating  to 
official  oaths  and  undertakings,  see  Public  Officers  Law,  secs.  10-15,  post.  For  form 
of  undertaking  of  justice  of  the  peace,  see  Form  No.  21  post. 

While  failure  of  a justice  of  the  peace  to  file  his  oath  of  office  may  be  a 
ground  for  declaring  the  forfeiture  of  his  office,  it  does  not  render  the  office  vacant 
nor  prevent  such  person  from  acting  *as  justice  of  the  peace.  Rept.  of  Atty.  Genl. 
(1911),  vol.  2,  p.  596. 

The  county  clerk  should  file  papers  executed  or  certified  by  a person  duly  elected 
justice  of  the  peace,  even  though  such  person  has  not  filed  his  bond.  It  is  also  the 
duty  of  the  county  clerk  to  certify  that  such  person  is  a justice  of  the  peace,  but  he 
need  not  certify  that  he  is  “ duly  qualified.”  Rept.  of  Atty.  Genl.,  Feb.  8,  1912. 

9.  Official  acts  legalized.  It  is  also  provided  in  section  15  of  the  Public  Officers 
Law,  post , that  the  official  acts  of  a public  officer  performed  prior  to 
the  execution  or  filing  of  an  official  undertaking  as  required  by  law,  are  as 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS. 


30T 


Town  Law,  §§  111,  113,  114. 

§ 9.  UNDERTAKING  OF  TOWN  SUPERINTENDENT  OF  HIGHWAYS. 

Every  town  superintendent  of  highways  shall,  within  ten  days  after 
notice  of  his  election  or  appointment,  execute  an  undertaking  with  two 
or  more  sureties,  to  be  approved  by  the  supervisor  of  his  town,  to  the 
effect  that  he  will  faithfully  discharge  his  duties  as  such  commissioner, 
which  undertaking  shall  be  delivered  to  the  supervisor,  and  filed  by  him  in 
the  office  of  the  town  clerk  within  ten  days  thereafter.10  [Town  Law,  § 
111,  as  amended  by  L.  1909,  ch.  491;  B.  C.  & G.  Cons.  L.,  p.  6174.] 


§ 10.  UNDERTAKING  OF  OVERSEER  OF  THE  POOR. 

Every  person  elected  or  appointed  overseer  of  the  poor  in  any  town  shall, 
within  ten  days  after  being  notified  of  his  election  or  appointment,  execute 
an  undertaking  with  one  or  more  sureties,  to  be  approved  by  the  supervisor 
of  his  town,  to  the  effect  that  he  will  faithfully  discharge  the  duties  of  his 
office,  and  will  pay  according  to  law  all  moneys  which  shall  come  into  his 
hands  as  such  overseer,  which  undertaking  shall  be  delivered  to  the  super- 
visor and  filed  by  him  in  the  office  of  the  town  clerk  within  ten  days 
thereafter.* 11  [Town  Law,  § 113;  B.  C.  & G.  Cons.  L.,  p.  6175.] 

§ 11.  COLLECTOR’S  UNDERTAKING. 

Every  person  elected  or  appointed  to  the  office  of  collector,  before  he 
enters  upon  the  duties  of  his  office,  and  within  eight  days  after  he  receives 


valid  and  of  as  full  force  and  effect  as  if  such  undertaking  had  been  executed 
and  filed  within  the  time  prescribed  by  law. 

10.  Town  superintendent  of  highways.  The  undertaking  of  a town  super- 
intendent of  highways  is  to  be  approved  by  the  supervisor.  See,  generally,  the 
provisions  of  sections  11,  12,  15  of  the  Public  Officers  Law,  post.  For  form  of 
undertaking  of  town  superintendent  of  highways,  see  Form  No.  22,  post. 

Action  on  undertaking;  pleading.  Where  the  undertaking  states  that  a 
person  of  a certain  town  had  been  elected  commissioner  [town  superintendent 
now]  of  highways,  without  specifying  the  town  for  which  he  was  elected,  a 
complaint  setting  out  such  undertaking  does  not  fail  to  state  a cause  of  action 
on  the  theory  that  no  special  obligee  is  named.  In  such  an  action  it  is  not 
necessary  to  join  the  commissioner  as  a party  defendant.  Town  of  Hadley  v. 
Earner,  116  App.  Div.  68,  101  N.  Y.  Supp.  777. 

11.  The  overseer  of  the  poor.  The  undertaking  of  a person  elected  or  ap- 
pointed as  overseer  of  the  poor  is  subject  to  the  approval  of  the  supervisor.  As 
to  approval  of  undertaking  of  overseer  appointed  by  the  town  board,  see  Town 
Law,  sec.  112,  ante.  The  provisions  of  sections  11,  12,  15  of  the  Public  Officers 
Law  also  apply  to  such  an  undertaking.  For  form  of  official  undertaking  of 
overseer  of  the  poor,  see  Form  No.  23,  post. 

Liability  of  sureties.  In  an  action  upon  the  bond  of  an  overseer  of  the  poor 


308 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 115. 

notice  of  the  amount  of  taxes  to  be  collected  by  him,  shall  execute  an  under- 
taking with  two  or  more  sureties,  to  be  approved  by  the  supervisor,  to  the 
effect  that  he  will  well  and  faithfully  execute  his  duties  as  collector,  pay 
over  all  moneys  received  by  him,  and  account  in  the  manner  and  within 
the  time  provided  by  law  for  all  taxes  upon  the  assessment-roll  of  his  town 
delivered  to  him  for  the  ensuing  year,  and  shall  deliver  such  undertaking 
to  the  supervisor  of  the  town.12  [Town  Law,  § 114;  B.  C.  & G.  Cons.  L., 
p.  6176.] 

§ 12.  FILING  OF  COLLECTOR’S  UNDERTAKING;  LIEN  ON  PROP- 
ERTY OF  COLLECTOR  AND  SURETIES. 

The  supervisor  shall,  within  six  days  thereafter,  file  the  undertaking, 
with  his  approval  indorsed  thereon,  in  the  office  of  the  county  clerk,  who 
shall  make  an  entry  thereof,  in  a book  to  be  provided  for  the  purpose,  in  the 
same  manner  as  judgments  are  entered  of  record ; and  every  such  under- 
taking shall  be  a lien  on  all  the  real  estate  held  jointly  or  severally  by  the 
collector  or  his  sureties  within  the  county  at  the  time  of  the  filing  thereof, 
and  shall  continue  to  be  such  lien,  until  its  condition,  together  with  all  costs 
and  charges  which  may  accrue  by  the  prosecution  thereof,  shall  be  fully 
satisfied.13  Upon  a settlement  in  full  between  the  county  treasurer  and 


it  is  essential  to  show  as  against  the  sureties,  not  merely  that  their  principal 
was  indebted  to  the  town,  but  that  such  indebtedness  arose  by  reason  of  not 
accounting  for  money  actually  received  by  him  during  the  term  for  which  the 
sureties  stood  bound.  Kellum  v.  Clark,  97  N.  Y.  390.  See,  also,  Bissell  v. 
Saxton,  66  N.  Y.  55. 

12.  Official  undertaking-  of  collector.  The  official  undertaking  of  a collector 
is  to  be  approved  by  the  supervisor.  The  provisions  of  sections  11,  12,  15  of  the 
Public  Officers  Law  also  apply  to  such  an  undertaking.  For  form  of  collector’s 
undertaking,  see  Form  No.  24,  post. 

Effect  of  failure  of  collector  to  execute  official  undertaking.  If  the  collector 
shall  neglect  or  refuse  to  execute  an  official  undertaking,  or  the  supervisor  shall 
refuse  to  approve  it,  and  a new  collector  has  not  been  appointed  as  provided 
by  law,  the  board  of  supervisors  is  authorized  to  deliver  the  tax  roll,  with  a 
warrant  annexed,  to  the  sheriff,  who  shall  proceed  with  the  collection  of  the 
taxes  levied  therein  in  the  same  manner  as  collectors  are  authorized  to  do  by 
law.  Tax  Law,  sec.  87. 

Default  of  collector  for  not  executing  bond.  Actual  notice  of  the  amount 
of  taxes  to  be  collected  must  be  given  to  the  collector,  before  he  is  put  in  default 
for  not  executing  the  bond.  People  ex  rel.  Williamson  v.  McKinney,  52  N.  Y.  374, 
382. 

13.  Lien  of  collector’s  undertaking.  Under  the  provisions  of  the  above 
section,  providing  for  the  filing  of  a collector’s  bond  and  the  entry  thereof  by 
the  county  clerk  “ in  the  same  manner  in  which  judgments  are  entered  of 
record,”  and  declaring  that  every  such  bond  “ shall  be  a lien  on  all  the  real 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS.  309 

Town  Law,  § 115. 

collector,  a certificate  of  payment  shall  be  executed  in  duplicate  by  the 
county  treasurer,  one  copy  to  be  delivered  to  the  collector  and  one  copy  to 
be  filed  by  the  county  treasurer  in  the  office  of  the  county  clerk,  and  said 
county  clerk  shall  then  enter  a satisfaction  thereof  in  the  book  in  which 
the  filing  of  said  bond  is  entered  and  opposite  said  entry  of  filing. 
[Town  Law,  § 115;  B.  C.  & G.  Cons.  L.,  p.  6176.] 


estate  held  jointly  or  severally  by  the  collector  or  his  sureties,”  the  lien  so 
created  is  a general  one,  having  no  greater  force  than  the  lien  of  a judgment 
and  a prior  unrecorded  mortgage,  is  entitled  to  priority  over  the  bond.  Cris- 
field  v.  Murdock,  127  N.  Y.  315;  27  N.  E.  1,046. 

The  filing  and  entry  of  a bond,  as  required  by  the  statute,  is  notice  to  all 
subsequent  purchasers  of  the  existence  of  a lien  on  the  real  estate  of  each  surety, 
enforceable  for  the  full  amount  of  any  default  on  the  part  of  the  principal, 
and  while  one  surety  has  a right  of  action  against  his  co-surety  for  contribution, 
he  is  liable  to  be  defeated  if,  by  reason  of  his  neglect  or  misconduct,  the  co- 
surety would  be  injured  by  a judgment  compelling  contribution.  The  filing  and 
entry  is,  therefore,  not  simply  notice  to  a subsequent  purchaser  of  land  charged 
with  the  lien  thereof,  that  it  is  liable  only  to  a proportion  of  any  liability 
accruing  thereon,  but  he  is  put  upon  inquiry  to  ascertain  as  to  the  equities  be- 
tween the  co-sureties.  Idem. 

The  lien  created  by  the  filing  of  a collector’s  bond  is  analogous  to  that  of 
a judgment  creditor  and  not  to  that  of  a mortgagee;  and  the  owner  of  the 
property  has  a right  to  redeem  and  a right  to  the  possession,  and  to  receive  the 
rents  and  profits  after  a sale  thereunder,  the  same  as  after  a sale  under  an 
ordinary  judgment.  Upham  v.  Paddock,  13  Hun,  571;  see,  also,  Upham  v.  Pad- 
dock,  23  Hun,  377. 

An  unrecorded  mortgage  has  precedence  over  the  lien  of  a collector’s  bond. 
Wilder  v.  Butterfield,  50  How.  Pr.  385. 

Redemption.  The  right  to  redeem  lands  from  sale  exists  only  when  given 
by  statute,  and  while  a lien  created  by  the  filing  and  entry  of  the  collector’s  bond 
is  a general  one  with  no  greater  effect  as  against  prior  unrecorded  conveyances 
than  a judgment,  it  is  not  a judgment  lien,  or  enforceable  by  sale  under  exe- 
cution, and  the  provisions  of  section  1446  of  the  Code  of  Civil  Procedure  au- 
thorizing redemption  from  sales  under  executions  do  not  apply.  Crisfield  v. 
Murdock,  supra. 

Effect  of  extension  of  time  of  collection.  A surety  on  a collector’s  bond  is 
not  released  by  an  extension  of  the  time  for  collection  by  the  legislature.  See 
U.  S.  v.  Kirkpatrick,  9 Wheat.  (U.  S.)  184;  U.  S.  v.  Nicholl,  12  Wheat.  (U.  S.) 
509.  The  ground  of  these  decisions  is  that  the  regulations  contained  in  the 
statute,  concerning  the  time  of  collection,  are  merely  directory  to  the  officer, 
and  form  no  part  of  the  contract  with  the  surety.  As  to  the  effect  of  extension 
of  time  to  collect  on  liability  of  sureties,  see  29  Albany  L.  J.  124. 

Continuation  of  lien.  The  bond  of  a collector  exists  as  a lien  on  all  the  real 
estate  held  jointly  and  severally  by  the  collector  or  his  sureties  within  the 
county,  at  the  time  of  the  filing  thereof,  and  continues  to  be  such  lien  until 
its  conditions,  together  with  all  costs  and  charges  which  may  accrue  by  the 


310  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 116. 

§ 13.  CONSTABLE’S  UNDERTAKING. 

Every  person  elected  or  appointed  to  the  office  of  constable  shall,  before 
he  enters  on  the  duties  of  his  office,  and  within  ten  days  after  he  shall 
be  notified  of  his  election  or  appointment,  execute  in  the  presence  of  the 
supervisor  or  town  clerk  of  the  town,  with  at  least  two  sufficient  sureties,  to 
be  approved  by  such  supervisor  or  town  clerk,  an  undertaking  to  the  effect 
that  such  constable  and  his  sureties  will  pay  to  each  and  every  person, 
who  may  be  entitled  thereto,  all  such  sums  of  money  as  the  constable  may 
become  liable  to  pay  on  account  of  any  execution  which  shall  be  delivered 
to  him  for  collection ; and  also  pay  each  and  every  person  for  any  damages 
which  he  may  sustain  from  or  by  any  act  or  thing  done  by  such  constable 
by  virtue  of  his  office.  The  supervisor  or  town  clerk  shall  indorse  on  the 
undertaking  his  approval  of  the  sureties  therein  named,  and  shall  cause 
the  same  to  be  filed  in  the  office  of  the  town  clerk  within  ten  days  there- 
after.14 [Town  Law,  § 116;  B.  C.  & Gr.  Cons.  L.,  p.  6177.] 


prosecution  thereof,  shall  be  fully  satisfied.  Muzzy  v.  Shattuck,  1 Denio,  233; 
affd.,  7 Hill,  584,  note. 

Enforcement  of  lien.  The  statute  provides  no  special  mode  of  enforcing  the 
lien.  The  only  mode,  therefore,  is  by  a suit  on  the  bond  to  recover  the  amount 
due  from  the  collector,  and  judgment  being  obtained,  the  real  estate  may  be 
sold  by  the  sheriff  upon  execution.  Upham  v.  Paddock,  13  Hun,  571.  In  the 
case  of  Chatfield  v.  Campbell,  35  Misc.  355,  Judge  Andrews,  at  special  term, 
dissented  from  the  holding  of  the  general  term  in  the  case  of  Upham  v.  Pad- 
dock,  supra,  and  held  that  the  statutory  lien  imposed  upon  the  real  estate  of  a 
town  collector  and  that  of  his  sureties,  by  the  due  filing  of  his  undertaking  of 
office  may,  upon  his  default  in  failing  to  pay  over  the  taxes  which  he  has  col- 
lected, be  foreclosed  in  equity  by  the  town  supervisor,  as  the  remedy  at  law  is 
not  adequate.  Proceedings  for  enforcing  the  payment  by  the  collector  of  taxes 
collected  by  him  are  provided  for  in  §§  303-305  of  the  Tax  Law,  post. 

14.  Bond  of  constable.  The  provisions  of  the  Public  Officers  Law,  sections 
11,  12,  15  (see  post),  relating  generally  to  special  undertakings  apply  to  an 
undertaking  of  a constable.  For  form  of  undertaking,  see  Form  No.  25,  post. 

Sufficiency.  The  requirements  of  the  above  section  as  to  the  sufficiency  and 
form  of  the  undertaking  of  a constable  should  be  complied  with.  But  in  de- 
termining the  liability  of  the  principal  and  sureties  on  a constable’s  bond  the 
courts  are  liberal  in  the  construction  of  the  above  section.  In  the  case  of  Jones 
v.  Neuman,  36  Hun,  634,  a bond  was  given  conditioned  for  the  faithful  discharge 
by  the  constable  of  his  duties  and  for  the  faithful  accounting  and  the  payment 
over  of  all  moneys  received  by  him  as  such  constable.  Such  bond  was  ap- 
proved by  the  supervisor  and  filed  with  the  town  clerk.  The  point  was  urged  by 
the  defendants  that  the  bond  did  not  comply  with  the  requirements  of  the 
statute,  but  the  court  refused  to  relieve  the  surties  of  their  liability,  because 
of  the  failure  to  comply  with  the  conditions  required  by  the  statute,  and  said : 
“ It  was  the  constable’s  duty  to  cause  a proper  bond,  with  sureties,  to  be  exe- 
cuted, approved  and  filed.  He  and  his  sureties  were  the  persons  to  see  that 
it  was  in  the  right  form.  It  would  be  highly  unreasonable  that  the  sureties 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS. 


311 


Town  Law,  § 13. 

§ 14.  FORM  OF  UNDERTAKING  AND  LIABILITY  THEREON 

Every  undertaking  of  a town  officer,  as  provided  by  this  chapter  or  other- 
wise, must  be  executed  by  such  officer  and  his  sureties  and  acknowledged 
or  proven  and  certified  in  like  manner  as  deeds  to  be  recorded,  and  the 
approval  indorsed  thereon.15  The  parties  executing  such  undertaking  shall 


should  now  escape  liability  and  thus  be  permitted  to  practice  a fraud  on  all 
who  might  be  injured  by  the  constable’s  neglect.  The  act  of  the  sureties  in  exe- 
cuting the  bond  first  enabled  the  constable  to  act  as  such  and  by  his  negligent 
act  in  that  capacity  the  plaintiffs  have  been  injured.  The  cases  cited  (Gerould 
v.  Wilson,  81  N.  Y.  573;  Village  of  Warren  v.  Phillips,  30  Barb.  646)  are  suffic- 
ient authority  to  hold  the  defendants  liable  on  this  bond.”  As  to  the  effect 
of  an  insufficient  bond  upon  the  eligibility  of  a constable,  see  Adams  v.  Tator, 
42  Hun,  384. 

The  statute  prescribes  the  substance  of  the  bond,  but  is  silent  as  to  its  form. 
It  may  be  in  the  form  of  an  ordinary  bond  to  the  people,  although  it  seems 
preferable  that  it  should  be  in  the  form  of  a simple  agreement  without  penalty. 
People  v.  Holmes,  5 Wend.  191. 

It  is  not  absolutely  necessary  that  the  bond  of  a constable  should  be  executed 
to  the  people.  See  Warren  v.  Racey,  20  Johns.  74;  Lawton  v.  Erwin,  9 Wend. 
233.  The  substance  of  the  instrument  required  by  the  statute  is  that  the  con- 
stable and  his  sureties  shall  be  responsible  for  all  such  sums  as  the  constable 
shall  become  liable  to  pay  by  reason  of  any  execution  delivered  to  him  for 
collection.  Where  the  instrument  contains  unnecessary  recitals,  they  do  no 
harm  and  are  mere  surplusage.  Schellenger  v.  Yenders,  12  Wend.  306.  Neither 
the  constable  nor  his  sureties  can  object  that  the  instrument  is  not  under  seal; 
nor  that  it  is  not  in  the  form  prescribed  by  the  statute;  nor  that  the  sureties 
had  not  been  bound  by  the  clerk  or  supervisor  of  the  town  for  which  the  con- 
stable was  elected.  Idem. 

Effect  of  bond.  In  the  case  of  People  ex  rel.  Comstock  v.  Lucas,  93  N.  Y.  585, 
the  court  said:  “It  is  to  be  observed  that  the  bond  has  a specific  and  limited 

purpose.  It  does  not  cover  the  whole  range  of  the  constable’s  official  duties, 
nor  is  it  an  indemnity  against  all  his  possible  official  delinquencies.  There  are 
many  official  duties  which  a constable  may  be  called  upon  to  discharge,  affecting 
the  rights  of  litigants,  as,  for  example,  duties  respecting  the  service  of  original 
process  or  the  execution  of  attachments  which  by  no  possible  construction  can 
be  covered  by  the  condition  of  the  bond.  The  law  designates  a constable  as  the 
official  agent  for  the  collection  of  executions  issued  at  the  justice’s  courts,  and  it 
at  the  same  time  gives  to  parties  to  the  execution,  who  have  been  injured 
by  his  misfeasance  or  non-feasance  in  respect  thereto,  a recourse,  by  exacting 
a bond  from  the  constable,  with  sureties,  to  whom  they  may  resort  for  In- 
demnity.” 

Liability  for  breach  of  bond.  Sureties  do  not  become  liable  for  every  act  of 
the  constable,  as  where  he  wrongfully  commits  a trespass  by  seizing  the  prop- 
erty of  a stranger  to  the  execution.  People  ex  rel.  Comstock  v.  Lucas,  93  N.  Y. 
585;  see  also,  Berry  v.  Shadd,  28  Misc.  389;  59  N.  Y.  Supp.  551;  affd.  50  App. 
Div.  132,  63  N.  Y.  Supp.  349. 

15.  In  addition  to  the  provision  contained  in  this  section  relating  to  the  ex- 


312  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Officers  Law,  § 11. 

be  jointly  and  severally  liable,  regardless  of  its  form  in  that  respect,  for 
the  damages  to  any  person  or  party  by  reason  of  a breach  of  its  terms.15 
[Town  Law,  § 13;  B.  C.  & G.  Cons.  L.,  p.  6137.] 

§ 15.  CONDITIONS,  GENERALLY,  OF  OFFICAL  UNDERTAKING;  FORM 
AND  MANNER  OF  EXECUTING;  JUSTIFICATION. 

Every  official  undertaking,  when  required  by  or  in  pursuance  of  law  to  be  here- 
after executed  or  filed  by  any  officer,  shall  be  to  the  effect  that  he  will  faithfully 
discharge  the  duties  of  his  office  and  promptly  account  for  and  pay  over  all  moneys 
or  property  received  by  him  as  such  officer,  in  accordance  with  law,  or  in  default 
thereof,  that  the  parties  executing  such  undertaking  will  pay  all  damages,  costs 
and  expenses  resulting  from  such  default,  not  exceeding  a sum,  if  any,  specified  in 
such  undertaking.  The  undertaking  of  a state  officer  shall  be  approved  by  the 
comptroller  both  as  to  its  form  and  as  to  the  sufficiency  of  the  sureties,  and  oe 
filed  in  the  comptroller’s  office.  The  undertaking  of  a municipal  officer  shall,  if  not 
otherwise  provided  by  law,  be  approved  as  to  its  form  and  the  sufficiency  of  the 
sureties  by  the  chief  executive  officer  or  by  the  governing  body  of  the  municipality 
and  be  filed  with  the  clerk  thereof.  The  approval  by  such  governing  body  may  be 
Dy  resolution,  a certified  copy  of  which  shall  be  attached  to  the  undertaking.  The 
undertaking  of  a county  officer  shall,  if  not  otherwise  provided  by  law,  be  approvea 
as  to  its  form  and  the  sufficiency  of  the  sureties  by  the  clerk  of  the  county,  and 
filed  in  his  office,  except  that  the  undertakings  of  a county  clerk  shall  be  filed  in 
the  office  of  the  state  comptroller.  The  undertaking  of  a town  officer  shall,  if  not 
otherwise  provided  by  law,  be  approved  as  to  its  form  and  the  sufficiency  of  the 
sureties  by  the  clerk  of  the  county  and  filed  in  his  office.  The  sum  specified  in  an 
official  undertaking  shall  be  the  sum  for  which  such  undertaking  shall  be  required 
by  or  in  pursuance  of  law  to  be  given.  If  no  sum,  or  a different  sum  from  that 
required  by  or  in  pursuance  of  law,  be  specified  in  the  undertaking,  it  shall  be 
deemed  to  be  an  undertaking  for  the  amount  so  required.  If  no  sum  be  required 
by  or  in  pursuance  of  law  to  be  so  specified,  the  officer  or  board  authorized  to  ap- 
prove the  undertaking  shall  fix  the  sum  to  be  specified  therein.  Every  official  un 
dertaking  shall  be  executed  and  duly  acknowledged  by  at  least  two  sureties,  each 
of  whom  shall  add  thereto  his  affidavit  that  he  is  a freeholder  or  householder  within 
the  state,  stating  his  occupation  and  residence  and  the  street  number  of  his  resi- 
dence and  place  of  business  if  in  a city,  and  a sum  which  he  is  worth  over  and  above 
his  just  debts  and  liabilities  and  property  exempt  from  execution.  The  aggregate 
of  the  sums  so  stated  in  such  affidavits  must  be  at  least  double  the  amount  specified 
in  the  undertaking.  If  the  surety  on  an  official  undertaking  of  a state  or  local 


ecution  of  the  official  undertaking  reference  should  be  made  to  sections  11,  12,  15 
of  the  Public  Officers  Law,  post,  containing  provisions  generally  applicable  to 
official  undertakings. 

16.  Liability  of  sureties  on  official  bonds.  The  sureties  upon  a bond  of  a 
public  officer  are  liable  thereon,  only  for  the  default  of  their  principal  com- 
mitted after  the  commencement  of  the  term  of  office,  for  which  they  became 
his  sureties.  Although  their  principal  held  the  office  during  a preceding  term, 
they  are  not  liable  for  a defalcation  which  then  occurred.  In  such  a case  those 
who  were  sureties  for  the  officer  for  the  prior  term  must  be  looked  to.  Bissell 
v.  Saxton,  66  N.  Y.  55.  The  sureties  on  a supervisor’s  bond,  with  the  usual  con- 
dition that  he  will  “ account  for  all  moneys  belonging  to  the  town  coming  into 
his  hands  as  such  supervisor,”  are  only  liable  for  moneys  which  their  principal 
is  authorized  and  bound  by  law  to  receive  in  his  official  capacity,  not  for  moneys 
ordered  by  the  town  board,  without  authority  of  law,  to  be  paid  to  him. 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS. 


313 


Public  Officers  Law,  § 12. 

officer,  clerk,  or  employee  of  the  state  or  political  subdivision  thereof  or  of  a muni- 
cipal corporation  be  a fidelity  or  surety  corporation,  the  reasonable  expense  of  pro- 
curing such  surety,  not  exceeding  one  per  centum  per  annum  upon  the  sum  for 
which  such  undertaking  shall  be  required  by  or  in  pursuance  of  law  to  be  given, 
shall  be  a charge  against  the  state  or  political  subdivision  or  municipal  corporation 
respectively  in  and  for  which  he  is  elected,  or  appointed,  except  that  the  expense  of 
procuring  such  surety  as  aforesaid,  on  an  official  undertaking  of  any  officer,  clerk 
or  employee  in  any  city  department  of  the  city  of  New  York,  or  of  any  office, 
board  or  body  of  said  city,  or  of  a borough  or  county  within  said  city,  including 
officers,  clerks  and  employees  of  every  court  within  said  city,  shall  not  be  a 
charge  upon  said  city  or  upon  any  of  the  counties  contained  within  said  city, 
unless  the  comptroller  of  the  said  city,  shall  first  have  approved  the  necessity  of 
requiring  such  official  undertaking  to  be  given,  and  shall  have  approved  of  or 
fixed  the  amount  of  any  such  official  undertaking;  but  this  exception  shall  not 
apply  to  an  official  undertaking  specifically  required  by  statute  to  be  given,  and 
the  amount  of  which  is  specifically  fixed  by  statute.  The  failure  to  execute  an 
official  undertaking  in  the  form  or  by  the  number  of  sureties  required  by  or  in 
pursuance  of  law,  or  of  a surety  thereto  to  make  an  affidavit  required  by  or  in  pur- 
suance of  law,  or  in  the  form  so  required,  or  the  omission  from  such  an  undertak- 
ing of  the  approval  required  by  or  pursuance  of  law,  shall  not  affect  the  liability 
of  the  sureties  there  in.  i ? [Public  Officers  Law,  § 11,  as  amended  by  L.  1911,  ch. 
424,  L.  1912,  ch.  481,  L.  1913,  ch.  325,  L.  1914,  ch.  48,  and  L.  1915,  ch.  628;  B.  C. 
& G.  Cons.  L.,  p.  4625.] 

§16.  OFFICER  NOT  TO  PERFORM  DUTIES  UNTIL  UNDERTAKING 
IS  GIVEN;  PROPERTY  OR  MONEY  NOT  TO  BE  DELIVERED; 
LIABILITY  OF  SURETIES  IF  OFFICER  ENTERS  ON  DUTIES 
BEFORE  GIVING  UNDERTAKING;  DURATION  OF  UNDER- 
TAKING. 

An  officer  of  whom  an  official  undertaking  is  required,  shall  not  receive 
any  money  or  property  as  such  officer,  or  do  any  act  affecting  the  disposi- 
tion of  any  money  or  property  which  such  officer  is  entitled  to  receive  or 


17.  Application.  This  section  simply  makes  a bond  that  is  defective  in  form 
or  date,  or  method  of  execution,  valid  as  the  personal  obligation  of  the  sureties, 
but  it  goes  no  farther.  It  does  not  make  an  invalid  bond  a lien  on  real  estate 
even  after  it  is  validated,  and  the  rule  of  strict  construction  does  not  permit  the 
courts  to  extend  the  statute  by  implication  beyond  the  letter  of  its  command. 
City  of  Mount  Vernon  v.  Brett,  193  N.  Y.  276,  287,  revg.  115  App.  Div.  882,  100 
N.  Y.  Supp.  1110. 

Form.  Bond  is  good  though  not  in  the  form  prescribed  by  statute.  Super- 
visors of  Allegany  Co.  v.  Van  Campen,  3 Wend.  48.  Bonds  of  United  States  Loan 
Commissioner,  sureties  thereon  cannot  limit  their  liability.  Rept.  of  Atty.  Genl. 
(1896)  143. 

Time  of  filing.  Statute  fixing  the  time  is  directory.  McRoberts  v.  Winant, 
15  Abb.  N.  S.  210.  County  treasurer  may  file  his  bond  at  any  time  before  enter- 
ing upon  the  duties  of  his  office.  McRoberts  v.  Winant,  15  Abb.  N.  S.  210. 

Effect  of  failure  to  file  undertaking.  Officer  who  has  failed  to  file  his  bond 
holds  by  a defeasible  title,  and  is  rightfully  in  office  until  forfeiture  is  declared 
by  a direct  judicial  proceeding.  Foot  v.  Stiles,  37  N.  Y.  399;  People  ex  rel.  Wood 
v.  Crissey,  91  N.  Y.  616,  636;  Horton  v.  Parsons,  37  Hun  42,  45;  Matter  of 
petition  of  Kendall,  85  N.  Y.  302. 


314 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Public  Officers  Law,  § 15. 

have  the  custody  of,  before  he  shall  have  filed  such  undertaking;  and  any 
person  having  the  custody  or  control  of  any  such  money  or  property  shall 
not  deliver  the  same  to  any  officer  of  whom  an  undertaking  is  required 
until  such  undertaking  shall  have  been  given.  If  a public  officer  required 
to  give  an  official  undertaking,  enters  upon  the  discharge  of  any  of  his 
official  duties  before  giving  such  undertaking,  the  sureties  upon  his 
undertaking  subsequently  given  for  or  during  his  official  term  shall  be 
liable  for  all  his  acts  and  defaults  done  or  suffered  and  for  all  moneys 
and  property  received  during  such  term  prior  to  the  execution  of  such 
undertaking,  or  if  a new  undertaking  is  given,  from  the  time  notice  to 
give  such  new  undertaking  is  served  upon  him.  Every  official  undertak- 
ing shall  be  obligatory  and  in  force  so  long  as  the  officer  shall  continue  to 
act  as  such  and  until  his  successor  shall  be  appointed  and  duly  qualified, 
and  until  the  conditions  of  the  undertaking  shall  have  been  fully  per- 
formed. When  an  official  undertaking  is  renewed  pursuant  to  law  the 
sureties  upon  the  former  undertaking  shall  not  be  liable  for  any  official 
act  done  or  moneys  received  after  the  due  execution,  approval  and  filing 
of  the  new  undertaking.18  [Public  Officers  Law,  § 12 ; B.  C.  & G.  Cons. 
L.,  p.  4627.] 

§ 17.  VALIDATION  OF  OFFICIAL  ACTS  BEFORE  FILING  OATH  OR 
UNDERTAKING. 

If  a public  officer,  duly  chosen,  has  heretofore  entered,  or  shall  here- 
after enter  on  the  performance  of  the  duties  of  his  office,  without  taking 
or  filing  an  official  oath,  or  executing  or  filing  an  official  undertaking,  as 
required  by  the  constitution,  or  by  any  general  or  special  law,  his  acts  as 
such  officer,  so  performed,  shall  be  as  valid  and  of  as  full  force  and  effect 
as  if  such  oath  had  been  duly  taken  and  filed,  and  as  if  such  undertaking 
had  been  duly  executed  and  filed,  notwithstanding  the  provisions  of  any 
general  or  special  law  declaring  any  such  office  vacant,  or  authorizing  it 
to  be  declared  vacant,  or  to  be  filled  as  in  case  of  vacancy,  or  imposing 
any  other  forfeiture  or  penalty  for  omission  to  take  or  file  any  such  oath, 
or  to  execute  or  file  any  such  undertaking;  but  this  section  shall  not  other- 
wise affect  any  provision  of  any  general  or  special  law,  declaring  any  such 
office  vacant,  or  authorizing  it  to  be  declared  vacant,  or  to  be  filled  as  in 
case  of  vacancy,  or  imposing  any  other  forfeiture  or  penalty,  by  reason  of 


18.  The  design  and  effect  of  §§  11,  12  and  15  of  the  Public  Officers  Law  is  to 

measure  the  liability  of  the  sureties,  not  by  the  language  of  the  obligation  assumed 
by  them,  but  by  the  requirements  of  the  statutes  under  which  the  obligation  may  be 
required  and  in  conformity  with  which  it  purports  to  have  been  given;  in  other 
words,  the  obligation  is  to  be  regarded  as  that  of  the  statute  and  not  of  the  com- 
mon law.  City  of  Mt.  Vernon  v.  Kenlon,  97  App.  Div.  191,  89  N.  Y.  Supp.  817. 

The  sureties  upon  the  bond  of  a county  treasurer  are  liable  for  his  acts  in 
the  interval  between  the  time  when  the  bond  was  required  by  resolution  of  the 
board  of  supervisors  and  the  time  when  it  was  actually  delivered.  Way  dell  v. 
Hutchinson,  146  App.  Div.  448. 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS.  345 

Town  Law,  § 84;  Public  Officers  Law,  § 36. 

the  failure  to  take  or  file  any  such  oath  or  to  execute  or  file  any  such  under- 
taking; and  this  section  shall  not  relieve  any  such  officer  from  the  criminal 
liability  imposed  by  section  eighteen  hundred  and  twenty  of  the  Penal  Law, 
for  entering  on  the  discharge  of  his  official  duties  without  taking  or  filing 
such  oath  or  executing  or  filing  such  undertaking.19  [Public  Officers  Law, 
§ 15,  B.  C.  & G.  Cons.  L.,  p.  4628.] 


§ 18.  RESIGNATION  OF  TOWN  OFFICERS;  NOTICE. 

Any  three  justices  of  the  peace  of  a town  may,  for  sufficient  cause  shown 
to  them,  accept  the  resignation  of  any  town  officer  of  their  town ; and 
whenever  they  shall  accept  any  such  resignation,  they  shall  forthwith  give 
notice  thereof  to  the  town  clerk  of  the  town.20  [Town  Law,  § 84 ; B.  C.  & G. 
Com.  L.,  p.  6161.] 


§ 19.  REMOVAL  OF  TOWN  OFFICERS;  APPLICATION  TO  APPEL- 
LATE DIVISION;  NOTICE. 

Any  town  or  village  officer,  except  a justice  of  the  peace,21  may  be  re- 
moved from  office  by  the  Supreme  Court  for  any  misconduct,  maladmin- 
istration, malfeasance  or  malversion  in  office.  An  application  for  such  re- 
moval may  be  made  by  any  citizen  resident  of  such  town  or  village  and 
shall  be  made  to  the  Appellate  Division  of  the  Supreme  Court  held  within 
the  judicial  department  embracing  such  town  or  village.  Such  application 
shall  be  made  upon  notice  to  such  town  officer  of  not  less  than  eight  days. 


19.  Official  acts  performed  before  filing  oatli  or  undertaking  are  valid.  See 
Matter  of  Kendall,  85  N.  Y.  302;  Horton  v.  Parsons,  37  Hun,  42;  Foot  v.  Stiles, 
57  N.  Y.  399;  People  v.  Crissey,  91  N.  Y.  616,  635.  Official  acts  by  justice  of  the 
peace  before  filing  oath  are  valid.  Rept.  of  Atty.  Genl.  (1903)  487. 

While  it  is  the  duty  of  a justice  of  the  peace  to  comply  with  the  law  requiring 
the  filing  of  an  undertaking  and  oath  of  office,  and  while  he  is  liable  to  be  punished 
for  failure  to  so  comply,  he  is  not  prevented  from  acting  as  such  officer  and  his 
official  acts  are  valid.  Rept.  of  Atty.  Genl.  (1911),  vol.  2,  p.  598. 

20.  Resignation  of  public  officers  generally.  The  Public  Officers  Law,  sec.  31, 
provides  that  every  town  officer  may  resign  his  office  to  the  town  clerk.  Every 
resignation  shall  be  in  writing  addressed  to  the  officer  or  body  to  whom  it  is  made. 
If  addressed  to  the  officer,  it  shall  take  effect  upon  delivery  to  him  at  his  place  of 
business,  or  when  it  shall  be  filed  in  his  office.  A delivery  at  the  office  or  place  of 
residence  or  business  of  the  person  to  whom  any  such  resignation  may  be  delivered, 
shall  be  a sufficient  delivery  thereof. 

Resignations  of  town  officers  are  governed  by  section  31  of  the  Public  Officers  Law 
rather  than  by  section  84  of  the  Town  Law,  which  is  ineffective  because  of  repug' 
nancy.  Rept.  of  Atty.  Genl.,  May  17,  1911.  For  form  of  resignation  of  town  officers, 
see  Form  No.  26. 

21.  Removal  of  public  officers.  Where  a public  officer  is  guilty  of  an  illegal  act 
or  omission  with  respect  to  his  office  he  may  be  removed  whether  or  no  the  act  was 
done  maliciously  or  corruptly.  Matter  of  Moran,  145  App.  Div.  642. 

Removal  of  justice  of  the  peace.  The  constitution  provides  that  justices  of  the 
peace  may  be  removed  for  cause,  after  due  notice  and  an  opportunity  of 
being  heard,  by  sueh  courts  as  are  or  may  be  prescribed  by  law.  Constitution, 


318  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Officers  Law,  § 30. 

and  a copy  of  the  charges  upon  which  the  application  will  be  made  must  be 
served  with  such  notice.  [Public  Officers  Law,  § 36;  B.  C.  & G.  Cons.  L., 
p.  4635.] 

§ 20.  VACANCIES,  HOW  CREATED. 

Every  office  shall  be  vacant22  upon  the  happening  of  either  of  the  follow- 
ing events  before  the  expiration  of  the  term  thereof : 

1.  The  death  of  the  incumbent; 

2.  His  resignation 22a; 

3.  His  removal  from  office; 

4.  His  ceasing  to  be  an  inhabitant  of  the  state,  or  if  he  be  a local  officer, 
of  the  political  subdivision,  or  municipal  corporation  of  which  he  is  re- 
quired to  be  a resident  when  chosen;23 


art.  6,  sec.  17.  Section  132  of  the  Code  of  Criminal  Procedure  provides  that 
justices  of  the  peace  are  removable  by  the  Appellate  Division  of  the  Supreme 
Court. 

Removal  of  town  superintendent  of  highways,  by  the  town  board  is  provided 
for  by  Highway  Law,  sec.  46,  post. 

22.  Vacancies;  how  created.  The  words,  “before  the  expiration  of  the  term  of 
such  office,”  though  they  are  but  words  of  caution  still  make  more  clear  the 
meaning  and  intent.  It  is  plain  that  no  vacancy  can  be  wrought  in  an  office  by 
the  act  or  fault  of  an  incumbent  after  the  expiration  of  the  term  for  which  he 
was  at  first  entitled  to  hold  it;  and  that  by  no  act  or  fault  of  his,  while  holding 
the  office  and  before  the  expiration  of  his  term  thereof,  can  there  be  created  a 
vacancy  in  the  office  during  the  term  of  a successor  rgularly  chosen.  People 
ex  rel.  Jackson  v.  Potter,  47  N.  Y.  375,  385.  See  People  ex  rel.  Mitchell  v.  Sohmer 
(1913),  209  N.  Y.  151,  102  N.  E.  593;  Matter  of  Troustine  v.  Britt  (1914),  212 
N.  Y.  421,  431,  106  N.  E.  129. 

Failure  to  elect  a successor  in  office  does  not  render  the  office  vacant.  People 
ex  rel.  Kehoe  v.  Fitcliie,  76  Hun  80,  28  N.  Y.  Supp.  600;  People  ex  rel.  Gray  v. 
Scott,  31  Misc.  131,  64  N.  Y.  Supp.  970.  A tie  vote  in  a town  election  does  not 
create  a vacancy.  Rept.  of  Atty.  Genl.  (1895)  93.  The  election  of  an  ineligible 
person  does  not  vacate  an  office;  the  former  incumbent  holds  over.  Rept.  of 
Atty.  Genl.  (1898)  78. 

An  office  occupied  by  an  officer  holding  over  after  the  expiration  of  his  term  is 
deemed  vacant  for  the  purpose  of  appointing  to  fill  the  vacancy.  People  ex  rel. 
Lovett  v.  Randall,  151  N.  Y.  497;  People  ex  rel.  Jackson  v.  Potter,  47  N.  Y.  375; 
People  ex  rel.  Brown  v.  Woodruff,  32  N.  Y.  355,  362. 

Where  residence  of  county  officer  is  unknown,  and  he  has  for  a long  time  been 
absent  from  the  county  and  does  not  attempt  to  exercise  any  of  the  powers  of  his 
office,  a vacancy  exists  which  may  be  filled  by  the  appointing  power,  without  re- 
course to  an  action  at  law  to  determine  his  status.  Rept.  of  Atty.  Genl.  (1914),  132, 

Acceptance  of  second  office  creates  a vacancy  in  the  first,  if  the  two  offices  are 
incompatible.  Offices  of  justice  of  the  peace  and  town  clerk  are  incompatible.  People 
ex  rel.  Earwicker  v.  Dillon,  38  App.  Div.  539,  56  N.  Y.  Supp.  416. 

Appointment  of  a person  to  a second  office,  incompatible  with  the  first,  is  not 
absolutely  void,  but  on  his  subsequently  accepting  the  appointment  and  qualifying, 
the  first  office  is  ipso  facto  vacated.  People  ex  rel.  Whiting  v.  Carrlque,  2 Hill.  93. 

22a.  For  form  of  resignation,  see  Form  No.  26,  post. 

23.  Ceasing  to  be  inhabitant.  The  word  “inhabitant”  is  used  as  synony- 
mous with  “ resident.”  People  v.  Platt,  50  Hun  454,  458,  3 N.  Y.  Supp.  367,  affd. 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS. 


31 


Public  Officers  Law,  § 30. 

5.  His  conviction  of  a felony,  or  a crime  involving  a violation  of  his 
oath  of  office; 

6.  The  judgment  of  a court,  declaring  void  his  election  or  appointment, 
or  that  his  office  is  forfeited  24  or  vacant ; 

7.  His  refusal  or  neglect  to  file  his  official  oath  or  undertaking,25  if  one 
is  required,  before  or  within  fifteen  days  after  the  commencement  of  the 
term  of  office  for  which  he  is  chosen,  if  an  elective  office,  or  if  an  ap- 
pointive office,  within  fifteen  days  after  notice  of  his  appointment,  or  within 
fifteen  days  after  the  commencement  of  such  term;  or  to  file  a renewal 
undertaking  within  the  time  required  by  law,  or  if  no  time  be  so  specified, 
within  fifteen  days  after  notice  to  him  in  pursuance  of  law,  that  such  re- 
newal undertaking  is  required.  When  a new  office  26  or  an  additional  in- 


117  N.  Y.  159.  Office  becomes  vacant  upon  the  officer  ceasing  to  be  a resident  of 
the  state,  municipality,  or  district  for  which  he  was  elected  or  appointed.  Peo- 
ple v.  Board  of  Education,  1 Den.  647. 

The  office  of  a town  clerk  who  removes  into  another  town  thereby  becomes 
vacant.  But,  if  he  continues  to  act  as  such  town  clerk  and  maintains  his  office 
within  the  town  at  the  same  place  where  it  was  located  prior  to  his  removal, 
without  objection  and  with  the  acquiescence  of  the  other  town  officers,  he  is  a 
de  facto  town  clerk,  and  his  acts  are  valid.  Matter  of  Collins,  75  App.  Div.  87,  77 
N.  Y.  Supp.  702. 

Supervisor  must  reside  in  the  ward  which  he  represents.  People  v.  Hull,  47  N. 
Y.  St.  Rep.  94,  19  N.  Y.  Supp.  536.  When  a supervisor  ceases  to  be  a resident  of 
the  town  for  which  he  is  elected  there  is  a vacancy.  Rept.  of  Atty.  Genl.  (1895)  92. 

When  an  inspector  of  election,  outside  of  a city,  removes  from  the  district  for 
which  lie  was  elected,  his  office  becomes  vacant.  Rept.  of  Atty.  Genl.  (1896)  231. 

Change  of  residence  to  another  county  by  a notary  public  vacates  his  office 
and  he  cannot  legally  act  officially,  although  his  certificate  lias  been  filed  in  the 
county  to  which  he  removed.  Rept.  of  Atty.  Genl.,  March  27,  1911. 

24.  Forfeitures.  An  officer  asking  or  receiving  bribes  upon  conviction  forfeits 
his  office  and  is  disqualified  from  holding  any  other  office.  (Penal  Law,  § 1823); 
as  also  an  officer  who  grants  to  another  for  pay  or  any  reward,  consideration  or 
gratuity  the  right  to  discharge  any  of  the  functions  of  his  office  (Penal  Law,  § 1864)  ; 
also  a constable  who  allows  a person  to  escape  from  his  lawful  custody  (Penal  Law, 
§ 1697)  ; also  a person  convicted  of  paying  money  for  votes  at  an  election  at  which 
he  was  elected  (Penal  Law,  § 751). 

25.  Failure  to  file  oath  or  undertaking.  The  following  cases  are  to  the  effect 
that  the  omission  in  regard  to  an  officer’s  bond  or  oath  afforded  cause  of  forfeiture, 
but  did  not  create  a vacancy,  which  could  only  be  effected  by  a direct  proceeding 
for  that  purpose.  People  ex  rel.  Brooks  v.  Watts,  73  Hun,  404,  407,  26  N.  Y.  Supp. 
280;  Cronin  v.  Stoddard,  97  N.  Y.  271,  274;  Horton  v.  Parsons,  37  Hun,  42,  45; 
People  ex  rel.  Willson  v.  Board,  etc.,  59  Hun,  204,  206.  13  N.  Y.  Supp.  447,  affd. 
128  N.  Y.  657;  People  ex  rel.  Woods  v.  Crissey,  91  N.  Y.  616,  635;  People  ex  rel. 
Williamson  v.  McKinney,  52  N.  Y.  374;  Matter  of  Taylor,  25  Abb.  N.  C.  143;  Adams 
v.  Tator,  42  Hun,  384. 

Failure  to  file  official  oath  by  health  officer  of  a village  vacates  his  office.  Rept. 
of  Atty.  Genl.,  Sept.  9,  1910. 

26.  Where  town  is  divided  and  a new  town  is  erected  therefrom,  there  is  a 
vacancy  in  the  offices  of  supervisor  and  town  clerk  in  the  new  town  until  the  first 
meeting.  Matter  of  Collins.  16  Misc.  598,  40  N.  Y.  Supp.  517. 


318 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 130. 

cumbent  of  an  existing  office,  shall  be  created,  such  office  shall  for  the  pur- 
poses of  an  appointment  or  election,  be  vacant  from  the  date  of  its  creation, 
until  it  shall  be  filled  by  election  or  appointment.  [Public  Officers  Law, 
§ 30;  B.  C.  & G.  Cons.  L.,  p.  4629.] 

§ 21.  VACANCIES,  APPOINTMENT  TO  FILL,  HOW  MADE  AND 
WHEN  FILLED. 

When  a vacancy  shall  occur  or  exist  in  any  town  office,  the  town  board 
or  a majority  of  them  may,  by  an  instrument  under  their  hands  and  seals, 
appoint  a suitable  person  to  fill  the  vacancy,  and  the  person  appointed, 
except  justices  of  the  peace,  shall  hold  the  office  until  the  next  biennial 
town  meeting.  A person  so  appointed  to  the  office  of  justice  of  the  peace 
shall  hold  the  office  until  the  next  biennial  town  meeting,  unless  the  ap- 
pointment shall  be  made  to  fill  the  vacancy  of  an  officer  whose  term  will 
expire  on  the  thirty-first  day  of  December  next  thereafter,  in  which  case 
the  term  of  office  of  the  person  so  appointed  shall  expire  on  the  thirty-first 
day  of  December  next  succeeding  his  appointment.  The  board  making 
the  appointment  shall  cause  the  same  to  be  forthwith  filed  in  the  office 
of  the  town  clerk,  who  shall  forthwith  give  notice  to  the  person  appointed. 
A copy  of  the  appointment  of  a justice  of  the  peace  shall  also  be  filed  in  the 
office  of  the  county  clerk  before  the  person  appointed  shall  be  authorized 
to  act.27  [Town  Law,  § 130;  B.  C.  & G.  Cons.  L.,  p.  6181.] 


§ 22.  COUNTY  CLERK  TO  REPORT  OMISSIONS  OF  TOWN  OFFICERS 
TO  DISTRICT  ATTORNEY. 

The  clerk  of  each  county  shall  make  a report  to  the  district  attorney  of 
the  county,  of  all  omissions  by  any  town  officer  to  make  and  transmit  any 
returns  or  certificates,  which  by  law  they  are  required  to  make  to  such 

27.  Appointment  to  fill  vacancies.  In  case  of  tie  at  an  annual  town  meeting 
and  adjournment,  it  is  competent  for  the  town  board  of  the  town  to  appoint  a 
suitable  person  to  fill  the  vacancy.  People  ex  rel.  Simpson  v.  Van  Horne,  18  Wend. 
515.  Vacancies  not  to  be  filled  upon  justices  declaring  town  meeting  to  be  irregular. 
Matter  of  Baker,  11  How.  Pr.  418. 

The  provisions  of  this  section,  authorizing  the  town  board  to  fill  a vacancy,  apply 
where  there  is  a failure  to  elect  by  reason  of  a tie  vote.  Rept.  of  Atty.  Genl.,  May 
25,  1911.  Where  there  is  a tie  vote  for  the  office  of  a supervisor  at  a town  meet- 
ing, and  the  incumbent  of  the  office  holds  over,  the  supervisor  should  be  chosen  by 
the  town  board,  the  supervisor  holding  over  not  voting.  There  is  no  authority  for 
another  election  until  the  next  town  meeting.  Rept.  of  Atty.  Genl.,  1912,  vol.  2, 
p.  404. 

Vacancy  in  office  of  supervisor.  Where  a vacancy  occurs  in  the  office  of  a 
town  supervisor  by  failure  of  the  person  elected  to  qualify,  the  vacancy  must  be  filled 
by  appointment  by  the  justices  of  the  peace  of  the  town  and  the  town  clerk,  and 
not  by  an  election  held  at  a special  town  meeting.  Section  130  of  the  Town  Law 
controls  the  manner  of  making  such  an  appointment.  Chapter  252  of  L.  1890, 
amending  sec.  34,  tit.  3,  ch.  11,  pt.  1,  of  the  Revised  Statutes,  which  provides  for 
the  filling  of  vacancies  in  town  offices  by  election,  was  repealed  by  the  repeal  of  the 
section  of  the  Revised  Statutes  which  such  law  amended.  People  ex  rel.  Hyde  v. 
Potter,  40  Misc.  485,  82  N.  Y.  Supp.  G49. 


ELIGIBILITY,  ETC.,  OF  TOWN  OFFICERS. 


319 


Town  Law,  § 14. 


clerk,  and  the  district  attorney  shall  enforce  the  penalty,  by  law  imposed 
upon  the  delinquent  officer.  [Town  Law,  § 14 ; B.  C.  & G.  Cons.  L.,  p. 
6137.] 


Where  a superintendent  of  highways  fails  to  qualify  for  office  in  that  his  official 
oath  is  defective  in  omitting  a statement  that  he  has  not  directly  or  indirectly  paid 
moneys  or  property  to  electors  as  a consideration  for  giving  or  withholding  votes 
at  the  election,  he  is  not  entitled  to  hold  office,  and  hence  the  town  board  has 
authority,  under  this  section,  to  fill  the  vacancy  by  reappointing  the  former  incum- 
bent. People  ex  rel.  Preston  v.  Keator  (1915),  169  App.  Div.  368,  154  N.  Y.  Supp. 
1007. 

Vacancies  in  the  office  of  school  director  may  be  filled  by  the  Town  Board,  in 
accordance  with  section  130  of  the  Town  Law.  Atty.  Gen’l.  Opin.,  6 State  Dep. 
Rep.  425  (1915). 

A supervisor  holding  over  after  his  term  has  expired  cannot  vote  as  a member 
of  the  town  board  to  fill  a vacancy  in  such  office.  Matter  of  Smith,  116  App.  Div. 
665,  101  N.  Y.  Supp.  992,  affd.,  188  N.  Y.  549. 

For  form  of  appointment  to  fill  vacancy  in  a town  office,  see  Form  No.  27, 
post. 

For  notice  of  appointment  to  towTn  office,  see  Form  No.  28,  post. 


320 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Explanatory  note. 


CHAPTER  XXII. 

SUPERVISOR  AS  TOWN  OFFICER;  GENERAL  DUTIES. 

EXPLANATORY  NOTE. 

Supervisor  as  Town  Officer. 

The  supervisor  represents  his  town  as  a member  of  the  county  hoard 
of  supervisors.  In  such  capacity  he  is  in  some  respects  a county  officer. 
But  he  is  primarily  a town  officer.  His  most  important  duties  pertain 
to  the  administration  of  town  affairs.  He  is  in  a sense  the  executive 
officer  of  the  town.  He  is  the  town’s  chief  fiscal  officer,  since  he  is 
the  custodian  of  town  funds,  except  those  raised  for  the  support  of  the 
poor.  His  powers  and  duties  are  prescribed  by  statute.  It  is  proposed 
in  this  chapter  to  treat  of  his  general  duties.  Those  duties  which  are 
performed  in  connection  with  other  officers  and  which  pertain  to  special 
subjects  are  considered  in  other  chapters. 

The  supervisor  is  a member  of  the  town  board,  and  presides  at  its 
meetings.  The  town  board  is  the  legislative  body  or  governing  board 
of  the  town.  Being  identified  with  nearly  all  the  governmental  func- 
tions of  the  town,  the  supervisor  is  the  most  important  member  of  this 
board  and  is  more  directly  responsible  for  its  acts  than  the  other  mem- 
bers of  the  board. 


Section  1.  General  duties  of  supervisor. 

2.  Town  surveys. 

3.  Incorporation  of  villages;  proceedings  before  supervisor. 

§ 1.  GENERAL  DUTIES  OF  SUPERVISOR. 

The  supervisor  of  each  town  1 shall : 


1.  Eligibility,  etc.,  of  Supervisor.  In  a preceding  chapter  we  have  considered 
the  provisions  of  the  law  relating  to  the  eligibility,  qualification,  oath  and  under- 
taking of  supervisors  as  well  as  other  town  officers. 


SUPERVISOR  AS  TOWN  OFFICER. 


321 


Town  Law,  § 98. 

L Receive  and  pay  over  all  moneys  raised  therein  for  defraying  town 


Other  duties  of  supervisors.  In  addition  to  the  general  duties  conferred 
upon  town  supervisors  as  provided  in  this  section  and  in  the  succeeding  sections 
of  this  chapter,  the  following  may  be  mentioned  as  other  special  duties.  Each  of 
these  will  be  hereafter  considered  in  this  work  in  their  proper  connection. 
(For  places  in  this  manual  where  the  sections  referred  to  in  this  note  may  be 
found,  see  Table  of  Laws,  after  the  Table  of  Contents.) 

Undertaking  of  supervisors.  See  Form  No.  20,  post. 

Approval  of  undertakings  of  town  officers.  See  Town  Law,  secs.  114,  116,  106, 
113,  111,  in  preceding  chapter. 

Town  board,  as  member  of,  to  audit  accounts,  etc.,  see  ch.  XXVIII,  post. 

Board  of  health,  as  member  of,  see  ch.  XXXII,  post. 

School  moneys,  as  to  apportionment  of,  see  ch.  XXXII,  post. 

Support  of  poor,  see  chs.  XLIV-XLVI,  post. 

Sale  of  personal  property  under  lien,  proceeds  to  be  deposited  with  super- 
visor. Lien  Law,  sec.  284. 

Survey  of  nonresident  lands,  supervisor  to  cause  to  be  made  in  certain  cases. 
Tax  Law,  sec  31,  post. 

Assessment-roll  to  be  delivered  to  supervisor.  Tax  Law,  sec.  39,  post. 

Collection  of  taxes,  supervisor  to  apply  to  county  treasurer  for  extention  of 
time  for.  Tax  Law,  sec.  85,  post. 

Collector,  supervisor  to  notify  county  treasurer  of  appointment  to  fill  vacancy 
in  office  of.  Tax  Law,  sec.  86,  post.  To  sue  on  bond  of  collector,  see  Tax 
Law,  sec.  305,  post. 

Equalization  of  assessments  by  board  of  supervisors,  supervisor  may  appeal 
from.  Tax  Law,  sec.  175,  post. 

Unpaid  taxes,  duties  of  supervisor  in  instituting  supplementary  proceedings 
for  collection  of.  See  Tax  Law,  sec.  299,  post. 

Dogs,  taxation  of,  in  towns,  duties  of  supervisor  as  to.  County  Law,  secs. 
113,  114,  post. 

Temporary  relief  of  poor  persons,  supervisor  to  give  order  for.  Poor  Law, 
sec.  23,  post. 

Overseer  of  the  poor,  supervisor  to  present  estimate  of,  if  approved  by  the 
town  board,  to  the  board  of  supervisors.  Poor  Law,  sec.  27,  post.  To  transmit 
to  board  of  supervisors  abstract  of  accounts  of  overseer.  Poor  Law,  sec.  141, 
post. 

Accounts  audited  by  the  town  board  to  be  certified  and  delivered  to  supervisor. 
Town  Law,  sec.  133,  post. 

Town  auditor,  vacancy  in  office  of,  to  be  filled  by  supervisor.  Town  Law, 
sec.  156,  post. 

Licenses  for  peddling,  etc.,  to  be  endorsed  by  supervisor;  fees  to  be  paid  to 
him.  Town  Law,  sec.  211,  post. 

Transient  retail  business,  licenses  for,  to  be  issued  by  supervisor;  fees  to 
be  paid  to  him.  General  Municipal  Law,  § 85,  post. 

Hacks,  shores,  concerts  and  amusemen*s,  licenses  for,  to  be  issued  by  supervisor; 
fees  to  be  paid  to  him;  disposition  of  fees.  Town  Law,  § 215.  post. 

Highways  and  bridges , supervisor  to  sell  bonds  of  town  for  construction  or 


322  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 98. 

charges,  except  those  raised  for  the  support  of  the  poor,2  in  towns  where 
the  poor  is  not  a town  charge  ; in  counties  where  each  town  maintains 
the  poor  thereof,  the  town  board  of  said  town  may  by  resolution  direct 
that  the  money  raised  by  said  town  for  the  outdoor  relief  of  said  town 
be  held  and  retained  by  the  supervisor  and  disbursed  by  him  upon  the 
orders  of  the  respective  overseers  of  the  poor  of  such  town,  and  the 
overseers  of  the  poor  of  such  town  shall  not  give,  allow  or  grant  order 
for  a sum  exceeding  the  amount  set  aside  for  their  respective  districts 
during  any  year  except  that  the  town  board  or  supervisor  thereof  may 
consent  where  necessity  demands  that  other  and  further  orders  be  given, 
in  which  event  the  town  shall  provide  for  the  payment  of  such  further 
orders. 

repair  of,  when  authorized  by  board  of  supervisors.  Highway  Law,  sec.  98,  post. 

Highway  moneys  are  to  be  placed  in  the  custody  of  the  supervisor  and  are  to  be 
expended  by  him  upon  order  of  the  town  superintendent  of  highways,  as  provided 
in  secs.  104-106  of  the  Highway  Law  of  1908.  The  supervisor  is  required  to  report 
as  to  highway  moneys  received  and  expended.  Highway  Law,  sec.  107,  posit. 

Railroad  commissioners , to  perform  duties  of,  when  office  is  abolished.  General 
Municipal  Law,  sec.  16,  post. 

Town  indebtedness,  supervisor  to  report  amount  of,  to  board  of  supervisors.  Town 
Law,  sees.  190,  191,  post. 

Special  town  meeting,  supervisor  may  make  application  for.  Town  Law,  sec.  46, 
ante. 

Jurors,  trial,  duties  of  supervisors  as  to  selection.  See  Judiciary  Law,  sec.  500, 
post. 

School  funds,  etc.,  duties,  Education  Law,  sec.  360,  post.  School  districts,  hear- 
ing of  alteration  of  boundaries,  Idem,  sec.  125,  post. 

2.  The  supervisor  of  a town  is  in  a general  sense  its  treasurer.  He  is  entitled  to 
receive  all  moneys  raised  for  town  purposes,  except  those  which  are  expressly  directed 
to  be  paid  to  the  town  officers  having  charge  of  the  support  of  the  poor.  He  is  also 
directed  to  pay  all  judgments  recovered  against  the  town  from  any  moneys  in  his 
hands  which  are  not  otherwise  specially  appropriated.  The  statute  thus  assumes 
that  he  is  the  legal  custodian  of  the  moneys  of  the  town  and  chargeable  with  the 
duty  not  only  of  receiving  and  keeping  them,  but  also  of  guarding  their  disbursement, 
and  also  recognizes,  to  a certain  extent,  the  corporate  existence  of  towns  and  their 
capacity  to  hold  property,  to  protect  their  possession,  and  to  enforce  their  quasi 
corporate  rights  by  appropriate  action.  Bridges  v.  Board  of  Supervisors,  92  N.  Y. 
570.  The  supervisor  has  no  authority,  under  the  law,  to  receive  moneys,  even  in 
transit  raised  by  tax  for  the  support  of  the  poor.  Moneys  raised  for  such  purposes 
are  expressly  excluded  from  those  which  he  is  authorized  to  receive  or  pay  over. 
A disregard  of  this  provision  of  the  law  by  a board  of  supervisors,  and  a direction 
by  them  in  violation  of  law,  in  a tax  warrant,  to  pay  the  moneys  raised  for  high- 
ways to  the  supervisor  does  not  abrogate  or  change  the  law,  or  in  any  way  extend 
or  enlarge  the  powers,  duties  or  responsibilities  of  the  supervisor.  People  v.  Pen- 
nock,  60  N.  Y.  421.  This  case  is  not  now  directly  applicable  since  the  supervisor 
is  also  made  the  custodian  of  highway  and  bridge  funds  by  Highway  Law,  secs.  104- 
106,  post. 

The  supervisor  is  the  lawful  custodian  of  the  moneys  of  the  town  and  charge- 
able with  the  duty  not  only  of  receiving  and  keeping  them,  but  also  of  guarding 
their  disbursement.  Annis  v.  McNulty,  51  Misc.  121,  100  N.  Y.  Supp.  951. 

A supervisor  of  a town  has  no  authority  to  retain  a percentage  of  the  public 
moneys  passing  through  his  hands  as  compensation  for  receiving  and  disbursing 
such  moneys,  and  a resolution  of  the  board  of  supervisors  authorizing  such  action 
by  one  of  their  number  is  void.  Matter  of  Town  of  Hempstead,  36  App.  Div.  321 ; 
65  N.  Y.  Supp.  345;  affd.,  160  N.  Y.  685. 


SUPERVISOR  AS  TOWN  OFFICER. 


323 


Town  Law,  § 98. 

2.  Prosecute,  in  the  name  of  his  town,  for  all  penalties  given  b y law 
to  such  town  for  its  use,  and  for  which  no  other  officer  is  specially  di- 
rected to  prosecute.* * 3  * 

3.  Keep  a just  and  true  account  of  the  receipt  and  expenditures  of  all 
moneys  which  shall  come  into  his  hands  by  virtue  of  his  office,  in  a book 
to  he  provided  for  that  purpose  at  the  expense  of  the  town,  and  to  be 
delivered  to  his  successor  in  office. 

4.  On  the  Tuesday  preceding  the  biennial  town  meeting  and  on  the 
corresponding  date  in  each  alternate  year,  account  with  the  justices  of 
the  peace  and  town  clerk  of  the  town  for  the  disbursement  of  all  moneys 
received  by  him,  including  highway  moneys  received  and  disbursed  by 
him  as  provided  in  the  highway  law,  and  a copy  of  such  account,  shall 

A town  supervisor  is  merely  the  custodian  of  town  moneys  raised  in  a regular 

form  for  a particular  purpose.  He  may  not  question  the  propriety  or  legality  of 
the  expenditures  underlying  the  levy  and  collection  of  the  taxes.  Attorney-General 
v.  Taubenheimer  (1917),  178  App.  Div.  321,  164  N.  Y.  Supp.  904. 

3.  Actions  for  penalties.  As  a general  rule  the  town  board  of  a town  is  the  gov- 
erning board  thereof,  and  so  far  as  official  action  can  go  the  internal  affairs 
of  a town  are  under  the  control  of  this  board.  The  town  board  has  exclusive 
authority  to  prosecute  and  defend  litigation  which  concerns  the  town.  An 
exception  is,  however,  created  to  this  rule  by  the  above  section  of  the  Town 
Law,  where  it  is  provided  that  the  supervisor  of  the  town  shall  prosecute  in  the 
name  of  the  town  for  all  penalties  given  by  law  to  such  town  for  its  use  and  for 
which  no  other  officer  shall  be  directed  to  prosecute.  No  authority  is  bestowed 
upon  the  supervisor  to  prosecute  or  defend  any  other  action.  Adee  v.  Arnow, 
91  Hun,  329;  36  N.  Y.  Supp.  1020. 

Action  to  compel  railroad  commissioners  of  a town  to  account  for  and  pay 
over  moneys  received  by  them  on  a sale  of  railroad  stock  of  the  town,  to  re- 
cover the  balance  due  to  the  town,  in  their  hands,  is  properly  brought  by  the 
supervisor  of  the  town,  in  his  own  name  as  such.  Griggs  v.  Griggs,  66  Barb. 
287,  affd.  in  56  N.  Y.  504. 

The  cases  of  Hathaway  v.  Town  of  Cincinnatus,  62  N.  Y.  434;  Sutherland  v. 
Carr,  85  N.  Y.  Ill;  Bridges  v.  Board  of  Supervisors,  92  N.  Y.  577;  Cornell  v. 
Town  of  Guilford,  19  Denio,  510;  Town  of  Lyons  v.  Cole,  3 T.  & C.  431;  Mitchell 
v.  Strough,  35  Hun,  83,  and  other  cases  of  a similar  nature,  holding  that  a town 
supervisor  is  the  proper  officer  to  bring  an  action  in  the  name  of  the  town, 
were  decided  under  section  1926  of  the  Code  of  Civil  Procedure,  and  the  section 
of  the  revised  statutes  from  which  that  section  was  derived  as  existing  prior 
to  the  amendment  of  such  section  of  the  code  by  ch.  302  of  the  L.  of  1897.  By 
that  amendment  the  authority  of  the  supervisor  to  maintain  an  action  in  behalf 
of  the  town  upon  a contract,  to  enforce  a liability,  to  recover  a penalty,  or  to 
recover  damages  for  an  injury  to  the  property  or  rights  of  the  town  was  elim- 
inated. 

An  action  brought  by  a supervisor  to  recover  a penalty  should  be  brought 
in  the  name  of  the  town.  Mitchell  v.  Strough,  35  N.  Y.  83. 

It  is  the  duty  of  the  supervisor  to  sue  for  the  recovery  of  penalties  incurred 
by  persons  illegally  voting  at  school  meetings.  Education  Law,  § 205.  It  is 
also  “T.iidt  his  duty  to  sue  for  and  recover  in  his  name  of  office  all  penalties  and 
Jorfeiture*  Impost  by  the  Education  Law.  Education  Law,  § 360,  subd.  8. 


324 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 98. 

thereupon  be  filed  in  the  office  of  the  town  clerk,  and  attached  thereto  and  made  a 
part  thereof  shall  be  a certificate  or  certificates  of  the  bank  where  the  moneys  of 
such  town  are  deposited  showing  the  amount  of  such  moneys  on  deposit  with  said 
bank.  The  town  board  shall  cause  a certified  copy  of  the,  report  to  be  published  in 
a newspaper  published  in  the  town  or  if  there  be  none  published  therein,  then  in 
a newspaper  published  within  the  county  and  having  the  greatest  circulation  within 
the  town.  If  the  biennial  town  meeting  in  any  town  is  held  at  the  time  of  a gen- 
eral election,  such  account  shall  be  rendered  on  the  twenty-eighth  day  of  December 
in  each  year,  or  on  the  day  preceding  when  such  day  falls  on  Sunday.*  [Subd. 
amended  by  L.  1916,  ch.  347.] 

5.  Receive  all  accounts  against  the  town,  which  shall  be  presented  to  him,  and 
present  the  same  to  the  town  board  for  audit,  except  such  accounts  as  he  may  be 
required  by  law  to  present  to  the  board  of  supervisors.4 5 

6.  Attend  the  annual  meeting  of  the  board  of  supervsiors  of  the  county,  and 
every  adjourned  or  special  meeting  of  which  he  shall  have  notice,  and  present  to 
such  board  the  town  audits,  and  such  other  accounts  and  demands  against  the  town, 
and  such  reports  and  statements  as  he  may  be  required  by  law  to  present  to  such 
board.6 

4.  Supervisor’s  accounts.  The  justices  of  the  peace  and  town  clerk  are  constituted 
by  subd.  4 of  this  section  as  a special  board  of  audit  to  examine  the  accounts  of 
supervisors.  The  statute  fixes  the  day  of  their  meeting  for  this  purpose,  and  the 
board  cannot  lawfully  meet  and  perform  its  duties  on  any  other  day  than  the  day 
prescribed.  People  ex  rel.  Johnson  v.  Martin,  62  Barb.  570;  People  v.  Town  of 
Westford,  53  Barb.  555.  The  accounting  consists  not  in  paying  over  any  money 
or  delivering  property  to  the  auditing  board  or  to  other  officers ; for  the  supervisor’s 
term,  at  that  time,  is  not  ended;  but  he  is  to  show  the  condition  of  the  town  funds 
and  property  in  his  hands,  the  disbursement  of  moneys  received,  and  the  state  of  his 
official  accounts.  People  ex  rel.  Johnson  v.  Martin,  supra. 

Accounting  of  supervisor  may  be  enforced  by  action.  Town  of  Guilford  v.  Cooley, 
58  N.  Y.  116. 

A supervisor  should  account  for  all  interest  received  on  deposits  of  town  funds. 

The  town  board  cannot  lawfully  permit  the  supervisor  to  retain  interest  on  de- 
posits as  a part  of  his  salary  or  compensation.  Opinion  of  Comptroller  (1916),  8 
State  Dept.  Rep.  590. 

5.  Claims  against  town  to  be  submitted  to  supervisor.  The  purpose  of  subd. 
5 of  the  above  section  is  to  require  all  claims  against  the  town  to  be  submitted 
in  due  form  to  the  supervisor,  to  be  by  him  presented  to  the  town  board  for  audit, 
or  to  the  board  of  supervisors  as  the  case  may  be.  The  auditing  of  town  accounts 
by  the  town  board  is  made  the  subject  of  a subsequent  chapter  of  this  work.  See 
ch.  XXVII,  post. 

Obtaining  town  moneys  through  conspiracy.  A town  supervisor  who  is  the 
custodian  of  sewer  funds  may  be  convicted  of  grand  larceny  for  signing  a warrant 
for  the  payment  of  a fraudulent  claim  made  by  the  contractors  and  for  conspiring 
to  defraud  the  town.  Where  such  acts  constitute  larceny  at  common  law  and 
embezzlement  under  the  statute,  the  offender  may  be  prosecuted  on  either  charge 
at  the  option  of  the  people.  People  v.  Lein  (1912),  152  App.  Div.  376,  136  N.  Y. 
Supp.  995,  affd.  (1912),  207  N.  Y.  667,  100  N.  E.  1132. 

Payment  of  town  claims  by  check  or  script.  A supervisor  in  paying  town  claims 
may  issue  his  check  as  supervisor  payable  at  the  bank  where  the  deposit  of  town 
funds  is  made,  or  he  may  issue  script  payable  at  a date  after  taxes  have  been  col- 
lected. When  the  latter  plan  is  followed,  the  board  of  supervisors  may,  by  appro- 
priate resolutions,  authorize  the  various  collectors  to  accept  such  script  and  apply 
the  same  to  the  payment  of  taxes.  Opinion  of  State  Comptroller  (1916),  10  State 
Dept.  Rep.  525. 

Supervisor  may  attack  audit  upon  proceedings  to  enforce  payment.  A supervisor 

who  refuses  payment  of  an  audit  claim  may,  if  proceedings  to  compel  payment  are 
instituted,  attack  the  audit  and  show  that  the  town  board  was  without  jurisdiction 
to  allow  all  or  a part  of  the  charges  therein  contained.  Opinion  of  State  Comp- 
troller (1916),  8 State  Dept.  Rep.  578. 

6.  Supervisor  as  member  of  board  of  supervisors.  The  duties  of  supervisor  in  re- 
spect to  the  submission  of  town  accounts,  which  have  been  audited  by  the  town 
board,  is  prescribed  by  section  133  of  the  Town  Law,  post , p.  377.  The  general 
powers  and  duties  of  boards  of  supervisors  are  considered  in  a preceding  chapter. 
See  ch.  4,  ante. 


SUPERVISOR  AS  TOWN  OFFICER. 


Town  Law,  § 98. 

7.  Sell  and  convey  in  the  name  of  the  town,  property  owned  by  it, 
when  directed  by  a town  meeting.7 

8.  In  towns  other  than  those  mentioned  in  section  ninety-seven  of  the 
conservation  law,  the  supervisor  shall,  by  virtue  of  his  office,  be  superin- 
tendent of  fires  of  his  town  and  charged  with  the  duty  of  preventing  and 
extinguishing  forest  fires.  He  shall  have  power  to  employ  persons  to 
act  as  forest  rangers  in  preventing  and  fighting  fires  and  to  employ  nec- 
essary assistants  therefor,  and  shall  possess  all  the  power  and  authority 
conferred  upon  the  conservation  commission,  district  forest  ranger,  forest 
ranger  and  fire  warden  under  sections  ninety-two  and  ninety-three  of 
the  conservation  law.  Any  person  summoned  to  fight  forest  fires  who  is 
physically  able  and  refuses  to  assist  shall  be  liable  to  a penalty  of  twenty 
dollars.  The  town  board  of  each  town  shall  at  its  first  annual  meeting 
designate  one  of  its  members  to  act  as  such  superintendent  of  fires  for 
the  ensuing  year  in  case  of  absence  of  the  supervisor.  The  town  board 
shall  fix  the  compensation  of  all  forest  rangers  and  assistants  employed 
under  the  provisions  of  this  section  'and  all  expenses  incurred  under  the 
provisions  of  this  section  shall  be  a charge  upon  and  paid  by  the  town. 
[Town  Law,  § 98,  as  amended  by  L.  1909,  ch.  491,  L.  1910,  ch.  630, 

L.  1912,  ch.  371,  L.  1913,  ch.  606,  L.  1914,  ch.  153,  and  L.  1916,  ch. 
347;  B.  C.  & G.  Cons.  L.,  p.  6167.] 


7.  Conveyance  of  town  property.  Under  sub.  12  of  sec.  43  of  the  Town 
Law,  ante,  the  electors  of  a town  at  a biennial  town  meeting  may  direct  the  sale 
and  conveyance  by  the  supervisor  in  the  name  of  the  town  of  property  owned 
by  it.  Sub.  7 of  the  above  section  authorizes  the  supervisors  to  convey  property 
when  so  directed  by  a town  meeting. 


326-330  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 99. 


§ 2 . TOWN  SURVEYS. 

Whenever  the  supervisor  of  any  town  shall  be  required  by  the  state 
engineer  and  surveyor  to  cause  a survey  to  be  made  of  the  bounds  of  his 
town,  such  supervisor,  within  sixty  days  thereafter,  shall  cause  such 
survey  to  be  made,  and  transmit,  by  mail  or  otherwise,  a map  and  de- 
sciption  thereof  to  the  state  engineer  and  surveyor.  The  expense  of 
such  survey  and  map  shall  be  defrayed  bv  the  several  towns  whose 
bounds,  either  wholly  or  in  part,  shall  be  described  thereby;  such  ex- 
pense to  be  apportioned  by  the  board  of  supervisors  of  the  county.  If 
any  supervisor  shall  refuse  or  neglect  to  cause  such  survey  to  be  made, 
he  shall  forfeit  the  sum  of  fifty  dollars  to  the  people  of  the  state.  [Town 
Law,  § 99 ; B.  Co  & G.  Cons.  L.,  p.  6169.] 


SUPERVISOR  AS  TOWN  OFFICER. 


331 


Village  Law,  §§  2,  3. 

§ 3.  INCORPORATION  OF  VILLAGES;  PROCEEDING  BEFORE 

SUPERVISOR. 

Requisite  population. — A territory  not  exceeding  one  square  mile,  or 
conforming  to  the  boundaries  of  a water  district,  lighting,  fire  or  school 
district,  or  an  entire  town,  or  two  school  districts,  containing  in  each  case 
a population  of  not  less  than  two  hundred,  and  not  including  a part  of  a 
city  or  village,  may  be  incorporated  as  a village  under  this  chapter.  [Vil- 
lage Law,  § 2,  as  amended  by  L.  1909,  ch.  555,  L.  1915,  ch.  31,  and  L. 
1917,  ch.  65;  B.  C.  & G.  Cons.  L.,  p.  6365.] 

Proposition  for  incorporation  and  consent  of  property  owners . — 
Twenty-five  adult  freeholders  residing  in  such  territory  may  institute 
a proceeding  for  the  incorporation  thereof  as  a village,  by  making  and 
delivering  to  the  supervisor  of  the  town  in  which  such  territory  is 
situated,  or  if  situated  in  two  or  more  towns,  to  the  supervisors  of  each 
of  such  towns,  a proposition  in  substantially  the  following  form : 

Proposition  for  the  incorporation  of  the  village  of 

The  undersigned  adult  resident  freeholders  of  the  territory  herein- 
after described  propose  the  incorporation  thereof  by  the  name  of  the 
village  of 

The  territory  proposed  to  be  incorporated  does  not  exceed  one  square 
mile  and  is  bounded  and  described  as  follows:  (or,  the  territory  pro- 
posed to  be  incorporated  is  the  entire  town  of or  an 

entire  school,  lighting,  fire  or  water  district,  suitably  describing  such 
district  with  common  certainty). 

Such  territory  contains  a population  of , as  appears 

from  the  enumeration  hereto  attached. 

Dated, 

(Signatures  and  residences.) 

The  proposition  shall  be  signed  by  the  persons  proposing  such  incor- 
poration, with  the  addition  of  the  town  in  which  they  respectively  reside. 
There  shall  be  attached  to  said  proposition  and  delivered  to  said  super- 
visor or  supervisors  concurrently  therewith,  a written  consent  to  the 
proposed  incorporation  in  substantially  the  following  form: 

Consent  to  the  proposed  incorporation  of  the  village  of 

The  undersigned,  owners  of  one-third  in  value  of  the  real  property 
within  the  territory  described  in  the  proposition  hereto  attached,  as 
assessed  upon  the  last  preceding  town  assessment-roll,  hereby  consent  to 
the  incorporation  thereof  as  in  said  proposition  set  forth. 

Dated, 

Signatures.  Residences.  Assessments. 

The  said  consent  shall  be  signed  by  owners  of  real  property,  situated 
within  such  territory  constituting  one-third  in  value  thereof,  as  assessed 
upon  the  last  preceding  town  assessment-roll  with  the  addition  of  their 
places  of  residence  and  the  assessment  of  their  said  real  property,  re- 
spectively. A list  of  the  names  of  the  inhabitants  of  such  territory  shall 


332 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Village  Law,  §§  4-6. 

be  attached  to  and  accompany  the  proposition.  At  the  time  of  the  de- 
livery of  the  proposition  the  sum  of  fifty  dollars  shall  be  deposited  with 
one  of  the  supervisors  for  the  purpose  specified  in  this  article.8  [Vil- 
lage Law,  § 3,  as  amended  by  L.  1909,  ch.  555,  and  L.  1915,  ch.  31,  B. 
C.  & G.  Cons.  L.,  p.  6365.] 

Notice  of  hearing. — Within  ten  days  after  the  receipt  of  such  proposi- 
tion the  supervisor  or  supervisors  shall  cause  to  be  posted  in  five  public 
places  in  such  territory  and  also  published  at  least  twice  in  each  news- 
paper published  therein,  a notice,  that  a proposition  for  the  incorpora- 
tion of  the  village  of  (naming  it)  has  been  received  by  him  or  them,  that 
■at  a place  in  such  territory  and  on  a day  not  less  than  ten  nor  more  than 
twenty  days  after  the  date  of  posting  such  notice,  which  place  and  date 
shall  be  specified  therein,  a hearing  will  be  had  upon  such  proposition ; 
and  that  such  proposition  will  be  open  for  public  inspection  at  a specified 
place  in  such  territory  until  the  date  of  such  hearing.  [Village  Law, 
§ 4,  B.  C.  & G.  Cons.  L.,  p.  6366.] 

Proceeding  on  hearing. — The  supervisor  or  supervisors  shall  meet  at 
the  time  and  place  specified  in  such  notice,  and  shall  hear  any  objections 
which  may  be  presented  against  such  incorporation  upon  either  of  the 
following  grounds: 

1.  That  a person  signing  such  a proposition  is  not  qualified  therefor,  or 

2.  That  the  persons  signing  such  consent  are  not  the  owners  of  one- 
third  in  value  of  the  real  property  within  such  territory,  as  assessed 
upon  the  last  preceding  town  assessment-roll,  or 

3.  That,  if  the  territory  is  less  than  an  entire  town,  it  contains  more 
than  one  square  mile  and  does  not  conform  to  the  boundaries  of  an 
entire  lighting,  fire,  water  or  school  district,  or 

4.  That  the  population  of  the  territory  is  less  than  two  hundred. 

All  objections  must  be  in  writing  and  signed  by  one  or  more  resident 
taxpayers  of  a town  in  which  some  part  of  the  proposed  village  is 
situated.  Testimony  may  be  taken  on  such  hearing,  which  shall  be  re- 
duced to  writing,  and  subscribed  by  the  witnesses.  The  hearing  may  be 
adjourned,  but  must  be  concluded  within  ten  days  from  the  date  fixed 
in  the  notice.  [Village  Law,  § 5,  as  amended  by  L.  1909,  ch.  555,  and 
L.  1915,  ch.  31 ; B.  C.  & G.  Cons.  L.,  p.  6366.] 

Decision  of  supervisor. — Within  ten  day^s  after  such  hearing  is 
concluded  the  supervisor  or  supervisors  shall  determine  whether  the 
proposition,  consent  and  papers  filed  therewith  comply  with  this  chap- 
ter, and  shall  within  such  time  make  and  sign  a written  decision  ac- 
cordingly, and  file  it  or  a duplicate  thereof  in  the  office  of 
the  town  clerk  of  each  town  in  which  any  part  of  such 
proposed  village  is  situated.  The  proposition  for  incorporation, 

8.  Petition  or  consent  must  definitely  describe  boundaries.  Where  the 
description  leaves  the  exact  boundaries  doubtful  and  uncertain,  the  petition  is 
defective  and  the  proceedings  will  fail.  People  ex  rel.  Underwood  v.  Village  of 
Patchogue,  217  N.  Y.  466. 


SUPERVISOR  AS  TOWN  OFFICER. 


333 


Village  Law,  §§  7,  8,  9. 

consent  and  papers  attached  thereto,  a copy  of  the  notice,  the  objections, 
testimony  and  minutes  of  proceedings  taken  and  kept  on  the  hearing ; shall 
also  be  filed  with  such  decision  in  one  of  such  town  clerk’s  offices.  If  the 
decision  be  adverse  to  the  proposition,  it  shall  contain  a brief  statement  of 
the  reasons  upon  which  it  is  based.  If  no  appeal  be  taken  from  such  decis- 
ion within  ten  days  from  the  filing  thereof,  it  shall  be  final  and  conclusive. 
[Village  Law,  § 6,  B.  C.  and  G.  Cons.  L.,  p.  6367.] 

Notice  of  appeal  from  decision  of  supervisor. — If  the  decision  sustains 
the  proposition  for  incorporation,  a resident  taxpayer  of  a town  in  which  any 
part  of  such  proposed  village  is  situated  may  appeal  therefrom  by  serving  a 
notice  of  appeal  upon  each  town  clerk  with  whom  the  decision  was  filed, 
and  on  at  least  three  of  the  persons  who  signed  the  proposition.  If  the 
decision  be  adverse,  five  of  the  persons  who  signed  the  proposition  may  join 
in  an  appeal  therefrom,  by  serving  a notice  of  appeal  upon  each  town  clerk 
with  whom  the  decision  was  filed,  and  on  each  person  who  signed  objections 
to  the  proposition.  All  appeals  shall  be  taken  to  the  county  court  of  the 
county  in  which  the  proposition,  notice,  objections  and  testimony  are  filed, 
and  the  notice  of  appeal  must  be  served  within  ten  days  after  the  filing  of 
the  decision. 

The  town  clerk  with  whom  the  proposition  and  other  papers  are  filed 
must,  within  five  days  after  service  upon  him  of  the  notice  of  appeal,  trans- 
mit all  such  papers  to  the  county  judge.  [Village  Law,  § 7 ; B.  C.  and  G. 
Cons.  L.,  p.  6367.] 

Hearing  and  decision  of  appeal. — A person,  except  a town  clerk,  by  or 
upon  whom  the  notice  of  appeal  is  served,  may  bring  on  the  appeal  for 
argument  before  the  county  court,  upon  a notice  of  not  less  than  ten  nor 
more  than  twenty  days.  Such  notice  must  be  served  upon  all  parties  to  the 
appeal,  except  a town  clerk. 

The  county  court  shall  hear  such  appeal,  and,  within  ten  days  after  the 
date  fixed  in  the  notice  of  argument,  shall  make  and  file  an  order  affirming 
or  reversing  the  decision.  The  county  judge  shall  file  such  order,  together 
with  the  papers  upon  which  the  appeal  was  heard,  with  the  town  clerk  by 
whom  the  papers  were  transmitted  to  him.  Such  order  shall  be  final  and 
conclusive.  No  costs  of  the  appeal  shall  be  allowed  to  any  party.  [Village 
Law,  § 8 ; B.  C.  and  G.  Cons.  L.,  p.  6368.] 

When  election  may  he  held. — An  election  to  determine  the  question  of 
incorporation  upon  such  proposition  shall  be  held  in  either  of  the  following 
cases : 

1.  Where  a decision  has  been  made  sustaining  the  proposition,  and  an 
appeal  has  not  been  taken  therefrom. 

2.  Where  an  appeal  has  been  taken  from  a decision  sustaining  the  propo- 
sition, and  such  decision  has  been  affirmed  by  the  county  court. 

3.  Where  an  appeal  has  been  taken  from  an  adverse  decision,  and  the 


334 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Village  Law,  § 23. 

decision  has  been  reversed  by  the  county  court.  [Village  Law,  § 9;  B.  C, 
and  G.  Cons.  L.,  p.  6368.] 

Compensation  for  services  under  this  article. — The  following  .compensa- 
tion is  payable  for  services  under  this  article : 

1.  To  supervisors  for  services  in  connection  with  the  proposition  for  in- 
corporation, two  dollars  for  each  day  actually  and  necessarily  spent  by 
them. 

2.  To  town  clerks,  the  compensation  allowed  by  law  for  other  similar 
services,  and  for  services  the  compensation  for  which  is  not  fixed  by  law, 
two  uollars  for  each  day  actually  and  necessarily  spent  by  them. 

3.  To  electors  acting  as  inspectors  of  election,  two  dollars  for  each  day 
actually  and  necessarily  spent  in  such  service.  [Village  Law,  § 23;  B.  C* 
and  G.  Cons.  L.,  p.  6372.] 


DUTIES  OF  TOWN  CLERK,  GENERALLY. 

Explanatory  note. 


335 


CHAPTER  XXIII. 

DUTIES  OF  TOWN  CLERK,  GENERALLY. 

EXPLANATORY  NOTE. 

Duties  of  Town  Clerks. 

Town  clerks  have  the  custody  and  control  of  town  records.  They 
are  responsible  for  their  safe  keeping.  All  papers  required  by  law 
to  be  filed  or  recorded  in  the  town  clerk’s  office  must  be  received  by  him 
and  filed  or  entered  so  as  to  be  readily  accessible  to  the  public.  He 
must  transcribe  the  minutes  of  the  proceedings  of  town  meetings  in  books 
provided  for  the  purpose. 

Chattel  mortgages,  marriage  licenses,  birth  and  death  certificates  are 
to  be  filed  in  town  clerks’  offices,  unless  provision  is  otherwise  made 
for  filing  them  in  the  office  of  a city  clerk. 

The  town  clerk  has  many  important  duties  to  perform  as  a member 
of  the  town  board.  These  duties  will  be  hereafter  considered  in  con- 
nection with  the  powers  and  duties  of  that  board.  It  is  only  intended 
to  include  in  this  chapter  those  matters  which  pertain  to  the  office  of 
town  clerk  without  connection  with  other  offices,  and  not  relating  to 
other  subjects. 


Section  1.  Town  clerk  to  have  custody  of  books,  records  and  papers;  to  deliver 
certificate  of  vote  on  propositions  to  supervisor;  return  names 
of  constables. 

la.  Town  clerk  to  transmit  lists  of  town  officers  to  state  tax  commissioner. 

2.  Furniture  and  blank  books  for  clerk’s  office. 

3.  Sign  for  clerk’s  office. 

4.  Town  clerk  may  appoint  deputy;  qualification,  oath  of  office,  com- 

pensation. 

5.  Filing  and  discharge  of  chattel  mortgages  in  town  clerk’s  office;  fees 

of  town  clerks. 

6.  Filing  and  entry  of  marriage  certificate;  fees. 

7.  Town  and  city  clerks  to  issue  marriage  licenses;  form. 

8.  Duty  of  town  or  city  clerk. 

9.  False  statements  or  affidavits. 

10.  Records  to  be  kept  by  town  and  city  clerks. 

11.  Copies  of  papers  filed  with  town  clerk,  evidence. 


336  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 92. 

§ 1.  TOWN  CLERK  TO  HAVE  CUSTODY  OF  BOOKS,  RECORDS  AND 
PAPERS;  TO  DELIVER  CERTIFICATE  OF  VOTE  ON  PROPOSI- 
TIONS TO  SUPERVISOR;  RETURN  NAMES  OF  CONSTABLES. 

The  town  clerk  of  each  town  1 shall  have  the  custody  of  all  the  records, 
books  and  papers  of  the  town,  and  he  shall  duly  file  all  certificates  of  oaths 
and  other  papers  required  by  law  to  be  filed  in  his  office.2  He  shall  transcribe 
in  the  books  of  records  of  his  town  the  minutes  of  the  proceedings  of  every 
town  meeting  held  therein,  and  shall  enter  in  such  book  every  order  or 
direction  and  all  rules  and  regulations  made  by  any  such  town  meeting. 
He  shall  attend  all  the  meetings  of  the  town  board,  the  town  board  of 
health  and  the  board  of  town  auditors,  and  act  as  secretary  thereof.  In 
suitable  books  to  be  provided  for  that  purpose,  he  shall  transcribe  the  min- 
utes of  the  proceedings  of  every  such  meeting.  If  accounts  against  the 
town  be  audited  at  any  such  meeting,  he  shall  incorporate  in  such  minutes 
a list  of  all  such,  showing  the  name  of  the  claimant,  the  amount  claimed 
and  the  amount  allowed,  with  such  other  information  as  the  board  may  re- 
quired. Within  twenty  days  after  the  holding  of  any  town  meeting,  the 
town  clerk  shall  certify  to  the  county  clerk  the  names  of  all  the  persons 
elected  to  office  at  the  town  meeting,  except  inspectors  of  election,  and 
the  terms  for  which  they  were  severally  elected,  and  whether  or  not 
they  have  qualified.  Whenever  a vacancy  shall  occur  in  the  office  of 
justice  of  the  peace,  the  town  clerk  shall  immediately  notify  the 
county  clerk  of  the  happening  of  such  vacancy,  specifying  the  name 


1.  General  provisions  applicable  to  town  clerk. 

(For  places  in  this  Manual  where  the  sections  here  referred  to  may  be  found,, 
see  Schedule  of  Laws  after  Table  of  Contents.) 

Term  of  office.  Town  Law,  sec,  82,  ante. 

Eligibility  and  qualification  to  hold  office.  Town  Law,  sec.  81,  ante. 

Public  Officers  Law,  sec.  3,  ante. 

Oath  of  office.  Town  Law,  sec.  51,  ante. 

notice  of  neglect  to  file.  Public  Officers  Law,  sec.  13. 
effect  of  failure  to  file,  validation  of  acts  before  filing.  Public  Officers  Law, 
sec.  15,  ante. 

Removal  of  town  clerk.  Public  Officers  Law,  sec.  36,  ante . 

Resignation.  Town  Law,  sec.  84,  ante. 

Vacancy,  how  created.  Public  Officers  Law,  sec.  30,  ante. 
how  filed.  Town  Law,  sec.  130,  ante. 

Delivery  of  payers  by  outgoing  town  clerk.  Town  Law,  sec.  91,  as  amended  by 
L.  1909,  eh.  491. 

Clerk  of  town  meeting.  Town  Law,  sec.  50  ante. 

2.  Evidence  of  matters  required  to  be  recorded.  Minutes  and  records  kept 
by  them  are  only  competent  evidence  of  matters  which  they  are  bound  by  law  to 
record  and  file,  and  any  paper  not  required  by  law  to  be  filed,  does  not  become 
evidence  by  such  filing.  Jackson  v.  Collins,  41  N,  Y.  St.  Rep.  590,  16  N.  Y Supp.  65L 

8.  Other  duties  of  town  clerk. 

Town  board , as  member  of.  Chapter  XXVIII,  post. 

Special  town  meetings , to  give  notice  of.  Town  Law,  sec.  47,  ante. 


DUTIES  OF  TOWN  CLERKS,  GENERALLY. 


337 


Town  Law,  § 92. 

of  the  justice  of  the  peace  whose  office  has  become  vacant,  the  date 
when  the  same  became  vacant  and  the  cause  of  the  vacancy.  He 
shall  deliver  to  the  supervisor,  before  the  annual  meeting  of  the  board 
of  supervisors  of  the  county  in  each  year,  certified  copies  of  all  entries 
of  votes  for  raising  money,  made  since  the  last  meeting  of  the  board  of 
supervisors  and  recorded  in  the  town  book.3  Immediately  after  the  quali- 
fying of  any  constable  elected  or  appointed  in  his  town,  he  shall  return  to 
the  clerk  of  the  county  the  name  of  such  constable.  If  any  town  clerk 
shall  wilfully  omit  to  make  such  return,  he  shall  forfeit  the  sum  of  ten 

Town  meetings,  to  give  notice  of  propositions  to  be  submitted  at.  Town  Law, 
sec.  48,  ante. 

to  prepare  ballots,  provide  stationery,  etc.  Election  Law,  sec.  341  (Jewett’s 
Election  Manual,  (1916),  ante. 

See,  also,  on  subject  of  town  meetings  generally,  ch.  Ill,  ante. 

General  elections,  to  distribute  ballots  at.  Election  Law,  sec.  343,  as  amended 
by  L.  1916,  ch.  537  (Jewett’s  Election  Manual  (1916). 

compensation  for  services  performed.  Election  Law,  sec.  319,  as  amended 
by  L.  1915,  eh.  678  (Jewett’s  Election  Manual  (1916). 

Justice  of  the  peace,  town  clerk  to  certify  to  election  of.  Town  Law,  sec.  94,  ante. 

Undertakings,  approval  of,  by  town  clerk.  Town  Law,  secs.  116,  106,  ante. 

Strays  and  beasts  doing  damage,  duties  of  town  clerk  as  to.  Town  Law,  secs.  380, 
381,  post. 

notice  of  lien  on  account  of,  to  be  filed  with  town  clerk.  Town  Law,  sec.  381, 
post. 

Floating  timber,  wrecks,  etc.,  notice  of  lien  on  account  of,  to  be  filed  with  town 
clerk.  Town  Law,  sec.  394,  as  amended  by  L.  1915,  ch.  439. 

Justice  of  the  peace,  books  and  papers  of,  to  b«  deposited  with  town  clerk,  upon 
his  removal  from  town,  or  if  removed  from  office.  Code  Civ.  Proc.,  secs.  3144-3148. 

Accounts  audited  by  town  board  to  be  certified  and  filed  with  town  clerk.  Town 
Law,  sec.  133,  post. 

Town  poor.  Accounts  of  overseer  of  the  poor  to  be  filed  with  town  clerk.  Poor 
Law,  sec.  26,  post.  (See  Cumming  ft  Gilbert’s  Poor,  Insanity  and  State  Charities 
Law,  p.  23.) 

Jury  lists,  duties  of  town  clerk,  supervisor  and  assessors,  as  to.  See  chapter  X, 
post.  Town  clerk  to  furnish  justices  of  the  peace  with  jury  lists.  Code  Civ.  Pro., 
sec.  2990. 

Water  works  corporations,  town  clerk,  supervisor,  justices  of  the  peace  and  high- 
way commissioners  to  grant  permits  to.  Transportation  Corporations  Law,  secs. 
SO,  81. 

Highways,  duties  of  town  clerk  as  to.  See  Part  VIII,  post. 

Schools,  duties  of  town  clerk  as  to.  See  Education  Law,  Art.  12. 

Sidewalks,  authority  to  expend  highway  tax  for,  to  be  filed  with  town  clerk. 
Highway  Law,  sec.  62,  post. 

Highways,  papers  relating  to  laying  town,  altering  or  discontinuing,  to  be  filed 
in  office  of  town  clerk.  Highway  Law,  sec.  239,  post. 

Dogs,  duties  in  respect  to,  where  board  of  supervisors  has  adopted  provisions  of 
County  Law  relating  to  registration  of  dogs.  See  County  Law,  sec.  131,  post. 

Tax  notices.  Notices  of  place  of  residence  of  non-resident  taxpayers  to  be  filed 
in  office  of  town  clerk;  town  clerk  to  deliver  statement  tc  collector;  fees  of  town 
clerk  therefor.  See  Tax  Law,  sec.  70,  post. 


338  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  §§  92a,  96,  97. 

dollars  to  be  recovered  by  the  supervisor  in  the  name  of  and  for  the  use  of  the 
town.*  [Town  Law,  § 92,  as  amended  by  L.  1918,  ch.  73;  B.  C.  & G.  Cons.  L., 

p.  6166.] 

§ la.  TOWN  CLERK  TO  TRANSMIT  LISTS  OF  TOWN  OFFICERS  TO 
STATE  COMMISSION. 

It  shall  be  the  duty  of  the  town  clerk  annually,  between  the  fifteenth  day  of 
November  and  the  fifteenth  day  of  December,  to  transmit  to  the  tax  commission 
a list  containing  the  names  of  each  supervisor,  town  superintendent,  justice  of  the 
peace,  town  clerk,  assessor  and  collector,  showing  his  post  office  address,  the  date 
of  his  appointment  or  election  and  the  expiration  of  his  term  of  office.  [Town  Law, 
§ 92a,  as  added  by  L.  1917,  ch.  582.] 

§ 1b.  TOWN  CLERKS’  UNDERTAKINGS. 

Every  town  clerk  hereafter  elected  or  appointed  shall,  within  thirty  days  after 
entering  upon  the  duties  of  his  office,  make  and  deliver  to  the  supervisor  of  the  town 
his  undertaking,  with  such  sureties  as  the  town  board  shall  prescribe,  in  a penal  sum 
not  exceeding  one  thousand  dollars,  to  be  determined  by  the  town  board,  to  the  effect 
that  he  will  well  and  faithfully  discharge  his  official  duties  as  such  town  clerk,  and 
that  he  will  well  and  truly  keep,  pay  over  and  account  to  the  proper  board,  officer 
or  commission  of  the  town,  state  or  county,  and  account  for,  all  moneys  and  prop- 
erty going  into  his  hands  in  his  official  capacity;  and  such  undertaking  shall,  after 
its  execution,  be  presented  by  the  supervisor  to  the  town  board  for  their  approval 
as  to  its  form  and  the  sufficiency  of  the  sureties  thereon.  Until  such  undertaking 
shall  have  been  approved,  none  of  the  moneys,  books,  documents,  papers  or  property 
of  the  town,  county  or  state  shall  be  turned  over  or  delivered  to  such  town  clerk  elect. 
After  the  approval  of  such  undertaking,  the  supervisor  shall  file  the  same  in  the  office 
of  the  county  clerk.  [Town  L.,  § 92a,  as  added  by  L.  1912,  ch.  136.] 

§ 2.  FURNITURE  AND  BLANK  BOOKS  FOR  CLERK’S  OFFICE. 

The  town  clerk  of  any  town  may,  with  the  consent  of  the  town  board  of  his  town, 
purchase  or  furnish  for  the  town  clerk’s  office  all  necessary  bound  blank  books  for 
the  entering  and  keeping  of  the  records  of  his  town,  and  also  necessary  book  and 
office  cases,  tables  and  other  furniture  for  the  use  and  convenience  of  the  office 
and  the  safe-keeping  of  the  books  and  papers  of  the  town,  and  the  expense  thereof 
shall  be  a town  charge,  to  be  audited  and  paid  as  other  town  charges.5  [Town  Law, 
§ 96;  B.  C.  & G.  Cons.  L.,  p.  6167.] 

§ 3.  SIGN  FOR  CLERK’S  OFFICE. 

There  shall  also  in  like  manner  be  furnished  and  kept  for  every  town  clerk’s 
office  a sign  with  the  name  of  the  town,  followed  by  the  words,  “ town  clerk’s  office  ” 
in  plain  characters  thereon,  with  sufficient  board  space  immediately  below  for  post- 
ing thereon  the  legal  notices  of  the  town  which  sign  and  board  space  shall  be  placed 
and  kept  on  or  at  the  outside  front  door  of  every  town  clerk’s  office,  which  board 
shall  always  be  one  of  the  public  places  upon  which  any  legal  notice  in  the  town 
may  be  posted.  [Town  Law,  § 97 ; B.  C.  & G.  Cons.  L.,  p 6i  67.] 

4.  Qualification  of  constable.  The  town  clerk  is  required  by  the  above  section  to 
return  to  the  clerk  of  the  county  the  name  of  each  constable  qualifying  as  such. 
Under  section  116  of  the  Town  Law,  ante , constables  are  required  to  file  with  the 
town  clerk  an  undertaking  to  be  approved  by  the  supervisor  or  town  clerk.  Imme- 
diately upon  the  filing  of  such  undertaking  the  town  clerk  should  return  to  the 
county  clerk  the  name  of  such  constable.  By  section  14  of  the  Town  Law,  ante 
the  county  clerk  is  required  to  report  to  the  district  attorney  all  omissions  by  any 
town  officer  to  make  and  transmit  any  return  required  by  law.  The  penalty  pre- 
scribed by  the  above  section  for  a failure  to  make  such  return  is  to  be  recovered  by 
the  supervisor  in  the  name  and  for  the  use  of  the  town. 

The  town  clerk  of  the  town  of  Niagara,  county  of  Niagara,  is  required  to  keep  a 
book  in  which  abstracts  of  conveyances  of  lands  within  the  town  are  to  be  entered. 
See  Town  Law,  § 95. 

5.  Claim  for  furniture  must  be  audited.  A person  selling  office  furniture  for  the 
use  of  a town  clerk  must  bring  a proceeding  under  this  section  and  require  the 
claim  to  be  audited ; he  cannot  sue  the  town  directly  without  an  audit.  Peck  v. 
Town  of  Catskill,  119  App.  Div.  752,  104  N.  Y.  Supp."  540. 


DUTIES  OF  TOWN  CLERK.  GENERALLY. 


339 


Town  Law,  § 93;  Lien  Law,  §§  232,  233. 

§ 4.  TOWN  CLERK  MAY  APPOINT  DEPUTY;  QUALIFICATION,  OATH 
OF  OFFICE,  COMPENSATION. 

Every  person  hereafter  elected  or  appointed  to  the  office  of  town  clerk, 
in  any  town  in  this  state,  immediately  after  taking  the  oath  of  office, 
may  appoint  a deputy  town  clerk  for  such  town.  Such  appointment 
shall  be  in  writing  and  shall  be  recorded  in  the  record  hook  of  said 
town.  Such  deputy  must  be  twenty-one  years  of  age  or  over,  a citizen 
of  the  United  States  and  a resident  of  the  town  and  shall  take  and  sub- 
scribe the  constitutional  oath  of  office,  and  in  the  absence  or  inability 
to  serve  of  the  town  clerk,  is  hereby  authorized  to  perform  any  official 
act  devolving  upon  town  clerks,  and  shall  hold  office  during  the  pleasure 
of  the  town  clerk.  Said  deputy  shall  be  paid  for  his  services  by  the  town 
clerk,  but  no  charge  shall  be  made  against  the  town  for  the  services  of 
said  deputy.  Nothing  contained  in  this  section  shall  prevent  any  town 
clerk  from  appointing  his  wife  or  daughter  as  such  deputy.6 7  [Town 
Law,  § 93,  as  amended  by  L.  1916,  ch.  340;  B.  C.  & G.  Cons.  L., 

p.  6166.] 

§ 5.  FILING  AND  DISCHARGE  OF  CHATTEL  MORTGAGES  IN  TOWN 
CLERK’S  OFFICE;  FEES  OF  TOWN  CLERKS. 

All  chattel  mortgages  in  towns  are  required  to  be  filed  in  the  office  of  the  town 
clerk,  unless  there  is  a county  clerk’s  office  in  such  town,  in  which  case  they  are 
to  be  filed  therein.?  [See  Lien  Law,  § 232  in  part,  as  amended  by  L.  1910,  ch  182, 
and  L.  1915,  ch.  27;  B.  C.  & G.  Cons.  L.,  p.  3247.] 

The  town  clerk  shall  file  every  such  instrument  presented  to  him  for  that  pur- 
pose, and  indorse  thereon  its  number  and  the  time  of  its  receipt.  He  shall  enter 
in  a book,  provided  for  that  purpose  in  separate  columns,  the  names  of  all  par- 
ties to  each  mortgage  so  filed,  arranged  in  alphabetical  order,  under  the  head  of 
“ mortgagors  ” and  “ mortgagees,”  the  number  of  such  mortgage  or  copy  and  the 
date  of  the  filing  thereof,  except  in  the  city  of  New  York  such  officers  (the  town 
clerk)  at  the  time  of  filing  of  such  instrument  shall  upon  request  issue  to  the 
person  filing  the  same  a receipt  in  writing,  which  shall  contain  the  names  of  the 
parties  to  the  mortgage,  its  date,  amount  and  the  date  and  time  of  filing  thereof, 
and  if  the  mortgage  be  upon  a craft  navigating  the  canals,  and  filed  in  the  office  of 


6.  Town  clerk  may  appoint  his  son  as  deputy.  Rept.  of  Atty.  Genl.  (1895),  339. 

A female,  other  than  a wife  or  daughter  of  a town  clerk,  is  not  eligible  to  hold 

the  office  of  deputy  town  clerk.  Rept.  of  Atty.  Genl.,  May  9,  1911.  But  since  a 
woman  may  now  vote  for  town  officers  she  is  qualified  to  hold  any  town  office. 

7.  Place  of  filing  chattel  mortgage.  A chattel  mortgage  must  be  filed  in  the 
clerk’s  office  of  the  town  in  which  the  mortgagor  resided  at  the  time  of  its  execu- 
tion. Hicks  v.  Williams,  17  Barb.  523;  see,  also,  Baumann  v.  Libetta,  3 Misc.  518; 
23  N.  Y.  Supp.  1 ; Platt  v.  Stuart,  101  U.  S.  737. 

If  the  county  clerk’s  office  is  in  the  town  or  city  where  the  mortgagor  resides 
the  mortgage  must  be  filed  in  such  office,  and  it  is  not  sufficient  in  such  case  to  file 
it  in  the  town  or  city  clerk’s  office.  Martin  v.  Rothschild,  42  Hun,  410. 

Records  of  chattel  mortgages  in  the  offices  of  municipal  recording  officers 
should  not  be  destroyed,  even  after  the  mortgages  have  been  destroyed.  Such 
records  as  are  not  in  general  use  should  be  transferred  to  the  division  of  public 
records  under  the  control  of  the  Regents.  Rept.  of  Atty.  Genl.,  Jan.  27,  1912. 


340 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Lien  Law,  § 238. 

the  superintendent  of  public  works,  the  name  of  the  craft  shall  also  be 
inserted.8  [See  Lien  Law,  § 233,  in  part,  as  amended  by  L.  1910,  ch.  182 ; 
B.  C.  and  G.  Cons.  L„  p.  3249.] 

The  officer  with  whom  the  mortgage,  or  a copy  thereof  is  filed,  must,  on 
receipt  of  the  certificate  setting  forth  the  payment  or  satisfaction  of  such 
mortgage,  file  the  same  in  his  office,  and  write  the  word  “ discharge  99  in  the 
book  where  the  mortgage  is  entered,  opposite  the  entry  thereof,  and  the 
mortgage  is  thereby  discharged.  [Lien  Law,  § 238,  in  part ; B.  C.  and  G. 
Cons.  L.,  p.  3256.] 


8.  Duties  of  town  clerk  as  to  chattel  mortgages.  It  is  made  the  duty  of  the 
town  clerk  in  whose  office  chatel  mortgages  are  required  to  be  filed,  to  provide 
proper  books  in  which  the  names  shall  be  entered  in  alphabetical  order  of  the 
parties  to  every  mortgage  and  also  to  indorse  thereon  its  number  and  the  time 
of  its  receipt,  and  enter  such  number  in  a separate  column  in  the  books  in  which 
the  mortgages  shall  be  entered.  But  the  failure  of  the  clerk  to  do  these  things 
does  not  affect  the  rights  of  the  mortgagee,  as  he  has  done  all  he  can  do  when 
he  delivers  the  mortgage  to  the  clerk  in  the  proper  office  to  be  filed,  and  he 
ought  not  to  be  held  liable  for  the  default  of  the  clerk,  a public  officer,  over 
whose  acts  he  has  no  control.  Manhattan  Co.  v.  Laimbeer,  108  N.  Y.  578;  15 
N.  E.  712. 

Where  a mortgage  was  written  on  the  inside  of  a large  account  book  partly 
filled  with  accounts,  and  labeled  “ Day  Book  ” which  book  because  of  its  bul- 
kiness, was  not  placed  in  the  pigeon  hole  where  other  chattel  mortgages  were 
filed,  it  was  held  that  such  a filing  was  not  sufficient.  Griswold  v.  Sheldon,  4 
N.  Y.  580. 

The  delivery  of  the  chattel  mortgage  to  the  clerk  while  absent  from  his  office, 
and  an  indorsement  made  thereon  that  it  is  then  and  there  filed,  is  not  a filing. 
It  is  not  filed  in  reality  until  it  is  deposited  in  the  clerk’s  office.  Hathaway 
v.  Howell,  54  N.  Y.  103. 

Where  the  office  of  town  clerk  is  vacant,  a filing  of  a chattel  mortgage  made 
by  a person  having  charge  of  the  office  will  be  valid  under  the  statute.  Bishop 
v.  Cook,  13  Barb.  326. 

The  filing  by  a clerk  in  the  store  of  the  town  clerk,  who  is  in  charge  of  the 
town  clerk’s  office,  is  a sufficient  filing.  Dodge  v.  Potter,  18  Barb.  201.  To 
constitute  a proper  filing  requires  the  act  of  the  clerk  or  some  person  in  charge 
of  the  office.  An  unsuccessful  attempt  to  file  a chattel  mortgage  when  the  office 
is  closed,  or  depositing  the  mortgage  on  the  clerk’s  table  in  the  office  when  no 
one  is  present,  does  not  constitute  a filing  within  the  requirements  of  the 
statute.  Crounse  v.  Johnson,  65  Hun,  337;  20  N.  Y.  Supp.  177. 

The  mortgagee  is  not  bound  to  do  anything  more  than  to  deliver  the  mort- 
gage at  the  proper  office,  and  to  the  proper  officer,  or  to  any  person  of  proper 
age  who  has  charge  of  the  office.  2 Wait’s  Actions  and  Defenses,  p.  195. 

Temporary  removal  of  a chattel  mortgage  from  the  Town  Clerk’s  office 
after  it  has  been  duly  filed  does  not  affect  its  validity  as  against  the  person  causing 
it9  removal.  Rogers  v.  Dwight,  71  Hun  547,  25  N.  Y.  Supp.  39. 

Refiling  chattel  mortgages.  By  section  235.  as  amended  by  L.  1915,  ch.  608, 
of  the  Lien  Law  it  is  provided  that  a chattel  mortgage  is  invalid  as  against  credit- 


DUTIES  OF  TOWN  CLERK,  GENERALLY. 


341 


Lien  Law,  § 234;  Domestic  Relations  Law,  § 13. 

The  several  clerks  and  registers  are  entitled  to  receive  for  services  here- 
under, the  following  fees:  For  filing  each  instrument,  or  copy,  six  cents; 

for  issuing  a receipt  for  the  same,  six  cents;  for  entering  the  same  as  afore 
said,  six  cents;  for  searching  for  each  paper,  six  cents;  and  the  like  fees  for 
■certified  copies  of  such  instruments  or  copies  as  are  allowed  by  law  to 

clerks  of  counties  for  copies  and  certificates  of  records  kept  by  them 

^No  officer  is  required  to  file  or  enter  any  such  paper  or  furnish  a copy 
thereof,  or  issue  a receipt  therefor,  until  his  lawful  fees  are  paid.  [Lien 


ors  of  the  mortgagor  and  subsequent  purchasers  or  mortgagees  in  good  faith  after 
the  expiration  of  the  first  or  any  succeeding  term  of  one  year,  reckoning  from  the 
time  of  the  first  filing,  unless  within  thirty  days  next  preceding  the  expiration  of 
each  such  term,  a statement  containing  a description  of  such  mortgage,  the  names 
of  the  parties,  the  time  and  place  where  filed,  the  interest  of  the  mortgagee  or  of 
any  person  who  has  succeeded  to  his  interest  in  the  property  claimed  by  virtue 
thereof;  or  a copy  of  such  mortgage  and  its  indorsements,  together  with  a state- 
ment attached  thereto  or  indorsed  thereon,  showing  the  interest  of  the  mortgagee 
or  of  any  person  who  has  succeeded  in  his  interest  in  the  property  claimed  by 
virtue  thereof;  or  a copy  of  such  mortgage  and  its  indorsements,  together  with 
a statement  attached  thereto  or  indorsed  thereon,  showing  the  interest  of  the 
mortgagee  or  of  any  person  who  has  succeeded  in  his  interest  in  the  mortgage, 
is  filed  in  the  proper  office  in  the  city  or  town  where  the  mortgagor  then  resides, 
if  he  is  then  a resident  of  the  town  or  city  where  the  mortgage  or  copy  thereof 
or  such  statement  issued  was  last  filed;  if  not  such  resident  but  a resident  of  the 
state,  a true  copy  of  such  mortgage  together  with  such  statement  shall  be  filed 
in  the  proper  office  of  the  town  or  city  where  he  then  resides,  and  if  not  a resident 
of  the  state,  then  in  the  proper  office  of  the  city  or  town  where  the  property  so 
mortgaged  was  at  the  time  of  the  execution  of  the  mortgage. 

The  town  clerk  should  perform  the  same  duties  as  to  such  re-filed  mortgages  as 
are  prescribed  by  the  above  section  233  of  the  Lien  Law. 

Filing  other  liens  on  personal  property.  Contracts  for  the  conditional 
sale  of  personal  property  are  to  be  filed  in  the  office  of  the  town  clerk  in  the 
same  manner  as  chattel  mortgages.  Personal  Property  Law,  § 64,  as  amended 
by  L.  1915,  ch.  455. 

This  section  provides  that  “ the  officers  with  whom  such  contracts  are  filed 
shall  enter  the  future  contingency  or  event  required  to  occur  before  the  ownership 
of  such  goods  and  chattels  shall  pass  from  the  vendor  to  the  vendee,  and  the 
amount  due  upon  such  contract,  and  the  time  when  due.  The  name  of  the  con- 
ditional vendor  shall  be  entered  in  the  column  of  ‘mortgagees’  and  the  name  of 
the  conditional  vendee  in  the  column  of  ‘ mortgagors.’  The  officers  performing 
services  under  this  article  are  entitled  to  receive  the  same  fees  as  for  like  services 
relating  to  chattel  mortgages.” 

A notice  of  a lien  on  a mare  and  foal  has  to  be  filed  in  the  office  of  the  town 
clerk  in  the  same  manner  as  chattel  mortgages  are  required  by  law  to  be  filed. 
[Lien  Law,  sec.  160,  as  amended  by  L.  1916,  ch.  301.] 

A notice  of  lien  for  labor  performed  in  quarrying,  mining,  dressing  and  cutting 
stone  must  be  indorsed,  filed  and  entered  by  the  town  clerk  in  the  same  manner 
as  chattel  mortgages  and  the  same  fee  shall  be  charged  therefor.  [Lien  Law, 
sec.  140.] 


342  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Domestic  Relations  Law,  §§  13,  14. 

Law,  § 234,  in  part  as  amended  by  L.  1910,  ch.  182 ; B.  C.  & G.  Cons. 
L.,  p.  3250.] 

§ 6.  MARRIAGE  LICENSES. 

It  shall  be  necessary  for  all  persons  intending  to  be  married  to  obtain 
a marriage  license  from  the  town  or  city  clerk  of  the  town  or  city  in 
which  the  woman  to  be  married  resides  and  to  deliver  said  license  to 
the  clergyman  or  magistrate  who  is  to  officiate  before  the  marriage  can 
be  performed.  If  the  woman  or  both  parties  to  be  married  are  non- 
residents of  the  state  such  license  shall  be  obtained  from  the  clerk  of  the 
town  or  city  in  which  the  marriage  is  to  be  performed ; or,  if  the  woman 
to  be  married  resides  upon  an  island  located  not  less  than  twenty-five  miles 
from  the  office  or  residence  of  the  town  clerk  of  the  town  of  which  such 
island  is  a part,  and  such  office  or  residence  is  not  on  such  island  such  li- 
cense may  be  obtained  from  any  justice  of  the  peace  residing  on  such  island, 
and  such  justice,  in  respect  to  powers  and  duties  relating  to  marriage  li- 
censes, shall  be  subject  to  the  provisions  of  this  article  governing  town  clerks 
and  shall  file  all  statements  or  affidavits  received  by  him  while  acting  under 
the  provisions  of  this  section  with  the  town  clerk  of  such  town.  [Domestic 
Relations  Law,  § 13,  as  amended  by  L.  1914,  ch.  230,  and  bv  L.  1918,  ch. 
236;  B.  0.  & G.  Cons.  L.,  p.  1027.] 

$ 7.  TOWN  AND  CITY  CLERKS  TO  ISSUE  MARRIAGE  LICENSES;  FORM. 

The  town  or  city  clerk  of  each  and  every  town  or  city  in  this  state  is 
hereby  empowered  to  issue  marriage  licenses  to  any  parties  applying  for 
the  same  who  may  be  entitled  under  the  laws  of  this  state  to  contract 
matrimony,  authorizing  the  marriage  of  such  parties,  which  license  shall 
be  substantially  in  the  following  form : 

STATE  OF  NEW  YORK, 

County  of 

City  or  town  of 

Know  all  men  by  this  certificate  that  any  person  authorized  by  law  to  per- 
form marriage  ceremonies  within  the  state  of  New  York  to  whom  this  may 
come,  he,  not  knowing  any  lawful  impediment  thereto,  is  hereby  authorized 
and  empowered  to  solemnize  the  rites  of  matrimony  between 


• • of  in  the  county  of 

. and  state  of  New  York  and of 

in  the  county  of and  state  of  New 


York  and  to  certify  the  same  to  be  said  parties  or  either  of  them  under 


9.  Fees  for  filing  chattel  mortgages.  The  fees  of  town  clerks  for  filing  and 
entering  chattel  mortgages  and  other  liens  on  personal  property  are  prescribed 
by  the  above  section  of  the  Lien  Law.  In  a subsequent  portion  of  this  work 
there  is  included  a table  of  fees  allowed  to  town  officers  which  may  be  referred 
to  for  the  purpose  of  ascertaining  the  amount  of  fees  chargeable  by  town  clerks 
in  respect  to  papers  filed  in  their  offices. 

Mortgagee  must  tender  fee  before  the  clerk  can  be  compelled  to  indorse  and 
file  a chattel  mortgage.  People  ex  rel.  Stevens  v.  Hayt,  66  N.  Y.  606. 


DUTIES  OF  TOWN  CLERK,  GENERALLY. 


343 


Domestic  Relations  Law,  § 15. 


his  hand  and  seal  in  his  ministerial  or  official  capacity  and  thereupon  he  is 
required  to  return  his  certificate  in  the  form  hereto  annexed.  The  statements 
endorsed  hereon  or  annexed  hereto,  by  me  subscribed,  contain  a full  and  true 
abstract  of  all  the  facts  concerning  such  parties  disclosed  by  their  affidavits 
or  verified  statements  presented  to  me  upon  the  application  for  this  license. 

In  testimony  whereof,  I have  hereunto  set  my  hand  and  affixed  the  seal  of 

said  town  or  city  of this day  of 

nineteen Seal. 

The  form  of  the  certificate  annexed  to  said  license  and  therein  referred  to 
shall  be  as  follows: 


I a residing  at 

in  the  county  of  and  state  of  New  York  do  hereby  certify 

that  I did  on  this day  of in  the  year  A.  D.,  19. 

solemnize  the  rights  of  matrimony  between  of 

in  the  county  of and  state  of  New  York  and 

of in  the  county]  of 

and  state  of  New  York  in  the  presence  of and 

as  witnesses  and  the  license  therefor  is  hereto  annexed. 

Witness  my  hand  at in  the  county  of 

this  day  of A.  D.  19.. 

In  the  presence  of 


There  shall  be  endorsed  upon  the  license  or  annexed  thereto  at  the  end  thereof, 
subscribed  by  the  clerk,  an  al  tract  of  the  facts  concerning  the  parties  as  disclosed 
in  their  affidavits  or  verified  statements  at  the  time  of  the  application  for  the  li- 
cense made  in  conformity  to  the  provisions  of  section  fifteen  of  this  chapter. 

The  license  issued,  including  the  abstract  of  facts,  and  the  certificate  duly  signed 
by  the  person  who  shall  have  solemnized  the  marriage  therein  authorized  shall  be 
returned  by  him  to  the  office  of  the  town  or  city  clerk  who  issued  the  same  on  or 
before  the  tenth  day  of  the  month  next  succeeding  the  date  of  the  solemnizing  of  the 
marriage  therein  authorized  and  any  person  or  persons  who  shall  wilfully  neglect 
to  make  such  return  within  the  time  above  required  shall  be  deemed  guilty  of  a mis- 
demeanor and  upon  conviction  thereof  shall  be  punished  by  a fine  of  not  less  than 
twenty-five  dollars  or  more  than  fifty  dollars  for  each  and  every  offense.io  [Domestic 
Relations  Law,  § 14,  as  amended  by  L.  1912,  ch.  216;  B.  C.  & G.  Cons.  L.,  p.  1027.] 

§ 7.  DUTY  OF  TOWN  AND  CITY  CLERKS. 

It  shall  be  the  duty  of  the  town  or  city  clerk  when  an  application  for  a mar- 
riage license  is  made  to  him  to  require  each  of  the  contracting  parties  to  sign  and 
verify  a statement  or  affidavit  before  such  clerk  or  one  of  his  deputies,  containing 
the  following  information.  From  the  groom:  Full  name  of  husband,  color,  place 

of  residence,  age,  occupation,  place  of  birth,  name  of  father,  country  of 
birth,  maiden  name  of  mother,  country  of  birth;  number  of  marriage.  From 
the  bride:  Full  name  of  bride,  place  of  residence,  color,  age,  occupation,  place 

of  birth,  name  of  father,  country  of  birth,  maiden  name  of  mother,  country  of 

10.  Marriage  in  another  state. — Where  parties  to  a marriage  contract  procure 
a license  in  a town  of  this  state  and  are  married  in  Pennsylvania,  the  town  clerk 
should  not  file  the  license  and  the  certificate  showing  the  performance  of  the  mar- 
riage returned  by  the  person  performing  the  ceremony.  Rept.  of  Atty  Genl.  (1912), 
Vol.,  2.  p.  542. 

Return  of  certificate  of  marriage  to  town  or  city  clerk. — A minister  or  other 
person  performing  a marriage  ceremony  is  required  to  return  the  certificate  of  the 
marriage  to  the  town  or  city  clerk  who  issued  the  marriage  license,  and  in  addition 
in  the  city  of  New  York  he  is  required  to  make  a report  of  such  marriage  to  the 
Department  of  Health.  Rept.  of  Atty.  Genl.,  Feb.  15,  1912. 


344 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Domestic  Relations  Law,  § 15. 

birth,  number  of  marriage.  From  each:  A statement  in  the  following  words:  “I 
have  not  to  my  knowledge  been  infected  with  any  venereal  disease,  or  if  I have 
been  so  infected  within  five  years  I have  had  a laboratory  test  within  that  period 
which  shows  that  I am  now  free  from  infection  from  any  such  disease.”  The  said 
clerk  shall  also  embody  in  the  statement,  if  either  or  both  of  the  applicants  have 
been  previously  married,  a statement  as  to  whether  the  former  husband  or  hus- 
bands, or  the  former  wife  or  wives  of  the  respective  applicants  are  living  or  dead 
and  as  to  whether  either  or  both  of  said  applicants  are  divorced  persons,  if  so  when 
and  where  the  divorce  or  divorces  were  granted  and  shall  also  embody  therein  a 
statement  that  no  legal  impediment  exists  as  to  the  right  of  each  of  the  applicants 
to  enter  into  the  marriage  state.  The  town  or  city  clerk  is  hereby  given  full  power 
and  authority  to  administer  oaths  and  may  require  the  applicants  to  produce  wit- 
nesses to  identify  them  or  either  of  them  and  may  also  examine  under  oath  or 
otherwise  other  witnesses  as  to  any  material  injury  pertaining  to  the  issuing  of 
the  license;  provided,  however,  that  in  cities  of  the  first  class  the  verified  state- 
ments and  affidavits  may  be  made  before  any  regular  clerk  of  the  city  clerk’s 
office  designated  for  that  purpose  by  the  city  clerk.  If  it  appears  from  the 
affidavits  and  statements  so  taken,  that  the  persons  for  whose  marriage  the 
license  in  question  is  demanded  are  legally  competent  to  marry  the  said  clerk 
shall  issue  such  license,  except  in  the  following  cases.  If  it  shall  appear  upon 
an  application  of  the  applicants  as  provided  in  this  section  that  the  man  is 
under  twenty-one  years  of  age  or  that  the  women  is  under  the  age  of  eighteen 
years,  then  the  town  or  city  clerk  before  he  shall  issue  a license  shall  require 

the  written  consent  to  the  marriage  from  both  parents  of  the  minor  or  minors 
or  such  as  shall  then  be  living,  or  if  the  parents  of  both  are  dead  then  the 
written  consent  of  the  guardian  or  guardians  of  such  minor  or  minors.  If  one 
of  the  parents  has  been  missing  and  has  not  been  seen  or  heard  from  for  a 
period  of  one  year  preceding  the  time  of  the  application  for  the  license,  al- 
though diligent  inquiry  has  been  made  to  learn  the  whereabouts  of  such  parent, 
the  town  or  city  clerk  may  issue  a license  to  such  minor  upon  the  sworn  state- 
ment and  consent  of  the  other  parent.  If  the  marriage  of  the  parents  of  such 
minor  has  been  dissolved  by  decree  of  divorce  or  annulment,  the  consent  of 
the  parent  to  whom  the  court  which  granted  the  decree  has  awarded  the  cus- 
tody of  such  minor  shall  be  sufficient.  If  there  is  no  parent  or  guardian  of  the 
minor  or  minors  living  to  their  knowledge  then  the  town  or  city  clerk  shall 
require  the  written  consent  to  the  marriage  of  the  person  under  whose  care 
or  government  the  minor  or  minors  may  be  before  a license  shall  be  issued. 
The  parents,  guardians  or  other  persons  whose  consents  it  shall  be  necessary 
to  obtain  before  the  license  shall  issue,  shall  personally  appear  before  the  town 
or  city  clerk  and  execute  the  same  if  they  are  residents  of  the  state  of  New 
York  and  physically  able  so  to  do.  If  they  are  nonresidents  of  the  state  the  re- 
quired consents  may  be  executed  and  duly  acknowledged  Without  the  state  but 
the  consent  with  a certificate  attached  showing  the  authority  of  the  officer  to 
take  acknowledgments  must  be  duly  filed  with  the  town  or  city  clerk  before 
a license  shall  issue.  Before  issuing  any  license  herein  provided  for,  the  town 
or  city  clerk  shall  be  entitled  to  a fee  of  one  dollar  which  sum  shall  be  paid  by 
the  applicants  before  or  at  the  time  the  license  is  issued;  and  all  such  fees  so 
received  by  the  clerks  of  cities  shall  be  paid  monthly  to  the  treasurer  of  the 
city  wherein  such  license  is  issued.  Any  town  or  city  clerk  who  shall  issue  a 
license  to  marry  any  persons  one  or  both  of  whom  shall  not  be  at  the  time 
of  the  marriage  under  such  license  legally  competent  to  marry  without  first 
requiring  the  parties  to  such  marriage  to  make  such  affidavits  and  statements 
or  who  shall  not  require  the  procuring  of  the  consents  provided  for  by  this 
article,  which  shall  show  that  the  parties  authorized  by  said  license  to  be  mar* 


DUTIES  OF  TOWN  CLERKS,  GENERALLY. 


345 


Domestic  Relations  Law,  §§  16,  19 ; Code  Civil  Proc.,  § 934. 

ried  are  legally  competent  to  marry  shall  be  guilty  of  a misdemeanor  and  on  con- 
viction thereof  shall  be  fined  in  the  sum  of  one  hundred  dollars  for  each  and  every 
offense.  In  any  city  the  fees  collected  for  the  issuing  of  a marriage  license,  or  for 
solemnizing  a marriage,  so  far  as  collected  for  services  rendered  by  any  officer  or 
employee  of  such  city,  shall  be  paid  into  the  city  treasury  and  may  by  ordinance 
be  credited  to  any  fund  therein  designated,  and  said  ordinance,  when  duly  enacted, 
shall  have  the  force  of  law  in  such  city.n  [Domestic  Relations  Law,  § 15,  as 
amended  by  L.  1912,  ch.  241,  and  by  L.  1917,  ch.  503;  B.  C.  & G.  Cons.  L .,  p.  1029'.] 


§ 8.  FALSE  STATEMENTS  OR  AFFIDAVITS. 

Any  person  who  shall  in  any  affidavit  or  statement  required  or  provided  for 
in  this  article  wilfully  and  falsely  swear  in  regard  to  any  material  fact  as  to 
the  competency  of  any  person  for  whose  marriage  the  license  in  question  or 
concerning  the  procuring  or  issuing  of  which  such  affidavit  or  statement  may 
be  made  shall  be  deemed  guilty  of  perjury  and  on  conviction  thereof  shall  be 
punished  as  provided  by  the  statutes  of  this  state.  [Domestic  Relations  Law, 
§ 16;  B.  C.  & G.  Cons.  L.,  p.  1030.] 

§ 9.  RECORDS  TO  BE  KEPT  BY  TOWN  AND  CITY  CLERKS. 

Each  town  and  city  clerk  hereby  empowered  to  issue  marriage  licenses  shall 
keep  a book  in  which  he  shall  record  and  index  all  affidavits,  statements,  con- 
sents and  licenses  together  with  the  certificate  attached  showing  the  perform- 
ance of  the  marriage  ceremony  which  book  shall  be  kept  and  preserved  as  a 
part  of  the  public  records  of  his  office.  Whenever  an  application  is  made  for 
a search  of  such  records  the  city  or  town  clerk  may  make  such  search  and  fur- 
nish a certificate  of  the  result  to  the  applicant  upon  the  payment  of  a fee  of 
fifty  cents  for  a search  of  one  year  and  a further  fee  of  ten  cents  for  each  addi- 
tional year,  which  fees  shall  be  paid  in  advance  of  such  search.  All  such  affidavits, 
statements  and  consents,  immediately  upon  the  taking  or  receiving  of  the  same 
by  the  town  or  city  clerk,  shall  be  recorded  and  indexed  and  shall  be  public  records 
and  open  to  public  inspection.  On  or  before  the  fifteenth  day  of  each  month  the 
said  town  and  city  clerk  shall  file  in  the  office  of  the  county  clerk  of  the  county 
in  which  said  town  or  city  is  situated  the  original  of  each  affidavit,  statement, 
consent,  license  and  certificate,  which  have  been  filed  with  or  made  before  him 
during  the  preceding  month.  He  shall  not  be  required  to  file  any  of  said  docu- 
ments with  the  county  clerk  until  the  license  is  returned  with  the  certificate 
showing  that  the  marriage  to  which  they  refer  has  been  actually  performed. *2 
[Domestic  Relations  Law,  § 19,  as  amended  by  L.  1912,  ch.  241,  and  L.  1916, 
ch.  381;  B.  C.  & G.  Cons.  L.,  p.  1031.] 

§11.  COPIES  OF  PAPERS  FILED  WITH  TOWN  CLERK,  EVIDENCE. 

A copy  of  a paper  filed,  pursuant  to  law,  in  the  office  of  a town  clerk,  or  transcript 
from  a record  kept  therein,  pursuant  to  law,  certified  by  the  town  clerk,  is  evi- 
dence, with  like  effect  as  the  original.  [Code  Civ.  Pro.,  § 934.] 


11.  Age  of  female  to  whom  license  may  be  issued. — This  section  does 
not  place  any  limitation  upon  the  age  of  a female  to  whom  a license  may  be  issued. 
If  the  applicant  is  a woman  under  eighteen  years  of  age,  the  town  clerk  must 
procure  the  consent  specified  in  the  statute.  Rept.  of  Atty.  Genl.  (1911),  Vol.  2, 
p.  632. 

12.  Affidavits  for  marriage  licenses  need  not  be  made  public  by  the  city 
or  town  clerk  until  after  the  ceremony  has  been  performed  and  the  certificate 
filed.  Rept.  of  Atty.  Genl.,  March  11,  1911. 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


346 


Constitution,  Art.  VI,  § 17. 


CHAPTER  XXIV. 


JUSTICES  OF  THE  PEACE;  GENERAL  DUTIES  AS  TOWN  OFFICERS: 
POLICE  JUSTICES  IN  CERTAIN  TOWNS. 


Section  1.  Constitutional  provisions  relative  to  justices  of  the  peace. 

2.  Removal  of  justice  of  the  peace. 

3.  Justice  of  the  peace  to  deposit  hooks  with  town  clerk,  if  he  removes 

from  town  or  is  removed  from  office;  town  clerk  to  demand 
hooks. 

4.  Buying  demands  by  a justice  or  constable,  for  suit  before  a justice; 

forfeiture  of  office. 

5.  Payment  of  fines  and  penalties. 

6.  Police  justices  in  certain  towns. 

7.  Jurisdiction  and  powers  of  police  justices. 

8.  Creation  of  office  of  police  justice. 


§ 1.  CONSTITUTIONAL  PROVISIONS  RELATIVE  TO  JUSTICES  OF 
THE  PEACE. 

The  electors  of  the  several  towns  shall,  at  their  annual  town  meetings,  or 
at  such  other  time  and  in  such  manner  as  the  legislature  may  direct,  elect 
justices  of  the  peace,  whose  term  of  office  shall  be  four  years.1 


1.  Election  and  terms  of  office  of  justices.  The  election,  number  and  terms 
of  office  of  justices  of  the  peace,  and  the  eligibility,  qualifications,  oaths  of 
office  and  undertakings  of  such  justices  have  been  considered  in  a former  chap- 
ter in  connection  with  other  town  officers.  See  3 Wait’s  Law  and  Practice,  7th 
ed.  (1903),  p.  1.  (For  places  in  this  Manual  where  the  sections  referred  to  may 
be  found,  see  Table  of  Laws,  after  the  Table  of  Contents.) 

References.  As  to  the  number  of  justices  to  be  elected  at  each  biennial  town 
meeting,  see  Town  Law,  sec.  80,  ante;  as  to  the  number  and  terms  of  justices 
of  the  peace,  see  Town  Law,  sec.  103,  ant'e ; as  to  the  ballots  for  justices  elected 
for  a full  term  and  to  fill  vacancies,  see  Town  Law,  sec.  56,  ante ; as  to  the 
election  or  appointment  of  justices  in  new  towns,  see  Town  Law,  sec  104,  ante ; 
as  to  the  filing  of  the  certificate  of  election  of  a justice  of  the  peace  with  the 
county  clerk,  see  Town  Law,  sec.  94,  ante;  as  to  the  eligibility  and  the  quali- 
fications of  persons  to  the  office  of  justices  of  the  peace,  see  Town  Law,  sec.  81, 
ante,  and  Public  Officers  Law,  sec.  3,  ante;  as  to  the  undertakings  of  justices, 
see  Town  Law,  sec.  106,  ante,  Town  Law,  sec.  13,  ante.  Public  Offi- 
cers Law,  sec.  11,  ante,  sec.  15,  ante;  as  to  oath  of  a justice  of 
the  peace,  see  Town  Law,  sec.  106,  ante;  as  to  the  legalizing  of  official  acts 


JUSTICES  OF  THE  PEACE;  GENERAL  DUTIES. 


347 


Code  Criminal  Procedure,  § 132. 

In  case  of  an  election  to  till  a vacancy  occurring  before  the  expiration  of 
a full  term,  they  shall  hold  for  the  residue  of  the  unexpired  term.  Their 
number  and  classification  may  be  regulated  by  law.  Justices  of  the  peace, 
and  judges  or  justices  of  inferior  courts,  not  of  record,  and  their  clerks,  may 
be  removed  for  cause,  after  due  notice  and  an  opportunity  of  being  heard,  by 
such  courts  as  are  or  may  be  prescribed  by  law.  [State  Constitution,  art. 
VI.,  §17;  B.  C.  and  G.  Cons.  L.,  p.  135.] 

§ 2.  REMOVAL  OF  JUSTICES  OF  THE  PEACE. 

How  removable. — Justices  of  the  peace,  police  justices,  justices  of  jus- 
tice’s courts,  and  their  clerks,  are  removable  by  the  appellate  division  of  the 
supreme  court.  [Code  of  Crim.  Pro.,  § 132.] 


of  a justice  of  the  peace  performed  before  filing  his  oath  and  undertaking,  see 
Town  Law,  sec.  15,  ante,  Public  Officers  Law,  sec.  15,  ante;  as  to  the  creation 
of  a vacancy  in  the  office  of  a justice,  see  Public  Officers  Law,  sec.  30,  ante;  as 
to  the  filing  of  such  vacancies  by  the  town  board,  see  Town  Law,  sec.  130,  ante. 

Duties  of  justices  of  the  peace  in  common  with  other  town  officers.  It  is 
not  the  purpose  of  this  work  to  treat  of  the  powers  and  duties  of  a justice  of 
the  peace  as  a judicial  officer.  The  purpose  is  to  consider  such  office  in  its  con- 
nection with  other  town  offices  and  to  state  the  powers  and  duties  of  a justice 
in  this  connection  only.  As  to  the  jurisdiction  of  justices  of  the  peace  and  as 
to  the  law  and  practice  in  their  courts  reference  is  made  to  Wait’s  Law  and 
Practice,  7th  ed.  (1903);  Baileys’  Law  and  Practice  for  Justices  of  the  Peace 
(1909), 

Town  board.  Justices  of  the  peace  as  town  officers  act  generally  in  connection 
with  the  supervisor  and  town  clerk  in  forming  the  town  board  of  the  town. 
The  town  board  is  the  chief  governing  body  of  the  town  and  its  powers  and 
duties  are  numerous  and  varied.  Subsequent  chapters  of  this  work  are  de- 
voted to  the  powers  and  duties  of  such  board.  Justices  have  other  duties  in 
conenction  with  other  town  officers  which  are  considered  in  other  parts  of  this 
work  in  their  proper  connection.  Among  these  duties  are  the  following: 

Town  meetings.  Justices  are  the  presiding  officers  at  town  meetings  not  held 
in  election  districts  or  at  the  time  of  a general  election.  See  Town  Law 
sec.  49,  ante.  (As  to  the  powers  of  town  meetings,  the  manner  of  conducting 
the  same,  and  other  provisions  relating  thereto,  see  chapter  19,  ante.) 

Special  constables  may  be  appointed  by  justices  of  the  peace  and  the  super- 
visor, Town  Law,  sec.  117,  ante. 

Resignations  may  be  accepted  by  any  three  justices  of  the  peace  of  a town 
for  sufficient  cause  shown  to  them.  Town  Law,  sec.  84,  ante. 

Fires  in  woods.  Justices  of  the  peace  in  connection  with  the  supervisor  and 
commissioner  of  highways  of  a town  may  order  out  the  inhabitants  of  a town 
to  assist  in  extinguishing  a fire  in  the  woods  in  any  such  town.  Town  Law, 
sec.  89,  ante. 

Coroners.  Justices  of  the  peace  to  act  as  coroners  in  case  of  the  disability 
of  all  the  coroners,  or  in  case  of  an  emergency,  see  Code  Crim.  Proc.,  § 789-a, 
ante. 


348 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Code  Civil  Procedure,  §§  3144-3147;  Penal  Law,  §§  1852,  1853. 

§ 3.  JUSTICE  OF  THE  PEACE  TO  DEPOSIT  BOOKS  WITH  TOWN 
CLERK,  IF  HE  REMOVES  FROM  TOWN  OR  IS  REMOVED 
FROM  OFFICE;  TOWN  CLERK  TO  DEMAND  BOOKS. 

If  a justice  of  the  peace,  either  before  or  after  the  expiration  of  his  term 
of  office,  removes  from  the  town  or  city  wherein  he  was  elected,  he  must 
forthwith  deposit,  with  the  clerk  of  that  town  or  city,  his  docket  book,  and 
all  other  books  and  papers  in  his  custody,  relating  to  an  action  or  a special 
proceeding,  which  has  been  heard  by  him,  or  commenced  before  him.  A 
justice,  who  is  removed  from  office,  must  make  a like  deposit,  within  ten 
days  after  receiving  notice  of  his  removal,  or  afterwards,  upon  the  demand 
of  the  clerk  of  the  town  or  city.  But  the  omission  of  the  justice  to  make 
the  deposit  does  not  affect  the  validity  of  any  book  or  paper,  so  required  to 
be  deposited,  or  of  any  proceeding  to  which  it  relates.  [Code  Civ.  Pro., 
§ 3144.] 

A justice  of  the  peace  must  make,  in  each  docket  book  deposited  by  him, 
as  prescribed  in  the  last  section,  a certificate  under  his  hand,  to  the  effect 
that  each  judgment  or  order,  entered  therein,  was  duly  rendered  or  made 
as  therein  stated ; and  that  the  sum,  appearing  by  the  book  to  be  due  there- 
upon, has  not  been  paid,  to  his  knowledge.  [Code  Civ.  Pro.,  § 3145.] 

If  a justice  of  the  peace  dies,  or  his  office  becomes  otherwise  vacant, 
the  town  or  city  clerk  must  demand  and  receive  ail  books  and  papers, 
which  belonged  to  the  justice  in  his  official  capacity,  from  any  person 
having  them  in  his  possession,  and  such  clerk  may  make  and  issue  a 
transcript  of  a judgment  so  rendered  by  such  a justice  of  the  peace  and 
appearing  upon  the  docket  of  such  justice  of  the  peace  so  on  file  in  his 
office,  and  issue  an  execution  upon  any  such  judgment  which  has  not 
been  docketed  in  the  office  of  the  county  clerk,  upon  receiving  his  fees 
for  the  same,  which  shall  be  the  same  now  allowed  $ justice  of  the  peace 
for  issuing  a transcript  or  transcripts,  as  the  case  may  be,  and  such 
transcript  or  execution  so  issued  By  such  clerk  shall  have  the  same  force 
and  effect  as ‘though  the  same  had  been  issued  by  such  justice  of  the 
peace  during  his  term  of  office.  [Code  Civ.  Pro.,  § 3146,  as  amended 
by  L.  1916,  ch.  448.] 

If  any  book  o-r  paper,  required  to  be  deposited  with  the  town  or  city 
clerk,  as  prescribed  in  this  title,  is  withheld,  the  like  proceedings  may 
be  had,  at  the  instance  of  the  town  or  city  clerk,  to  compel  the  deposit 
thereof,  as  are  prescribed  by  law,  where  an  officer  refuses  or-neglects  to 
deliver  a book  or  paper  in  his  custody  as  such  officer,  to  his  successor  in 
office.  [Code  Civ.  Pro.,  § 3147.] 

§ 4.  BUYING  DEMANDS  BY  A JUSTICE  OR  CONSTABLE,  FOR  SUIT 
BEFORE  A JUSTICE;  FORFEITURE  OF  OFFICE. 

A justice  of  the  peace  or  a constable  who,  directly  or  indirectly,  buys 
or  is  interested  in  buying,  anything  in  action,  for  the  purpose  of  com- 
mencing a suit  thereon  before  a justice,  is  guilty  of  a misdemeanor. 
[Penal  Law,  § 1852;  B.  C.  and  G.  Cons.  L.,  p.  4048.] 

A justice  of  the  peace  or  constable  who,  directly  or  indirectly,  gives,  or 


JUSTICES  OF  THE  PEACE;  GENERAL  DUTIES. 


349 


Penal  Law,  §§  1854-1856;  County  Law,  § 12,  subd.  21. 

promises  to  give,  any  valuable  consideration  to  any  person  as  an  inducement 
to  bring,  or  in  consideration  of  having  brought,  a suit  thereon  before  a 
justice,  is  guilty  of  a misdemeanor.  [Penal  Law,  § 1853;  B.  C.  and  G. 
Cons.  L.,  p.  4048.] 

A person  convicted  of  a violation  of  either  of  the  two  preceding  sections, 
in  addition  to  the  punishment,  by  tine  and  imprisonment  prescribed  therefor 
by  this  article,  forfeits  his  office.  [Penal  Law,  § 1854;  B.  C.  and  G.  Cons. 
L.,  p.  4048.] 

Nothing  in  the  three  preceding  sections  shall  be  construed  to  prohibit  the 
receiving  in  payment  of  anything  in  action  for  any  estate,  real  or  personal, 
or  for  any  services  of  an  attorney  or  counselor  actually  rendered,  or  for  a 
debt  antecedently  contracted;  or  the  buying  or  receiving  of  anything  in 
action  for  the  purpose  of  remittance,  and  without  any  intent  to  violate  the 
three  preceding  sections.  [Penal  Law,  § 1855;  B.  C.  and  G.  Cons.  L.,  p. 
4048.] 

The  provisions  of  sections  two  hundred  and  seventy-four,  two  hundred 
and  seventy-five,  eighteen  hundred  and  fifty-three,  and  eighteen  hundred 
and  fifty-five,  relative  to  the  buying  of  claims  by  a justice  of  the  peace  or 
constable,  with  intent  to  prosecute  them,  apply  to  every  case  of  such  buying 
a claim,  or  lending  or  advancing  money,  by  any  person  prosecuting  in 
person  an  action  or  legal  proceeding.  [Penal  Law,  § 1856;  B.  C.  and  G. 
Cons.  L.,  p.  4049.] 

§ 5.  PAYMENT  OF  FINES  AND  PENALTIES. 

The  board  of  supervisors  shall  have  power  to  direct  the  payment,  by 
justices  of  the  peace,  of  all  fines  and  penalties  imposed  and  received  by 
them,  to  the  supervisors  of  their  respective  towns,  on  the  first  Monday  in 
each  month,  and  to  direct  justices  of  the  peace  to  make  a verified  report  of 
all  fines  and  penalties  collected  by  them  to  the  board  of  town  auditors  of 
their  respective  towns  on  Tuesday  preceding  the  annual  town  meeting. 
Upon  such  payment  as  herein  prescribed  to  the  supervisor  of  any  town,  he 
shall  immediately  pay  over  such  part  of  such  fines  and  penalties  to  any 
person  or  corporation  who  shall  be  entitled  to  receive  the  same  by  virtue  of 
any  statute,  special  or  otherwise.  The  residue  of  such  amount  shall  be 
applied  to  the  support  of  the  poor  of  such  town.  This  subdivision  shall  not 
apply  to  the  county  of  Kings.  [County  Law,  § 12,  subd.  21 ; B.  C.  and  G. 
Cons.  L.,  p.  714.] 


§ 6.  * POLICE  JUSTICES  IN  CERTAIN  TOWNS. 

In  any  town  of  this  state  containing  one  or  more  incorporated  villages 
of  the  aggregate  population  of  at  least  eight  thousand  inhabitants,  the  office 
of  police  justice  shall  be  created  upon  the  adoption  of  a proposition  therefor 


350  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  §§  122,  123. 

at  any  regular  town  election.  The  term  of  office  of  said  police  justice  shall 
be  four  years.  Such  police  justice  shall  receive  no  fees,  but  shall  be  paid 
an  annual  salary  to  be  fixed  by  resolution  of  the  town  board  of  such  town, 
which  salary  shall  not  be  increased  nor  diminished  during  his  term  of  office. 
[Town  Law,  § 122,  as  added  by  L.  1909,  ch.  528.] 


§ 7.  JURISDICTION  AND  POWERS  OF  POLICE  JUSTICE. 

1.  Such  police  justice  may  hold  a court  of  special  sessions  in  said 
town,  outside  the  corporate  limits  of  the  village  or  villages,  and  shall  have 
in  the  first  instance  exclusive  jurisdiction  to  hear,  try  and  determine  all 
charges  of  misdemeanor  committed  within  such  town  and  without  the  cor- 
porate limits  of  the  village  or  villages  therein,  and  triable  by  a court  of 
special  sessions,  subject  to  the  right  of  removal,  as  provided  by  the  code  of 
criminal  procedure,  to  a court  having  authority  to  inquire  by  the  interven- 
tion of  a grand  jury  into  offenses  committed  within  the  county. 

2.  Such  police  justice  shall  have  exclusive  jurisdiction  to  take  the  ex- 
amination of  a person  charged  with  the  commission  in  such  town,  without 
the  corporate  limits  of  the  village  or  villages  therein,  of  a crime  not  triable 
by  a court  of  special  sessions;  and  also  to  hear,  try  and  determine  charges 
against  a person  of  being  a vagrant  or  disorderly  person  within  such  town 
without  the  corporate  limits  of  the  village  or  villages  therein,  or  of  having 
committed  disorderly  conduct  therein;  and  to  take  such  proceedings  in 
either  of  such  cases  as  may  be  taken  by  a justice  of  the  peace,  with  all  the 
powers  and  subject  to  all  the  duties  and  liabilities  of  a justice  of  the  peace 
in  respect  thereto. 

3.  Such  police  justice  shall  have  all  the  power  and  authority  and  be 
subject  to  all  the  duties  and  liabilities  of  a justice  of  the  peace  in  issuing 
warrants  for  the  arrest  of  a person  charged  with  the  commission  of  a crime 
or  disorderly  conduct  in  a county  including  such  town,  but  if  the  offense 
is  charged  to  have  been  committed  outside  of  that  portion  of  the  town  lying 
without  the  corporate  limits  of  the  village  or  villages  in  such  town,  the 
person  arrested  by  such  process  shall  be  taken  before  a magistrate  of  the 
town  or  village  in  which  such  offense  is  charged  to  have  been  committed  and 
the  papers  on  which  such  process  was  issued  shall  be  delivered  to  such 
magistrate  who  shall  proceed  thereon  as  though  such  warrant  had  been 
issued  by  him  on  such  papers. 

4.  A person  arrested  on  a criminal  warrant  issued  by  a justice  of  the 
peace  or  other  magistrate  upon  a charge  of  committing  a crime  or  an 
offense  of  a criminal  nature  within  that  portion  of  a town  wherein  such 
office  of  police  justice  has  been  or  may  be  established  lying  without  the 
corporate  limits  of  the  village  or  villages  therein,  shall  be  taken  before 
the  police  justice  of  such  town  and  the  papers  on  which  the  process  was 


JUSTICES  OF  THE  PEACE;  GENERAL  DUTIES. 


351 


Town  Law,  § 124. 

issued  shall  be  delivered  to  him  and  he  shall  proceed  thereon  as  though  such 
warrant  had  been  issued  by  him  on  such  papers. 

5.  In  case  of  the  absence  of  the  police  justice  or  his  inability  to  act  any 
justice  of  the  peace  of  the  town  shall  have  jurisdiction. 

6.  The  term  “ proceeding,”  as  used  in  this  section,  also  includes  a special 
proceeding  of  a criminal  nature.  [Town  Law,  § 123,  as  added  by  L.  1909, 
ch.  528.] 

§ 8.  CREATION  OF  OFFICE  OF  POLICE  JUSTICE. 

The  town  board  of  any  town  specified  in  section  one  hundred  and  twenty- 
two  of  this  article  may,  and  on  the  petition  of  twenty-five  electors  qualified 
to  vote  on  the  proposition  shall, cause  to  be  submitted  at  any  regular  town 
meeting  or  town  election  a proposition  for  the  creation  of  such  office  of 
police  justice  in  such  town.  Should  such  provision  be  adopted,  then  within 
ten  days  thereafter  the  town  board  of  such  town  shall  appoint  a competent 
elector  of  such  town  and  a resident  of  the  portion  thereof  lying  without  the 
corporate  limits  of  the  village  or  villages  therein,  police  justice ; the  person 
so  appointed  shall  hold  office  until  the  thirty-first  day  of  December  next 
after  the  regular  town  election  next  succeeding  that  at  which  such  proposi- 
tion shall  have  been  adopted.  At  the  regular  town  election  next  succeeding 
that  at  which  such  proposition  shall  have  been  adopted  a police  justice  shall 
be  elected.  [Town  Law,  § 124,  as  added  by  L.  1909,  ch.  528.] 


352 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 85. 


CHAPTER  XXV. 

COMPENSATION  OF  TOWN  OFFICERS;  MISCELLANEOUS  PROVISIONS  AS 

TO  TOWN  OFFICERS. 

Section  1.  Compensation  of  town  officers. 

2.  Per  diem  allowances  of  town  officers. 

2a.  Payment  of  salaries  monthly. 

3.  Compensation  of  town  clerks  in  certain  towns. 

4.  Expenditures  of  surplus  moneys  by  certain  town  officers. 

5.  Powers  and  duties  of  assessors  in  certain  towns  of  Nassau  County. 

6.  Fence  viewers. 

7.  Peace  officers  in  towns  of  counties  adjoining  cities  of  the  first-class. 

8.  Delivery  of  books  and  papers  by  outgoing  supervisor,  town  clerk,  super- 

intendent of  highways  or  overseer  of  poor  to  successor. 

§ 1.  COMPENSATION  OF  TOWN  OFFICERS. 

Town  officers  shall  he  entitled  to  compensation  at  the  following  rates 
for  each  day  actually  and  necessarily  devoted  by  them  to  the  service  of 
the  town'  in  the  duties  of  their  respective  offices,  when  no  fee  is  allowed 
by  law  for  the  service,  as  follows  : 

1.  a.  The  supervisor,1  except  when  attending  the  board  of  supervisors, 
town  clerk,  justices  of  the  peace  and  overseers  of  the  poor,  each,  two  dollars 


1.  Per  diem  allowance  to  town  officers.  A supervisor  of  a town  is  not  en 

titled  to  a percentage  upon  town  moneys  received  and  paid  out  by  him,  nor  to  any 
compensation  beyond  the  per  diem  allowance  fixed  by  statute  for  advising  and 
directing  overseers  of  the  poor,  for  consulting  with  highway  commissioners  and  town 
assessors,  and  for  services  in  employing  counsel  in  proceedings  taken  to  compel  the 
board  of  supervisors  to  correct  the  town  assessment-roll.  People  ex  rel.  Keeffe  v. 
Town  Auditors,  24  App.  Div.  579;  49  N.  Y.  Supp.  525.  A board  of  supervisors  in  a 
resolution  authorizing  a town  to  borrow  money  and  issue  bonds  therefor  cannot  give 
to  the  supervisor  for  his  services  a commission  on  the  proceeds  of  the  bonds  sold 
under  such  resolution.  Ghiglione  v.  Marsh,  23  App.  Div.  61 ; 48  N.  Y.  Supp.  604. 
In  this  case  it  was  held  that  the  services  performed  by  the  supervisor  in  respect  to 
bonds  so  sold  should  be  paid  for  on  the  per  diem  basis  under  the  provisions  of  the 
above  section  and  the  court  remarked : “ Such  services  are  performed  for  the  town, 
and  no  compensation  is  provided  therefor  by  any  provision  of  law.  It  would  seem, 
therefore,  that  the  provision  of  the  statute  for  per  diem  compensation  for  services 
rendered  the  town  by  a supervisor  has  direct  application  and  embraces  the  case.” 
Section  3280  of  the  Code  of  Civil  Procedure  provides  that  “each  public  officer 
upon  whom  a duty  is  expressly  imposed  by  law  must  execute  the  same  without  fee 


COMPENSATION  OF  TOWN  OFFICERS. 


353 


Town  Law,  § 85. 

per  day,  and  assessors  three  dollars  per  day,  unless  a different  rate  be  fixed 
by  or  pursuant  to  this  section;  [Subd.  amended  by  L.  1917,  ch.  572.] 

b.  The  board  of  supervisors  of  any  county  may,  by  resolution,  fix  the 
compensation  of  any  of  such  officers  in  the  towns  of  such  county  at  the  rate 
of  more  than  two  but  not  more  than  four  dollars  per  day,  notwithstanding 
any  provision  of  this  section  fixing  or  authorizing  the  fixing  of  a different 
per  diem  rate;  [Subd.  amended  by  L.  1917,  ch.  572.] 

c.  The  town  board  of  any  town  may,  by  resolution,  fix  the  compensation 
of  the  assessors  in  such  town  at  more  than  three  but  not  more  than  five 
dollars  per  day  each;  [Subd.  amended  by  L.  1917,  ch.  572.] 

d.  Assessors  in  the  county  of  Monroe  shall  receive  compensation  at  the 
rate  of  not  less  than  three  dollars  nor  more  than  five  dollars  per  day  each  * 
to  be  fixed  by  the  town  board ; 

e.  Assessors  in  the  county  of  Nassau  shall  receive  compensation  at  the 
rate  of  three,  dollars  per  day  each ; 

f.  The  town  board  of  any  town  in  which  the  assessed  valuation  of  real 
estate  is  over  twenty  million  dollars  may,  by  resolution,  determine  that  the 
assessors  thereof  shall  each  receive  an  annual  salary  of  not  more  than  one 
thousand  dollars  in  lieu  of  per  diem  compensation ; 


or  reward,  except  where  a fee  or  other  compensation  therefor  is  expressly  allowed  by 
law.”  In  the  case  of  People  ex  rel.  Keeffe  v.  Town  Auditors,  supra,  the  court  held 
that  such  section  of  the  code  applied  to  services  performed  by  supervisors  in  re- 
ceiving and  paying  out  town  moneys,  and  concluded  that  a supervisor  was  not  en- 
titled to  any  compensation  for  such  services  other  than  a per  diem  allowance  as  given 
by  the  above  section,  and,  unless  that  section  can  be  made  applicable  it  was  held  that 
he  could  make  no  charge  whatever  against  the  town  for  such  services.  See,  also, 
Matter  of  Town  of  Hempstead,  36  App.  Div.  321;  55  N.  Y.  Supp.  345. 

A supervisor  is  entitled  to  commissions  for  paying  out  moneys  for  park  pur- 
poses, authorized  by  a statute  making  the  supervisor  one  of  the  park  commissioners 
to  serve  without  compensation,  because  his  function  as  supervisor  in  paying  out  the 
money  is  separate  and  distinct  from  his  function  as  a park  commissioner.  People  ex 
rel.  Studwell  v.  Archer,  142  App.  Div.  71,  126  N.  Y.  Supp.  750. 

The  supervisor  of  a town  is  not  entitled  to  a commission  of  one  per  cent,  on  money 
raised  for  highway  and  bridge  purposes.  Rept.  of  Atty.  Genl.,  May  22,  1911. 

Members  of  the  town  board  are  entitled  to  no  greater  compensation  while  audit- 
ing accounts  than  while  performing  other  duties  as  a town  board,  such  compensa- 
tion being  two  dollars  per  day.  Rept.  of  Atty.  Genl.  (1911),  vol.  2,  p.  663. 

Right  of  town  officer  to  employ  assistant  at  expense  of  the  town.  A town  officer 
has  no  right  to  employ  an  assistant  at  the  expense  of  the  town  to  do  any  part 
of  the  work  which  devolves  upon  him  by  virtue  of  his  office  and  for  which  he  is  com- 
pensated as  such  town  officer;  nor  has  the  town  board  a right  to  employ  any  person 
at  the  expense  of  the  town  to  do  the  work  of  any  town  officer.  Daly  v.  Haight 
(1914),  87  Misc.  425,  149  N.  Y.  Supp.  940,  rev’d  on  other  grounds,  170  App.  Div. 
469T,  156  N.  Y.  Supp.  538. 


354 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 85. 


g.  The  town  board  of  any  town  in  the  county  of  Nassau  having  a 
population,  as  appears  by  the  last  federal  census,  of  seventeen  thousand 
inhabitants  or  more,  may  fix  the  annual  compensation  for  assessors  of 
such  town,  at  not  more  than  twelve  hundred  dollars  each,  and  provide 
for  the  payment  of  such  compensation  in  quarterly  installments; 

h.  The  town  board  of  any  town  in  which  the  assessed  valuation  of 
taxable  real  and  personal  property  is  ten  million  dollars  or  more  may 
determine  by  resolution  that  the  overseers  of  the  poor  in  such  town 
shall  receive  an  annual  salary,  to  be  fixed  by  such  resolution,  not  exceed- 
ing one  thousand  dollars,  in  lieu  of  the  per  diem  compensation  provided 
by  this  section; 

i.  The  town  board  of  any  town  in  a county  adjoining  a city  of  the 
first  class  may  by  resolution  fix  the  compensation  of  the  persons  ap- 
pointed and  serving  as  inspectors  of  election  at  a sum  not  exceeding 
twelve  dollars  for  the  hours  fixed  by  law  for  each  day  of  registration, 
and  of  revision  of  registration  for  a special  election,  and  six  dollars 
for  the  count  and  return  of  the  votes,  said  claims  to  be  allowed  and 
paid  in  the  same  manner  as  other  town  charges  are  allowed  and  paid. 
Ballot  clerks  shall  receive  the  same  compensation  for  their  attendance 


Justices  of  the  peace  and  town  clerks  are  entitled  to  a per  diem  compensa- 
tion of  two  dollars.  People  ex  rel.  Earwicker  v.  Dillon,  38  App.  Div.  539,  56  N.  Y. 
Supp.  416. 

Town  clerk  is  entitled  to  compensation  for  services  in  carrying  out  the  provi- 
sions of  the  Election  Law.  He  is  not  entitled  to  compensation  for  allowing  town 
assessment  rolls  to  be  placed  in  his  office.  People  ex  rel.  Gedney  v.  Sippell,  116  App. 
Div.  753,  102  N.  Y.  Supp.  69. 

Compensation  of  town  clerk  as  custodain  of  records.  A town  clerk  is  en- 
titled to  certain  fees  for  filing  papers  required  to  be  filed  with  him,  for  registering 
the  same,  for  searching  for  papers;  and  for  certified  copies  of  instruments  or  records 
required  to  be  kept  by  him,  he  is  entitled  to  the  same  fees  as  are  allowed  by  law  to 
county  clerks.  In  addition  to  these  fees  he  is,  by  the  above  section,  entitled  to  $2  for 
each  day  actually  and  necessarily  devoted  to  the  service  of  the  town  in  the  duties  of 
his  office  when  no  fee  is  allowed  by  law  for  such  service.  It  is  quite  evident  that  the 
above  section  does  not  contemplate  an  allowance  of  $2  per  day  as  custodian  of  papers 
required  to  be  filed  with  him.  Matter  of  Town  of  Hempstead,  36  App.  Div.  319 ; 55 
N.  Y.  Supp.  345. 

Town  assessors  in  Nassau  county.  L.  1900,  ch.  292,  amending  former  section, 

providing  for  the  compensation  of  assessors  in  towns  generally,  and  excepting  there- 
from the  county  of  Monroe,  was  held  to  repeal  the  provisions  of  L.  1893,  ch.  629,  § 2, 
relating  to  the  compensation  of  assessors  in  Queens  county,  so  far  as  the  same  related 
to  the  county  of  Nassau,  notwithstanding  L.  1898,  ch.  588,  § 18,  applying  acts  relating 
to  Queens  county  to  the  county  of  Nassau.  People  ex  rel.  Hegeman  y.  Jones,  68  App. 
Div.  396,  74  N.  Y.  Supp.  294. 


COMPENSATION  OP  TOWN  OFFICERS. 


354a 


Town  Law,  § 85. 

at  an  election  as  inspectors  of  election  for  the  election  and  be  paid  in 
like  manner.  Poll  clerks  shall  receive  the  same  compensation  for  their 
attendance  at  an  election  and  canvass  of  the  votes  as  inspectors  of 
election  and  be  paid  in  like  manner. 

The  compensation  of  a town  officer  now  fixed  pursuant  to  this  section 
shall  continue  as  so  fixed  until  changed  pursuant  to  this  section  as 
amended.  If  the  compensation  of  a town  officer  be  fixed  by  or  pursuant 
to  statute  on  a per  diem  basis,  he  shall  not  be  entitled  to  receive  more 
than  one  day’s  compensation  on  account  of  services  performed  on  the 
same  calendar  day. 

j.  The  town  board  of  any  town  in  a county  having  a population  of 
two  hundred  thousand  or  less,  according  to  the  last  federal  or  state 
census  or  enumeration,  adjoining  a city  of  the  first  class  having  a 
population  of  one  million  and  upwards  may,  by  a resolution,  fix  the 
compensation  of  the  town  clerk  at  not  more  than  thirty-five  hundred 
dollars  per  annum.  The  town  clerks  in  such  towns  may,  with  the 
approval  of  the  town  board,  appoint  a deputy  town  clerk  at  a salary 
to  be  fixed  by  the  town  board  not  exceeding  the  sum  of  fifteen  hundred 
dollars  per  annum.  Such  town  clerk  and  deputy  town  clerk  shall  re- 
ceive and  collect  the  fees  allowed  by  law  and  shall  keep  an  accurate 
record  of  the  same.  At  the  end  of  each  month,  he  shall  make  a verified 
report  of  such  fees  giving  the  date  and  amount  of  each  fee  and  the 
person  from  whom  received,  which  he  shall  file  wdth  the  supervisor  of 
the  town,  and  pay  over  to  such  supervisor  all  the  moneys  so  received 
during  such  month,  to  be  paid  by  the  supervisor  into  the  town  fund  of 
such  town. 

2.  If  a different  rate  is  not  otherwise  established  as  herein  provided, 
each  inspector  of  election,  ballot  clerk  and  poll  clerk  is  entitled  to  three 
dollars  per  day;  but  the  town  board  may  establish  in  its  town  a higher 
rate,  not  exceeding  six  dollars  per  day,  but  such  election  officers  shall 
receive  compensation  for  one  day  only  for  all  services  rendered  on  the 
day  of  election  and  in  canvassing  the  votes  thereafter,  and  in  completing 
the  returns.2 


2.  Pay  of  election  officers.  Although  town  election  officers  have  worked  from 
about  half-past  five  in  the  morning  until  nearly  midnight  on  the  day  of  a general  elec- 
tion, they  are  only  entitled  to  one  day’s  pay,  as  the  statute,  fixing  the  number  of  hours 
which  shall  constitute  a day’s  work,  has  no  application  to  such  officers.  People  ex 
rel.  Kleet  v.  Town  Board,  27  Misc.  470;  59  N.  Y.  Supp.  234. 


354b 


COMPENSATION  OF  TOWN  OFFICERS. 


Town  Law,  §§  86,  87a. 

j.  The  supervisor  of  each  town  shall  be  allowed  and  paid,  in  the  same 
manner  as  other  town  charges  are  allowed  and  paid,  a fee  of  one  per 
centum  on  all  moneys  paid  out  by  him  as  such  supervisor,  including  school 
moneys  disbursed  by  him  as  provided  in  the  education  law,  moneys  paid  out 
by  him  for  damages  arising  from  dogs  killing  or  injuring  sheep  as  pro- 
vided in  article  seven  of  the  county  law,  moneys  in  his  hands  paid  out 
by  him  for  the  relief  of  the  poor,  and  all  other  town  moneys  paid  out  by 
him  for  defraying  town  charges,  except  moneys  expended  under  the  highway 
law.  But  no  such  fees  shall  be  allowed  or  paid  upon  moneys  paid  over  by 
him  to  his  successor  in  office.  Such  fees  shall  be  in  full  compensation  for 
all  services  rendered  by  him  in  respect  to  moneys  received  and  paid  out 
by  him  as  such  supervisor  as  provided  by  law  except  the  compensation  pro- 
vided in  section  one  hundred  and  ten  of  the  highway  law.  [Town  Law,  § 
85,  as  amended  by  L.  1909,  ch.  491;  L.  1915,  chs.  73  and  452;  L.  1916, 
chs.  93  and  554;  B.  C.  & G.  Cons.  L.,  p.  6161.] 

k.  The  constables  hereafter  elected  in  any  town  of  a county  containing 
two  hundred  thousand  inhabitants  or  less,  according  to  the  last  federal  cen- 
sus or  state  enumeration,  adjoining  a city  of  the  first  class  containing  a 
population  of  over  one  million,  shall  receive  annual  salaries  to  be  fixed  by 
the  town  board  at  not  exceeding  fifteen  hundred  dollars  each.  The  salaries 
of  the  constables  in  any  such  town  shall  be  uniform.  Such  salaries  shall  be 
determined  before  the  first  biennial  town  meeting  hereafter  held,  but  may 
be  diminished  or  increased,  within  such  limitations,  by  the  town  board  from 
time  to  time,  with  respect  to  constables  to  be  thereafter  elected.  The  town 
board  may  provide  for  the  payment  of  such  salary  in  either  monthly  or 
quarterly  installments.  The  constables  hereafter  elected  in  any  such  town 
shall  not  receive  to  their  own  use  any  other  compensation  for  their  services, 
but  shall  be  allowed  their  actual  and  necessary  expenses  incurred  in  the  per- 
formance of  their  duties.  The  accounts  for  such  expenses  shall  be  audited 
and  paid  by  the  town  board  monthly.  All  fees  or  charges  payable  by  law 
to  constables  of  any  such  towns  for  any  services  in  their  official  capacity 
shall  be  collected  by  such  constables,  but  shall  belong  to  the  town,  and  the 
amount  collected  shall  be  paid  over,  on  or  before  the  fifth  day  of  each 
month,  to  the  supervisor.  [Subd.  added  by  L.  1917,  ch.  44.] 

l.  The  town  board  of  any  town  in  a county  containing  a town  having  a 
population  of  sixty  thousand  or  over  according  to  the  last  federal  census  or 
state  enumeration,  adjoining  a city  of  the  first  class  containing  a population 
of  over  one  million,  may  by  resolution  fix  the  compensation  of  all  town 
officers  except  the  compensation  of  the  members  of  such  town  board,  not- 
withstanding the  provisions  of  any  other  subdivision  of  this  section.  The 


COMPENSATION  OF  TOWN  OFFICERS. 


355 


Town  Law,  § 86. 

compensation,  of  the  members  of  any  such  town  board  shall  continue  as 
now  provided  by  law.  Any  towrn  board  adopting  such  resolution  shall  de- 
termine such  compensation  before  the  first  biennial  town  meeting  hereafter 
held,  and  such  compensation  may  be  diminished  or  increased  by  such  town 
board  from  time  to  time,  with  respect  to  officers  to  be  thereafter  elected  or 
appointed,  except  that  all  town  officers  of  the  same  class  or  title  shall  receive 
the  same  compensation.  Such  town  board  may  provide  for  the  payment  of 
such  compensation  in  either  monthly  or  quarterly  installments.  [Subd.  1 
added  by  L.  1918,  ch.  123.] 

1.  The  town  board  of  any  town  in  a county  having  a population  of  more 
than  three  hundred  thousand  according  to  the  last  federal  or  state  census, 
or  enumeration,  adjoining  a city  of  the  first  class  having  a population  of 
one  million  and  upwards,  may  determine  by  resolution  that  the  overseer  of 
the  poor,  or  overseers  of  the  poor,  elected  or  appointed,  shall  receive  an 
annual  salary  to  be  fixed  by  such  resolution;  provided,  however,  such  an- 
nual salary  of  such  overseer  of  the  poor,  or  of  each  of  said  overseers  of  the 
poor,  shall  not  exceed  one  thousand  dollars  in  such  a town  having  a popu- 
lation of  less  than  seventy-five  hundred,  and  shall  not  exceed  one  thousand 
five  hundred  dollars  in  such  a town  having  a population  of  seventy-five 
hundred  or  over;  except,  however,  in  such  a town  having  a population  of 
twenty  thousand  or  over  and  an  assessed  valuation  of  forty  million  or  over 
and  having  but  one  such  overseer  of  the  poor  such  annual  salary  may  be 
fixed  at  not  to  exceed  three  thousand  dollars,  and  further  that  when  such  a 
salary  has  been  so  fixed  as  herein  provided,  it  shall  be  in  lieu  of  any  other 
or  different  compensation  or  method  of  compensation  notwithstanding  any 
general  or  special  law.  [Subd.  1 added  by  L.  1918,  ch.  359.] 

1.  The  town  board  of  any  town  having  a population  of  fifteen  thousand 
or  more,  according  to  the  last  federal  or  state  census  or  enumeration,  and 
an  assessed  valuation  of  fifteen  million  dollars  or  more,  may,  by  resolution, 
fix  the  compjensation  of  the  town  clerk  at  an  annual  salary,  to  be  prescribed 
by  the  resolution  and  payable  in  stated  installments.  [Subd.  1 added  by 
L.  1918,  ch.  360.] 

1.  Town  clerks  of  any  town  in  Erie  county  shall  receive  compensation  at 
the  rate  of  three  dollars  per  day  each.  [Subd.  1 added  by  L.  1918,  ch.  387.] 

n.  The  town  board  of  a town  having  a population  of  twenty  thousand 
or  over,  and  an  assessed  valuation  of  forty  millions  or  over,  in  a county 
having  a population  of  more  than  three  hundred  thousand  according  to  the 
last  federal  or  state  census,  or  enumeration,  adjoining  a city  of  the  first 
class  having  a population  of  one  million  and  upwards,  may  determine  by 
resolution  that  the  town  superintendent  of  highways  shall  receive  an  annual 


356 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  87,  87a,  86,  90. 

salary  to  be  fixed  by  such  resolution ; provided,  however,  such  annual  salary 
of  the  said  town  superintendent  of  highways  shall  not  exceed  three  thou- 
sand dollars.  [Subd.  n added  by  L.  1918,  ch.  117.] 

§ 2.  PER  DIEM  ALLOWANCES  OF  TOWN  OFFICERS. 

No  town  officer  shall  be  allowed  any  per  diem  compensation  for  his  ser- 
vices unless  expressly  provided  by  law.  [Town  Law,  § 87;  B.  C.  & G. 
Cons.  L.,  p.  6163.] 

§ 2a.  PAYMENT  OF  SALARIES  MONTHLY. 

If,  by  or  in  pursuance  of  law,  a town  officer  is  entitled  to  receive  an  annual 
salary,  the  supervisor  of  such  town  may,  notwithstanding  the  provisions  of 
any  such  law  as  to  the  time  for  payment  of  such  salary,  or  the  audit  or 
allowance  thereof,  pay  to  such  officer  monthly  the  proportion  of  such  salary 
to  which  he  shall  be  entitled  out  of  any  moneys  of  the  town  in  his  hands 
not  needed  for  other  purposes,  and  receipts  therefor  shall  be  presented  by 
the  supervisor  to  the  board  of  town  auditors,  if  any,  and  otherwise  to  the 
town  board,  which  receipts  if  found  to  be  correct  shall  be  audited  and  al- 
lowed at  the  amount  thereof.  [Town  Law,  § 87a,  as  added  by  L.  1915, 
ch.  12.] 

§ 3.  COMPENSATION  OF  TOWN  CLERKS  IN  CERTAIN  TOWNS. 

The  town  clerk  of  each  town  containing  a population  of  twenty  thou- 
sand or  upwards,  except  the  counties  of  Kings  and  Richmond,  shall  be 
entitled  to  receive  the  same  compensation  for  attending  all  meetings  of 
town  boards  in  his  town  as  each  other  member  of  such  board  in  addition 
to  all  compensation,  salary  and  fees  to  which  he  is  now  entitled  by  law 
for  the  performance  of  all  the  other  duties  of  said  office.3  [Town  Law, 
§ 86 ; B.  C.  & G.  Cons.  L.,  p.  6163.] 

§ 4.  EXPENDITURES  OF  SURPLUS  MONEYS  BY  CERTAIN  TOWN 
OFFICERS. 

The  supervisor,  town  clerk  and  justices  of  the  peace,  or  a majority  thereof 
in  any  town  in  this  state,  may  expend  any  surplus  moneys  for  which  no 
provisions  for  expenditure  is  made,  belonging  to  said  town,  for  the  purposes 


3.  Additional  compensation  cannot  be  awarded  to  the  town  clerk  for  attending 
meetings  of  the  boards  of  assessors,  auditors  and  highway  commissioners;  nor  to 
the  supervisor  for  attending  meetings  of  the  town  board;  nor  to  the  assessors  for 
making  up  jury  lists  in  conjunction  with  the  supervisor  and  town  clerk.  Wilson  v. 
Bleloch,  125  App.  Div.  191,  109  N.  Y.  Supp.  340. 


COMPENSATION  OF  TOWN  OFFICERS. 


356a 


Town  Law,  § 108. 

of  redemption  of  outstanding  bonds  or  for  improvements  in  said  town 
If  not  so  used,  the  town  board  shall  apply  such  surplus  in  reduction  of  taxa- 
tion in  the  manner  provided  in  section  one  hundred  and  thirty-three  of  this 
act.4  [Town  Law,  § 90,  as  amended  by  L.  1918,  ch.  73;  B.  C.  & G.  Cons. 
L.,  p.  6164.] 

§ 5.  POWERS  AND  DUTIES  OF  ASSESSORS  IN  CERTAIN  TOWNS  OF 
NASSAU  AND  ERIE  COUNTIES. 

The  assessors  of  Nassau  county  in  the  towns  having  a population,  as 
appears  by  the  last  federal  census,  of  seventeen  thousand  or  more,  may  in 
their  discretion  employ  two  clerks  at  salaries  to  be  fixed  by  them,  subject 
to  the  approval  of  the  town  clerk  and  supervisor,  also  additional  clerk  hire 
at  a sum  not  to  exceed  annually  a sum  approved  by  the  town  clerk  and 
supervisor,  and  the  assessors  of  Erie  county,  in  the  town  contiguous  to  the 
city  of  Buffalo,  may  employ  one  clerk,  to  be  approved  by  the  town  board,  at 
a salary  to  be  fixed  by  said  town  board,  and  the  salaries  of  said  clerks  shall 
be  paid  by  the  supervisor  of  the  town  in  equal  quarterly  payments,  and  shall 
be  a town  charge  and  shall  be  levied  and  collected  in  the  same  manner  as 
other  town  charges.  The  assessors  of  Nassau  county  in  the  towns  having 
a population,  as  appears  by  the  last  federal  census,  of  seventeen  thousand, 
or  more,  shall  devote  all  their  time  during  business  hours  to  their  official 
duties.  They  shall  keep  their  office  open  for  the  convenience  of  the  public 
every  week  day  of  the  year,  except  public  holidays  and  Saturdays,  from 
nine  o’clock  in  the  morning  till  four  o’clock  in  the  afternoon,  and  on  Sat- 
urdays from  nine  o’clock  in  the  morning  until  one  o’clock  in  the  afternoon, 
and  shall  cause  one  of  their  number  or  the  clerk  of  the  board  to  be  in  at- 
tendance during  said  office  hours.  Between  the  first  day  of  September  in 
each  year,  and  the  first  day  of  J uly  in  the  year  next  following,  the  assessors 


4.  Application.  Money  received  by  a town  for  damages  to  certain  highway  and 
water  rights  is  surplus  money  within  the  meaning  of  this  section,  and  may  be  ex- 
pended for  the  improvement  of  highways.  McConnell  v.  Allen,  193  N.  Y.  318,  322, 
revg.  120  App.  Div.  548,  105  N.  Y.  Supp.  16. 

Moneys  received  by  a town  from  the  State  as  refunds  of  State  taxes  on  railroads 
for  the  construction  of  which  the  town  had  issued  so-called  “railroad  aid  bonds,” 
the  indebtedness  of  the  town  incurred  for  the  purpose  of  encouraging  and  aiding 
the  construction  of  the  railroad  having  been  entirely  paid,  belong  to  the  town 
and  constitute  a surplus  in  its  funds  and  may  lawfully  be  used  in  reduction  of 
taxation  by  the  town  board,  although  there  is  no  express  statutory  authority  there- 
for. Opinion  of  State  Comptroller  (1916),  10  State  Dept.  Rep.  534. 


356b 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  121,  122,  91. 

shall  proceed  to  ascertain  by  diligent  inquiry  the  names  of  all  taxable  in- 
habitants in  their  respective  towns  and  also  all  the  taxable  property,  real  or 
personal,  within  the  same.  [Towm  Law,  § 108,  as  amended  by  L.  1914,  ch. 
157;  B.  C.  & G.  Cons.  L.,  p.  6173.] 


§ 6.  FENCE  VIEWERS. 

The  assessors  and  town  superintendent  of  highways  elected  in  every  town 
shall,  by  virtue  of  their  offices,  be  fence  viewers  of  their  town.  [Town 
Law,  § 121,  as  amended  by  L.  1909,  ch.  491.] 


§ 7.  PEACE  OFFICERS  IN  TOWNS  OF  COUNTIES  ADJOINING  CITIES 
OF  THE  FIRST  CLASS. 

The  town  board  of  any  town  within  a county  adjoining  a city  of  the 
first  class  may,  upon  the  petition  of  twenty-five  taxpayers  of  the  town,  an- 
nually raise  by  taxation  a sum  of  money  not  to  exceed  one-tenth  of  one  per 
centum  of  the  assessed  valuation  of  the  taxable  property  of  the  town  for 
the  purpose  of  defraying  the  expenses  necessary  for  the  preservation  of  the 
public  peace  of  the  town.  The  town  board  of  any  such  town  may  there- 
after annually  appoint  for  a term  not  extending  beyond  the  current  official 
year  competent  persons  who  shall  be  termed  peace  officers  for  such  town, 
and  who  shall  have  all  the  powers  and  be  subject  to  all  the  duties  and  lia- 
bilities of  a constable  of  such  town  in  all  criminal  actions  and  proceedings 
and  special  proceedings  of  a criminal  nature.  The  compensation  for  the 
services  of  such  peace  officers  shall  be  fixed  by  said  town  board  at  a yearly 
salary  and  shall  be  paid  by  such  board  in  equal  monthly  payments,  and 
bills  for  expenses  and  equipments  of  such  officers  shall  be  audited  and  paid 
by  said  town  board  monthly.  The  town  board  may  dispense  with  the  ser- 
vices of  any  or  all  persons  who  may  be  appointed  hereunder  whenever  said 
board  shall  deem  that  their  services  are  unnecessary.  No  person  shall  be 
appointed  as  a peace  officer  under  this  section  who  is  not  a citizen  of  the 
United  States  or  who  has  ever  been  convicted  of  a crime  or  who  cannot 
understand  English,  or  read  and  write  the  English  language.  [Town  Law, 
§ 122,  as  added  by  L.  1909,  ch.  147.] 

§ 8.  DELIVERY  OF  BOOKS  AND  PAPERS  BY  OUTGOING  SUPER- 
VISOR, TOWN  CLERK,  SUPERINTENDENT  OF  HIGHWAYS  OR 
OVERSEER  OF  THE  POOR,  TO  SUCCESSOR. 

Whenever  the  term  of  office  of  any  supervisor,  town  clerk,  superintendent 
of  highways  or  overseer  of  the  poor  shall  expire,  or  when  either  of  such 


COMPENSATION  OF  TOWN  OFFICERS.  357 

Town  Law,  § 91. 

officers  shall  resign,  and  another  person  shall  be  elected  or  appointed  to  the 
office,  the  succeeding  officer  shall,  immediately  after  he  shall  have  entered 
on  the  duties  of  his  office,  demand  of  his  predecessor  all  the  records,  books, 
and  papers  under  his  control  belonging  to  such  office.  Every  person  so  going 
out  of  office,  whenever  so  required,  shall  deliver  upon  oath  to  his  successor 
all  the  records,  books  and  papers  in  his  possession  or  under  his  control 
belonging  to  the  office  held  by  him,  which  oath  may  be  administered  by  the 
officer  to  whom  such  delivery  shall  be  made,  and  shall,  at  the  same  time 
pay  over  to  his  successor  the  moneys  belonging  to  the  town  remaining  in  his 
hands.  If  any  such  officer  shall  have  died,  the  successors  or  successor  of 
such  officer  shall  make  such  demand  of  the  executors  or  administrators  of 
such  deceased  officer,  and  such  executors  or  administrators  shall  deliver, 
upon  like  oath,  all  records,  books  and  papers  in  their  possession,  or  under 
their  control,  belonging  to  the  office  held  by  their  testator  or  intestate.  If 
any  person  so  going  out  of  office,  or  his  executors  or  administrators,  shall 
refuse  or  neglect,  when  lawfully  required,  to  deliver  such  records,  books  or 
papers,  he  shall  forfeit  to  the  town,  for  every  such  refusal  or  neglect,  the 
sum  of  two  hundred  and  fifty  dollars;  and  officers  entitled  to  demand  such 
records,  books  and  papers  may  compel  the  delivery  thereof  in  the  manner 
prescribed  by  law.5  [Town  Law,  § 91,  as  amended  by  L.  1909,  ch.  491 ; 
B.  C.  and  G.  Cons.  L.,  p.  6164.] 


5.  For  form  of  oath  of  town  officers  and  delivery  of  books,  etc.,  see  Form 
No.  29. 

Proceedings  to  compel  delivery  of  books.  The  following  section  of  the 
Public  Officers’  Law  prescribes  the  procedure  for  compelling  the  delivery  of 
books  by  a public  officer  to  his  successor. 

§ 80.  A public  officer  may  demand  from  any  person  in  whose  possession  they 
may  be,  a delivery  to  such  officer  of  the  books  and  papers  belonging  or  apper- 
taining to  such  office.  If  such  demand  is  refused,  such  officer  may  make  com- 
plaint thereof  to  any  justice  of  the  Supreme  Court  of  the  district,  or  to  the 
county  judge  of  the  county  in  which  the  person  refusing  resides.  If  such  justice 
or  judge  be  satisfied  that  such  books  or  papers  are  withheld,  he  shall  grant  an 
order  directing  the  person  refusing  to  show  cause  before  him  at  a time  specified 
therein,  why  he  should  not  deliver  the  same.  At  such  time,  or  at  any  time  to 
which  the  matter  may  be  adjourned,  on  proof  of  the  due  service  of  the  order, 
such  justice  or  judge  shall  proceed  to  inquire  into  the  circumstances.  If  the 
person  charged  with  withholding  such  books  or  papers  makes  affidavit  before 
such  justice  or  judge  that  he  has  delivered  to  the  officer  all  books  and  papers 
in  his  custody  which,  within  his  knowledge,  or  to  his  belief,  belong  or  appertain 
thereto,  such  proceedings  before  such  justice  or  judge  shall  cease,  and  such 
person  be  discharged.  If  the  person  complained  against  shall  not  make  such 
oath,  and  it  appears  that  any  such  books  or  papers  are  withheld  by  him,  such 
justice  or  judge  shall  commit  him  to  the  county  jail  until  be  delivers  such  books 
and  papers,  or  is  otherwise  discharged  according  to  law.  On  such  commitment. 


358 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 125. 

§ 9.  ADDITIONAL  CLERKS  AND  ASSISTANTS  IN  CERTAIN  TOWNS. 

The  supervisor  of  each  town  having  a population,  as  appears  by  the 
last  federal  census,  of  fifteen  thousand  or  more  and  where  the  assessed 
.valuation  of  real  estate  is  over  fifteen  million  dollars,  may  in  his  discre- 
tion employ  a clerk  at  a salary  to  be  fixed  by  the  town  board  of  such 
town,  except  that  in  the.  county  of  Westchester  such  clerks  may  be 
employed  in  towns  where  the  population,  as  appears  by  the  last  federal 
census,  is  ten  thousand  or  more  or  where  the  assessed  valuation  of  real 
estate  is  over  six  million  dollars.  The  assessors  of  each  town  having  a 
population,  as  appears  by  the  last  federal  census,  of  fifteen  thousand 
or  more  and  where  the  assessed  valuation  of  real  estate  is  over  fifteen 
million  dollars,  may  also,  in  their  discretion,  employ  a clerk  at  a salary 
to  be  fixed  by  the  town  board  of  such  town.  The  assessors  in  each  town 

in  Suffolk  county  may  also,  in  tlieir  discretion,  employ  clerks,  for  the  pur- 
pose of  copying  the  original  assessment  roll  and  making  such  copy  or  copies 
thereof  as  may  be  authorized  by  law,  at  a salary  to  be  fixed  by  the  town 
board  of  such  town.  The  salaries  of  said  clerks  shall  be  paid  by  the  super- 
visor of  said  town  in  equal  monthly  payments  and  shall  be  a town  charge 
and  shall  be  levied  and  collected  in  the  same  manner  as  other  town  charges. 
[Town  Law,  § 125,  as  added  by  L.  1913,  ch.  163,  amended  by  L.  1915,  ch. 
107,  L.  1916,  ch.  21,  and  L.  1918,  ch.  541.] 


such  justice  or  judge,  if  required  by  the  complainant,  shall  also  issue  his  warrant 
directed  to  any  sheriff  or  constable,  commanding  him  to  search  in  the  day  time,  the 
places  designated  therein,  for  such  books  and  papers,  and  to  bring  them  before  such 
justice  or  judge.  If  any  such  books  and  papers  are  brought  before  him  by  virtue  of 
such  warrant,  he  shall  determine  whether  they  appertain  to  such  office,  and  if  so  shall 
cause  them  to  be  delivered  to  the  complainant. 

In  proceedings  under  § 247 1-a  of  the  Code  (Public  Officers  Law,  § 80)  to  compel 
an  officer  whose  term  has  expired  to  deliver  to  his  successor  the  books,  papers,  etc., 
appertaining  to  the  office,  all  that  the  petitioner  is  required  to  establish  is  his  elec- 
tion, and  that  he  has  duly  qualified.  Questions  as  to  the  validity  of  the  election 
may  not  be  determined  in  such  a proceeding.  Matter  of  Bradley,  141  N.  Y 527 ; 
Matter  of  Foley,  8 Misc.  196,  28  N.  Y.  Supp.  611,  aff’d  in  86  Hun  621,  33  N.  Y.  Supp. 
1134,  aff’d  148  N.  Y.  675;  Matter  of  Dudley,  33  App.  Div.  465,  53  N.  Y.  Supp.  742; 
Matter  of  Sells,  15  App.  Div.  571,  44  N.  Y.  Supp.  570. 

Proceedings  to  compel  delivery  of  books  and  papers  are  applicable  as  against 
officers  de  facto , only,  to  cases  where  the  title  of  the  relator  to  the  office  is  clear. 
Matter  of  Baker,  11  How.  Pr.  418. 

Mandamus  will  not  lie  to  compel  the  delivery  of  books  and  papers.  People  v. 

Martin,  62  Barb.  570,  576. 

Payment  of  money.  An  outgoing  commissioner  (now  superintendent)  of  high- 
ways is  bound  to  account  to  the  town  authorities  and  pay  over  to  his  successor  in 
office  all  moneys  remaining  in  his  hands  as  such  commissioner.  Victory  v.  Blood, 
25  Hun  515. 


COMPENSATION  OF  TOWN  OFFICERS. 


358a 


Town  Law,  §§  127,  142-a. 

In  a town  having  a population  of  fifteen  thousand  or  more,  accord- 
ing to  the  next  preceding  federal  or  state  census  or  enumeration,  and  in 
which  the  assessed  valuation  of  real  estate  is  or  shall  be  over  fifteen 
million  dollars,  the  town  board  may,  by  resolution,  provide  from  time 
to  time  for  the  appointment  of  clerks,  stenographers  or  other  assistants 
for  one  or  more  town  officers,  in  addition  to  other  subordinates  for  any 
such  officer  provided*  for  by  law,  and  fix  their  salaries  or  compensation. 
A position  so  established  may  be  abolished  by  the  town  board  at  any 
time.  The  town  board  may  designate  a particular  officer  or  officers 
whom  any  such  clerk,  stenographer  or  assistant  is  to  assist  and  may 
direct  their  transfer  from  one  officer  to  another.  Appointments  to  any 
such  position  shall  be  made  by  the  town  board.  The  salaries  or  com- 
pensation of  any  such  clerk,  stenographer  or  assistant  shall  be  paid  by 
the  supervisor  of  the  town  in  equal  monthly  payments  and  shall  be  a 
town  charge  and  levied  and  collected  in  the  same  manner  as  other  town 
charges.  [Town  Law,  § 127,  as  added  by  L.  1916,  ch.  157.] 

§ 10.  TOWN  PHYSICIAN;  APPOINTMENT  BY  TOWN  BOARD  IN 
TOWN  IN  WHICH  NO  PHYSICIAN  RESIDES. 

The  town  board  of  any  town  containing  a village  or  hamlet  in  which 
there  is  not  a practicing  physician  residing  within  its  boundaries  or 
within  a radius  of  eight  miles  thereof,  may,  at  a special  meeting  called 
for  that  purpose,  establish  the  office  of  town  physician  and  fix  the  salary 
of  such  physician  at  not  more  than  one  thousand  dollars  per  annum, 
and  appoint  to  the  office  so  created  a duly  qualified  physician  upon  con- 
dition that  he  shall  reside  in  such  village  or  h’amlet.  The  compensation 
of  such  town  physician  shall  be  a town  charge  and  the  sum  necessary 
to  pay  the  same  shall  be  levied,  collected  and  paid  at  the  time  and  in  the 
manner  that  other  charges  against  the  town  are  levied,  collected  and 
paid.  It  shall  be  the  duty  of  a town  physician  so  appointed  to  render 
to  all  poor  persons  within  the  town  medical  relief  and  attendance  when 
requested  so  to  do  by  the  superintendent  of  the  poor  of  the  county  in 
which  the  town  is  situated,  or  the  supervisor  of  the  town  or  an  overseer 
of  the  p’oor  of  the  town.  If  such  town  physician  is  also  a local  health 
officer  he  shall  receive  in  addition  the  compensation  of  such  officer  as 
provided  by  law.  [Town  Law,  § 142-a,  added  by  L.  1916,  ch.  413,  in 
effect  May  3,  1916.] 


358b 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Town  Law,  §§  142,  143. 


CHAPTER  XXV-A. 

TRANSACTIONS  OF  TOWN  BUSINESS  IN  CERTAIN  TOWNS  ADOPTING  PRO- 
VISIONS OF  ARTICLE  VI-A  OF  TOWN  LAW. 

Section  1.  Application. 

2.  Resolution  of  town  board. 

3.  Fiscal  year,  departmental  estimates. 

4.  Annual  estimate. 

5.  Public  hearing. 

6.  Annual  appropriations. 

7.  Tax  budget. 

8.  Temporary  loans. 

9.  Contracts  and  expenditures  prohibited. 

10.  Penalties  for  violation  of  preceding  section 

11.  Duties  of  supervisor. 

12.  Claims  against  town. 

13.  Saving  clause. 

§ 1.  APPLICATION  OF  PROVISIONS  OF  ARTICLE  VI-A  OF  TOWN 
LAW. 

This  article  shall  apply  to  any  town  having  more  than  five  thousand 
inhabitants  in  which  the  assessed  valuation  of  taxable  property  exceeds 
five  million  dollars  and  which  by  resolution  of  the  town  board,  hereafter 
adopted,  shall  elect  to  make  its  provisions  applicable  to  such  town. 
[Town  Law,  § 142,  as  added  by  L.  1916,  ch.  396,  in  effect  May  2, 1916.] 

§ 2.  RESOLUTION  OF  TOWN  BOARD. 

The  town  board  of  any  such  town  at  a special  meeting  called  for  that 
purpose  by  any  of  its  members  upon  at  least  ten  days’  written  notice 
of  the  time  and  place  of  holding  the  meeting  and  the  purpose  or  object 
thereof  served  personally  upon  the  other  members  of  the  board,  may, 
by  an  affirmative  vote  of  two-thirds  of  all  the  members  of  the  board, 
elect  to  make  this  article  applicable  to  such  town.  There  shall  be  filed 
with  the  town  clerk  and  incorporated  in  the  minutes  of  meetings-  of  the 
town  board  a copy  of  such  notice,  with  proof  of  service  thereof,  upon 
each  member  of  the  board,  and  a copy  of  the  resolution  of  the  board 
showing  the  names  of  each  member  of  the  board  present  and  voting,  the 
number  of  votes  cast  for  and  against  the  resolution  and  the  names  of 
the  members  voting  for  and  against  it. 


TOWN  BUSINESS  IN  CERTAIN  TOWNS. 


358c 


Town  Law,  §§  144,  145. 

Upon  the  adoption  of  such  resolution,  the  town  clerk  shall  imme- 
diately make  and  certify  copies  of  the  resolution  and  of  the  record  of  its 
adoption  and  file  the  same  as  follows:  One  copy  in  the  office  of  the 

county  clerk  of  the  county  in  which  the  town  is  situated ; one  copy  with 
the  clerk  of  the  board  of  supervisors  of  the  county  in  which  the  town  is 
situated,  which  copy  shall  be  reported  by  said  clerk  to  the  board  of 
supervisors  and  published  in  its  proceedings ; and  one  copy  in  the  office 
of  the  state  comptroller.  [Town  Law,  § 143,  as  added  by  L.  1916,  ch. 
396,  in  effect  May  2,  1916.] 

§ 3.  FISCAL  YEAR;  DEPARTMENTAL  ESTIMATES. 

The  fiscal  year  of  each  such  town  shall  hereafter  commence  and  end 
on  the  days  which  may  be  now  or  hereafter  prescribed  by  law  for  such 
town.  All  officers,  boards  and  commissioners  of  such  town  shall  annu- 
ally, at  least  forty  days  and  not  more  than  sixty  days  immediately  pre- 
ceding the  date  of  the  meeting  of  the  board  of  supervisors  at  which  taxes 
are  levied  in  the  county  in  which  the  town  is  situated,  make  and  file 
with  the  town  clerk  of  the  town  estimates  in  writing  of  the  amount  of 
expenditures  for  the  next  fiscal  year  in  their  respective  offices,  bureaus 
and  departments,  including  a statement  of  their  salaries  and  the  salaries 
of  all  their  subordinates,  which  estimates  the  town  clerk  shall  lay  before 
the  town  board  at  a meeting  called  for  that  purpose  by  him  not  less 
than  twenty-five  and  not  more  than  forty  days  preceding  the  date  of 
such  meeting  of  the  board  of  supervisors  in  the  county.  The  town  clerk 
shall  enter  all  such  estimates  in  the  minutes  of  the  proceedings  of  the 
town  board.  [Town  Law,  § 144,  as  added  by  L.  1916,  ch.  396,  in  effect 
May  2,  1916.] 

§ 4.  ANNUAL  ESTIMATES. 

The  town  board  of  the  town  shall,  at  least  ten  and  not  more  than  forty 
days  prior  to  the  date  of  the  meeting  of  the  board  of  supervisors  at 
which  taxes  are  levied  in  the  county  in  which  the  town  is  situated, 
make  an  itemized  statement  in  writing  of  the  estimated  revenues  and 
expenditures  of  the  town  for  the  fiscal  year  for  which  estimates  were 
filed  with  the  town  clerk,  which  shall  be  known  as  its  annual  estimate. 
The  estimate  of  revenues  shall  contain  an  estimate  of  the  probable 
revenues  which  in  the  judgment  of  the  town  board  will  be  received  by 
the  town  during  the  fiscal  year,  except  from  general  taxes,  less  the 
amount  required  to  be  deposited  to  the  credit  of  the  sinking  fund,  if 


358d  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 146. 

any;  a statement  of  the  amount  of  the  sinking  fund  which  in  the  judg- 
ment of  the  town  board  is  available  and  should  be  applied  to  pay  the 
principal  of  any  bonded  indebtedness  of  the  town  falling  due  during 
the  said  fiscal  year;  and  a statement  of  all  unexpended  balances  or 
estimated  unexpended  balances  of  the  previous  or  current  fiscal  year 
remaining  to  the  credit  of  the  town  or  of  any  office,  board  or  depart- 
ment thereof.  The  estimate  of  expenditures  shall  contain  an  estimate 
of  the  several  amounts  of  money  which  the  town  board  deems  necessary 
to  provide  for  the  expenses  of  conducting  the  business  of  the  town  in 
each  board,  department  and  office  thereof,  separately  stated,  and  for 
other  purposes  contemplated  by  this  chapter  and  otherwise  by  law  for 
the  said  fiscal  year;  to  pay  the  principal  and  interest  of  any  bonded 
or  other  indebtedness  of  the  town  falling  due  during  the  said  fiscal 
year;  and  the  amount  of  any  judgment  recovered  against  the  town  and 
payable  during  the  said  fiscal  year.  And  there  shall  be  included  in  the 
first  annual  estimate  compiled  after  the  provisions  of  this  article  shall 
be  made  applicable  to  a town,  a sum  or  sums  sufficient  to  pay  all  accounts, 
claims  and  demands  against  the  town  audited  by  the  town  board  or 
board  of  town  auditors  or  otherwise  payable  by  the  town  for  the  fiscal 
year  in  which  such  resolution  is  adopted.  After  said  annual  estimate 
shall  have  been  completed,  it  shall  be  entered  in  full  upon  the  minutes 
of  the  town  board.  [Town  Law,  § 145,  as  added  by  L.  1916,  cL  396, 
in  effect  May  2,  1916.] 

§ 5.  PUBLIC  HEARING  OF  PROPOSED  EXPENDITURES. 

Immediately  after  the  annual  estimate  has  been  completed,  the  town 
board  shall  give  notice  of  a public  hearing  at  which  any  person  favoring 
or  objecting  to  said  estimate  or  any  part  or  item  thereof  will  be  heard. 
Such  hearing  shall  be  given  upon  ten  days^  notice.  The  notice  shall 
specify  the  time  and  place  where  the  hearing  is  to  be  held  and  the  pur- 
pose thereof  and  it  shall  be  stated  therein  that  the  annual  estimate  has 
been  compiled  by  the  town  board  and  is  on  file  in  the  office  of  the  town 
clerk  where  any  person  interested  therein  may  examine  the  same. 
Copies  of  such  notice  shall  be  posted  in  six  conspicuous  public  places 
in  the  town,  and  published  twice  in  not  more  than  four  newspapers 
published,  having  general  circulation  within  the  town,  if  the  town  board 
shall  so  determine,  such  posting  and  first  publication  to  be  at  least  ten 
days  before  the  date  of  such  public  hearing.  At  the  time  and  place  in 
6uch  notice  mentioned,  the  town  board  shall  convene  and  review  the 
said  estimate.  At  such  hearing,  taxpayers  may  be  heard  in  favor  or 


TOWH  BUSINESS  IN  CERTAIN  TOWNS. 


358© 


Town  Law,  § 147. 


against  the  estimate  as  compiled  or  for  or  against  any  item  therein  con- 
tained. After  such  hearing  and  within  ten  days,  the  town  board  shall 
adopt  such  estimate  as  so  originally  compiled  or  shall  diminish  or 
reject  any  items  therein  contained  and  adopt  said  estimate  as  so 
amended.  It  shall  have  the  power  to  diminish  or  reject  any  item  con- 
tained in  the  estimate  as  originally  compiled  except  those  relating  to 
salaries,  the  indebtedness  of  the  town  or  the  estimated  revenues,  but  it 
shall  not  have  the  power  to  increase  any  estimated  appropriation  for 
expenditures  except  the  estimate  for  highways  which  the  board  may 
increase  or  reduce  any  of  the  items  contained  therein  as  prescribed  by 
section  ninety-one  of  the  highway  law.  Thereupon,  the  estimate,  as 
adopted  shall  be  entered  in  detail  in  the  minutes  of  the  proceedings  of 
the  town  board.  [Town  Law,  § 146,  as  added  by  L.  1916,  ch.  396,  in 
effect  May  2,  1916.] 

§ 6.  ANNUAL  APPROPRIATIONS. 

When  the  town  board  shall  have  adopted  the  annual  estimate  origin- 
ally compiled  by  it  or  said  estimate  as  amended,  after  public  hearing, 
the  several  sums  estimated  for  expenditures  therein  shall  be  and  become 
appropriated  in  the  amounts  and  for  the  several  departments,  offices 
and  purposes  therein  specified  for  the  said  fiscal  year.  The  several 
sums  therein  enumerated  as  estimated  revenues  and  the  moneys  neces- 
sary to  be  raised  by  tax  in  addition  thereto,  to  pay  the  expenses  of  con- 
ducting the  business  of  the  town  and  for  the  purposes  contemplated  by 
this  chapter  and  otherwise  by  law,  shall  be  and  become  applicable  in  the 
amount  therein  named  for  the  purpose  of  meeting  said  appropriations. 
In  case  the  revenues  received  by  the  town  exceed  the  amount  of  such 
estimated  revenues  named  in  said  annual  estimate,  or  in  case  thero 
remain  any  unexpended  balances  of  appropriations  made  for  the  sup- 
port of  the  town  government  or  for  any  other  purpose,  then  such  surplus 
revenues  or  such  unexpended  balances,  or  both,  shall,  except  as  other- 
wise provided  by  law,  remain  upon  deposit  and  be  included  as  a part 
of  the  estimated  revenues  for  the  succeeding  year,  except  that  the  town 
board  may  by  a vote  of  two-thirds  of  its  members  at  a regular  or  special 
meeting  regularly  convened,  determine  to  apply  such  surplus  revenues 
or  unexpended  balances,  excepting  those  of  the  highway  fund,  toward 
and  in  addition  to  the  funds  appropriated  as  aforesaid  and  in  such 
manner  as  in  the  judgment  of  two-thirds  of  the  members  of  the  town 
board  may  be  most  beneficial  to  the  town.  [Town  Law,  § 147,  as  added 
by  L.  1916,  ch.  396,  in  effect  May  2,  1916.] 


358f 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  148-149-a. 


§ 7.  TAX  BUDGET. 

The  amount  of  estimated  expenditures  contained  in  the  annual 
estimate  adopted  by  the  town  board  less  the  amount  of  estimated 
revenues  applicable  to  the  payment  thereof  and  the  amount  of  all  judg- 
ments payable  prior  to  the  tax  levy,  shall  constitute  the  tax  budget. 
The  town  clerk  shall  make  and  certify  in  duplicate,  a transcript  of  the 
minutes  of  the  proceedings  of  the  town  board  upon  the  adoption  of  the 
estimate,  including  the  estimate  in  detail,  and  shall  deliver  one  copy 
thereof  to  the  supervisor  of  the  town  to  be  by  him  laid  before  the  board 
of  supervisors  for  the  purpose  of  levying  the  annual  tax  and  trans- 
mitting the  other  copy  thereof  to  the  clerk  of  the  board  of  supervisors 
of  the  county,  who  shall  cause  the  same  to  be  printed  in  the  proceedings 
of  the  board  of  supervisors.  The  board  of  supervisors  of  the  county  in 
which  the  town  is  situated  shall  levy  and  cause  to  be  raised  the  amount 
specified  in  said  annual  estimate  to  be  levied  by  tax,  and  the  amount 
shall  be  levied,  assessed  and  raised  by  tax  upon  the  real  and  personal 
property  liable  to  taxation  in  the  town  at  the  time  and  in  the  manner 
provided  by  law.  [Town  Law,  § 148,  as  added  by  L.  1916,  ch.  396,  in 
effect  May  2,  1916.] 

§ 8.  TEMPORARY  LOANS. 

In  the  interval,  after  the  adoption  of  said  annual  estimate  and  the 
commencement  of  the  fiscal  year  but  before  the  revenues  are  received, 
the  town  board  shall  have  the  power  to  borrow  money  for  any  of  the 
purposes  for  which  funds  are  appropriated  within  the  amounts  appro- 
priated therefor  for  the  fiscal  year  in  anticipation  of  the  receipt  of  the 
said  taxes  and  revenues  applicable  to  such  purposes.  The  town  board 
may  provide  for  the  issue  of  certificates  of  indebtedness  or  revenue 
bonds  to  be  signed  by  the  supervisor  and  countersigned  by  the  town 
clerk  for  such  purposes.  Such  certificates  or  bonds,  together  wdth  the 
interest  thereon  to  date  of  maturity,  shall  be  paid  out  of  the  moneys 
received  on  account  of  taxes  and  revenues  applicable  to  such  purposes 
and  shall  in  no  case  be  made  to  run  for  more  than  sixteen  months. 
[Town  Law,  § 149,  as  added  by  L.  1916,  ch.  396,  in  effect  May  2, 1916.] 

§ 9.  CONTRACTS  AND  EXPENDITURES  PROHIBITED;  PENALTIES. 

Ho  officer,  board  or  department  shall  during  any  fiscal  year  expend 
or  contract  to  be  expended  any  money  or  incur  any  liability  or  enter 
into  any  contract  which  by  its  terms  involves  the  expenditure  of  money 
for  any  purpose,  unless  provisions  therefor  shall  have  been  made  in 


TOWN  BUSINESS  IN  CERTAIN  TOWNS. 


358g 


Town  Law,  §§  149-b,  149-e. 


the  annual  estimate  or  pursuant  to  section  one  hundred  and  forty-seven 
of  this  chapter,  and  in  no  case  in  excess  of  the  amounts  appropriated 
in  said  estimate  as  adopted  by  the  town  board  or  pursuant  to  section 
one  hundred  and  forty^seven  aforesaid  for  such  officer,  board,  depart- 
ment or  purpose  for  such  fiscal  year.  Any  contract,  verbal  or  written, 
made  in  violation  of  this  section,  shall  be  null  and  void  as  to  the  town 
and  no  money  belonging  to  the  town  shall  be  paid  thereon,  provided, 
however,  that  nothing  herein  contained  shall  prevent  the  making  of 
contracts  for  special  district  purposes  as  may  now  or  hereafter  be  pro- 
vided by  law  for  periods  exceeding  one  year,  nor  be  held  to  prohibit  the 
proper  officers  of  the  town  from  expending  such  sums  or  incurring  such 
debts  as  may  be  actually  necessary  to  prevent  the  spread  of  or  to  sup- 
press any  contagious  or  infectious  diseases  or  any  epidemic  in  the  town, 
in  addition  to  the  amount  appropriated  for  such  purpose.  [Town  Law, 
§ 149-a,  as  added  by  L.  1916,  ch.  396,  in  effect  May  2,  1916.] 

Any  officer  or  member  of  any  board  or  department  of  any  such  town 
wilfully  violating  any  of  the  provisions  of  the  preceding  section  shall 
be  guilty  of  a misdemeanor.  [Town  Law,  § 149-b,  as  added  by  L.  1916, 
ch.  396,  in  effect  May  2,  1916.] 

§ 10.  DUTIES  OF  SUPERVISOR. 

The  supervisor  of  any  such  town  shall  demand,  collect,  receive  and 
have  the  care  and  custody  of,  and  shall  disburse  all  moneys  belonging  to 
or  due  the  town  from  every  source,  except  as  otherwise  provided  by  law. 
All  moneys  of  the  town  received  by  the  supervisor  shall  be  deposited  by 
him  in  such  bank,  banks  or  trust  companies  as  shall  be  designated  by  the 
town  board  for  such  purpose.  The  interest  on  all  deposits  shall  be  the 
property  of  the  town  and  shall  be  accounted  for  and  credited  to  the 
proper  fund.  No  money  shall  be  drawn  from  a town  depositary  except 
on  checks  or  drafts  signed  by  the  supervisor  and  made  payable  to  the 
person  entitled  to  receive  the  same.  In  addition  to  the  several  fund 
accounts  required  to  be  kept,  the  supervisor  shall  keep  in  his  records  a 
separate  account  with  every  appropriation  for  which  funds  are  appro- 
priated or  raised  by  tax,  and  in  every  check  or  draft  drawn  by  him  ho 
shall  state  particularly  against  which  fund  it  is  drawn  and  the  appro- 
priate amount  chargeable  therewith.  He  shall  at  no  time  permit  any 
fund  or  any  appropriation  account  to  be  overdrawn  nor  draw  upon  one 
fund  or  appropriation  account  to  pay  a claim  chargeable  to  another. 


35Sh 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 149-d. 

No  money  shall  be  paid  out  by  him  except  upon  the  warrant,  order  or 
draft  of  the  town  board,  or  of  the  board  of  town  auditors  if  there  be 
such  board  in  the  town,  except  payments  out  of  the  town  highway  fund, 
shall  be  made  by  the  supervisor  upon  the  order  of  the  town  superin- 
tendent of  highways,  and  that  the  supervisor  may  pay  the  principal  and 
interest  of  funded  debts  and  temporary  loans,  lawfully  issued,  without 
prior  audit.  The  supervisor  shall  render  to  the  town  board  at  the  end 
of  each  month  a detailed  statement  of  all  money  received  and  paid  out 
by  him  for  such  month,  and  file  a copy  thereof  in  the  office  of  the  town 
clerk  and  with  the  board  of  town  auditors  if  the  town  has  such  a board. 
[Town  Law,  § 149-e,  as  added  by  L.  1916,  ch.  396,  in  effect  May  2, 
1916.] 

§11.  CLAIMS  AGAINST  TOWN. 

No  claim  against  the  town,  except  for  a fixed  salary,  for  the  principal 
or  interest  on  a bonded  or  funded  debt  or  other  loan  or  for  the  regular 
or  stated  compensation  of  officers  or  employees  of  the  town,  shall  be  paid 
unless  an  itemized  claim  therefor,  verified  by  or  on  behalf  of  the  claim- 
ant, in  such  form  as  the  town  board  or  board  of  town  auditors  shall  pre- 
scribe, and  approved  by  the  officer  whose  action  gave  rise  or  origin  to 
the  claim,  shall  have  been  presented  to  the  town  board,  or  board  of  town 
auditors  if  one  exists  in  the  town,  and  shall  have  been  audited  and 
allowed  by  it  except  the  form  of  claim  for  highway  purposes  shall  be 
prescribed  by  the  state  highway  commission  and  paid  as  provided  by 
sections  one  hundred  and  five  and  one  hundred  and  six  of  the  highway 
law.  If  there  be  a board  of  town  auditors  in  such  town,  the  town  clerk 
shall  be  and  act  as  clerk  of  that  board.  He  shall  cause  each  claim  pre- 
sented to  the  town  board  or  to  the  board  of  town  auditors  for  audit  to 
be  numbered  consecutively,  and  the  number,  date  of  presentation,  name 
of  claimant  and  a brief  statement  of  the  character  of  each  claim  to  be 
entered  in  a book  kept  for  such  purpose,  which  shall  at  all  times  during 
office  hours  be  so  placed  as  to  be  convenient  for  and  open  to  public  in- 
spection. No  claim  shall  be  audited  or  paid  by  the  town  board  or  board 
of  town  auditors  until  five  days  have  elapsed  after  its  presentation  to  the 
town  clerk,  and  the  town  board  or  board  of  town  auditors  shall  not  be 
required  to  audit  any  claim  until  thirty  days  after  the  expiration  of 
such  period  of  five  days.  The  town  board  or  board  of  town  auditors  is 
authorized  in  considering  a claim  to  require  any  person  presenting  the 
same  for  audit  to  be  sworn  before  it  or  any  member  thereof,  relative 


TOWN  BUSINESS  IN  CERTAIN  TOWNS. 


358i 


Town  Law,  § 149-e. 


to  the  justness  and  accuracy  of  such  claim,  and  to  take  evidence  and 
examine  the  witnesses  in  reference  to  the  claim,  and  for  that  purpose 
subpoenas  for  the  attendance  of  witnesses  may  be  issued  by  said  board, 
except  as  otherwise  provided  by  law.  When  a claim  has  been  finally 
audited  by  the  town  board  the  town  clerk  or  if  the  audit  be  made  by  the 
board  of  town  auditors  the  chairman  of  said  board  or  the  town  clerk  shall 
endorse  thereon  or  attach  thereto  a certificate  of  such  audit  and  the  same 
shall  thereupon  be  filed  in  and  remain  a public  record  in  the  town  clerk’s 
office.  The  town  clerk  shall  also  prepare  a warrant,  order,  draft  or 
certificate  of  audit  to  be  signed  by  a majority  of  the  members  of  the 
town  board  or  the  board  of  town  auditors  and  to  be  countersigned  by 
him  stating  the  fact  of  such  audit,  the  number  of  the  claim*  the  name 
of  the  claimant,  the  amount  allowed  and  the  fund  and  appropriation 
account  chargeable  therewith  and  such  other  information  as  may  be 
deemed  necessary  or  essential,  directed  to  the  supervisor  of  the  town, 
authorizing  and  directing  him  to  pay  to  the  claimant  the  amount  al- 
lowed upon  his  claim.  No  fund  and  no  appropriation  account  shall  be 
overdrawn  nor  shall  any  warrant  be  drawn  against  one  fund  or  appro- 
priation account  to  pay  a claim  chargeable  to  another  fund  or  appro- 
priation account.  It  shall  be  the  duty  of  the  town  clerk  to  keep  a 
separate  account  with  each  appropriation  for  expenditure  for  which 
funds  are  appropriated  or  raised  by  tax,  in  such  manner  as  the  town 
board  or  board  of  town  auditors  and  the  comptroller  of  the  state  of  New 
York  may  direct  and  determine. 

For  all  his  services  rendered  to  or  for  the  town,  under  or  pursuant  to 
the  terms  of  this  chapter,  the  town  clerk  shall  receive  an  annual  salary 
to  be  fixed  by  the  town  board  of  the  town  in  lieu  of  all  other  compensa- 
tion or  fees  which  may  now  or  hereafter  be  provided  by  law  to  be  paid 
by  the  town  for  such  services.  [Town  Law,  § 149-d,  as  added  by  L. 
1916,  ch.  396,  in  effect  May  2,  1916.1 

§ 13.  SAVING  CLAUSE. 

Nothing  contained  in  this  article  shall  be  construed  to  alter  or 
change  the  method  or  plan  of  determining  the  sum  to  be  levied  upon 
the  special  water,  light,  sewer,  fire  and  other  special  districts,  if  any, 
nor  the  method  of  certifying  such  sums  for  the  purpose  of  causing 
amounts  to  be  inserted  in  the  annual  tax  levy.  All  matter  pertaining 
to  the  finances  of  such  special  districts  shall  be  handled  and  trans- 
acted in  the  manner  which  may  now  or  hereafter  be  provided  by  law. 


358j 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 149-e. 

The  provisions  of  the  state  highway  law  shall  he  carried  out  with  the 
same  force  and  effect  irrespective  of  anything  mentioned  in  this  article. 
Nothing  contained  in  this  article  shall  be  construed  to  repeal  any 
statute  of  the  state  or  lawful  resolution  of  the  board  of  supervisors  of 
the  county  in  which  the  town  is  situated,  or  of  the  town  board,  or  rule 
or  regulation  of  the  board  of  health  of  the  town,  not  inconsistent  with 
the  provisions  of  this  article,  and  the  same  shall  remain  in  full  force 
and  effect,  when  not  inconsistent  with  the  provisions  of  this  article,  to 
be  construed  and  operated  in  harmony  with  its  provisions.  [Town 
Law,  § 149-e,  as  added  by  L.  1916,  ch.  396,  in  effect  May  2,  1916.] 


TOWN  HOUSES,  LOCK-UPS  AND  TOWN  CEMETERIES. 


35,9 


Town  Law,  § 340. 


CHAPTER  XXVI. 

TOWN  HOUSES;  LOCK-UPS;  TOWN  CEMETERIES;  POUNDS. 


Section  1.  Town  meeting  may  vote  sums  of  money  for  town  house. 

2.  Purchase  of  site  for  and  erection  of  town  house. 

3.  Erection  of  lock-ups;  town  hoard  may  select  temporary  lock-up;  use 

of  lock-up. 

4.  Town  burial  grounds;  trustees  may  he  elected;  powers  of  trustees. 

5.  Trustees  to  lay  out  grounds;  free  lots;  sale  of  lots. 

6.  Burial  grounds;  when  to  belong  to  town. 

7.  Burial  grounds  in  district  annexed  to  city,  village  or  another  town. 

8.  Town  hoard  may  purchase  soldiers’  burial  plot;  care  of  plot  a town 

charge;  proceedings  to  obtain  removal  of  soldiers’  remains  to 
soldier’s  plot;  expense  to  he  audited  by  town  board. 

9.  Erection  and  discontinuance  of  pounds. 

10.  Election  of  pound  masters;  fees;  refusal  to  serve. 


§ 1.  TOWN  MEETING  MAY  VOTE  SUMS  OF  MONEY  FOR  TOWN 
HOUSE. 

The  electors  of  any  town  in  which  there  shall  not  be  a town  house,  at  any 
biennial  town  meeting,  or  a special  town  meeting  lawfully  called  by  the  town 
■clerk,  may  vote  by  ballot  any  sum  of  money  for  the  purchase  of  a site  and 
the  building  of  a town  house,  or  for  the  purpose  of  contributing  to  the  erec- 
tion of  a building  for  the  joint  use  of  the  town  and  of  an  incorporated 
village  within  its  limits.  A special  town  meeting  shall  not  be  called  under 
this  section  within  one  year  from  the  meeting  at  which  a proposition  for 
the  purposes  specified  herein  has  been  submitted.1 

If  such  a sum  is  not  raised  by  tax  in  one  instalment  the  town  board  of 


1.  Effect  of  section  upon  special  act.  In  the  case  of  Barker  v.  Town  of 
Floyd,  61  App.  Div.  92;  69  N.  Y.  Supp.  1,109,  it  was  held  that  chapter  360  of  the 
Laws  of  1865,  which  was  a special  act  authorizing  the  town  of  Floyd  to  erect  a 
town  hall,  and  to  make  provision  for  the  payment  of  the  expense  thereof,  was 
passed  to  provide  for  the  present  necessity  and  was  superseded  by  the  above 
section  of  the  Town  Law  which  prescribes  a uniform  rule  upon  the  subject. 
The  court  said:  “We  think  it  manifest,  therefore,  that  the  Town  Law  was 
designed  to  prescribe  a general  rule  uniform  throughout  the  state  with  reference 


360  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 340. 

such  town  may  borrow  the  sum  necessary  to  purchase  such  site  and  build 
such  house  by  the  issue  of  bonds  to  be  signed  by  the  supervisor  and  attested 
by  the  town  clerk.  Such  bonds  shall  become  due  within  twenty  years  from 
date  of  issue,  and  unless  the  whole  amount  of  the  indebtedness  represented 
thereby  is  to  be  paid  within  five  years  from  their  date,  they  shall  be  so 
issued  as  to  provide  for  the  payment  of  the  indebtedness  in  equal  annual 
installments,  the  first  of  which  shall  be  payable  not  more  than  five  years  from 
their  date.  They  shall  bear  interest  at  a rate  not  exceeding  five  per  centum 
per  annum  and  shall  be  sold  at  not  less  than  their  par  value.  They  shall  be 
sold  on  sealed  proposals  or  at  public  auction  upon  notice  published  in  a 
paper  printed  in  the  town,  if  any,  also  in  such  other  papers  as  may  be 
designated  by  the  town  board  and  posted  in  at  least  five  public  places  in  the 
town,  at  least  ten  days  before  the  sale,  to  the  person  who  will  take  them  at 
the  lowest  rate  of  interest.  Such  bonds  shall  be  consecutively  numbered 
from  one  to  the  highest  number  issued,  and  the  town  clerk  shall  keep  a 
record  of  the  number  of  each  bond,  its  date,  amount,  rate  of  interest,  when 
and  where  payable,  and  the  purchaser  thereof  or  person  to  whom  they  are 
issued.  The  board  of  supervisors  of  the  county  may  cause  the  sum  so  voted 
or  the  amount  of  any  bonds  issued  for  such  purpose  to  be  collected  with  the 


to  expending  money  for  the  purchase  of  sites  and  the  erection  of  town  halls,  and 
that  there  no  longer  remains  any  necessity  for  the  existence  of  the  special  act  of 
1805.  It  is  now  a well  settled  rule  of  statutory  construction  that  a general  statute 
covering  the  same  subject  matter  and  containing  new  provisions  and  manifestly 
designed  by  the  legislature  to  embrace  the  entire  law  upon  the  subject,  operates  to 
repeal  by  implication  a former  general  or  special  statute,  even  though  the  two  are 
not  repugnant.” 

Erection  of  building  for  storing  highway  machinery  must  be  brought  about 
under  this  section.  The  provisions  of  the  Highway  Law  do  not  contemplate  such  an 
undertaking.  Kept,  of  Atty.  Gen.  (1912),  Vol.  2,  p.  448. 

Form  of  proposition.  rlhe  above  section  of  the  Town  Law  permits  the  voting 
by  the  electors  of  the  town  of  money  for  the  purchase  of  a site  and  the  building 
of  a town  house,  and  authorizes  the  voting  of  money  for  the  erection  of  a town 
house  alone,  where  the  town  expects  a suitable  site  to  be  donated.  The  proposi- 
tion submitted  to  the  electors  need  not  include  the  location  of  the  contemplated 
site.  People  ex  rel.  Cromwell  v.  Seaman,  59  App.  Div.  76;  69  N.  Y.  Supp.  55. 

Special  town  meetings.  Special  town  meetings  for  the  purpose  of  voting 
upon  a proposition  for  the  erection  of  a town  house  must  be  called  in  accordance 
with  the  provisions  of  section  46  of  the  Town  Law,  ante,  that  is  upon  written 
application  signed  by  twenty-five  taxpayers,  addressed  to  the  town  clerk. 

Notice  of  a special  town  meeting  must  be  posted  ten  days  prior  thereto  in  the 
manner  prescribed  by  section  47  of  the  Town  Law,  ante.  A proposition  for  the 
erection  of  a town  hall  must  be  voted  upon  by  ballot  and  the  notice  that  such  a 
proposition  is  to  be  so  voted  upon  at  a town  meeting  must  be  posted  by  the  town 
clerk  in  the  manner  provided  by  section  48  of  the  Town  Law,  ante.  Such  section 
48  of  the  Town  Law  also  requires  a written  application  of  the  taxpayers  demand- 
ing a vote  upon  the  proposition  and  plainly  stating  its  terms,  to  be  filed  with  the 
town  clerk  at  least  twenty'  days  before  the  town  meeting  at  which  it  is  to  be  voted 
upon. 


TOWN  HOUSES,  LOCK-UPS  AND  TOWN  CEMETERIES. 


361 


Town  Law,  §§  341,  350. 

other  expenses  of  the  town.2  [Town  Law,  § 340;  B.  C.  and  G.  Cons.  L., 

p.  6228.] 

§ 2.  PURCHASE  OF  SITE  FOR  AND  ERECTION  OF  TOWN  HOUSE. 

Sites  shall  be  purchased  and  houses  erected  by  the  town  board  in  the 
name  of  the  town,  and  shall  be  controlled  by  the  town  board;  and  the 
electors  may,  from  time  to  time,  vote  such  sum  of  money  as  may  be  necessary 
to  keep  any  town  house  in  repair  and  insured,  except  where  the  building  is 
to  be  erected  within  the  limits  of  an  incorporated  village  and  the  town  is  to 
contribute  but  a part  of  the  expense  of  erecting  the  building,  in  which  case 
the  town  board  and  the  board  of  trustees  of  the  village  shall  agree  upon  the 
terms  and  conditions  of  the  use,  management,  control  and  repair  of  the 
portion  of  the  town-house  for  town  and  village  purposes  respectively.3 
[Town  Law,  § 341 ; B.  C.  and  G.  Cons.  L.,  p.  6229.] 

§ 3.  ERECTION  OF  LOCK-UPS;  TOWN  BOARD  MAY  SELECT  TEM- 
PORARY LOCK-UP;  USE  OF  LOCK-UP. 

The  electors  of  each  town,  upon  the  application  of  ten  freeholders  of  the 
town,  may,  by  ballot,  at  their  biennial  town  meeting,  direct  the  erection 
of  one  or  more  houses  of  detention,  or  lock-ups,  for  the  detention  of  persons 
committed  by  the  magistrates  thereof,  and  direct  such  sums  to  be  raised  in 


2.  Issue  of  bonds.  This  section  contains  directions  in  detail  for  the  borrowing  of 
money  and  the  issue  of  bonds  for  the  payment  of  the  cost  of  the  erection  of  a town 
house.  The  General  Municipal  Law,  sections  5-12,  provide  generally  for  the  issue 
of  municipal  bonds  and  will  control  bonds  issued  for  the  erection  of  town  houses 
unless  the  provisions  thereof  are  in  conflict  with  the  provisions  of  the  above  section. 

Qualifications  of  electors.  An  elector  shall  not  be  entitled  to  vote  upon  a propo- 
sition submitted  for  the  purposes  of  section  three  hundred  and  forty  of  this  chapter, 
unless  he  or  his  wife  is  the  owner  of  property  in  the  town  assessed  to  him  or  her 
upon  the  last  preceding  assessment-roll  thereof.  [Town  Law,  § 54,  as  amended 
by  L.  1913,  ch.  124;  B.  C.  & G.  Cons.  L.,  p.  6149.] 

3.  Selection  of  site.  In  the  case  of  People  ex  rel.  Cromwell  v.  Seaman,  591  App. 
Div.  76;  69  N.  Y.  Supp.  55,  the  court  said:  “Section  191  [341]  of  the  statute  pro- 
vides that:  ‘Sites  shall  be  purchased  and  houses  erected  by  the  town  board  in  the 
name  of  the  town,  and  shall  be  controlled  by  the  town  board.’  While  the  law  is 
wholly  silent  on  the  express  subject  of  the  selection  of  a site,  the  authority  here 
conferred  is  sufficient  to  include  the  choice  of  a site  as  a necessary  incident  to  its 
purchase,  just  as  the  adoption  of  a plan,  including  the  selection  of  material,  design, 
etc.,  must  be  deemed  to  be  embraced  within  the  authority  given  to  build  the  house.” 

The  selection  of  a site  cannot  be  delegated  by  the  town  board  to  others.  Rept.  of 
Atty.  Genl.  (1892),  129. 

Control  of  town  house.  A supervisor  has  no  independent  control  or  jurisdiction 
over  a town  hall  or  town  house,  but  as  a member  of  the  town  board  participates  in 
its  exercise  of  jurisdiction.  Opinion  of  State  Comptroller  (1916),  8 State  Dept. 
Rep.  571. 

If  a town  hall  is  joint  village  and  town  property  the  jurisdiction  of  the  town 
board  is  shared  with  that  of  the  board  of  trustees  of  the  village.  Opinion  of  State 
Comptroller  (1916),  8 State  Dept.  Rep.  571. 


362 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  351,  352,  330. 

their  town  by  tax,  for  the  expense  of  building,  or  of  maintaining  the  same 
as  they  may  deem  necessary.  [Town  Law,  § 350;  B.  C.  and  G.  Cons.  L., 
p.  6230.] 

In  case  any  town  has  no  house  of  detention  or  lock-up,  the  town  board  of 
such  town  may  lease  a house  of  detention  or  lock-up,  located  either  in  said 
town  or  in  an  adjoining  town,  for  a term  not  exceeding  five  years  at  a time. 
[Town  Law,  § 351 ; B.  C.  and  G.  Cons.  L.,  p.  6230.] 

Such  houses  of  detention,  or  lock-ups,  may  be  used  for  the  purpose  of 
temporarily  keeping  and  confining  all  persons  arrested  by  any  constable  or 
officer  in  the  town  prior  to  trial  or  examination,  or  committed  by  any 
magistrate  of  the  town  pending  trial  or  examination  before  such  magistrate 
or  after  commitment  to  a county  jail  by  a magistrate,  when  immediate 
removal  to  the  county  jail  cannot  be  made,  and  only  until  he  can  be  con- 
veniently removed  to  such  jail.  [Town  Law,  § 352 ; B.  C.  and  G.  Cons.  L., 
p.  6230.] 

§ 4.  TOWN  BURIAL  GROUNDS;  TRUSTEES  MAY  BE  ELECTED; 

POWERS  OF  TRUSTEES. 

The  electors  of  any  town  may,  at  a biennial  town  meeting,  choose  three 
persons  to  act  as  a board  of  trustees  of  any  burial-grounds  within  the  limits 
of  and  belonging  to  the  town,  as  such  electors  may  designate,  and  direct  the 
supervisor  of  the  town  to  convey  by  deed  to  such  board  of  trustees,  and  their 
successors  in  office,  for  the  purposes  hereinafter  mentioned,  the  lands  already 
composing  such  grounds  ; and  also  any  other  lands  that  may  be  hereafter 
acquired  for  the  purpose  of  enlarging  such  grounds.  Such  trustees  shall  hold 
office  for  a term  of  two  years.  Such  boards  of  trustees  and  all  boards  of 
trustees  heretofore  created,  pursuant  to  chapter  forty-six  of  the  laws  of 
eighteen  hundred  and  seventy-three,4 5  are  hereby  declared  to  be  corporate 
bodies,  under  the  name  of  the  board  of  trustees  of  the  cemetery,  for  which 
they  are  chosen  respectively,  capable  of  suing  and  being  sued  as  such,  and 
of  taking  and  holding  gifts  and  bequests  of  personal  property  for  the  care 
and  improvement  of  the  cemeteries  under  their  charge,  or  any  lot  therein. 
[Town  Law,  § 330  ; B.  C.  and  G.  Cons.  L.,  p.  6223.] 


4.  Use  of  lock-ups.  Town  lock-ups  can  only  be  used  for  the  purpose  of  tem- 
porarily keeping  and  confining  persons  arrested  by  peace  officers  prior  to  trial 
or  examination.  No  sentence  of  a prisoner  can  be  made  to  the  lock-up.  As 
soon  as  the  prisoner  is  convicted  he  must  be  committed  and  taken  immediately 
to  the  county  jail  or  other  penal  institution  to  which  he  is  sentenced. 

5.  Laws  of  1873,  ch.  46,  referred  to  in  this  section  was  repealed  by  the  Town 
Law  of  1890,  and  its  provisions  were  incorporated  in  the  above  section  and  the 
section  following. 


TOWN  HOUSES,  LOCK-UPS  AND  TOWN  CEMETERIES.  333 
Town  Law,  §§  331,  332. 

§ 5.  TRUSTEES  TO  LAY  OUT  GROUNDS;  FREE  LOTS;  SALE  OF 
LOTS. 

Such  board  of  trustees  shall  lay  out  into  burial  lots  any  grounds  so  con- 
veyed to  them ; and  within  one  year  after  the  conveyance  to  them  shall  cause 
to  be  recorded  in  the  office  of  the  clerk  of  the  county  in  which  they  reside  a 
plot  or  plots  of  the  ground  so  laid  out  by  them,  which  shall  clearly  indicate 
the  number  and  location  of  the  several  lots,  which  plots  shall  be  duly  cer- 
tified to,  under  the  hands  and  seals  of  the  chairman  and  secretary  of  the 
board,  and  acknowledged  before  an  officer  authorized  to  take  proof  and  ac- 
knowledgment of  deeds.  They  shall  designate  and  set  aside  certain  lots 
which  shall  be  free  for  the  interment  of  the  remains  of  indigent  persons, 
deceased,  and  shall  sell  and  convey,  by  direction  of  a majority  of  the  board, 
under  the  hands  and  seals  of  its  chairman  and  secretary,  burial  lots,  at 
such  terms  as  may  be  agreed  upon  between  the  parties,  and  expend  the 
moneys  realized  from  such  sale  in  improving  and  preserving  the  particular 
burial  ground  from  the  sale  of  whose  lots  the  moneys  were  received.  All 
moneys  realized  from  the  sale  of  burial  lots  shall,  upon  the  receipt  thereof, 
be  paid  over  to  the  supervisor  of  the  town  to  be  retained  by  him  as  a 
separate  fund  and  paid  out  only  on  the  order  of  a majority  of  such  board  of 
trustees.  [Town  Law,  § 331;  B.  C.  and  G.  Cons.  L.,  p.  6224.] 

§ 6.  BURIAL  GROUNDS;  WHEN  TO  BELONG  TO  TOWN. 

The  title  to  every  lot  or  piece  of  land  which  shall  have  been  used  by  the 
inhabitants  of  any  town  in  this  state  as  a cemetery  or  burial  ground  for  the 
space  of  fourteen  years  shall  be  deemed  to  be  vested  in  such  town,  and  shall 
be  subject  in  the  same  manner  as  other  corporate  property  of  towns,  to  the 
government  and  direction  of  the  electors  in  town  meeting.  In  any  town  in 
which  trustees  of  burial  grounds  have  not  been  chosen  as  provided  in  sec- 
tions three  hundred  and  thirty  and  three  hundred  and  thirty-one  of  this 
chapter,  the  town  board  may  adopt  regulations  for  the  proper  care  of  any 
such  cemetery  and  burial  ground,  and  regulating  the  burial  of  the  dead 
therein.  It  shall  be  the  duty  of  the  supervisor  of  any  such  town  to  remove 
the  grass  and  weeds  from  any  such  cemetery  or  burial  ground  in  any  such 
town  at  least  twice  in  each  year,  and  to  erect  and  maintain  suitable  fences 
around  such  cemetery  or  burial  ground  at  a cost  not  to  exceed  fifty  dollars 
unless  authorized  by  a majority  vote  of  such  town.  The  town  board  of  any 
town  must  also  provide  for  the  removal  of  grass  and  weeds  at  least  twice  in 
each  year  from  any  cemetery  or  burial  ground,  by  whomsoever  owned,  in 
such  town,  where  such  control  is  not  vested  by  other  provisions  of  law  in 
the  town  or  in  trustees  or  other  corporate  body  and  provide  for  the  preser- 


6.  Exception.  All  provisions  of  sections  three  hundred  and  thirty,  three 
hundred  and  thirty-one  and  three  hundred  and  thirty-two  which  are  inconsistent 


364 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 334. 

vation,  care  and  fencing  of  any  such  cemetery,  all  at  cost  not  to  exceed 
fifty  dollars  in  any  one  year,  unless  authorized  by  a majority  vote  of  such 
town,  and  such  duties  shall  be  performed  under  the  supervision  of  the  su- 
pervisor of  the  town,  or  a person  whom  the  town  board  may  designate ; pro- 
vided, however,  that  such  duties  shall  not  be  exercised  in  respect  to  any  pri- 
vate ground  or  particular  lot  or  lots  therein  after  the  true  owner  or  owners 
thereof  file  written  objections  thereto  with  the  town  clerk.  The  cost  and 
expenses  of  any  officer  or  person  in  performing  any  duties  under  or  pur- 
suant to  the  provisions  of  this  section,  shall  be  a town  charge  and  shall  be 
paid  in  the  same  manner  as  other  town  charges.  [Town  Law,  § 332,  as 
amended  by  L.  1909,  ch.  473,  and  L.  1917,  ch.  229;  B.  C.  & G.  Cons  L., 
p.  6224.] 

§ 7.  BURIAL  GROUNDS  IN  DISTRICT  ANNEXED  TO  CITY,  VILLAGE 
OR  ANOTHER  TOWN. 

Where  the  whole  of  any  town  has  been  or  shall  hereafter  be  annexed  to 
or  consolidated  with  any  city,  village  or  other  town,  after  having  purchased 
and  maintained  a burying  ground  or  grounds  as  public  property  of  such 
town  but  which  ground  or  grounds  shall  not  have  been  conveyed  to  trustees 
as  provided  in  section  one  of  chapter  forty-six  of  the  laws  of  eighteen  hun- 
dred and  seventy-three,  or  section  three  hundred  and  thirty  of  this  chapter, 
but  which  ground  or  grounds  are  or  were  at  the  time  of  such  annexation  or 
consolidation  under  the  charge  of  the  town  board  of  said  town,  as  public 
property  thereof,  then  the  rights  and  powers  conferred  by  section  three 
hundred  and  thirty  of  this  chapter,  on  a meeting  of  the  electors  of  such 
town  to  elect  three  or  five  persons  as  trustees  of  said  burying  grounds,  and 
on  the  supervisor  of  such  town  to  convey  the  land  embraced  in  such  grounds 
to  such  trustees,  shall  devolve  upon  the  mayor  or  other  chief  magistrate 
of  the  city  or  village  or  other  town  with  which  such  town  shall  have  been 
or  may  hereafter  be  consolidated  or  annexed;  and  on  the  petition  of  not 
less  than  twenty  citizens,  each  of  whom  shall  have  been  a resident  of  such 
town  for  at  least  two  years  previous  to  such  annexation  or  consolidation, 
the  mayor  or  other  chief  magistrate  of  the  city,  village  or  town  to  which 
such  towTn  shall  have  been  annexed  or  with  which  it  shall  have  been  con- 
solidated, shall  appoint  three  or  five  persons,  each  of  whom  shall  have  been 
a citizen  of  such  annexed  or  consolidated  town  for  at  least  two  years  pre- 
vious to  such  annexation  or  consolidation,  as  trustees  of  such  burying  ground 


with  the  provisions  of  chapter  four  hundred  and  thirty-two  of  the  laws  of 
eighteen  hundred  and  ninety-nine  or  chapter  seventy-six  of  the  laws  of  eighteen 
hundred  and  sixty-nine  shall  not  apply  to  Greenfield  cemetery  in  Hempstead, 
Queens  county,  or  to  the  trustees  or  management  thereof.  [Town  Law,  § 333; 
formerly  L.  1899,  ch.  432.] 


TOWN  HOUSES,  LOCK-UPS  AND  TOWN  CEMETERIES. 


365 


Town  Law,  §§  335-337. 

or  grounds*  and  shall  cause  the  lands  embraced  and  included  in  such  bury- 
ing ground  or  grounds  to  be  conveyed  to  such  trustees  and  their  successors 
in  office  as  provided  in  section  three  hundred  and  thirty  of  this  chapter, 
and  such  trustees  and  their  successors  shall  have  the  same  powers  and  per- 
form the  same  duties  as  trustees  elected  at  a town  meeting  as  provided 
in  sections  three  hundred  and  thirty  and  three  hundred  and  thirty-one 
of  this  chapter.  [Town  Law*  § 334;  B.  C.  and  G.  Cons.  L.,  p.  6225.] 
Term  of  office  of  trustees. — The  term  of  office  of  trustees  so  appointed 
shall  be  fixed  by  the  appointing  officer  and  he  shall  fill  any  vacancy  that  may 
occur  in  said  board.  The  trustees  shall  each  furnish  a bond  satisfactory  to 
the  appointing  officer  for  the  faithful  performance  of  their  duties,  and  shall 
render  an  annual  report  to  the  financial  officer  of  the  municipality  of  all 
receipts  and  disbursements  of  money  and  of  all  investments  of  surplus 
funds  to  the  credit  of  the  burying  grounds  in  their  charge.  [Town  Law, 
§ 335;  B.  C.  and  G.  Cons.  L.,  p.  6226.] 


§ 8.  TOWN  BOARD  MAY  PURCHASE  SOLDIERS’  BURIAL  PLOT; 

CARE  OF  PLOT  A TOWN  CHARGE;  PROCEEDINGS  TO  OB- 
TAIN REMOVAL  OF  SOLDIERS’  REMAINS  TO  SOLDIERS’ 
PLOT;  EXPENSE  TO  BE  AUDITED  BY  TOWN  BOARD. 

The  town  board  in  each  of  the  towns  of  this  state  may  upon  the  application  in 
writing  of  any  veteran  soldiers’  association  in  the  town,  or  upon  a petition  in  writ- 
ing of  five  or  more  veteran  soldiers  in  towns  where  no  veteran  soldiers’  organization 
exists,  purchase  or  provide  a soldiers’  plot  in  one  or  more  cemeteries  where  no 
burial  plots  are  now  owned  by  soldiers’  organizations,  in  which  burial  plots  de- 
ceased soldiers  may  be  interred,  and  may  also  provide  for  the  annual  care  of  soldiers’ 
burial  plots  in  cemeteries,  at  the  rate  of  not  to  exceed  fifty  cents  for  each  soldier’s 
grave  in  such  burial  plot  or  plots  and  the  expense  shall  be  included  in  the  town 
expenses,  assessed,  levied  and  collected  in  the  same  manner  as  other  town  expenses 
are  levied  and  collectedJ  In  the  county  of  Broome,  the  board  of  supervisors  shall 
provide  for  the  annual  care  of  soldiers’  burial  plots,  either  heretofore  or  hereafter 
established,  in  all  cemeteries  in  such  county,  at  the  rate  aforesaid,  and  the  expense 
thereof  shall  be  a county  charge  audited,  assessed,  levied  and  collected  in  the  same 
manner  as  are  other  county  charges.  [Town  Law,  § 336,  as  amended  by  L.  1914, 
ch.  235 ; B.  C.  & G.  Cons.  L.,  p.  6226.] 

Upon  a verified  petition  presented  to  a judge  of  a court  of  record  by  any 
soldiers’  organization  in  any  town  or  city  in  this  state  by  a majority  of  its 
officers,  or  a majority  of  any  memorial  committee  in  any  town  or  city  where 
there  are  two  or  more  veteran  soldiers’  organizations,  or  in  towns  or  cities 

where  there  are  no  veteran  soldiers’  organizations,  upon  the  petition  of  five 

or  more  veteran  soldiers,  the  judge  to  whom  said  verified  petition  is  pre- 
sented shall  make  an  order  to  show  cause,  returnable  before  him  at  a time 

and  place  within  the  county  in  not  less  than  fourteen  nor  more  than  twenty 
days  from  the  dat-  of  presentation  of  said  petition,  why  the  remains  of  any 
deceased  soldiers  buried  in  potter’s  field,  or  in  any  neglected  or  abandoned 

7.  Application.— The  provision  for  purchase  and  annual  care  of  burial  plots 
for  soldiers  applies  only  to  soldiers’  graves  within  such  town  plots,  and  not  to 
private  plots.  Rept.  of  Atty.  Genl.,  Apr.  23,  1910. 


366 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Town  Law,  § 337. 


cemeteries,  should  not  be  removed  to  and  reinterred  in  a properly  kept  in- 
corporated cemetery  in  the  same  town  or  city  or  in  a town  adjoining  the 
town  or  city  in  which  the  remains  of  a deceased  soldier  are  buried,  and  to  fix 
the  amount  of  the  expenses  for  such  removal  and  reinterment,  and  the  order 
to  show  cause  shall  provide  for  its  publication  in  a newspaper,  to  be  desig- 
nated in  the  order,  which  is  published  nearest  to  the  cemetery  from  which 
the  removal  is  sought  to  be  made,  once  in  each  week  for  two  successive  weeks. 
The  verified  petition  presented  to  the  judge  shall  show  that  the  petitioners 
are  a majority  of  the  officers  of  a veteran  soldiers’  organization,  or  a majority 
of  a memorial  committee  in  towns  or  cities  where  two  or  more  veteran 
soldier  organizations  exist,  or  that  the  petitioners  are  honorably  discharged 
veteran  soldiers  in  towns  or  cities  where  no  veteran  soldier  organization 
exists,  and  (1)  the  name  of  the  deceased  soldier  or  soldiers  whose  remains 
are  sought  to  be  removed,  and  if  known  the  company  and  regiment  in  which 
he  or  they  served;  (2)  the  name  and  location  of  the  cemetery  in  which  he  is 
interred  and  from  which  removal  is  asked  to  be  made;  (3)  the  name  and 
location  of  the  incorporated  cemetery  to  which  the  remains  are  desired  to 
be  removed  and  reinterred;  (4)  the  facts  showing  the  reasons  for  such 
removal.  Upon  the  return  day  of  the  order  to  show  cause  and  at  the  time 
and  place  fixed  in  said  order,  upon  filing  proof  of  publication  of  the  order 
to  show  cause  with  the  judge,  if  no  reason  or  objection  is  made  thereto,  he 
shall  make  an  order  directing  the  removal  of  the  remains  of  said  deceased 
soldier  or  soldiers  to  the  cemetery  designated  in  the  petition  within  the 
town  or  city  or  within  a town  adjoining  the  town  or  city  in  which  the 
remains  are  then  buried  and  shall  specify  in  the  order  the  amount  of  the 
expenses  of  such  removal,  which  expenses  of  removal  and  reinterment,  in- 
cluding the  expense  of  the  proceeding  under  this  section,  shall  be  a charge 
upon  the  county  in  which  the  town  or  city  is  situated  from  which  the 
removal  is  made  and  such  expenses  shall  be  a county  charge  and  audited 
by  the  board  of  supervisors  of  the  county  and  paid  in  the  same  manner  as 
other  county  charges.  On  and  after  the  removal  and  reinterment  of  the 
remains  of  the  deceased  soldier  or  soldiers  in  the  soldiers’  plot,  the  expenses 
for  annual  care  of  the  grave  in  the  soldiers’  burial  plot  to  which  the  removal 
is  made  shall  be  annually  provided  by  the  town  or  city  in  which  the  remains 
were  originally  buried,  at  the  rate  of  not  to  exceed  fifty  cents  per  grave  and 
shall  be  paid  annually  to  the  incorporated  cemetery  association  to  which 
the  remains  of  each  deceased  soldier  may  be  removed  and  reinterred.  The 
petition  and  order  shall  be  filed  in  the  county  clerk’s  office  of  the  county  in 
which  the  remains  of  the  deceased  soldier  were  originally  interred,  and  the 
service  of  a certified  copy  of  the  final  order  upon  the  cemetery  association 
shall  be  made  prior  to  any  removal.  Any  relative  of  the  deceased  soldier  or 
soldiers,  or  the  officer  of  any  cemetery  in  which  the  remains  of  the  deceased 


TOWN  HOUSES,  LOCK-UPS  AND  TOWN  CEMETERIES.  3^ 
Town  Law,  §§  410-412. 

soldier  or  soldiers  were  originally  interred,  or  the  authorities  of  the  county 
in  which  the  soldier  or  soldiers  were  originally  buried,  may  oppose  the  grant- 
ing of  said  order  and  the  judge  shall  summarily  hear  the  statement  of  the 
parties  and  make  such  order  as  the  justice  and  equity  of  the  application  shall 
require.  Any  headstone  or  monument  which  marks  the  grave  of  the  deceased 
soldier  shall  be  removed  and  reset  at  the  grave  in  the  cemetery  in  which  the 
removal  is  permitted  to  be  made  and  in  each  case  the  final  order  shall  pro- 
vide the  amount  of  the  expenses  of  such  removal  and  reinterment  and 
resetting  of  the  headstone  or  monument,  including  the  expenses  of  the 
proceedings  under  this  section;  except  that  where  provision  is  otherwise 
made  for  the  purchase  or  erection  of  a new  headstone,  monument  or  marker 
at  the  grave  in  the  cemetery  to  which  such  removal  is  permitted,  such  old 
headstone  or  monument  need  not  be  so  removed  and  reset,  in  which  case 
such  final  order  shall  not  provide  for  the  expense  of  resetting.  The  order 
shall  designate  the  person  or  persons  having  charge  of  the  removals  and 
reinterments.  Upon  completion  of  the  removal,  reinterment  and  resetting 
of  the  headstones  or  monuments,  the  person  or  persons  having  charge  of 
the  same  shall  make  a verified  report  of  the  removal,  reinterment  and  re- 
setting of  the  headstone  or  monument  and  hie  the  report  in  the  clerk’s  office 
of  the  proper  county.  The  word  “ soldier  ” shall  be  construed  to  mean  an 
honorably  discharged  soldier,  sailor  or  marine  who  served  in  the  army  or 
navy  of  the  United  States,  and  the  words  “ soldiers’  plot ” shall  be  con- 
strued to  mean  a plot  of  land  in  any  incorporated  cemetery  set  apart  to  be 
exclusively  used  as  a place  for  interring  the  remains  of  deceased  veteran 
soldiers  of  the  United  States.  [Town  Law,  § 337,  B.  C.  & G.  Cons.  L., 

p.  6226.] 

§ 9.  ERECTION  AND  DISCONTINUANCE  OF  POUNDS. 

Whenever  the  electors  of  any  town  shall  determine,  at  a biennial  town 
meeting,  to  erect  one  or  more  pounds  therein,  and  whenever  a pound  shall 
now  be  erected  in  any  town,  the  same  shall  be  kept  under  the  care  and 
direction  of  a pound-master,  to  be  elected  or  appointed  for  that  purpose. 
The  electors  of  any  town  may,  at  a biennial  town  meeting,  discontinue  any 
pounds  therein.  [Town  Law,  § 410;  B.  C.  & G.  Cons.  L.,  p.  6241.] 

§ 10.  ELECTION  OF  POUND-MASTERS;  FEES;  REFUSAL  TO  SERVE. 

Pound-masters  may  be  elected  either  (1)  by  ballot;  (2)  by  ayes  and 
noes,  or  (3)  by  the  rising  or  dividing  of  the  electors,  as  the  electors  may 
determine.  [Idem,  § 411.] 

The  pound-masters  shall  be  allowed  the  following  fees  for  their  services, 
to  wit:  For  taking  into  the  pound  and  discharging  therefrom  every  horse. 


36S  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 110. 

mule  and  head  of  cattle,  fifteen  cents;  for  every  other  beast,  ten  cents. 
[Idem,  § 412.] 

If  any  person  chosen  or  appointed  to  the  office  of  pound-master  shall 
refuse  to  serve,  he  shall  forfeit  to  the  town  the  sum  of  ten  dollars.  [Idem, 
§ 110,  as  amended  by  L.  1909,  ch.  491.] 


LOCAL  IMPROVEMENTS. 


Town  Law,  §§  420-422. 


36& 


CHAPTER  XXVn, 

LOCAL  IMPROVEMENTS. 


Section  1.  Assessment  for  public  improvements. 

2.  Form  and  notice  of  assessment. 

3.  Hearing  on  assessment  for  public  improvement. 

4.  Application  of  article. 

5.  Appointment  of  commissioners  of  improvements  in  certain  towns. 


§ 1.  ASSESSMENT  FOR  PUBLIC  IMPROVEMENTS. 

Whenever  the  cost  of  any  public  improvement  to  be  made  in  any  of  the 
towns  in  this  state  is  required  by  existing  laws  to  be  raised,  directly  or 
indirectly,  by  assessments  to  be  levied  upon  pieces  or  parcels  of  land  con- 
tained within  certain  districts,  in  proportion  to  the  benefits  accruing  to 
said  several  pieces  or  parcels  of  land  by  reason  of  such  improvement,  it 
shall  be  the  duty  of  the  officers  who  may  be  invested  by  law  with  the  duty 
of  fixing  and  determining  such  districts  of  assessments,  and  of  the  officers 
charged  with  the  duty  of  apportioning  and  assessing  the  various  amounts, 
from  time  to  time,  upon  the  several  pieces  of  land  to  be  benefited  as  afore- 
said, to  file  a certificate  of  the  completion  thereof  in  the  office  of  the  town 
clerk,  and  thereupon  to  give  notice  of  the  same,  and  that  they  will  meet 
at  a certain  time  and  at  some  public  and  convenient  place  within  the  town 
to  hear  objections  to  the  same  and  to  make  such  corrections  as  will,  in  their 
judgment,  be  just  and  equitable.  [Town  Law,  § 420;  B.  C.  & G.  Cons.  L., 
p.  6242.] 

§ 2.  FORM  AND  NOTICE  OF  ASSESSMENT. 

The  said  assessments  shall  contain  the  names  of  the  owners  of  the 
several  parcels  assessed,  so  far  as  known,  and  if  not  known  in  any  instance 
it  shall  be  so  stated ; and  no  assessment  shall  be  invalid  by  reason  of  such 
name  being  omitted  or  incorrectly  stated.  [Town  Law,  § 421;  B.  C.  & G. 
Cons.  L.,  p.  624L] 

Notice  of  such  meetings  shall  be  given  by  publication  daily,  for  at  least 
ten  days,  in  a newspaper  published  in  such  town,  if  any  there  shall  be,  and, 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


310 

Town  Law,  §§  423,  424,  430. 

if  none,  then  daily  in  two  daily  newspapers,  if  there  be  two,  if  not,  one, 
published  in  the  city  nearest  such  town.  [Idem,  § 422.] 

§ 3.  HEARING  ON  ASSESSMENT  FOR  PUBLIC  IMPROVEMENT. 

At  the  time  and  place  so  appointed  they  shall  meet  and  hear  all  persons 
appearing  before  them,  and  after  such  hearing,  they  shall  review  the  same 
and  make  such  corrections,  if  any,  in  such  certificates  as  will,  in  their 
judgment,  render  the  same  more  just  and  equitable,  and  the  determination 
so  made  by  them  shall  be  conclusive.  [Town  Law,  § 423;  B.  C.  & G.  Cons. 
L.,  p.  6242.] 

§ 4.  APPLICATION  OF  ARTICLE. 

This  article  shall  not  apply  in  any  case  where  provision  is  already  made, 
or  may  hereafter  be  made,  by  law  for  reviewing  assessments  for  improve- 
ments, or  for  hearing  persons  interested,  before  the  final  determination 
thereof.  [Town  Law,  § 424;  B.  C.  & G.  Cons.  L.,  p.  6242.]' 

§ 5.  APPOINTMENT  OF  COMMISSIONERS  OF  IMPROVEMENTS  IN 
CERTAIN  TOWNS. 

In  any  town  in  this  state  having  a total  population  of  over  four  thousand 
inhabitants,  exclusive  of  those  residing  within  the  corporate  limits  of  any 
incorporated  city  or  village  in  said  town,  and  adjoining  a city  having  a 
population  of  more  than  one  million  inhabitants,  the  supervisor  is  hereby 
authorized  to  appoint  five  commissioners  of  local  improvements,  by  a 
writing  signed  by  him  and  filed  in  the  town  clerk’s  office  of  said  town. 
The  commissioners  so  appointed  shall  be  residents,  freeholders,  and  electors 
in  such  town  and  shall  hold  no  other  office  therein.  The  said  persons  so 
appointed  shall  be  a body  corporate  and  shall  be  known  as  the  “ commis- 
sioners of  improvements  ” of  such  town,  in  which  name  they  may  sue 
and  be  sued  in  any  court  of  competent  jurisdiction.1  [Town  Law,  § 430 ; B. 
C.  & G.  Cons.  L.,  p.  6243.] 


1.  Local  improvements  in  certain  towns.  Article  XXIII  of  the  Town  Law, 
(§§  430-444)  was  derived  from  L.  1889,  ch.  453  which  was  consolidated  with 
other  laws  relating  to  towns  in  the  consolidated  Town  Law  of  1909.  This  article 
only  applies  to  towns  of  over  4,000  population  exclusive  of  incorporated  cities 
and  villages,  bordering  upon  the  city  of  New  York.  There  are  only  a very  few 
towns  in  Weschester  County,  and  possibly  Nassau  County,  which  are  subject 
to  its  provisions.  For  this  reason  it  has  been  deemed  best  to  omit  this  article 
of  the  Town  Law. 


PART  IV. 


TOWN  BOARD. 


CHAPTER  XXVIII. 

AUDITING  OF  TOWN  ACCOUNTS;  TOWN  CHARGES;  TOWN  FINANCES. 

EXPLANATORY  NOTE. 

Town  Board,  how  Constituted. 

The  town  board  is  the  town’s  governing  board.  It  has  the  powers 
and  performs  the  duties  prescribed  by  law.  Its  functions  are  partly 
legislative  and  partly  administrative.  It  consists  of  the  supervisor, 
town  clerk  and  justices  of  the  peace,  or  any  two  of  them. 

General  Powers  and  Duties. 

As  the  governing  board  of  the  town,  the  town  board  has  the  general 
control  of  the  internal  affairs  of  the  town.  An  examination  of  statutes 
relating  to  town  affairs  will  show  that  the  town  board  exercises  impor- 
tant supervisory  and  administrative  functions  in  respect  to  nearly  every 
subject  of  town  activity.  The  maintenance  of  town  highways  and 
bridges,  the  construction  and  maintenance  of  sewer,  water  and  light 
systems,  the  protection  of  the  public  health  and  many  other  important 
subjects  are  to  a greater  or  less  extent  within  its  control.  Separate 
chapters  will  be  devoted  to  these  subjects  and  it  will  be  unnecessary  to 
consider  them  in  this  place. 

Meetings  of  Board. 

The  town  board  must  hold  at  least  two  regular  meetings  each  year ; 
one  on  the  Tuesday  preceding  the  biennial  town  meeting,  or  on  the 
corresponding  date  in  each  alternate  year,  or  in  towns  holding  their 
biennial  town  meetings  on  election  day,  on  the  28th  day  of  December 

371 


372 


TOWN  BOARD. 


Explanatory  note. 

in  each  year;  and  the  other  meeting  on  the  Thursday  preceding  the 
annual  meeting  of  the  board  of  supervisors.  The  first  meeting  is  to 
receive  and  pass  upon  the  accounts  of  town  officers ; the  second  meeting 
is  for  the  audit  of  town  accounts. 

Special  meetings  may  be  held  from  time  to  time  as  occasion  demands, 
on  the  call  of  either  the  supervisor  or  town  clerk. 

Organization  of  Board. 

The  law  makes  no  special  provision  as  to  the  organization  of  the 
board,  except  that  the  town  clerk  should  act  as  the  clerk  thereof  and 
must  keep  the  minutes  of  its  meetings.  The  supervisor  should  preside 
at  all  meetings  of  the  board.  The  rules  of  parliamentary  practice 
should  apply.  A majority  of  the  members  of  the  board  will  constitute 
a quorum  for  the  transaction  of  its  business. 

Accounts  of  Town  Officers. 

All  accounts  of  town  officers  are  to  be  presented  to  the  town  board  at 
its  first  meeting;  i.  e.  the  meeting  held  on  the  Tuesday  before  the 
biennial  town  meeting,  on  the  corresponding  date  in  each  alternate  year, 
or  on  the  28th  day  of  December  in  towns  holding  their  biennial  town 
meetings  on  election  day.  Such  accounts  should  be  in  proper  itemized 
form,  showing  receipts  and  expenditures  and  should  be  accompanied  by 
vouchers  as  evidence  of  disbursements  made  to  the  persons  named. 

Audit  of  Town  Accounts. 

All  claims  against  the  town  should  be  presented  to  the  town  board  at 
its  meeting  held  on  the  Thursday  before  the  annual  meeting  of  the 
board  of  supervisors.  The  reason  for  this  is  that  the  board  of  super- 
visors is  required  to  levy  a tax  upon  the  town  for  the  payment  of  the 
claims  audited.  There  is  no  express  prohibition  in  the  statute  against 
the  audit  of  claims  at  special  meetings  of  the  board,  but  it  has  been 
held  by  the  courts  that  claims  against  the  town  cannot  be  audited  at  any 
meeting  other  than  the  regular  meeting  held  on  the  Thursday  before 
the  annual  meeting  of  the  board  of  supervisors,  unless  especially 
authorized  by  law. 

The  audit  of  a claim  includes  its  adjustment  by  allowance,  disallow- 
ance in  part,  or  rejection  as  a whole.  In  considering  claims  the  board 
may  conduct  its  examination  as  it  sees  fit,  provided  it  acts  reasonably. 


AUDITING  OF  TOWN  ACCOUNTS. 


373 


Explanatory  note. 

Its  knowledge  as  to  the  merit  of  a claim  may  be  acquired  from  any 
quarter  where  it  is  obtainable  without  special  regard  to  the  rules  of 
evidence.  Each  item  of  a claim  should  be  passed  upon.  Upon  audit- 
ing the  claim  the  board  should  make  a certificate  signed  by  a majority 
of  its  members  to  the  effect  that  the  claim  has  been  allowed,  disallowed 
as  to  a part  thereof,  or  wholly  rejected,  as  the  case  may  be.  Such 
certificate  must  be  filed  with  the  town  clerk,  and  a duplicate  thereof 
must  be  delivered  to  the  supervisor  to  be  presented  by  him  to  the  board 
of  supervisors.  Neither  the  supervisor  nor  the  board  of  supervisors  can 
modify  such  audit.  The  board  of  supervisors  must  then  levy  a tax 
upon  the  town  to  pay  the  claim  as  audited  by  the  town  board.  The 
only  case  where  the  board  of  supervisors  can  modify  the  action  of  a 
town  board  in  auditing  a claim  is  where  a taxpayer  appeals  from  the 
auditing  and  allowance  of  a claim  for  services  rendered  in  criminal 
proceedings  by  justices  of  the  peace  and  constables. 

Town  Charges. 

Town  Law,  § 170,  as  amended  by  L.  1909,  ch.  491 ; L.  1914,  ck.  440, 
and  L.  1916,  ch.  158,  prescribes  generally  what  are  town  charges.  This 
section  is  included  in  this  chapter.  Reference  is  also  made  to  other 
provisions  of  law  declaring  certain  claims  to  be  town  charges. 


Section  1.  Constitution  and  regular  meetings  of  the  town  board;  when  town  meet- 
ings are  held  at*  times  of  general  elections. 

2.  Meetings  of  town  board  for  receiving  accounts  of  town  officers. 

3.  Meetings  of  town  board  for  auditing  accounts;  certificates  of  rejection 

and  allowance ; certificates  of  allowance  to  be  filed ; one  to  be 
delivered  to  supervisor. 

4.  Appeals  from  towri  board  to  board  of  supervisors  from  audit  of  accounts 

of  justices  of  the  peace  and  constables  in  criminal  proceedings. 

5.  Accounts  of  justices  in  criminal  matters,  what  to  contain 

5a.  Salary  of  justices  of  the  peace  in  lieu  of  fees  in  criminal  cases. 

6.  Fees  of  officers  in  criminal  proceedings,  when  town  or  county  charge. 

7.  Form  of  accounts;  verification  by  affidavit  of  claimant;  saving  clause. 

8.  Town-  charges,  what  are. 

9.  Traveling  fees  for  subpoenaing  witnesses,  when  to  be  allowed. 

10.  Boards  of  audit  to  make  abstract  of  names  of  persons  whose  accounts 

have  been  audited. 

11.  When  town  auditors  are  to  be  elected;  application  therefor. 

12.  Number  of  t<?wn  auditors ; term  of  office. 

13.  If  electors  of  town  vote  to  elect  a board  of  auditors,  town  board  to  make 

temporary  appointment. 


374 


TOWN  BOARD. 


Town  Law,  § 131. 

Section  14.  Town  auditors  to  audit  accounts-  town  auditor  to  hold  no  other 
town  office. 

15.  Meetings  and  compensation  of  town  auditors. 

16.  Town  meeting  may  vote  to  discontinue  board  of  town  auditors. 

17.  Actions  on  behalf  of  and  against  towns  to  be  brought  in  name  of 

town;  contracts  in  name  of  town. 

18.  Actions  for  trespass  on  town  lands. 

19.  Town  board  may  borrow  money  for  highway  purposes  when  town 

meeting  has  voted  to  raise  more  than  $500;  statement  of  in- 
debtedness created  to  be  rendered  to  board  of  supervisors. 

20.  Town  boards  may  vote  money  for  memorial  day;  expenditure. 

21.  Appropriation  by  town  board  in  Orleans  and  Greene  counties  for 

rooms  for  posts. 

22.  Town  board  may  borrow  money  to  pay  judgments  against  towns. 

23.  Additional  appropriations  for  memorial  day  upon  the  adoption  of 

a proposition  therefor. 

§ 1.  CONSTITUTION  AND  REGULAR  MEETINGS  OF  THE  TOWN 
BOARD;  WHEN  TOWN  MEETINGS  ARE  HELD  AT  TIMES  OF 
GENERAL  ELECTIONS. 

The  supervisor,  town  clerk  and  the  justices  of  .the  peace,  or  any  two 
of  suck  justices,  shall  constitute  the  town  board  in  each  town,1  and 
shall  hold  at  least  two  meetings  annually  at  the  office  of  the  town  clerk, 


1.  Town  board,  how  constituted.  The  town  board  consists  of  the  supervisor, 
town  clerk  and  justices  of  the  peace,  or  any  two  of  such  justices.  People  ex  rel. 
Hovey  v.  Leavenworth,  90  Hun,  48,  54 ; 35  N.  Y.  Supp.  445 ; People  ex  rel.  Coon  v. 
Wood,  12  N.#Y.  Supp.  436.  In  the  case  of  People  ex  rel.  Earwicker  v.  Dillon,  38 
App.  Div.  539;  56  N.  Y.  Supp.  416,  a question  arose  whether  a person  could  hold 
the  office  of  town  clerk  and  justice  of  the  peace  at  the  same  time.  The  court  held 
that  the  duties  of  the  two  officers  are  incompatible,  since  .if  a person  be  permitted 
to  hold  both  of  these  offices,  he  would  be  a member  of  the  town  board  in  each 
capacity  and  would  either  have  two  votes  in  deciding  upon  his  own  claims  before  the 
board,  or  the  town  board  must  be  deprived  of  a full  number  of  members  provided 
for  by  law.  Assuming  that  this  case  was  correctly  decided,  the  same  reasoning 
would  prevent  a person  from  holding  the  office  of  supervisor  and  justice  of  the  peace 
at  one  and  the  same  time. 

Members  of  the  town  board  cannot  .also  be  members  of  the  board  of  town  auditors. 
Rept.  of  Atty.  Genl.  (1895)  226. 

Governing  board.  The  town  board  is  the  governing  board  of  a town.  General 
Municipal  Law,  sec.  1.  In  the -case  of.Adee  v.  Arnow,  91  Hun,  329;  36  N.  Y.  Supp. 
1020,  the  court  said:  “The  functions  of  the  governing  board  of  a town  must  be  the 

government  of  the  town.  All  of  the  internal  affairs  of  a town  must  be  under  the 
control  of  the  board  of  town  officers,  so  far  as  official  action  can  go.  Of  course, 
the  inherent  power  of  the  people  is  left  undisturbed  and  unlimited,  and  there  is  no 
restriction  upon  its  action  in  a public  town  meeting.  Each  town  is  constituted  a 
municipal  corporation,  and  the  business  of  the  town  must  be  transacted  by  the 
corporate  officers,  or  as  they  are  now  called  the  governing  board.”  And  the  court 
further  says:  “As  a member  of  the  town  board,  the  supervisor  has  no  more  or 

greater  authority  than  any  of  the  other  officers  who  are  members  thereof,  and  no  one 
of  them  can  legally  act  independently  of  the  others,  or  outside  of  the  board.  It  is 
highly  essential  to  the  interests  of  the  town  that  all  questions  respecting  litigation 
should  be  determined  by  the  governing  board.  It  may  or  may  not  be  for  the  interests 
of  the  town  to  prosecute  or  defend  suits,  and  the  determination  of  such  questions 
requires  tire  exercise  of  judgment  and  discretion.  The  governing  board  is  constituted 


AUDITING  OF  TOWN  ACCOUNTS. 


Town  Law,  § 131. 

as  follows  : one  on  tlie  Tuesday  preceding  the  biennial  town  meeting 
and  on  the  corresponding  date  in  each  alternate  year,  except  that  in 
towns  where  biennial  town  meetings  are  held  at  the  time  of  a general 
election,  such  meeting  shall  be  held  on  the  twenty-eighth  day  of  Decem- 
ber in  each  year,  unless  such  day  is  Sunday,  in  which  case  such  meeting 
shall  be  held  on  the  preceding  day;  and  one  on  the  Thursday  next 
preceding  the  annual  meeting  of  the  board  of  supervisors.  The  super- 
visor of  the  town  shall  when  present  preside  at  all  meetings  of  the  town 
board.  The  supervisor  or  the  town  clerk  may  call  a special  meeting  of 
the  town  board  at  any  time  by  giving  at  least  two  days’  notice  in  person 
or  in  writing  to  the  other  members  of  such  board  of  the  time  when 
and  place  where  such  meeting  is  to  be  held.* 2  At  any  such  regular 
or  special  meeting  it  shall  be  lawful  for  the  town  board  to  audit,  allow 
or  reject  any  charge,  claim  or  demand  against  the  town  for  which  funds 
might  lawfully  be  provided  by  the  issuance  and  sale  of  town  obligations 
under  the  provisions  of  section  one  hundred  and  thirty-eight-a  of  this 
chapter;  and  any  charge,  claim  or  demand  so  audited  shall  be  payable 
immediately  from  available  funds  thus  provided,  if  there  be  any,  and 
otherwise  as  soon  as  the  moneys  are  raised  therefor  under  the  provisions 
of  said  section  one  hundred  and  thirty-eight-a,  but  a charge,  claim  or 
demand  of  the  kind  authorized  by  this  section  to  be  audited  may  be  paid, 
in  the  discretion  of  the  town  board,  from  other  town  funds  on  hand 
available  for  general  purposes,  if  there  be  any  such  funds.  [Town  Law, 
§ 131,  as  amended  by  L.  1909,  ch.  140,  L.  1913,  ch.  571,  and  L.  1916, 
ch.  59 ; B.  C.  and  G.  Cons.  L.,  p.  6182.] 


for  all  such  purposes,  and  its  power  should  not  he  limited  or  restricted  by  con- 
struction.” 

2.  Number  of  meetings.  The  town  board  or  the  board  of  town  auditors  may 
hold  as  many  meetings  as  they  may  deem  necessary  for  properly  transacting  their 
duties.  Kept,  of  Atty.  Genl.  (1895),  227. 

When  meetings  of  town  board  should  be  held  in  town;  acts  of  town 
board  in  appointing  inspectors  of  election.  The  meetings  of  a town  board 
should  be  held  within  the  town  except  in  the  special  cases  otherwise  provided  by 
statute.  The  acts  of  a town  board  in  appointing  inspectors  of  election  at  a meeting 
held  in  an  adjoining  town  are  coram  non  judice,  and  a writ  of  peremptory  mandamus 
may  issue  at  the  instance  of  one  of  the  town  officers  who  attended  and  participated 
in  the  proceedings,  requiring  the  town  board  to  meet  in  their  own  town  and  revoke 
such  appointment  and  appoint  other  and  qualified  inspectors  of  election.  People 
ex  rel.  Shields  v.  Watkins  (1914),  87  Misc.  411,  149  N.  Y.  Supp.  1006. 

Special  powers  and  duties  of  town  boards.  (For  places  in  this  Manual 
where  the  sections  referred  to  may  be  found,  see  Table  of  Laws,  after  the  Table  of 
Contents.)  (1)  As  to  elections.  The  town  board  is  authorized  to  divide  a town 
containing  more  than  three  hundred  electors  into  election  districts.  See  Election 
Law,  sec.  296,  as  amended  by  L.  1914,  ch.  244,  L.  1916,  ch.  537,  L.  1917,  ch.  703,  and 
L.  1918,  ch.  323.  Where  a town  meeting  has  voted  that  town  meetings  in  the  town 
shall  be  held  in  election  districts  the  town  board  may  divide  such  town  into  two  or 
more  joint  election  districts.  See  Town  Law,  sec  65,  ante.  The  town  board  of 
each  town  is  required  to  designate  the  place  of  registration  and  election  in  each 
election  district.  Election  Law,  sec.  299,  as  amended  by  L.  1910,  ch.  428,  L.  1915, 
ch.  678,  L.  1916,  ch.  537,  and  L.  1918,  ch.  323.  Inspectors  of  election  in  towns  are 
to  be  appointed  by  the  town  board  in  each  year  in  which  a town  meeting  is  held 
for  the  election  of  town  officers,  and  within  thirty  days  thereafter.  See  Election 
Law,  sec.  311.  For  full  provisions  of  the  law  relating  to  the  powers  and  duties 
of  town  boards  as  to  elections,  see  Jewett’s  Election  Manual,  1918. 


376 


TOWN  BOARD. 


Town  Law,  § 132. 

§ 2.  MEETINGS  OF  TOWN  BOARD  FOR  RECEIVING  ACCOUNTS  OF 
TOWN  OFFICERS. 

At  the  meeting  of  the  town  board  held  on  Tuesday  preceding  the  biennial 
town  meeting  and  on  the  corresponding  date  in  each  alternate  year,  or  on 
the  twenty-eighth  day  of  December  in  each  year,  or  on  the  day  preceding 
when  such  day  falls  on  Sunday,  all  town  officers  who  receive  or  disburse 
any  moneys  of  the  town,  shall  account  with  the  board  for  all  such  moneys 
received  and  disbursed  by  them  by  virtue  of  their  office,  and  produce  all 
receipts,  orders  and  vouchers  which  they  may  have  respecting  the  same, 
but  no  member  of  the  board  shall  sit  as  a member  of  the  board  when  any 
account  in  which  he  is  interested  is  being  audited  by  the  board.3  The 
board  shall  make  a statement  of  such  accounts,  and  append  thereto  a 
certificate  signed  by  at  least  a majority  of  them,  showing  the  state  of  the 
accounts  of  each  officer  at  the  date  of  the  certificate,  which  statement, 
certificate,  receipts,  orders  and  vouchers  shall  each  be  filed  with  the  town 
clerk  of  the  town,  within  three  days  thereafter,  and  be  open  to  public 

(2)  As  to  taxation.  A vacancy  in  the  office  of  a town  collector  of  taxes  is  to  be 
filled  by  the  town  board.  See  Tax  Law,  sec.  86,  write.  As  to  duties  of  town  boards 
as  to  appeals  from  the  action  of  boards  of  supervisors  in  respect  to  equalization  of 
assessments,  see  Tax  Law,  sec.  175,  post. 

(3)  As  to  relief  of  poor.  The  town  board  may  make  rules  and  regulations 
respecting  the  temporary  relief  of  town  poor,  in  case  of  the  failure  of  the  board  of 
supervisors  so  to  do.  See  Poor  Law,  sec.  13,  post.  Overseers  of  the  poor  may  be 
appointed  by  the  town  board  when  authority  has  been  conferred  by  a proposition 
adopted  at  a town  meeting.  See  Town  Law,  sec.  112,  ante.  The  accounts  of  over- 
seers of  the  poor  are  to  be  submitted  to  and  examined  by  the  town  board.  See  Poor 
Law,  sec.  21,  post.  The  estimates  and  accounts  of  overseers  of  the  poor  must  be 
approved  by  the  town  board.  See  Poor  Law,  sec.  27,  post.  The  town  board  must 
make  a statement  as  to  poor  persons  relieved  and  submit  the  same  to  the  county 
superintendents  of  the  poor.  See  Poor  Law,  sec.  27,  post. 

(5)  As  to  highways.  Appointment  and  removal  of  town  superintendents  of 
highways,  Highway  Law,  §§  41,  46,  post;  to  fix  compensation  of  superintendent; 
Highway  Law,  § 45,  post.  Estimates  of  highway  expenditures,  Highway  Law, 
§§  90-92;  approval  of  extraordinary  repairs  of  highways  and  bridges,  Highway 
Law,  § 93,  post.  May  authorize  borrowing  of  money  in  anticipation  of  taxes,  High- 
way Law,  § 96,  post.  Town  board  to  determine  places  where  highway  funds  are  to 
be  expended,  Highway  Law,  § 105,  post.  Audit  of  expenditures  for  highways  and 
bridges,  Highway  Law,  § 106,  post. 

3.  Accounts  of  town  officers.  All  accounts  of  town  officers  should  be  sub- 
mitted to  the  town  board  at  the  meeting  specified  in  the  above  section.  In  the 
case  of  Christman  v.  Phillips,  58  Hun,  282,  286;  12  N.  Y.  Supp.  338,  the  court  said: 

“ No  statute  has  been  referred  to,  nor  are  we  able  to  find  any,  that  confers  on  the 
town  auditors  authority  to  examine  or  adjudicate  the  accounts  of  overseers  of  the 
poor  at  any  other  time  or  at  any  other  meetings.”  If  a board  of  town  auditors 
exists  in  a town  under  the  provisions  of  sections  150-156  of  the  Town  Law,  such 
accounts  are  to  be  presented  to  such  board.  People  ex  rel.  Bechtel  v.  Welbrook,  27 
Hun,  598.  Each  item  of  accounts  must  be  audited.  People  ex  rel.  Thurston  v.  Town 
Auditors,  82  N.  Y.  80. 


AUDITING  OF  TOWN  ACCOUNTS. 


Town  Law,  § 133. 


inspection  during  the  office  hours  of  such  town  clerk.4  [Town  Law,  § 132 ; 
B.  C.  & G.  Cons.  L.,  p.  6183.] 


§ 3.  MEETING  OF  TOWN  BOARD  FOR  AUDITING  ACCOUNTS;  CER- 
TIFICATES OF  REJECTION  AND  ALLOWANCE;  CERTIFI- 
CATES OF  ALLOWANCE  TO  BE  FILED;  ONE  TO  BE  DELIV- 
ERED TO  SUPERVISOR. 

The  meeting  of  the  town  board  held  on  the  Thursday  preceding  the  an- 
nual meeting  of  the  board  of  supervisors,  shall  be  for  the  purpose  of  audit- 
ing accounts  and  allowing  or  rejecting  all  charges,  claims  and  demands 
against  the  town.5  No  member  of  the  town  board  or  board  of  town  auditors 
shall  present  a claim  or  demand  against  the  town  for  audit  which  has  been 
assigned  to  him  by  another,  or  for  labor,  services  or  material  rendered  or 
furnished  by  himself,  or  by  another  as  his  servant  or  agent  or  under  con- 


4.  Effect  of  certification.  Where  a supervisor  pays  claims  unlawfully  the 
subsequent  certification  of  the  supervisor’s  account  does  not  prevent  the  bring- 
ing of  a taxpayer’s  action  against  the  claimant  for  the  money  received.  Annis 
v.  McNulty,  51  Misc.  121,  100  N.  Y.  Supp.  951. 

5.  Section  to  be  strictly  enforced.  This  section  was  passed  for  the  benefit 
of  taxpayers  as  well  as  for  the  persons  having  claims  against  the  towns.  It 
is  a wise  statute  and  should  be  strictly  enforced.  People  ex  rel.  Remington  v. 
Manning,  37  App.  Div.  141,  55  N.  Y.  Supp.  781. 

Meeting  for  audit.  Unless  otherwise  especially  authorized  by  law  the  town 
board  can  only  audit  claims  against  the  town  at  its  annual  meeting,  held  on  the 
Thursday  preceding  the  annual  meeting  of  the  board  of  supervisors.  People 
ex  rel.  Lowell  v.  Town  of  Westford,  53  Barb.  555;  affd.,  41  N.  Y.  619;  see,  also. 
People  ex  rel.  Myers  v.  Barnes,  114  N.  Y.  317;  20  N.  E.  609. 

Power  of  town  board  of  audit.  The  power  of  a board  to  audit  includes  the 
power  to  hear  and  to  examine  an  account,  and  in  its  broader  sense  it  includes 
its  adjustment  by  allowance,  disallowance  or  rejection.  People  ex  rel.  Myers 
v.  Barnes,  114  N.  Y.  317;  20  N.  E.  609;  People  ex  rel.  Read  v.  Town  Auditors,  85 
Hun,  114;  32  N.  Y.  Supp.  668. 

The  town  board  is  a tribunal  created  by  statute  to  hear  and  to  allow  or 
reject  any  claims  presented  against  the  town.  The  examination  of  the  account 
by  the  board  is  the  trial,  and  its  allowance  or  disallowance  is  the  judgment 
of  this  tribunal.  No  claim  against  a town  is  obligatory  upon  or  is  enforceable 
against  the  town  until  it  has  been  audited  or  examined  and  allowed.  Its  juris- 
diction over  a claim  against  the  town  is  not  only  original  but  it  is  conclusive 
until  brought  under  review  in  another  court  in  the  manner  prescribed  by  law. 
Osterhoudt  v.  Rigney,  98  N.  Y.  234;  see,  also,  People  ex  rel.  Cochrane  v.  Board  of 
Auditors,  74  Hun,  83;  26  N.  Y.  Supp.  211.  There  is  no  mode  of  procedure  pre- 
scribed by  statute  by  which  a board  of  town  auditors  is  to  take  proof  or  obtain 
knowledge  respecting  the  validity  of  any  claim  presented  for  audit.  It  is  the 
habit  of  such  bodies  to  seek  information  from  any  quarter  where  it  is  obtain- 
able, and  presumably  the  practice  is  legitimate.  Tts  members  must  acquire 
knowledge  to  enable  them  to  act  with  wisdom  in  subservience  to  establish 
rules.  They  may  act  upon  their  own  knowledge  acquired  by  observations.  Peo- 
ple ex  rel.  Oppenheimer  Pub.  Co.  v.  People,  81  Hun,  383;  30  N.  Y.  Supp.  878; 


378 


TOWN  BOARD. 


Town  Law,  § 133. 

tract  with  him,  or  any  claim  or  demand  of  any  name  or  nature  wherein  he 
has  an  interest,  direct  or  indirect,  excepting  his  per  diem  compensation  for 
attendance  upon  meetings  of  the  town  board  of  said  town  and  the  fees  al- 
lowed to  him  by  law  for  services  rendered  in  his  official  capacity;  and  no 
claim  or  demand  in  which  a member  has  an  interest  or  which  is  based 
wholly  or  partly  on  the  services  or  material  rendered  or  furnished  by  such 
member  shall  he  audited  or  allowed  by  said  board  in  favor  of  any  person 
or  corporation.  If  an  account  is  rejected  wholly  or  partly,  the  board  shall 
indicate  thereon  the  items  or  parts  thereof  disallowed  and  the  reason  or 
reasons  for  such  disallowance.  The  board  shall  make,  verify  and  file  in 
the  office  of  the  town  clerk  a list  or  abstract  in  duplicate  of  all  accounts, 
charges,  claims  or  demands  presented  thereto  and  audited,  allowed  or  re- 
jected at  any  meeting  of  the  year,  showing  in  respect  to  each  account  or 
claim  the  name  of  the  claimant,  the  general  nature  of  the  service  performed, 
material  furnished,  or  other  matter  on  which  the  demand  was  based,  the 
amount  claimed  and  the  amount  allowed.  To  the  total  of  claims  so  allowed, 
the  town  board  shall  (a)  add  sums  necessary  to  pay  the  principal  and  in- 
terest of  loans  negotiated  pursuant  to  section  one  hundred  and  forty-one 
of  this  act,  and  (b)  deduct  surplus  moneys  available  for  the  payment 
thereof  and  the  total  of  such  claims  or  loans,  if  any,  paid  during  the  year, 
thereby  determining  the  amount  necessary  to  be  raised  by  tax.  The  dupli- 
cate lists  or  abstracts,  when  so  completed,  shall  be  certified  by  the 
members  of  the  town  board,  or  a majority  thereof,  and  one  of  the 
duplicate  copies  retained  on  file  in  the  office  of  the  to™  clerk  and 
the  other  delivered  to  the  supervisor  of  the  town,  to  be  by  him  laid 
before  the  board  of  supervisors  of  the  county  at  their  annual  meeting.6 

People  ex  rel.  Cochrane  v.  Town  Auditors,  74  Hun,  83;  26  N.  Y.  Supp.  122.  In 
the  case  of  People  ex  rel.  McMillen  v.  Vanderpoel,  35  App.  Div.  73;  54  N.  Y. 
Supp.  436,  a claim  had  been  presented  to  a town  board  for  legal  services 
rendered  by  an  attorney  for  town  assessors  and  in  the  audit  of  the  claim  it  was 
materially  reduced.  It  was  held  that  a town  board  need  not  call  witnesses  to 
determine  the  value  of  the  services  rendered  by  the  attorney,  but  could  acquire 
the  knowledge  necessary  to  audit  the  bill  by  consultation  with  other  attorneys 
familiar  with  the  value  of  such  services,  or  act  upon  the  knowledge  of  such 
value  possessed  by  the  individual  members  of  the  board. 

Where  the  town  board  has  made  a valid  and  complete  allowance  their  au- 
thority ceases  and  they  are  powerless  thereafter  to  disallow  the  claim.  The 
members  of  a town  board  of  auditors  derive  their  power  solely  from  the  statute, 
and  their  act  in  allowing  a claim  is  quasi-judicial.  Central  Bank  v.  Shaw,  121 
App.  Div.  415,  106  N.  Y.  Supp.  94.  Board  may  determine  legality  of  the  claim. 
Tenney  v.  Mautner,  24  Hun,  340. 

The  town  board  has  no  authority  to  contract  for  telephone  service  for  use 
of  the  justices  of  the  peace  and  constables,  and  a bill  therefor  should  not  be 
audited.  Rept.  of  Atty.  Genl.,  Apr.  20,  1911.  So,  the  superintendent  of  high- 
ways should  not  be  allowed  compensation  for  his  own  team  or  hired  man  on 
the  highway.  Rept.  of  Atty.  Genl.,  Apr.  14,  19li. 

Mileage  and  expenses  incurred  while  attending  meetings  of  the  town  board 
and  board  of  health  should  not  be  allowed  to  a supervisor  and  justices  of  the 
peace.  Rept.  of  Atty.  Genl.,  Apr.  20,  1911. 

6.  How  audit  should  be  made.  An  arbitrary  deduction  from  the  gross  amount 
of  a bill  for  various  items  of  services  the  compensation  for  which  is  regu- 
lated by  statute,  without  passing  upon  and  disallowing  any  specific  item  is 
not  an  audit.  People  ex  rel.  Thurston  v.  Town  Auditors,  82  N.  Y.  80.  The 
board  must  pass  upon  each  item  of  the  account,  and  if  it  fails  to  do  so  a 
proper  audit  may  be  directed  by  mandamus.  People  ex  rel.  Hamm  v.  Board  of 
Auditors,  43  App.  Div.  22;  59  N.  Y.  Supp.  615.  But  where  the  services  rendered 


AUDITING  OF  TOWN  ACCOUNTS. 


m 


Town  Law,  § 133. 

The  board  of  supervisors  shall  cause  to  be  levied  and  raised  upon  the  town 


by  an  attorney  were  in  a single  suit  and  under  one  retainer  a claim  therefor, 
although  made  out  in  items,  is  in  fact  a single  claim,  and  the  town  board  is  not 
compelled  to  pass  on  each  item  thereof.  People  ex  rel.  McMillen  v.  Vanderpoel, 
35  App.  Div.  23;  54  N.  Y.  Supp.  436. 

Effect  of  verification.  A board  of  town  auditors  may  disregard  the  verifica- 
tion of  an  assessor’s  bill  for  services,  ascertain  the  time  necessarily  spent  by 
him,  and  reduce  the  bill  accordingly.  People  ex  rel.  Bentley  v.  Whalen,  5 Wk. 
Dig.  410.  The  verification  of  a claim  has  no  obligatory  force  and  may  be  dis- 
regarded. People  ex  rel.  Cochrane  v.  Town  Auditors,  74  Hun,  83;  26  N.  Y.  Supp. 
122. 

Re-examination.  Same  town  board  may  re-examine  an  account  once  passed 
upon,  and  in  fact,  reject  it,  or  reduce  the  amount  first  allowed.  It  is  the  final 
action  of  the  board,  which  consists  in  making  and  signing  a certificate,  that 
terminates  their  right  to  reconsider  and  re-examine  accounts.  People  v. 
Stocking,  50  Barb.  573;  People  ex  rel.  Smith  v.  Town  of  Delhi,  5 Hun  647. 

Certificate.  When  at  a regular  meeting  the  town  board  unanimously  passes 
and  signs  the  resolution  allowing  a claim  of  the  town  clerk  for  services  ren- 
dered, the  resolution  is  equivalent  to  the  certificate  required.  And  the  trans- 
mission of  the  resolution  to  the  town  clerk’s  office  as  part  of  the  record  of  the 
proceeding  of  the  auditors,  open  to  public  inspection,  must  be  considered  as 
the  filing  of  the  certificate.  And  the  making  out  by  the  town  clerk,  as  such,  of 
a certificate  of  the  claim  and  the  countersigning  by  all  the  town  auditors  of 
such  certificate  and  delivery  of  the  same  to  the  supervisor,  must  be  considered 
as  the  giving  of  a duplicate  certificate  to  the  supervisor  as  required  by  law. 
Central  Bank  v.  Shaw,  121  App.  Div.  415,  106  N.  Y.  Supp.  94. 

Effect  of  certificate  of  audit.  The  certificate  of  town  auditors  allowing  an 
account,  which  is  regular  on  its  face,  is  a sufficient  authority  for  the  board  of 
supervisors  to  proceed  and  cause  the  amount  certified  to  be  levied  on  the  town. 
If  such  certificate  is  in  due  form,  it  precludes  the  supervisors  from  inquiring 
as  to  the  merits  of  the  particular  items  allowed,  and  they  are  bound  to  act  upon 
it  without  modification  as  to  its  amount.  Such  a certificate  is  sufficient,  although 
it  does  not  apear  on  its  face  that  the  board  met  at  the  proper  time  and  place, 
if  in  point  of  fact  their  meeting  was  regular  in  those  respects.  People  ex  rel. 
Onderdonk  v.  Supervisors,  1 Hill,  195:  see,  also,  McCrea  v.  Chahoon,  54  Hun, 
577;  8 N.  Y.  Supp.  88. 

When  a claim  against  the  town  has  been  audited  by  the  town  board  and  the 
amount  thereof  raised  by  levy  and  paid  to  the  supervisor,  the  supervisor  cannot 
refuse  payment  on  the  ground  that  he  believes  the  audit  was  too  large.  The 
audit  of  the  town  board  is  conclusive  unless  reversed  by  a competent  tribunal. 
Matter  of  Mefford,  113  App.  Div.  529,  99  N.  Y.  Supp.  400. 

Effect  of  audit  upon  action  against  town.  Where  a town  board  audits  at  a 
reduced  amount  a claim  against  the  town  for  services  rendered  the  board  of  as- 
sessors by  an  attorney,  and  such  audit  is  confirmed  by  the  appellate  division 
upon  a writ  of  certiorari,  an  action  cannot  thereafter  be  brought  upon  such 
claim  in  the  supreme  court.  Barber  v.  Town  of  New  Scotland,  64  App.  Div.  229, 
71  N.  Y.  Supp.  1052  (1901). 

No  claim  can  be  enforced  against  a town  unless  it  has  been  audited  by  board 


380 


TOWN  BOARD. 


Town  Law,  § 133. 

the  amount  specified  in  the  certificate,  in  the  same  manner  as  they  are 


of  auditors.  People  ex  rel.  Myers  v.  Barnes,  114  N.  Y.  317  (1889);  People  ex  rel. 
Everett  v.  Supervisors,  93  N.  Y.  397  (1883);  Goodfriend  v.  Town  of  Lyme,  90 
App.  Div.  344,  86  N.  Y.  Supp.  422  (1904). 

No  action  will  lie  upon  a contract  against  a town  until  the  claim  of  the  con- 
tractors has  been  presented  to  the  town  board  and  action  taken  thereon  by  it. 
Colby  v.  Town  of  Day,  75  App.  Div.  211,  revd.  177  N.  Y.  548;  see  also,  Town 
Law,  sec.  11,  post , and  notes  thereunder. 

Certificate  of  rejection  of  claim.  The  provisions  of  this  section,  requiring  a 
town  board  in  rejecting  a claim  to  make  a certificate  to  that  effect  signed  by  at 
least  a majority  of  them,  and  to  file  the  same  in  the  office  of  the  town  clerk,  is 
not  complied  with  by  making  an  abstract  of  claims  presented  and  rejected  as 
required  by  § 155  of  the  Town  Law.  People  ex  rel.  Canton  Bridge  Co.  v.  Board 
of  Auditors  of  Town  of  Horicon,  89  App.  Div.  116,  85  N.  Y.  Supp.  1093. 

A certificate  stating  that  an  account  is  wholly  rejected  must  be  made  and 
filed  as  required  in  this  section.  The  fact  that  under  the  words  “ amount 
allowed,”  in  the  abstract,  there  is  inserted  on  the  line  describing  the  claim  the 
word  “ disallowed,”  does  not  constitute  a compliance  with  the  section.  People 
ex  rel.  Boyce  v.  Page,  105  App.  Div.  212,  94  N.  Y.  Supp.  660. 

Auditing  rejected  claims.  A board  has  no  power  to  readjudge  any  part  of 
a claim  which  has  been  rejected  by  a prior  board  upon  its  merits.  Osterhoudt 
v.  Rigney,  98  N.  Y.  222;  People  ex  rel.  Myers  v.  Barnes,  114  N.  Y.  317,  in  which 
cases  it  was  held  that  if  bills  had  been  rejected  by  a town  board  upon  their 
merits,  such  rejection  bars  a re-audit  by  a subsequent  board.  See,  also.  People 
ex  rel.  Peck  v.  Town  Board,  27  App.  Div.  476;  50  N.  Y.  Supp.  533.  But  a presen- 
tation of  a claim  to  a board  which  through  inadvertence  is  so  informal  or  de- 
fective as  to  justify  its  disallowance  for  that  reason,  is  not  a bar  to  a subse- 
quent representation  of  the  same  claim  in  proper  form.  People  ex  rel.  Andrus  v. 
Town  Auditors,  33  App.  Div.  277;  53  N.  Y.  Supp.  739. 

Mandamus  to  compel  issuance  of  certificate.  Where  a town  board  fails  to 
make  a certificate  that  it  has  allowed  claims  in  part  and  rejected  them  in  part, 
as  required  by  the  above  section,  a writ  of  mandamus  will  issue  to  compel  such 
action  by  the  board.  People  ex  rel.  Ripp  v.  Town  Board,  27  Misc.  469,  59  N.  Y. 
Supp.  248. 

A person  who  has  presented  a claim  against  a town  board  which  has  been  al- 
lowed in  part,  is  entitled  to  a writ  of  mandamus  commanding  the  town  board  to 
cause  duplicate  certificates  of  audit  to  be  made  and  delivered.  People  ex  rel. 
Remington  v.  Manning,  37  App.  Div.  141,  55  N.  Y.  Supp.  781. 

Compelling  audit  by  mandamus. — Where  a claim  presented  to  a board  of 
town  auditors  is  rejected  after  an  examination,  not  because  of  any  determination 
as  to  the  merits  thereof,  but  because  the  claimant  refused  to  appear  before  the 
board,  or  to  offer  any  other  evidence  in  support  of  the  claim  than  the  statutory 
affidavit,  the  action  of  the  town  board  is  tantamount  to  a refusal  to  audit  the 
claim,  and  the  claimant  is  entitled  to  a writ  of  mandamus  compelling  audit. 
People  ex  rel.  Rhodes  v.  Mole,  85  App.  Div.  33,  82  N.  Y.  Supp.  747. 

Where  a town  board  rejects  a claim  as  not  being  a town  charge  and  refuses 
to  consider  it  on  its  merits,  and  the  claimant  has  a clear  legal  right  to  have  it 
audited,  a mandamus  will  lie  to  compel  the  board  to  perform  its  duty.  Matter 
of  Ryan,  6 Misc.  478,  27  N.  Y.  Supp.  169. 


AUDITING  OF  TOWN  ACCOUNTS. 


381 


Town  Law,  § 133. 

directed  to  levy  and  raise  other  town  charges.7 


Such  determination  cannot  be  reviewed  by  mandamus  unless  the  claim  is  one 
existing  by  virtue  of  an  absolute  statutory  liability.  People  ex  rel.  Read  v.  Town 
Auditors,  85  Hun  114,  32  N.  Y.  Supp.  668.  But  see  People  ex  rel.  Slater  v.  Smith, 
83  Hun  432,  31  N.  Y.  Supp.  749. 

Audit  reviewable  by  certiorari  only.  The  hearing  by  a board  of  town  audi- 
tors of  a claim  against  the  town,  the  examination  and  discussion  of  the  ques- 
tion involved  and  the  rejection  of  the  claim  upon  the  ground  of  its  illegality, 
constitute  an  audit;  such  an  audit  is  a quasi-judicial  determination  of  the  claim 
and  is  reviewable  by  certiorari  only;  mandamus  will  not  lie  to  compel  the  board 
to  re-examine  and  allow  the  claim.  People  ex  rel.  McCabe  v.  Matthies,  179  N.  Y. 
242,  affg.  92  App.  Div.  16,  87  N.  Y.  Supp.  196. 

Where  the  board  has  acted  as  the  statute  directs,  its  determination  can  only  be 
reviewed  by  certiorari.  People  ex  rel.  Hamm  v.  Town  Auditors,  43  App.  Div.  22, 
59  N.  Y.  Supp.  615,  citing  People  ex  rel.  Govers  v.  New  Rochelle,  17  App.  Div. 
603,  45  N.  Y.  Supp.  836. 

A writ  of  certiorari  must  be  obtained  before  the  abstract  of  accounts  has  been 
delivered  to  the  board  of  supervisors,  as  that  is  the  last  act  of  the  board  of 
auditors.  People  ex  rel.  Cochrane  v.  Town  Auditors,  74  Hun  83,  26  N.  Y.  Supp. 
122.  Certiorari  will  issue  to  review  action  of  board  in  refusing  to  allow  the 
full  amount  of  a claim.  People  ex  rel.  Groton  Bridge  Co.  v.  Town  Board,  92 
Hun  585,  36  N.  Y.  Supp.  1062. 

A board  of  town  auditors  which  audited  a claim  on  a certain  day  reconsidered 
such  action  and  reaudited  the  claim,  although  a writ  of  certiorari  to  review  the 
original  audit  had  been  issued  prior  to  the  reconsideration.  Such  a writ  does 
not  bring  up  for  review  the  reaudit  of  the  claim,  but  the  fact  that  the  original 
audit  was  reconsidered  may  be  considered  by  the  court  on  the  return  of  the  writ. 
Matter  of  Weeks,  106  App.  Div.  45,  94  N.  Y.  Supp.  468. 

Where  a board  of  town  auditors  audited  and  allowed  certain  claims  for  work 
done  upon  a town  highway  under  the  direction  of  the  supervisor  of  the  town, 
and  without  authority  of  the  highway  commissioner,  certiorari  will  not  lie  at  the 
instance  of  the  highway  commissioner  either  individually  as  a taxpayer,  or  as 
such  officer,  to  review  such  action.  His  proper  remedy  as  a taxpayer  is  under 
§ 51  of  the  General  Municipal  Law.  Such  writ  should  also  be  dismissed  upon 
the  ground  that  the  claims  allowed  by  the  town  auditors  had  passed  beyond 
their  jurisdiction  into  that  of  the  board  of  supervisors,  which  board  was  not 
before  the  court.  People  ex  rel.  Cole  v.  Cross,  87  App.  Div.  56,  83  N.  Y.  Supp. 
1083. 

Certiorari  may  be  issued  after  four  months,  notwithstanding  the  provisions  of 
§ 2125  of  the  Code,  where  the  action  of  a town  board  upon  a claim  was  sought 
to  be  reviewed  by  mandamus,  and  the  determination  made  was  not  upon  the 
merits.  People  ex  rel.  McCabe  v.  Snedeker,  106  App.  Div.  89,  94  N.  Y.  Supp.  319, 
affd.  182  N.  Y.  558. 

The  determination  of  a town  board  will  not  be  overruled  by  the  court  unless 
error  clearly  appears.  People  ex  rel.  Oppenheimer  Pub.  Co.  v.  People,  81  Hun. 
383;  30  N.  Y.  Supp.  878. 

7.  Concurrent  jurisdiction  of  board  of  supervisors.  Under  the  Revised 
Statutes,  pt.  1,  ch.  12,  tit.  2,  sec.  4,  boards  of  supervisors  were  authorized  to 


382 


TOWN  BOARD. 


Town  Law,  §§  133a,  177. 

Immediately  after  final  adjournment  of  the  annual  meeting  of  the  town 
hoard  or  board  of  town  auditors  the  town  clerk  shall  prepare  a copy  of  such 
list  or  abstract  and  attach  thereto  a certificate  subscribed  by  him  to  the 
effect  that  the  same  is  a true  and  complete  record  of  accounts,  charges, 
claims  and  demands  presented  to  the  board  for  audit  and  of  the  action  of 
said  board  thereon,  and  shall  cause  to  be  printed  in  pamphlet  form  and 
kept  in  his  office  for  general  distribution  to  applicants  such  reasonable  num- 
ber of  copies  of  said  list  as  the  town  board  shall  by  resolution  prescribe. 
Such  resolution  shall  also  provide  for  the  publication  or  posting,  or  both, 
in  the  town,  in  a suitable  manner,  of  public  notice  of  the  completion  of 
said  printed  list  and  of  the  place  where  copies  can  be  obtained.  The  town 
clerk  shall  receive  a fee  of  ten  cents  per  folio  for  preparing  said  list. 

Notwithstanding  any  general  or  special  provision  of  law  to  the  contrary, 
the  town  board  or,  if  there  be  a board  of  town  auditors,  then  the  board 
of  town  auditors  shall  have  the  authority  to  audit  accounts,  claims  or  de- 
mands against  the  town  at  any  regular  or  special  meeting  of  the  board. 
[Town  Law,  § 133,  as  amended  by  L.  1910,  ch.  316,  and  L.  1918,  ch.  73 ; 
B.  C.  & G.  Cons.  L .,  p.  6184.] 

Duty  of  town  clerk . When  the  town  board  or,  if  there  be  a board  of 
town  auditors,  then  that  body,  shall  have  audited  an  account,  claim  or  de- 
mand against  the  town,  the  town  clerk  shall  draw  a warrant  on  the  super- 
visor of  the  town  for  the  amount  allowed.  Such  warrant  shall  specify  the 
date  when  it  is  payable,  the  fund  chargeable  therewith,  the  appropriation 
account,  if  any,  to  which  it  is  to  be  charged  and  the  purpose  or  object  of  the 
expenditure.  It  shall  be  executed  in  the  name  of  the  town  board  or  board  of 
town  auditors,  as  the  case  may  be,  by  the  chairman  thereof,  and  counter- 
signed by  the  town  clerk.  [Town  Law,  § 133a,  as  added  by  L.  1918,  ch.  73.] 

§ 4.  APPEALS  FROM  TOWN  BOARD  TO  BOARD  OF  SUPERVISORS 
FROM  AUDIT  OF  ACCOUNTS  OF  JUSTICES  OF  THE  PEACE 
AND  CONSTABLES  IN  CRIMINAL  PROCEEDINGS. 

If  any  account  of  a justice  of  the  peace,  or  town  constable,  police  justice 
of  a village  or  village  policeman,  for  fees  in  criminal  proceedings,  is  audited 


audit  the  accounts  of  town  officers  and  other  persons  against  their  respective 
towns.  This  section  of  the  Revised  Statutes  was  repealed  by  the  County  Law, 
and  in  sec.  12  of  that  act,  sub.  3,  boards  of  supervisors  .are  authorized  to  audit 
accounts  and  charges  against  the  county  only.  It  would  seem,  therefore,  that 


AUDITING  OF  TOWN  ACCOUNTS. 


383 


Town  Law,  § 177. 

by  a town  board  of  any  town,  any  taxpayer  of  the  town  may  appeal  from 
the  auditing  and  allowance  to  the  board  of  supervisors  of  the  county,  and 
the  board  of  supervisors  may  audit  and  allow  such  account.  If  the  account 
shall  be  disallowed,  or  the  amount  thereof  reduced,  the  party  presenting 
the  same  shall  have  the  same  right  of  appeal  as  above  provided.8  The  ap- 
peal shall  be  taken  within  fifteen  days  after  filing  the  certificate  of  allow- 
ance or  disallowance  of  an  account  by  the  town  board,  in  whole  or  in  part, 
by  the  service  of  a notice  of  appeal  in  writing  on  the  town  clerk  and  the 
clerk  of  the  board  of  supervisors  f and  the  town  clerk  shall  forthwith  there- 
after transmit  the  account  to  the  board  of  supervisors  of  the  county,  to  be 
audited  and  allowed  by  them;  and  the  town  board  shall  have  no  further 
jurisdiction  over  the  account  after  the  service  of  the  notice  of  appeal.  Such 
part  of  such  accounts  as  the  board  of  supervisors  shall  allow,  shall  be  as- 
sessed and  collected  the  same  as  other  town  charges.10  [Town  Law,  § 177; 
as  amended  by  L.  1910,  ch.  61,  B.  C.  & G.  Cons.  L.,  p.  6199.] 


the  power  of  boards  of  supervisors  to  audit  town  accounts  no  longer  exists.  See 
under  former  lawr,  McCrea  v.  Chahoon,  54  Hun,  577;  8 N.  Y.  Supp.  88.  The  only 
duty  which  remains  for  the  board  of  supervisors  after  the  audit  of  a town  account 
by  a town  auditing  board  is  to  cause  to  be  levied  and  raised  upon  the  towTn 
the  amounts  specified  in  the  certificates  of  the  town  boards. 

8.  Right  to  appeal.  The  right  given  to  appeal  from  the  action  taken  by  a town 
board  in  respect  to  accounts  of  justices  of  the  peace  or  town  constables  for  fees 
in  criminal  proceedings  does  not  affect  the  right  to  compel  an  audit  of  an  account 
by  mandamus.  People  ex  rel.  Fraser  v.  Broad  of  Auditors,  71  Hun  461;  24  N.  Y. 
Supp.  974;  People  ex  rel.  Misselpaugh  v.  Town  Auditors,  1 How.  (N.  S.)  224. 

9.  Notice  of  appeal  to  claimant.  Where  an  appeal  is  taken  by  taxpayers  to 
the  board  of  supervisors  from  a determination  of  a board  of  town  auditors  allow- 
ing a claim  filed  against  the  town,  notice  of  such  appeal  is  not  required  to  be  given 
to  the  claimant;  the  section  is  not  unconstitutional  because  it  neglects  to  require 
such  notice.  The  board  of  supervisors  is- not  required,  upon  the  appeal,  to  sum- 
mon the  claimant  to  appear  personally  and  explain  the  items  of  his  account. 
People  ex  rel.  Rice  v.  Supervisors,  98  App.  Div.  390,  90  N.  Y.  Supp.  318. 

For  form  of  notice  of  appeal  to  board  of  supervisors,  see  Form  No.  30,  post. 

10.  Audit  by  the  board  of  supervisors  in  the  first  instance  is  not  authorized. 
Kept,  of  Atty.  Genl.  (1894)  361. 

Waiver  of  judicial  review.  Where  a town  constable  after  audit  by  the  town  board 
and  by  the  board  of  supervisors,  after  appeal  to  them,  accepts  payment  of  the 
amount  allowed,  he  waives  right  to  a judicial  review  of  the  items  disallowed;  and 
it  makes  no  difference  that  a protest  was  made,  whether  he  took  it  as  payment 
in  full  or  as  part  payment,  or  whether  the  payment  was  not  accepted  until  after 


384 


TOWN  BOARD. 


Town  Law,  §§  107,  107a. 


§ 5.  ACCOUNTS  OF  JUSTICES  IN  CRIMINAL  MATTERS,  WHAT  TO 
CONTAIN. 

The  accounts  rendered  by  justices  of  the  peace  for  services  in  criminal 
proceedings  shall,  in  all  cases,  contain  the  name  and  residence  of  the 
complainant,  the  offense  charged,  the  action  of  the  justice  on  such  com- 
plaint, the  constable  or  officer  to  whom  any  warrant  on  such  complaint 
was  delivered,  whether  the  person  charged  was  or  was  not  arrested,  and 
whether  an  examination  was  waived  or  had,  and  witnesses  sworn  thereon ; 
and  the  account  shall  also  show  the  final  action  of  the  justice  in  the  prem- 
ises.11 [Town  Law,  § 107;  B.  C.  & G.  Cons.  L.,  p.  6172.] 

§ 5a.  SALARY  OF  JUSTICES  OF  THE  PEACE  IN  LIEU  OF  FEES  IN 
CRIMINAL  CASES. 

The  town  board  of  any  town  containing  a population  of  twenty  thou- 
sand or  more  according  to  the  last  preceding  federal  census  may,  in  its  dis- 
cretion, by  resolution,  provide  that  the  justices  of  the  peace  in  such  town 
shall  from  the  date  of  the  adoption  of  such  resolution  receive  an  annual 
salary  as  fixed  therein,  not  exceeding  the  sum  of  fifteen  hundred  dollars, 
for  all  services  rendered  by  them  in  criminal  actions  or  proceedings  had 
before  them  as  such  justices  of  the  peace  in  which  a charge  would  other- 
wise be  made  against  the  town  or  county.  The  board  of  town  auditors  of 
any  town  having  a board  of  town  auditors  and  containing  a population  of 
more  than  eight  thousand  and  less  than  twenty  thousand  in  a county  hav- 
ing a population  of  more  than  one  hundred  and  seventy-five  thousand  and 
less  than  two  hundred  thousand,  according  to  the  last  preceding  federal 
census,  may,  in  its  discretion,  by  resolution,  provide  that  the  justices  of 


the  determination  of  the  hoard  of  supervisors.  People  ex  rel.  Long  v.  Board  of 
Supervisors,  120  App.  Div.  552,  105  N.  Y.  Supp.  19. 

Inclusion  of  claim  in  tax-roll.  The  inclusion  by  the  board  of  supervisors  in  the 
tax-roll  of  a town,  of  the  amount  of  a constable’s  claim  against  the  town,  as 
audited  by  the  town  board,  pending  an  appeal  to  such  board  of  supervisors  by  two 
taxpayers  of  the  town  from  such  audit,  pursuant  to  the  above  section  when  such 
claim  upon  such  appeal  was  rejected  by  the  board  of  supervisors,  does  not  authorize 
the  payment  of  the  claim  by  the  collector,  although  the  amount  thereof  is  raised  by 
levy.  Adams  v.  Town  of  Wheatfield,  46  App.  Div.  466;  61  N.  Y.  Supp.  738. 

11.  For  form  of  justices’  accounts  against  a town  in  criminal  matters,  see  Form 
No.  31,  post. 


AUDITING  OF  TOWN  ACCOUNTS. 


384a 


Town  Law,  § 107b. 

the  peace  in  such  town  shall  from  the  date  of  the  adoption  of  such  resolu- 
tion receive  an  annual  salary  as  fixed  therein,  not  exceeding  the  sum  of  six 
hundred  dollars  each,  for  all  services  rendered  by  them  in  criminal  actions  or 
proceedings  had  before  them  as  such  justices  of  the  peace  in  which  a charge 
would  otherwise  be  made  against  the  town.  Such  annual  salary  shall  be 
in  lieu  of  all  charges  and  fees  under  section  seven  hundred  and  forty-a  of 
the  code  of  criminal  procedure  or  any  other  statute,  which  would  otherwise 
be  chargeable  against  the  town  or  county  for  services  in  criminal  actions 
or  proceedings.  The  amount  of  such  salary  shall  be  a town  charge,  pay- 
able monthly  by  the  supervisor  of  such  town  out  of  any  moneys  in  his  hands 
applicable  thereto,  and  receipts  therefor  shall  be  presented  by  the  supervisor 
to  the  board  of  town  auditors,  and  shall  if  found  to  be  correct  be  audited 
and  allowed  at  the  amount  thereof.  [Town  Law,  § 107a,  as  added  by  L. 
1915,  ch.  11,  and  amended  by  L.  1917,  ch.  418.] 

Salary  of  justices  of  the  peace  in  lieu  of  fees  in  criminal  cases.  1.  The 
town  board  of  any  town  in  a county  having  a population  of  over  three  hun- 
dred thousand  inhabitants  adjoining  a city  of  the  first  class  having  a popu- 
lation of  over  one  million  inhabitants,  such  justice  not  sitting,  may,  in  its 
discretion,  by  resolution  provide  that  any  justice  of  the  peace  in  such  town 
shall,  from  the  date  of  the  adoption  of  such  resolution,  receive  an  annual 
salary  as  fixed  therein  not  exceeding  the  sum  or  rate  of  fifty  dollars  for  each 
one  thousand  population  or  major  fraction  thereof  within  such  town,  to 
be  determined  according  to  the  last  preceding  state  census,  for  all  services 
rendered  by  him  in  criminal  actions  or  proceedings  had  before  him  as  such 
justice  of  the  peace,  in  which  a charge  would  otherwise  be  made  against 
the  town,  or  county.  Such  annual  salary  shall  be  in  lieu  of  all  charges  and 
fees  under  section  seven  hundred  and  forty-a  of  the  code  of  criminal  pro- 
cedure or  any  other  statute,  which  would  otherwise  be  chargeable  against 
the  town  or  county  for  services  in  criminal  actions  or  proceedings.  The 
amount  of  such  salary,  when  so  fixed,  shall  be  a town  charge  payable 
monthly  by  the  supervisor  of  such  town  out  of  any  moneys  in  his  hands 
applicable  thereto  and  receipts  therefor  shall  be  presented  by  the  supervisor 
to  the  board  of  town  auditors  and  shall,  if  found  to  be  correct,  be  audited 
and  allowed  at  the  amount  thereof,  but  no  annual  salary  as  herein  provided 
shall  exceed  the  sum  of  twelve  hundred  dollars. 

2.  Each  such  justice  of  the  peace  shall  keep  an  account  of  all  criminal 
business  done  by  him  which  by  law  is  now  made  a charge  upon  the  county, 
and  the  same  shall  be  audited  in  like  manner  as  other  charges  and  ordered 


384b 


TOWN  BOARD. 


Town  Law,  § 171. 

paid  to  the  supervisor  of  such  town.  [Town  Law,  § 107b,  as  added  by  L. 
1918,  ch.  398.] 

§ 6.  FEES  OF  OFFICERS  IN  CRIMINAL  PROCEEDINGS,  WHEN 
TOWN  OR  COUNTY  CHARGE. 

The  fees  of  magistrates  and  other  officers  for  services  in  criminal  pro- 
ceedings, for  or  on  account  of  an  offense  which  a court  of  special  sessions 
has  not  jurisdiction  to  try,  shall  be  a county  charge,  if  the  magistrate  had 
jurisdiction  of  the  proceedings  in  which  the  services  were  rendered.  The 
fees  of  magistrates  and  other  officers  in  other  criminal  proceedings,  or  in 
criminal  actions  tried  before  a magistrate  of  the  town  where  the  offense  is 
charged  to  have  been  committed  shall  be  a charge  against  such  town. 
The  fees  of  a magistrate  or  officer  in  issuing  or  serving  process  for  an  of- 
fense committed  in  a town  other  than  that  in  which  such  magistrate 
resides,  and  of  which  a court  of  special  sessions  has  jurisdiction  to  try, 
or  which  a magistrate  has  jurisdiction  to  hear  and  determine,  and  the  fees 
of  a magistrate  in  the  trial  or  examination  of  a person  brought  before 
him  by  reason  of  the  absence  or  inability  to  act  of  the  magistrate  before 
whom  he  is  directed  by  the  warrant  to  be  brought,  charged  with  such  an 
offense  committed  in  a town  other  than  that  in  which  the  magistrate 
before  whom  such  person  is  brought  resides,  shall,  in  either  case,  be  a 
charge  against  the  town  in  which  such  offense  was  committed.12  Except 


12.  The  purpose  of  the  statute  is  primarily  to  make  the  expenses  of  the  criminal 
cases  follow  the  jurisdiction  and  locality  of  the  offense.  People  ex  rel.  McGrath 
v.  Supervisors,  119  N.  Y.  126;  23  N.  E.  489.  The  jurisdiction  of  courts  of  special 
sessions  is  prescribed  by  section  56  of  the  Code  of  Criminal  Procedure,  and  in- 
cludes a large  part,  if  not  all,  of  the  several  offenses  classed  as  misdemeanors.  1’n 
the  trial  of  all  crimes  mentioned  in  such  section  the  fees  of  the  magistrates  and 
other  officers  are  chargeable  against  the  town  where  the  offense  is  charged  to  have 
been  committed. 

County  charges.  The  fees  of  magistrates  and  other  officers  in  proceedings  for 
the  examination  and  commitment  of  persons  charged  with  a felony  or  with 
offenses  not  specified  in  such  section  56  of  the  Code  of  Criminal  Procedure  are 
chargeable  against  the  county.  In  the  case  of  People  ex  rel.  Post  v.  Supervisors 


AUDITING  OF  TOWN  ACCOUNTS. 


385 


Town  Law,  § 171. 

as  nrovided  in  this  section  no  fees  shall  he  allowed  either  as  a town  or 
county  charge  to  a magistrate  or  other  officer,  for  services  in  a criminal 
action  or  proceeding,  before  a magistrate  of  one  town  for  or  on  account 
of  an  offense  charged  to  have  been  committed  in  another  town,  and  which 
a court  of  special  sessions  has  jurisdiction  to  try,  or  which  a magistrate 
has  jurisdiction  to  hear  and  determine.  The  fees  of  a magistrate  and 
the  fees  and  mileage  of  a peace  officer  in  connection  with  the  arrest, 
examination,  conviction  and  commitment  of  a tramp,  or  of  a vagrant  un- 
der subdivisions  one,  five  or  six  of  section  eight  hundred  and  eighty- 
seven  of  the  code  of  criminal  procedure,  or  of  a person  charged  with  a 
violation  of  section  nineteen  hundred  and  ninety  of  the  penal  law,  and 
any  other  criminal  action  or  proceeding  of  which  a court  of  special  ses- 
sions has  jurisdiction  to  try,  or  which  a magistrate  has  jurisdiction  to 
hear  and  determine,  may  be  fixed  by  the  board  of  town  auditors,  if  any, 
and  otherwise  by  the  town  hoard  of  the  town,  or  the  hoard  of  super- 
visors of  the  county,  to  which  the  same  are  chargeable,  not  exceeding  the 
amount  now  allowed  by  law;  and  when  so  fixed,  shall  supersede  as  to 
such  town  or  county  any  other  provision  of  law  fixing  fees  or  mileage  in 
such  case.  13  [Town  Law,  § 171,  as  amended  by  L.  1909,  ch.  523,  and 
L.  1913,  ch.  Ill;  B.  C.  and  G.  Cons.  L.,  p.  6196.] 

of  Ontario,  4 Denio,  260,  it  was  held  that  fees  of  magistrates  are  a charge  upon 
the  county:  (1)  Where  the  proceedings  are  not  had  in  the  county  in  which  the 
offense  was  committed;  (2)  where  the  proceedings  are  for  felony;  (3) where  the 
proceedings  or  trial  for  the  offense  is  had  in  the  County  or  Supreme  Court.  In 
all  other  cases  the  expense  is  a town  charge. 

The  expense  of  transporting*  prisoners  convicted  in  court  of  special  sessions 
in  a town  is  a town  charge.  People  ex  rel.  McGrath  v.  Supervisors  of  West- 
chester, 119  N.  Y.  126,  129.  Transportation  of  juvenile  delinquents  to  a house 
of  refuge  upon  their  conviction  and  sentence  by  a justice  of  the  peace  is  a town 
charge.  People  ex  rel.  Andrus  v.  Town  Auditors,  33  App.  Div.  277,  53  N.  Y. 
Supp.  739. 

Sheriff’s  fees  for  boarding  prisoners  are  county  charges.  Ross  v.  Supervisors 
of  Cayuga,  38  Hun  20;  People  ex  rel.  Van  Tassel  v.  Supervisors  of  Columbia,  67 
N.  Y.  330.  But  the  fees  of  a deputy  sheriff  acting  as  a peace  officer  are  a town 
charge.  People  ex  rel.  White  v.  Clinton,  28  App.  Div.  478,  51  N.  Y.  Supp.  115. 

Fees  of  a justice  of  the  peace  are  a town  charge.  People  ex  rel.  Fraser  v.  Bd. 
of  Auditors,  71  Hun  461,  24  N.  Y.  Supp.  974. 

13.  Vagrants  defined.  The  subdivisions  of  section  887  of  the  Code  of 
Criminal  Procedure  referred  to  in  the  above  section  are  as  follows:  “ The  follow- 
ing persons  are  vagrants:  1.  A person  who,  not  having  visible  means  to  main- 

tain himself,  lives  without  employment;  5.  A person  wandering  abroad  and 
begging,  or  who  goes  about  from  door  to  door,  or  places  himself  in  the  streets, 
highways,  passages,  or  other  public  places,  to  beg  or  receive  alms;  6.  A person 
wandering  abroad  and  lodging  in  taverns,  groceries,  ale  houses,  watch  or  station 
houses,  outhouses,  market  places,  sheds,  stables,  barns  or  uninhabited  buildings, 
or  in  the  open  air,  and  not  giving  a good  account  of  himself.” 

The  intent  of  the  above  provision  as  to  the  arrest  of  vagrants  under  such  sub- 
divisions of  such  section  is  to  permit  the  town  board,  or  board  of  supervisors  of 


TOWN  BOARD. 


386 


Town  Law,  § 175. 

§ 7.  FORM  OF  ACCOUNTS;  VERIFICATION  BY  AFFIDAVIT  OF 
CLAIMANT;  SAVING  CLAUSE. 

No  account  shall  be  audited  by  any  board  of  town  auditors  or  supervisors 
or  superintendent  of  the  poor  for  any  services  or  disbursements  unless  such 
account  shall  be  made  out  in  items  and  accompanied  with  an  affidavit 
attached  thereto,  and  to  be  filed  with  such  account,  made  by  the  person 


the  county,  to  fix,  in  such  cases,  the  fees  and  mileage  of  officers  for  duties  per- 
formed in  connection  with  the  arrest  of  such  persons. 

Tramp  defined.  By  section  887a  of  the  Code  of  Criminal  Procedure  a tramp 
is  defined  as  “ any  person,  not  blind,  over  sixteen  years  of  age,  and  who  has  not 
resided  in  the  county  in  which  he  may  be  at  any  time  for  a period  of  six  months 
prior  thereto,  who:  1.  Not  having  visible  means  to  maintain  himself  lives 
without  employment;  or,  2,  wanders  abroad  and  begs  or  goes  about  from  door  to 
door,  or  places  himself  in  the  streets,  highways,  or  passages  or  public  places  to 
beg  or  receive  alms;  or,  3,  wanders  abroad  and  lodges  in  taverns,  groceries,  ale 
houses,  watch  or  station  houses,  outhouses,  market  places,  sheds,  stables,  barns 
or  inhabited  buildings,  or  in  the  open  air,  and  does  not  give  a good  account  of 
himself.” 

By  Penal  Law,  § 2370,  it  is  provided  that:  “ Every  tramp,  upon  conviction  as 

such,  shall  be  punished  by  imprisonment  at  hard  labor  in  the  nearest  peniten- 
tiary for  not  more  than  six  months,  and  the  expense  during  such  imprisonment 
shall  be  paid  by  the  state  at  the  rate  of  thirty  cents  per  day  per  capita.” 

It  follows,  therefore,  that  where  a person  is  arrested  and  convicted  as  a tramp 
he  must  be  committed  to  a penitentiary  and  is  there  supported  at  the  expense 
of  the  state.  A person  convicted  as  a vagrant  under  subs.  1,  5 and  6 of  sec.  887 
of  the  Code  of  Criminal  Procedure,  if  committed  to  a penitentiary,  would  be 
there  supported  at  the  expense  of  the  county  from  which  he  is  sent. 

In  the  county  of  Ulster  the  fees  of  officers  in  the  arrest,  trial  or  examination 
of  persons  charged  with  a criminal  offense  are  in  every  case  a charge  against 
the  town  in  which  the  offense  was  committed,  and  the  above  section  of  the  Town 
Law,  and  subs.  6 and  14  of  sec.  240  of  the  County  Law  do  not  apply  to  such 
county. 

Sections  172  to  174  of  the  Town  Law  control  this  question  in  the  county  of 
Ulster.  Such  sections  are  as  follows: 

§ 172.  Fees  if  officers  in  Ulster  County.  In  the  county  of  Ulster  the  fees  of 
magistrates  and  other  officers  in  criminal  proceedings,  or  in  criminal  actions 
tried  before  a magistrate  of  any  town  in  such  county  where  the  offense  is 
charged  to  have  been  committed,  shall  be  a charge  against  such  town.  The 
fees  of  a magistrate  or  officer  in  issuing  or  serving  process  for  an  offense  com- 
mitted in  a town  in  such  county  other  than  that  in  which  such  magistrate 
resides,  and  the  fees  of  a magistrate  in  the  trial  or  examination  of  a person 
brought  before  him  by  reason  of  the  absence  or  inability  to  act  of  the  magistrate 
before  whom  he  is  directed  by  the  warrant  to  be  brought,  charged  with  such  an 
offense  committed  in  a town  in  such  county  other  than  that  in  which  the  magis- 
trate before  whom  such  person  is  brought  resides,  shall,  in  either  case,  be  a 
charge  against  the  town  in  which  the  such  offense  was  committed.  Except  as 
provided  in  this  section  no  fees  shall  be  allowed  to  a magistrate  or  other 


AUDITING  OF  TOWN  ACCOUNTS. 


387 


Town  Law,  § 175. 

presenting  or  claiming  the  same,  that  the  items  of  such  account  are  correct 
and  that  the  disbursements  and  services  charged  therein  have  been  in  fact 
made  or  rendered  or  are  necessary  to  be  made  or  rendered  at  that  session 
of  the  board,  and  stating  that  no  part  thereof  has  been  paid  or  satisfied; 
and  the  chairman  of  the  board  or  either  of  the  superintendents  may  ad- 
minister any  oath  required  under  this  section.14  Nothing  in  this  section 


officer  for  services  in  a criminal  action  or  proceeding  before  a magistrate  of  one 
town  in  such  county  for  or  on  account  of  an  offense  charged  to  have  been  com: 
mitted  in  another  town  therein.  The  fees  of  a magistrate  and  the  fees  and 
mileage  of  a peace  officer  in  connection  with  the  arrest,  examination,  convic- 
tion and  commitment  of  a tramp,  or  of  a vagrant  under  subdivision  one,  five  or 
six  of  section  eight  hundred  and  eighty-seven  of  the  code  of  criminal  procedure, 
may  be  fixed  by  the  board  of  town  auditors,  if  any,  and  otherwise  by  the  town 
board  of  the  town  in  such  county  to  which  the  same  are  chargeable,  not  exceed- 
ing the  amount  now  allowed  by  law;  and  when  so  fixed,  shall  supersede  as  to 
such  town  any  other  provision  of  law  fixing  fees  or  mileage  in  such  case. 

§ 173.  Constable’s  fees  in  Ulster  county.  In  the  county  of  Ulster,  the  com- 
pensation allowed  by  law  to  constables  and  other  officers,  for  executing  process 
on  persons  charged  with  a felony,  for  services  and  expenses  in  conveying  such 
persons  to  the  jail  in  such  county,  and  for  other  services  in  relation  to  criminal 
proceedings  and  the  support  of  prisoners  in  transit,  for  which  no  specific  com- 
pensation is  prescribed  by  law,  shall  be  a charge  upon  the  town  in  such  county 
where  the  crime  was  committed.  The  charges  and  accounts  for  services  ren- 
dered by  justices  of  the  peace  in  any  town  in  such  county,  in  the  examination 
of  felons,  and  in  other  proceedings  mentioned  in  section  one  hundred  and 
seventy-one  shall  be  a charge  upon  the  town  wherein  the  crime  was  committed, 
and  shall  be  paid  in  the  same  manner  as  other  town  charges. 

§ 174.  Exception.  The  provisions  of  section  one  hundred  and  seventy-one  of 
this  chapter  and  of  subdivisions  six  and  fourteen  of  section  two  hundred  and 
forty  of  the  county  law,  as  far  as  they  are  inconsistent  with  the  provisions  of 
the  last  two  sections,  shall  not  apply  to  the  county  of  Ulster  or  any  of  the  towns 
therein. 

14.  Accounts  against  county.  Section  24  of  the  County  Law,  ante,  also 
provides  that  no  account  shall  be  audited  by  a board  of  supervisors  or  by  super- 
intendents of  the  poor  unless  it  shall  be  made  out  in  items  and  verified. 

For  form  of  accounts  of  town  officers  and  verification  thereof,  see  Form  No. 
32,  post.  For  form  of  certificate  of  examination  of  town  officers’  accounts,  see 
Form  No.  33,  post.  For  form  of  affidavit  to  be  annexed  to  account  presented 
to  town  board  for  audit,  see  Form  No.  34,  post. 

Defective  accounts.  The  town  board  may  refuse  to  audit  an  account  unless 
it  is  in  the  form  prescribed  by  statute.  See  People  ex  rel.  Mason  v.  Board  of 
Supervisors,  45  Hun,  62.  If  an  account  is  not  in  proper  form  the  board  would 
not  be  justified  in  absolutely  rejecting  the  claim  and  thus  deprive  the  claimant 
of  that  which  might  be  honestly  and  fairly  due  to  him.  The  board  should  permit 
the  claimant  to  withdraw  his  claim  and  present  it  in  the  form  and  manner 
prescribed  by  the  statute.  As  we  have  already  seen  a presentation  of  a claim 
which,  through  inadvertence,  is  so  informal  or  defective  as  to  justify  its  dis- 


3 88 


TOWN  BOARD. 


Town  Law,  § 170 

shall  be  construed  to  prevent  any  board  from  disallowing  any  account,  in  whole  or 
in  part,  when  so  rendered  and  verified,  nor  from  requiring  any  other  or  further 
evidence  of  the  truth  and  propriety  thereof,  as  such  board  may  think  proper 
[Town  Law,  § 175;  B.  C.  & G.  Cons/L.,  p.  6198.]  r 

§ 8.  TOWN  CHARGES,  WHAT  ARE. 

The  following  shall  be  deemed  town  charges: 

1.  The  compensation  of  town  officers  for  services  rendered  for  their  respective 

towns.16 

2.  The  contingent  expenses  necessarily  incurred  for  the  use  and  benefit  of  the 
town, 1?  and  all  moneys  necessarily  expended  by  any  town  officer  in  executing  the 
duties  of  his  office,  in  cases  where  no  specific  compensation  for  such  service  is°  pro- 
vided by  law,  and  including  in  any  town  having  a population,  as  appears  by  the 
last  federal  census  of  five  thousand  or  more,  and  where  the  assessed  valuation  of 
real  estate  in  such  town  is  over  five  million  dollars,  the  actual  and  necessary  ex- 
penses of  such  town  officers  for  vehicle  hire,  traveling  expenses,  office  rent,  janitor 
service,  light,  heat,  telephone,  postage,  furniture,  stationery  or  supplies,  as  may  be 
incurred  by  authority  of  the  town  board  of  such  town. 


allowance  for  that  reason,  is  not  a bar  to  a subsequent  re-presentation  of  the 
same  claim  in  proper  form.  People  ex  rel.  Andrus  v.  Town  Auditors,  33  App. 
Div.  277;  53  N.  Y.  Supp.  739. 

Where  bills  against  a town  are  presented  in  such  a manner  that  the  auditing 
board  is  unable  to  separate  the  illegal  from  the  legal  charges,  it  is  its  duty  to 
refuse  to  audit  any  of  the  charges.  Matter  of  Town  of  Hempstead,  36  App.  Div. 
321,  337,  55  N.  Y.  Supp.  345,  affd.  160  N.  Y.  685. 

Verification.  After  audit  objection  cannot  be  made  that  items  were  not 
verified.  People  ex  rel.  Sherman  v.  Bd.  of  Sup’rs,  30  How.  Pr.  173. 

15.  See  notes  to  section  133  of  the  Town  Law,  ante,  relating  to  the  manner 
of  auditing  accounts  by  towrn  board. 

Subsequent  audit  of  claim  rejected  for  defect.  If  a claim  was  disallowed 
because  it  was  improper  or  defective  in  form  as  where  it  was  neither  verified 
nor  itemized  as  required  by  this  section,  or  if  the  claim  disallowed  was  pre- 
sented without  the  authority  of  the  claimant,  the  town  board  may  pass  upon  it 
when  again  presented  in  proper  form  by  the  claimant  himself.  People  ex  rel. 
Brooklyn  Cooperage  Co.  v.  King,  116  App.  Div.  89,  101  N.  Y.  Supp.  782. 

16.  Compensation  of  town  officers  generally  is  prescribed  by  section  85  of  the 
Town  Law,  post. 

Claim  for  statutory  percentages  on  moneys  paid  out  by  a supervisor  should 
be  audited.  People  ex  rel.  Acheson  v.  Bullard,  146  App.  Div.  282. 

Bills  of  constables  for  certain  services  are  town  charges.  Osterhout  v.  Hy- 
land, 27  Hun,  167,  172,  affd.  98  N.  Y.  222. 

Compensation  of  superintendent  of  highways  is  a town  charge.  Rept.  of 
Atty.  Genl.  (1903)  263.  But  his  expenses  in  excess  of  his  annual  appropriation 
are  not  a town  charge.  Rept.  of  Atty.  Genl.  (1902)  258. 

17.  Contingent  expenses.  Services  performed  by  a supervisor  in  advising  and 
directing  overseers  of  the  poor  and  in  consulting  with  highway  commissioners 
and  town  assessors  and  in  employing  counsel  in  proceedings  taken  to  compel 
the  board  of  supervisors  to  correct  the  town  assessment-roll  do  not  come  under 
the  head  of  contingent  expense  necessarily  incurred  for  the  use  and  benefit  of 
the  town.  People  ex  rel.  Keeffe  v.  Town  Auditors,  24  App.  Div.  579;  49  N.  Y. 
Supp.  525,  affd.  156  N.  Y.  689;  People  ex  rel.  Coon  v.  Wood,  35  N.  Y.  St.  Rep. 
840,  12  N.  Y.  Supp.  436.  The  contingent  expenses  referred  to  are  evidently 
those  which  town  officers  have  incurred  in  the  actual  performance  of  their 


AUDITING  OF  TOWN  ACCOUNTS. 


389 


Town  Law,  § 170. 


3.  The  moneys  authorized  to  be  raised  by  the  vote  of  a town  meeting  for  any 
town  purpose. 

4.  Every  sum  directed  by  law  to  be  raised  for  any  town  purpose.*9 

5.  All  judgments  duly  recovered  against  a town. 

6.  All  damages  recovered  against  a town  officer  for  any  act  done  pursuant  to  a 
direction  or  resolution,  duly  adopted  by  the  town  board,  or  at  a town  meeting  duly 
held;  and  all  damages  against  any  such  officer  for  any  act  done  in  good  faith, 
in  his  official  capacity,  without  any  such  direction  or  resolution,  may  be  made  a 
town  charge,  by  a vote  of  the  town,  at  a town  meeting  duly  held.*9 

7.  The  costs  and  expenses  lawfully  incurred  by  any  town  officer  in  prosecuting  or 
defending  any  action  or  proceeding  brought  by  or  against  the  town  or  such  officer  for 
an  official  act  done,  shall  be  a town  charge  in  all  cases  where  the  officer  is  required  by 
law  to  so  prosecute  or  defend,  or  to  do  such  act,  or  is  instructed  to  so  prosecute  or 
defend,  or  do  such  act,  by  resolution  duly  adopted  by  the  town  board,  or  at  a town 
meeting  duly  held.20  All  town  charges  specified  in  this  section  shall  be  presented 


duties,  and  which  unless  paid  by  the  town  would  result  in  pecuniary  loss  to  the 
officers  themselves. 

Contingent  expenses  are  those  which  the  commissioners  could  not  ascertain.  Ex- 
penses which  were  unknown,  which  were  uncertain,  and  which  might  or  might  not 
be  incurred  thereafter.  People  v.  Yonkers,  39  Barb.  266,  272. 

An  amount  alleged  to  be  due  under  an  agreement  for  the  support  of  a pauper 
child  is  a town  charge,  and  under  the  above  section  the  exclusive  remedy  of  the 
claimant  is  to  present  his  claim  to  the  town  board  for  audit,  and  to  review  their 
action  by  certiorari  or  mandamus.  Goodfriend  v.  Town  of  Lyme,  90  App.  Div. 
344,  86  N.  Y.  Supp.  422. 

Payment  of  bridge  tenders  to  operate  a lift  bridge  over  the  Erie  canal  is  not 
a town  charge.  Matter  of  Town  of  Ridgeway  v.  Treman,  72  Misc.  452. 

Employment  of  assistants  by  board  of  assessors.  There  is  no  authority  in  the 
law  for  the  employment  by  the  board  of  town  assessors  of  a clerk  or  other  as- 
sistant, nor  has  the  town  board  any  power  to  authorize  the  employment  by  the 
town  assessors  of  a clerk  or  other  assistant.  People  ex  rel.  Anderson  v.  Snedeker 
(1912),  75  Misc.  194. 

Traveling  expenses  of  members  of  town  boards.  The  town  board  of  a town  hav- 
ing a population  of  more  than  5,000  and  in  which  the  assessed  valuation  of  real 
property  is  more  than  $5,000,000,  may  not  lawfully  adopt  a fixed  or  stated  allowance 
per  mile  to  be  paid  to  members  of  the  town  board  for  the  use  of  their  own  con- 
veyances, in  lieu  of  actual  expenses  incurred  in  traveling  from  their  residences 
to  the  meetings  of  the  town  board.  Opinion  of  State  Comptroller  (1916),  8 State 
Dept.  Rep.  564. 

Expenses  of  a justice  of  the  peace  in  traveling  to  and  from  meetings  are  not  a 

town  charge  for  “specific  compensation”  as  provided  by  law.  Opinion  of  State 
Comptroller  (1916),  8 State  Dept.  Rep.  575. 

18.  Appropriation  of  town  moneys.  Where  town  moneys  have  been  specifically 
appropriated  for  a town  purpose  by  the  collectors  of  the  town  at  a town  meeting, 
the  expenses  incurred  in  carrying  out  such  purpose  are  a town  charge.  Berlin  Iron 
Bridge  Co.  v.  Wagner,  57  Hun  346;  10  N.  Y.  Supp.  840. 

19  Judgments  against  supervisor  may  be  audited  by  town  board  as  a town 
charge.  Hulbert  v.  Defendorf,  58  Hun  585,  12  N.  Y.  Supp.  673.  And  see  § 1931  of 
the  Code  of  Civil  Procedure,  which  has  been  held  not  to  impose  an  absolute  lia- 
bility against  a town  for  all  judgments  recovered  against  a commissioner  of  high- 
ways in  his  official  capacity.  People  ex  rel.  Myers  v.  Barnes,  114  N.  Y.  317.  A 
town  may  borrow  money  and  issue  bonds  for  the  payment  of  judgments  against  it. 
See  Town  Law,  § 139,  post. 

In  order  to  make  a judgment  against  commissioners  of  highways  a town  charge, 
it  must  have  been  recovered  upon  a liability  incurred  by  them  acting  within  the 
scope  of  their  authority,  and  in  such  case  the  claim  therefor  must  be  presented, 
passed  upon  and  audited  by  the  board  of  town  auditors.  People  ex  rel.  Everett  v. 
Supervisors,  93  N.  Y.  397. 

20.  Expenses  of  assessors  in  defending  certiorari  proceedings,  without  the 


390 


TOWN  BOARD 


Town  Law,  §§  155,  176. 


to  the  town  board  for  audit,  and  all  moneys  necessary  t-o  defray  such 
charges  shall  be  levied  on  the  taxable  property  in  such  town  by  the  board 
of  supervisors.21 

8.  Actual  expenses  necessarily  incurred  by  the  supervisor  of  a town 
in  the  forest  preserve,  when  authorized  by  resolution  of  the  town  board, 
in  connection  with  the  distribution  of  fish  and  game  birds  furnished  by 
the  conservation  department  of  the  state  or  by  the  federal  government, 
not  exceeding  fifty  dollars  in  any  one  year.  [Town  Law,  § 170;  subd. 
8 repealed  by  L.  1909,  ch.  491;  section  amended  by  L.  1914,  ch.  440; 
new  subd.  8 added  by  L.  1916,  ch.  158 ; B.  C.  and  G.  Cons.  L.,  p.  6194.] 


§ 9.  TRAVELING  FEES  FOR  SUBPOENAING  WITNESSES,  WHEN  TO 
BE  ALLOWED. 

"No  traveling  fees  shall  be  allowed  for  traveling  to  subpoena  a witness, 
beyond  the  limits  of  the  county  in  which  the  subpoena  was  issued,  or  of 
an  adjoining  county,  unless  the  board  auditing  the  account,  shall  be 
satisfied,  by  proof,  that  such  witness  could  not  be  subpoenaed  without 
additional  travel ; nor  shall  any  traveling  fees  for  subpoenaing  witnesses 
be  allowed,  except  such  as  the  board  auditing  the  account,  shall  be 
satisfied  were  indispensably  necessary.  [Town  Law,  § 176 ; B.  C.  & G. 
Cons.  L.,  p.  6199.] 

§ 10.  BOARDS  OF  AUDIT  TO  MAKE  ABSTRACT  OF  NAMES  OF  PER- 
SONS WHOSE  ACCOUNTS  HAVE  BEEN  AUDITED. 

Boards  of  town  auditors,  shall  annually  make  brief  abstracts  of  the  names 
of  all  persons  who  have  presented  to  them,  accounts  to  he  audited,  the 


direction  or  resolution  of  the  town  board  to  review  a grossly  excessive  assess- 
ment, made  in  bad  faith  and  with  malice,  are  not  town  charges  and  cannot  be 
legally  audited.  A ratification  after  audit  will  be  ineffectual.  The  payment  of 
the  claim  may  be  enjoined  in  a taxpayer’s  action.  Rockefeller  v.  Taylor,  69 
App.  Div.  176,  74  N.  Y.  Supp.  812.  See  also  People  ex  rel.  McMillen  v.  Vander- 
poel,  35  App.  Div.  73,  54  N.  Y.  Supp.  436. 

Superintendent  of  highways  cannot  of  his  own  motion  continue  an  action  and 
recover  his  expenses  from  the  town.  People  ex  rel.  Van  Keuren  v.  Town 
Auditors,  74  N.  Y.  310. 

Overseers  of  the  poor  may  employ  an  attorney  and  the  expense  will  be  a town 
charge.  Rept.  of  Atty.  Genl.  (1904)  271. 

21.  Other  town  charges.  Among  other  town  charges  than  those  in  the  above 
section  the  following  may  be  mentioned: 

Amounts  expended  for  the  support  of  town  poor.  See  Poor  Law,  secs.  23-28. 

Costs  and  damages  awarded  in  proceedings  to  lay  out,  alter  and  discontinue 
highways.  See  Highway  Law,  sec.  93,  ante. 

Damages  for  injuries  sustained  by  defects  in  highways  and  bridges.  See  High- 
way Law,  sec.  18,  ante. 

Expense  incurred  in  the  erection  of  mile  stones  and  guide  boards,  in  the  pur- 
chase of  road  machines,  stone  crushers,  and  materials  used  on  highways.  See 
Highway  Law,  sec.  51,  ante. 

Amount  expended  in  the  acquisition  of  gravel  for  use  on  the  highways.  See 
Highway  Law,  sec.  68,  ante. 


AUDITING  OF  TOWN  ACCOUNTS. 


391 


Town  Law,  §§  150,  151. 

amounts  claimed  by  each  of  such  persons,  and  the  amounts  finally  audited 
by  them  respectively,  and  shall  deliver  such  abstracts  to  the  clerk  of  the 
board  of  supervisors,  and  the  clerk  shall  cause  the  same  to  be  printed,  with 
the  statements  required  to  be  printed  by  him,22  provided,  however,  that 
it  shall  be  a sufficient  compliance  with  the  provisions  of  this  section  for 
such  board  of  town  auditors  to  deliver  to  said  clerk  of  the  board  of 
supervisors  a copy  of  the  printed  list  provided  for  in  section  one  hundred 
and  thirty-three  of  this  chapter.  [Town  Law,  § 155;  as  amended  by  L. 
1910,  ch.  316;  B.  C.  & G.  Cons.  L.,  p.  6193.] 


§11.  WHEN  TOWN  AUDITORS  ARE  TO  BE  ELECTED;  APPLICA- 
TION THEREFOR. 

The  electors  in  each  of  the  towns  may,  on  the  application  of  twenty 
freeholders  residing  therein,  at  any  biennial  town  meeting,  determine  by 
ballot  whether  there  shall  be  elected,  at  the  next  succeeding  biennial  town 
meeting,  held  in  the  town,  a board  of  town  auditors,  in  and  for  the  town 
independent  of  the  town  board  in  the  manner,  and  under  the  restrictions 
hereinafter  prescribed.23  [Town  Law,  § 150;  B.  C.  & G.  Cons.  L.,  p. 
6191.] 

§ 12.  NUMBER  OF  TOWN  AUDITORS;  TERM  OF  OFFICE. 

If  a majority  of  the  ballots  so  cast,  shall  be  in  favor  of  electing  a board 
of  town  auditors  there  shall  be  elected  at  the  next  succeeding  biennial  town 
meeting,  and  at  every  biennial  town  meeting  held  thereafter,  until  other- 
wise determined,  three  town  auditors,  who  shall  form  the  board  of  town 
auditors  of  the  town  whose  term  of  office  shall  be  two  years.  [Town  Law, 
§ 151;  B.  C.  & G.  Cons.  L.,  p.  6192.] 


The  expenses  of  local  boards  of  health.  See  Public  Health  Law,  sec.  35,  post. 
The  compensation  and  expenses  of  town  clerks  in  relation  to  public  schools. 
See  Education  Law,  § 261. 

Expenses  incurred  in  the  proper  observance  of  memorial  or  decoration  day. 
Town  Law,  §§  136,  137,  post. 

Compensation  of  fire  wardens.  Forest,  Fish  and  Game  Law,  sec.  71. 

22.  For  form  of  abstract  of  names  of  persons  who  have  presented  accounts 
for  audit,  see  Form  No.  35,  post. 

22.  Delivery  of  the  abstract  of  accounts  to  the  clerk  of  the  board  of  super- 
visors is  the  last  act  of  the  board  of  auditors  and  terminates  their  jurisdiction. 
People  ex  rel.  Cochran  v.  Town  Auditors,  74  Hun  83,  88,  26  N.  Y.  Supp.  122. 

23.  Town  clerk  is  not  a member  of  the  board  of  town  auditors  when  such 
board  is  separately  elected.  Rept.  of  Atty.  Genl.  (1893)  363;  (1895)  285. 


392 


TOWN  BOARD. 


Town  Law,  §§  152,  153. 

§ 13.  IF  ELECTORS  OF  TOWN  VOTE  TO  ELECT  A BOARD  OF  AUDI- 
TORS, TOWN  BOARD  TO  MAKE  TEMPORARY  APPOINT- 
MENT. 

The  town  board  of  the  town  in  which  the  electors  shall  determine  to  elect 
a board  of  town  auditors,  or  a majority  of  them,  shall,  within  sixty 
days  after  the  town  meeting  where  it  was  so  determined,  convene  at  some 
suitable  place  in  the  town,  at  the  hour  of  ten  o’clock  in  the  forenoon, 
and  appoint,  in  writing,  under  their  hands  and  seals,  three  persons  having 
the  qualifications  herein  prescribed,  to  be  town  auditors  of  the  town, 
and  shall-  immediately  cause  such  appointment  to  be  filed  with  the  town 
clerk.24  The  person  so  appointed  shall,  within  ten  days  after  receiving 
notice  of  their  appointment,  take,  subscribe  and  file  in  the  office  of  the 
town  clerk  the  oath  of  office;  and  thereupon  they  shall  be  the  board  of 
town  auditors  of  the  town,  and  shall  possess  and  exercise  all  the  powers 
and  duties  of  town  auditors,  and  shall  hold  and  discharge  the  duties  of 
the  office  until  the  next  biennial  town  meeting  to  be  held  in  the  town 
after  their  appointment.  [Town  Law,  § 152;  B.  C.  & G.  Cons.  L.,  p. 
6192.] 

§ 14.  TOWN  AUDITORS  TO  AUDIT  ACCOUNTS;  TOWN  AUDITOR  TO 
HOLD  NO  OTHER  TOWN  OFFICE. 

Upon  the  election  or  appointment  and  qualification  of  any  such  board  of 
town  auditors  in  any  town,  the  powers  of  the  town  board  of  that  town,  with 
respect  to  auditing,  allowing  or  rejecting  all  accounts,  charges,  claims  or 
demands  against  the  town,  and  with  respect  to  the  examination,  auditing 
and  certification  of  accounts  of  town  officers,  and  making  provision  for 
preparing  and  publishing  or  posting  lists  of  all  such  accounts,  charges, 
claims  or  demands  after  the  audit  or  rejection  thereof,  shall  devolve  upon 
and  thereafter  be  exercised  by  such  board  of  town  auditors,  during  the 
continuance  of  such  board ; and  with  respect  to  the  powers  so  conferred, 
and  the  duties  so  imposed,  they  shall  be  the  town  board  of  the  town  during 
their  continuance.25  No  person  so  elected  or  appointed  shall  hold  any 


24.  This  provision  is  directory  and  the  appointment,  after  the  time  pre- 
scribed by  law,  may  not  be  illegal.  Rept.  of  Atty.  Genl.  (1895)  167. 

For  form  of  appointment  of  board  of  town  auditors  by  town  board,  see 

Form  No.  36,  post. 

25.  Power  of  town  auditors  to  act  in  conjunction  with  commissioner  (now 
town  superintendent)  of  highways.  Rept.  of  Atty.  Genl.  (1903)  400.  Board  of 
town  auditors  may  legally  meet  whenever  necessary  for  the  purpose  of  auditing 
town  accounts.  Rept.  of  Atty.  Genl.  (1896)  144.  Town  auditor  can  hold  no 
other  town  office.  Rept.  of  Atty.  Genl.  (1896)  135. 

Employment  of  counsel.  A town  board  of  auditors  has  the  same  power  to 


AUDITING  OF  TOWN  ACCOUNTS. 


303 


Town  Law,  §§  154,  156,  157, 


other  office  in  the  town  during  the  term  for  which  he  is  elected  or  appointed;  and 
if  he  shall  accept  an  election  or  appointment  to  any  other  office  in  the  town,  he  shall 
immediately  cease  to  be  a town  auditor,  and  the  vacancy  in  his  office  shall  be  supplied 
in  the  manner  hereinafter  provided.  [Town  Law,  § 153,  as  amended  by  L.  1910,  ch. 
316;  B.  C.  & G.  Cons.  L.,  p.  6192.] 

§ 15.  MEETINGS  AND  COMPENSATION  OF  TOWN  AUDITORS. 

The  board  of  town  auditors,  or  town  board  where  no  regular  town  board  of  audit 
has  been  chosen,  in  a town  having  a population  of  four  thousand  and  upwards,  or 
in  a town  which  had  a population  of  four  thousand  prior  to  the  inclusion  of  a portion 
of  such  town  within  the  boundaries  of  a city,  may  meet  quarterly  in  each  year  on 
the  first  Mondays  of  February,  May,  August  and  November,  for  the  purpose  of 
auditing,  allowing  or  rejecting  all  charges,  claims  and  demands  against  the  town. 
Each  town  auditor  shall  be  entitled  to  receive  for  his  services  three  dollars  for 
each  day,  not  exceeding  in  the  aggregate  twelve  days  in  any  one  year,  except  in 
towns  having  a population  of  twelve  thousand  and  upwards,  in  which  towns  each 
of  such  town  auditors  shall  be  entitled  to  receive  for  his  services  three  dollars  for 
each  day,  but  not  to  exceed  thirty  days  in  any  one  year  and  except  that  in  towns 
having  a population  of  eighteen  thousand  and  upwards,  in  which  towns  each  of 
such  town  auditors  shall  be  entitled  to  receive  for  his  services  such  compensation 
as  shall  be  fixed  by  the  town  board  of  such  town,  and  not  less  than  three  nor  more 
than  five  dollars  for  each  day,  but  not  to  exceed  sixty  days  in  any  one  year  and 
except  that  in  towrns  having  a population  of  forty  thousand  and  upwards,  in  which 
towns  each  of  such  town  auditors  shall  be  entitled  to  receive  for  his  services  not  less 
than  three  nor  more  than  five  dollars  for  each  day,  but  not  to  exceed  eighty  days  in 
any  one  year,  except  that  in  any  town  in  a county  adjoining  a city  of  the  first 
class  the  town  board  of  such  town  may  fix  the  compensation  and  number  of  days 
of  service  of  the  town  auditors  at  not  less  than  three  nor  more  than  five  dollars 
per  day,  but  not  to  exceed  one  hundred  days  in  any  one  year;  and  also  except  in 
towns  with  a population  of  sixty  thousand  or  more,  the  town  board  shall  have 
authority  to  designate  the  number  of  days  of  service  of  the  town  auditors  of  such 
town,  actually  and  necessarily  devoted  by  him  to  the  service  of  the  town,  in  the 
duties  of  said  office.26  [Town  Law,  § 154,  as  amended  by  L.  1910,  ch.  24,  L.  1912, 
chs.  72,  258,  and  L.  1913,  ch.  17,  L.  1916,  ch.  100,  and  L.  1917,  ch.  368;  B.  C.  & G. 
Cons.  L.,  p.  6193.] 

The  supervisor  of  the  town  shall  appoint  some  suitable  and  competent  person  to 
fill  any  vacancy  occurring  in  the  board  of  town  auditors  until  the  next  biennial  town 
meeting.  [Town  Law,  § 156;  B.  C.  & G.  Cons.  L.,  p.  6193.] 

§ 16.  TOWN  MEETING  MAY  VOTE  TO  DISCONTINUE  BOARD  OF 
TOWN  AUDITORS. 

At  any  subsequent  town  meeting,  after  the  expiration  of  five  years  from  the  deter- 
mination to  elect  a board  of  town  auditors,  the  electors  of  the  town  may  determine 
by  ballot  to  abolish  such  board  in  the  same  manner  as  they  determine  to  establish 
such  board;  and  thereupon  such  board  shall  be  abolished.  [Town  Law,  § 157; 
B.  C.  & G.  Cons.  L.,  p.  619'3.] 

§ 17.  ACTIONS  ON  BEHALF  OF  AND  AGAINST  TOWNS  TO  BE 
BROUGHT  IN  NAME  OF  TOWN;  CONTRACTS  IN  NAME  OF 
TOWN. 

Any  action  or  special  proceeding  for  the  benefit  of  a town,  upon  a con- 


employ  counsel  to  resist  claims  against  the  town  as  that  possessed  by  the  regular 
town  board.  Matter  of  Comesky  v.  Blackledge,  114  App.  Div.  834,  100  N.  Y. 
Supp.  241.. 

Review  of  action  of  board  of  town  auditors. — After  a board  of  town  auditors 
has  judicially  passed  upon  the  merits  of  a claim  and  has  allowed  or  disallowed  it, 
the  claimant’s  only  remedy  is  by  an  appeal,  in  some  cases  to  the  board  of  supervisors, 
and  in  others  by  certiorari  to  the  Appelate  Division  of  this  court.  The  court,  at 
Special  Term,  has  no  power  to  review  the  action  of  the  board  of  town  auditors  in 
allowing  or  disallowing  a claim.  People  ex  rel.  Anderson  v.  Snedeker  (1912),  75 
Misc.  194. 

26.  Section  applies  only  to  separate  boards  of  town  auditors.  Kept,  of 
A tty.  Genl.  (1895)  244. 

The  board  of  town  auditors  is  separate  and  distinct  from  the  town  board, 
and  the  provision  making  the  compensation  of  its  members  three  dollars  per 
day  has  no  application  to  the  town  board.  Rept.  of  Atty.  Genl.,  Vol.  2,  p.  663. 


394 


TOWN  BOARD. 


Town  Law,  § 11. 

tract  lawfully  made  with  any  of  its  town  officers,  to  enforce  any  liability 
created  or  duty  enjoined  upon  those  officers,  or  the  town  represented  by 
them,  or  to  recover  any  penalty  or  forfeiture  given  to  such  officers,  or  the 
town  represented  by  them,  or  to  recover  damages  for  injury  to  the  property 
or  rights  of  such  officers,  or  the  town  represented  by  them,  shall  be  in  the 
name  of  the  town.  Any  action  or  special  proceeding  to  enforce  the  liability 
of  the  town  upon  any  such  contract,  or  for  any  liability  of  the  town  for 
any  act  or  omission  of  its  town  officers,  shall  be  in  the  name  of  the  town.27 
[Town  Law,  § 11 ; B.  C.  & G.  Cons.  L.,  p.  6135.] 


27.  Effect  of  section.  The  above  section  modified  the  existing  rule  as  to 
actions  by  and  against  town  officers.  Under  the  law  as  it  existed  prior  to  the 
enactment  of  this  section  towns  had  a very  limited  corporate  power  and  could 
only  sue  and  be  sued  in  respect  to  the  exercise  of  such  power.  The  purpose  of 
the  above  provision  was  to  place  the  town  as  a party  plaintiff  or  defendant 
in  the  same  relation  to  actions  as  town  officers  had  before  such  act  in  respect 
to  like  actions  for  causes  legitimately  arising  out  of  and  relating  to  the  per- 
formance of  their  official  powers  or  duties.  Miller  v.  Bush,  87  Hun,  507;  34 
N.  Y.  Supp.  286. 

The  section  cannot  be  construed  to  enlarge  or  increase  the  liabilities  of  towns 
except  to  the  extent  specifically  prescribed  therein.  Robinson  v.  Town  of  Fowler, 
80  Hun,  101;  30  N.  Y.  Supp.  25. 

This  section  creates  no  liability  on  the  part  of  the  town  where  it  would  not 
have  been  liable  except  for  its  provisions,  but  simply  provides  that  where  the 
town  is  liable  proceedings  must  be  taken  against  it  directly.  Thus,  the  fact 
that  a commissioner  of  highways  (now  town  superintendent)  has  made  a valid 
contract  to  purchase  a road  machine,  having  sufficient  funds  in  his  hands  for  the 
purpose,  does  not  make  the  town  liable  therefor.  Acme  Road  Machinery  Co. 
v.  Town  of  Bridgewater,  185  N.  Y.  1,  revg.  104  App.  Div.  597,  93  N.  Y.  Supp.  949. 

Actions  in  behalf  of  town  must  be  brought  in  the  name  thereof.  Cornell  v. 
Town  of  Guilford,  1 Den.  510;  Palmer  v.  Ft.  Plain  & Cooperstown  P.  R.  Co.,  11 
N.  Y.  376,  390.  Bodies  created  by  the  legislature  have  an  incidental  capacity 
to  sue  and  be  sued,  independently  of  any  express  power.  Clarissy  v.  Met.  Fire 
Department,  7 Abb.  N.  S.  352. 

Prior  to  the  act  of  1890  the  towns  had  a very  limited  corporate  power.  In 
cases  coming  within  such  powers  the  town  could  sue  and  be  sued  except  where 
the  town  officers  were  authorized  to  sue  in  their  names  of  office  for  the  benefit 
of  the  town.  Miller  v.  Bush,  87  Hun  507,  34  N.  Y.  Supp.  286. 

Where  there  is  a liability  to  the  town  for  moneys,  it  can  only  be  enforced  by  an 
action  in  the  name  of  the  town.  Town  of  Chautauqua  v.  Gifford,  8 Hun,  152. 

Trustees  of  town  lands  do  not  possess  legal  capacity  to  bring  a suit  for  the 
cancellation  of  a lease  of  lands  executed  by  their  predecessors.  Tuma  v.  Piepenbrink, 
160  App.  Div.  225. 

Actions  by  and  against  towns.  Where  town  has  no  interest  in  the  lands  in 
dispute,  action  against  commissioner  of  highways  cannot  be  brought  in  name  of  the 
town.  Riley  v.  Brodie,  22  Misc.  374,  50  N.  Y.  Supp.  347. 

This  section  may  be  construed  to  authorize  a suit  against  a former  supervisor  to 
compel  him  to  account  for  moneys  that  came  into  his  hands  by  virtue  of  his  office. 
Town  of  Pelham  v.  Shinn.  129  App.  Div.  20,  113  N.  Y.  Supp.  98. 


AUDITING  OF  TOWN  ACCOUNTS. 


395 


Town  Law,  § 10. 

All  contracts  made  by  town  officers  for  and  in  behalf  of  their  towns 
shall  be  in  the  name  of  the  town.  When  such  contracts  are  otherwise 


Overseer  of  the  poor  of  a town  cannot  sue  or  he  sued  as  such.  Rept.  of  Atty. 
Genl.  (1894)  303. 

Actions  under  statute  prior  to  Town  Law.  See  Griggs  v.  Griggs,  66  Barb.  287, 
affd.  in  56  N.  Y.  504;  Town  of  Chautauqua  v.  Gifford,  8 Hun  152;  Hathaway 
v.  Town  of  Horner,  5 Lans.  267;  Town  of  Lewis  v.  Marshall,  56  N.  Y.  663;  Town 
of  Guilford  v.  Lewis,  58  N.  Y.  116,  121;  Morey  v.  Town  of  Newfane,  8 Barb.  645. 
Actions  would  not  lie  against  towns  for  errors  of  assessors.  Lorillard  v.  Town 
of  Monroe,  11  N.  Y.  392,  affg.  12  Barb.  161. 

Action  against  town  upon  contract.  Where  a town  has  issued  bonds  in  a 
certain  sum  for  the  construction  of  a town  hall  and  any  part  of  the  fund  so 
created  remains  unexpended  an  action  may  be  brought  against  the  town  by  a 
subcontractor  to  compel  the  payment  of  his  claim  for  labor  performed  upon  the 
town  hall,  where  the  town  board  refuses  to  apply  any  of  such  fund  to  the  pay- 
ment of  his  claim.  If  all  of  the  fund  so  created  had  been  expended  the  only 
remedy  is  a presentation  of  the  claim  to  the  town  board  for  audit,  and  a subse- 
quent review  of  their  determination  by  a certiorari.  Bragg  v.  Town  of  Victor, 
84  App.  Div.  83,  82  N.  Y.  Supp.  212,  affd.  158  N.  Y.  739. 

Action  upon  contract  legalized  by  legislature.  An  action  will  not  lie  against 
a town  upon  a contract  confessedly  illegal,  and  afterwards  legalized  by  an  act 
of  the  legislature,  made  by  the  town  board  for  the  construction  of  abutments  for 
a bridge.  Such  an  action  is  purely  upon  contract  notwithstanding  such  legaliza- 
tion, and  like  any  other  contract  against  the  town  must  be  presented  to  the  town 
board  for  audit.  Colby  v.  Town  of  Day,  75  App.  Div.  211,  77  N.  Y.  Supp.  1022, 
revd.  on  question  of  practice,  177  N.  Y.  548. 

Action  for  injuries  to  bridge  between  towns.  Although  it  is  provided  by 
§ 73  of  the  Highway  Law,  that  town  superintendents  of  highways  may  bring  an 
action  in  the  name  of  a town  against  any  person  or  corporation  to  sustain  the 
rights  of  the  public  in  and  to  any  highway  of  the  town,  the  above  section  of  the 
Town  Law  requires  an  action  for  injuries  to  a bridge  between  towns  to  be 
brought  in  the  names  of  the  towns,  and  not  in  the  names  of  their  superin- 
tendents; and  this  is  so,  although  by  a special  act  such  bridge  is  placed  under  the 
joint  control  and  direction  of  the  town  superintendents  of  the  towns.  Town  of 
Palatine  v.  Canajoharie  Water  Supply  Co.,  90  App.  Div.  548,  86  N.  Y.  Supp.  412; 
affd.  184  N.  Y.  582. 

A town  has  sufficient  property  in  the  highways  and  bridges  to  maintain  an 
action  for  injury  thereto,  and  such  an  action  is,  under  the  above  section,  prop- 
erly brought  in  the  name  of  the  town.  The  fact  that  a supervisor  verifies  the 
complaint  in  such  an  action  affords  no  presumption  that  the  action  was  not 
brought  by  and  is  not  in  the  charge  of  a highway  commisioner  as  any  officer 
who  knows  the  facts  is  competent  to  verify  the  complaint.  Town  of  Ft.  Coving- 
ton v.  U.  S.  & Canada  R.  R.  Co.,  8 App.  Div.  223;  40  N.  Y.  Supp.  313;  affd.,  156 
N.  Y.  702.  See  also  Bidelman  v.  State  of  New  York,  110  N.  Y.  232. 

Penalties  for  use  of  town  to  be  recovered  by  supervisor  in  action  brought  in 
name  of  town.  Adee  v.  Arnow,  91  Hun  329,  36  N.  Y.  Supp.  1020. 

Duties  of  supervisor  to  lay  before  town  meeting  statement  of  proceedings 
only  apply  when  action  is  against  town  in  the  name  thereof.  Hulburt  v. 


396 


TOWN  BOARD. 


Town  Law,  §§  12,  138. 

lawfully  made,  they  shall  be  deemed  the  contracts  of  the  town,  notwith- 
standing it  is  omitted  to  be  stated  therein  that  they  are  in  the  name  of 
the  town.28  [Town  Law,  § 10;  B.  C.  & G.  Cons.  L.,  p.  6134.] 


§ 18.  ACTIONS  FOR  TRESPASS  ON  TOWN  LANDS. 

Whenever  an  action  is  brought  by  a town  to  recover  a penalty  for  a 
trespass  committed  upon  its  land,  and  it  shall  appear  upon  the  trial  that 
the  damages  from  the  trespass  exceed  ten  dollars,  the  town  shall  recover 
the  damages  and  costs  in  lieu  of  the  penalty,  and  such  recovery  shall  be 
a bar  to  any  subsequent  civil  action  for  the  same  trespass.28  [Town  Law, 
§ 12 ; B.  C.  & G.,  Cons.  L.,  p.  6137.] 

§ 19.  TOWN  BOARD  MAY  BORROW  MONEY  FOR  HIGHWAY  PUR- 
POSES WHEN  TOWN  MEETING  HAS  VOTED  TO  RAISE 
MORE  THAN  $500;  STATEMENT  OF  INDEBTEDNESS 
CREATED  TO  BE  RENDERED  TO  BOARD  OF  SUPERVISORS. 

Whenever  a town  meeting  shall  vote  a special  appropriation  of  money 
in  the  sum  of  five  hundred  dollars  or  more,  or  an  appropriation  for  high- 
way purposes  or  for  the  support  of  the  poor  during  the  current  year,  to 
be  levied  upon  the  taxable  property  of  the  town,  the  town  board  shall 
have  power  to  borrow  the  sum  so  appropriated  upon  the  faith  and  credit 


Defendorf,  58  Hun,  585,  12  N.  Y.  Supp.  673.  See  People  ex  rel.  Van  Keuren  v. 
Town  of  Esopus,  74  N.  Y.  310. 

Other  provisions  relating  to  actions  by  and  against  towns  and  town  offi- 
cers. Actions  may  be  brought  against  town  officers  to  prevent  any  illegal 
official  act  on  their  part,  or  to  prevent  waste  or  injury  to,  or  to  restore  and  make 
good  any  property,  funds  or  estate  of  the  town,  by  any  person  or  corporation 
or  by  any  number  of  such  persons  or  corporations  whose  assessment  shall 
jointly  equal  the  sum  of  $1,000.  See  General  Municipal  Law,  § 51.  As  to 
actions  generally  by  or  against  town  officers,  see  Code  Civ.  Proc.,  secs.  1925-1928. 
Actions  against  towns  for  injuries  caused  by  defective  highways  and  bridges, 
see  Highway  Law,  sec.  74,  post.  Actions  by  towns  against  persons  or  corpora- 
tions injuring  highways  or  bridges,  see  Highway  Law,  sec.  73,  post. 

28.  Effect  of  section.  This  section  has  not  changed  the  old  rule  that  a com- 
missioner of  highways  (now  town  superintendent  of  highways)  cannot  create 
any  liability  upon  the  part  of  his  town  to  pay  for  materials  ordered  by  him 
for  the  ordinary  repair  of  town  highways.  Highway  commissioners  are  charged 
with  the  duty  of  keeping  town  highways  in  repair  as  independent  officers,  and 
not  as  agents  of  the  town,  and  when  they  contract  for  such  ordinary  repairs 
no  liability  is  created  against  the  town,  and  the  commissioners  themselves  as 
such  officers  and  not  the  town,  should  be^sued  for  the  debt.  Lyth  & Sons  v. 
Town  of  Evans,  33  Misc.  221;  68  N.  Y.  Supp.  356. 

29.  A town  may  sue  to  enjoin  repeated  trespasses  upon  lands  owned  by  it, 
where  previously  authorized  by  resolution  of  the  town  board.  Town  of  Hemp- 
stead v.  Lawrence,  138  App.  Div.  473,  122  N.  Y.  Supp.  1073. 


AUDITING  OF  TOWN  ACCOUNTS. 


39V 


Town  Law',  § 138a. 

of  the  town,  and  to  issue  therefor  a certificate  ©r  certificates  of  indebted- 
ness, bearing  interest  and  payable  at  such  date  or  dates  as  may  be  fixed 
by  said  board,  and  the  proceeds  of  such  loan  shall  be  placed  to  the 
credit  of  the  public  officers  charged  by  law  with  the  expenditure  of  said 
moneys.  A statement  of  the  amount  maturing  on  such  certificate  of 
indebtedness  shall  be  certified  by  the  town  board  at  its  second  meeting 
and  delivered  to  the  supervisor  of  the  town,  to  be  by  him  presented  to 
the  board  of  supervisors  of  his  county  at  its  annual  meeting,  and  the 
said  board  of  supervisors  shall  cause  the  amount  specified  in  such 
certified  statement  to  be  levied  and  raised  upon  the  taxable  property 
of  the  town  in  the  same  manner  as  they  are  directed  to  levy  and  raise 
other  town  charges.  [Town  Law,  § 138 ; B.  C.  & G.  Cons.  L.,  p.  6190.] 

§ 19-a.  POWER  OF  TOWN  BOARD  TO  BORROW  MONEY  FOR  EX- 
PENSES IN  THE  SUPPRESSION  OF  FOREST  FIRES  AND  FOR 
OTHER  EMERGENCIES. 

If  at  the  time  any  services  are  rendered  for  the  town  or  expenses 
incurred  in  the  suppression  of  forest  fires  or  in  connection  with  the 
performance  of  any  other  duty  imposed  by  statute  upon  the  town,  and 
requiring  immediate  action,  there  be  no  town  funds  available  for  the 
payment  therefor,  or  such  funds  be  insufficient  therefor,  or  the  applica- 
tion thereof  to  such  purposes  would,  in  the  opinion  of  the  town  board, 
unduly  deplete  the  funds  applicable  to  the  payment  of  other  town 
expenses  and  charges,  the  town  board  may  borrow  on  the  faith  and 
credit  of  the  town  a sum  sufficient  to  pay  such  debts  or  expenses.  The 
amount  to  be  borrowed  shall  be  determined  by  the  town  board  by  a 
resolution  and  shall  be  based  either  upon  the  aggregate  of  claims, 
charges  and  demands  previously  audited  at  a regular  or  special  meeting, 
or  upon  an  estimate  of  the.probable  amount  needed,  to  be  filed  with  the 
town  clerk  and  subscribed  by  a majority  of  members  of  the  town  board. 
If  the  amount  to  be  borrowed  does  not  exceed  one  thousand  dollars,  a 
certificate  or  certificates  of  indebtedness  shall  be  issued  in  the  manner 
prescribed  by  section  one  hundred  and  thirty-eight  of  this  chapter,  and 
the  amounts  maturing  thereon  certified  to  the  supervisor  from  time  to 
time  as  provided  in  section  one  hundred  and  thirty-eight  for  the  purpose 
of  including  the  amount  thereof  maturing  in  the  sums  to  be  raised  by 
taxation  at  the  ensuing  tax  levy.  If  the  amount  to  be  borrowed  equals 
or  exceeds  one  thousand  dollars,  the  same  shall  be  borrowed  upon  bonds 
of  the  town  in  the  same  manner  as  provided  by  law  for  borrowing  money 


TOWN  BOARD. 


398 

Town  Law,  §§  141,  136. 

to  pay  judgments.  Moneys  may  be  provided  under  this  section  for  more 
than  one  lawful  purpose  by  a single  issue  of  such  town  certificates  or 
bonds,  but  the  proceeds  shall  be  divided  into  separate  funds,  each  for  a 
separate  purpose,  and  each  such  purpose  shall  be  set  forth  in  the  resolu- 
tion authorizing  the  borrowing  of  such  money.  [Town  Law,  § 138-a, 
as  added  by  L.  1913,  ch.  571.] 

§ 19-b.  POWER  OF  TOWN  BOARD,  IN  CERTAIN  TOWNS,  TO  BOR- 
ROW MONEY  FOR  THE  PURPOSE  OF  PAYING  CHARGES, 
CLAIMS  OR  DEMANDS  AGAINST  THE  TOWN. 

Whenever  a town  board  or  board  of  town  auditors  of  any  town,  having 
a population  of  four  thousand  and  upwards,  shall  have  audited  any 
account,  and  shall  have  allowed  in  whole  or  in  part  any  charge,  claim 
or  demand  against  such  town,  and  shall  have  made  and  filed  a certificate 
to  that  effect  in  the  office  of  the  town  clerk,  and  such  account  shall 
thereby  have  become  a legal  obligation  and  charge  against  such  town, 
the  town  board,  in  anticipation  of  the  taxes  for  the  current  fiscal  year, 
shall  have  power  to  borrow  upon  the  faith  and  credit  of  the  town  a sum 
of  money  sufficient  to  pay  the  aggregate  amount  of  the  accounts  so 
audited  and  allowed  at  any  one  of  the  regular  meetings  held  for  that 
purpose,  by  issuing  a temporary  certificate  or  temporary  certificates  of 
indebtedness  therefor,  bearing  interest  and  payable  at  such  date  or 
dates  as  may  be  fixed  by  such  towm  board,  but  not  for  a longer  period 
than  sixteen  months  ; and  the  proceeds  of  such  loan  shall  be  placed  to 
the  credit  of  the  public  officers  charged  by  law  with  the  payment  of 
town  claims.  [Town  Law,  § 141,  as  added  by  L.  1912,  ch.  258,  and 
amended  by  L.  1916,  ch.  81.] 

§ 20.  TOWN  BOARDS  MAY  VOTE  MONEY  FOR  MEMORIAL  DAY;  EX- 
PENDITURE. 

It  shall  be  lawful  for  the  town  boards  of  any  town  in  this  state  at  any 
regular  or  special  meeting  to  vote  any  sum  of  money  not  exceeding  fifty 
dollars  in  any  year,  or  in  towns  of  over  five  thousand  inhabitants  accord- 
ing to  the  last  preceding  state  enumeration,  in  which  are  maintained 
two  or  more  posts  of  the  Grand  Army  of  the  Republic,  a sum  not  ex- 
ceeding one  hundred  dollars  in  any  year,  for  the  purpose  of  defraying 
the  expenses  of  the  proper  observance  of  Memorial  or  Decoration  day, 
which  amount  shall  be  assessed,  levied  and  collected  in  the  same  manner 
as  other  expenses  of  said  town  are  assessed,  levied  and  collected  and  shall 
be  paid  to  the  supervisor  of  such  town  and  be  disbursed  by  him  in  such 


AUDITING  OF  TOWN  ACCOUNTS. 


399 


Town  Law,  §§  136,  137. 

manner  as  the  town  board  of  such  town  may  direct  upon  vouchers 
properly  receipted  and  audited  by  the  town  hoard  of  such  town ; except 
that  in  any  town  in  which  there  may  be  a post  of  the  Grand  Army  of 
the  Republic,  such  post  may  direct  the  manner  and  extent  of  such 
observance  and  the  supervisors  shall  pay  the  expense  thereof  upon  the 
order  or  orders  of  the  commander  or  quartermaster  of  such  post,  which 
orders  shall  be  his  vouchers  for  such  payment,  and  in  case  there  may 
be  two  or  more  posts  of  the  Grand  Army  of  the  Republic  in  any  such 
town,  the  commanders  and  quartermasters  of  such  posts,  by  concurrent 
action,  shall  direct  the  supervisor  of  such  town  what  proportion  of  such 
money  so  raised  shall  be  expended  by  each  of  such  posts,  which  propor- 
tion shall  be  paid  by  such  supervisor  upon  the  order  or  orders  of  the 
commander  and  quartermaster  of  each  of  such  posts.  In  case  there  is 
a post  in  a town  adjoining  a town  in  which  no  post  is  located,  whose 
membership  includes  at  least  three  residents  of  such  town  having  no 
post,  the  post  shall  appoint  a committee  of  not  less  than  three  of  its 
members  who  are  residents  of  the  said  adjoining  town  in  which  the  post 
is  not  located,  and  the  supervisor  of  said  town  shall  pay  the  expenses 
of  observance  of  Memorial  or  Decoration  day  upon  the  order  or  orders 
of  said  committee  or  a majority  thereof,  which  orders  shall  be  his 
vouchers  for  such  payment.  [Town  Law,  § 136 ; B.  C.  & G.  Cons.  L., 
p.  6189.] 

§ 21.  APPROPRIATION  BY  TOWN  BOARD  IN  LIVINGSTON,  ONEIDA, 
ORLEANS,  WAYNE  AND  GREENE  COUNTIES  FOR  ROOMS 
FOR  POSTS. 

It  shall  be  lawful  for  the  town  board  of  any  town  in  the  counties  of 
Livingston,  Orleans  or  Greene  at  any  regular  or  special  meeting  to  vote  a 
sum  of  money  not  exceeding  one  hundred  dollars  in  any  year,  and  for  the 
town  board  of  any  town  in  the  counties  of  Oneida  or  Wayne  at  a regular 
or  special  meeting  to  vote  a sum  of  money  not  exceeding  two  hundred  dol- 
lars in  any  year,  for  the  purpose  of  assisting  in  defraying  the  rental  of 
rooms  for  the  holding  of  meetings  of  any  post  of  the  Grand  Army  of  the 
Republic,  located  in  such  town.  In  case  there  is  a post  in  a town  adjoin- 
ing a town  in  which  no  post  is  located,  whose  membership  includes  at  least 
ten  residents  of  such  town  having  no  post,  it  shall  be  lawful  for  the  town 
board  of  such  town  having  no  post,  at  any  regular  or  special  meeting,  to 
vote  any  sum  of  money,  not  exceeding  fifty  dollars  in  any  year,  for  the 
purpose  of  assisting  in  defraying  the  rental  of  rooms  in  such  adjoining 
town,  for  the  holding  of  meetings  of  a post  of  the  Grand  Army  of  the  Re- 
public. All  moneys  hereby  authorized  shall  be  assessed,  levied  and  col- 


399a 


TOWN  BOARD. 


Town  Law,  §§  139,  136a. 

lected  the  same  as  other  town  expenses  and  shall  be  paid  to  the  quarter- 
master of  such  post  by  the  supervisor,  on  proof  to  such  supervisor  that 
the  post  is  not  receiving  under  the  provisions  of  this  article  from  a town 
or  towns  more  than  the  actual  rental  of  such  rooms.  [Town  Law,  § 137, 
as  amended  by  L.  1911,  ch.  465,  L.  1914,  ch.  156,  L.  1915,  ch.  413,  and  L. 
1917,  ch.  339;  B.  C.  & G.  Cons.  L.,  p.  6189.] 

§ 22.  TOWN  BOARD  MAY  BORROW  MONEY  TO  PAY  JUDGMENTS 
AGAINST  TOWN. 

Whenever  a final  judgment  recovered  against  a town  exceeds  one  thou- 
sand dollars,  the  town  board  of  such  town  may  borrow  the  sum  necessary 
to  pay  such  judgment  by  the  issue  of  bonds  to  be  signed  by  the  super- 
visor and  attested  by  the  town  clerk.  Such  bonds  shall  become  due 
within  twenty  years  from  the  date  of  issue,  and  unless  the  whole  amount 
of  the  indebtedness  represented  thereby  is  to  be  paid  within  five  years 
from  their  date,  they  shall  be  so  issued  as  to  provide  for  the  payment 
of  the  indebtedness  in  equal  annual  instalments,  the  first  of  which  shall 
be  payable  not  more  than  five  years  from  their  date.  They  shall  bear 
interest  at  a rate  not  exceeding  five  per  centum  per  annum,  and  shall 
be  sold  for  not  less  than  their  par  value.  They  shall  be  sold  on  sealed 
proposals  or  at  public  auction,  upon  notice  published  in  a paper  printed 
in  the  town,  if  any,  and  also  in  such  other  papers  as  may  be  designated 
by  the  town  board,  and  posted  in  at  least  five  public  places  in  the  town, 
at  least  ten  days  before  the  sale,  to  the  person  who  will  take  them  at 
the  lowest  rate  of  interest.  Such  bonds  shall  be  consecutively  numbered 
from  one  to  the  highest  number  issued,  and  the  town  clerk  shall  keep 
a record  of  the  number  of  each  bond,  its  date,  amount,  rate  of  interest, 
when  and  where  payable,  and  the  purchaser  thereof  or  the  person  to 
whom  they  are  issued.  [Town  Law,  § 139;  B.  C.  & G.  Cons.  L.,  p. 
6190.] 

§ 23.  ADDITIONAL  APPROPRIATIONS  FOR  MEMORIAL  DAY  UPON 
THE  ADOPTION  OF  A PROPOSITION  THEREFOR. 

Upon  the  adoption  of  a proposition  therefor,  by  the  qualified  electors 
of  the  town  entitled  to  vote  thereon,  as  hereinafter  provided,  the  town 
board  of  any  town  may  appropriate  from  town  funds  a sum  not  exceed- 
ing the  amount  which  it  is  authorized  by  the  provisions  of  this  section  to 
raise  by  tax  for  the  purpose  of  defraying  the  expenses  of  the  proper  ob- 
servance of  Memorial  or  Decoration  day,  in  addition  to  any  moneys 


AUDITING  OF  TOWN  ACCOUNTS. 


399b 


TOWN  LAW,  § 136a. 

which  such  town  board  is  authorized  to  provide  for  by  section  one  hun- 
dred and  thirty-six  of  this  chapter.  A proposition  directing  the  appro- 
priation of  town  moneys  for  the  additional  expenses  of  the  proper  ob- 
servance of  Memorial  or  Decoration  day,  under  the  provisions  of  this 
section  may  be  submitted  to  the  electors  of  the  town  qualified  to  vote 
thereon  at  a biennial  or  special  town  meeting  in  the  manner  provided 
in  this  chapter  for  the  submission  of  propositions  for  raising  or  appro- 
priating money,  except  that  no  such  proposition  shall  be  submitted  un- 
less at  least  ten  per  centum  of  the  qualified  voters  of  the  town  unite  in  a 
written  application  therefor  addressed  to  the  town  clerk.  Such  proposi- 
tion shall  be  deemed  adopted  if  it  receive  the  affirmative  vote  of  a ma- 
jority of  the  qualified  electors  voting  thereon.  Moneys  appropriated 
for  the  purposes  of  this  section  shall  be  raised  by  taxation  in  the  same 
manner  as  other  town  expenses,  but  shall  not  exceed  in  any  one  year  a 
sum  equal  to  twenty-five  hundredths  of  a mill  on  each  dollar  of  the 
assessed  valuation  of  property  in  the  town  according  to  the  assessment- 
roll  last  preceding  the  date  of  submission  of  the  proposition.  A propo- 
sition adopted  as  aforesaid  shall  continue  in  force  until  rescinded  by  a 
proposition  submitted  and  adopted  in  like  manner,  but  not  more  than 
one  such  proposition  either  directing  the  appropriation  or  rescinding  a 
former  proposition  shall  be  adopted  in  any  one  year.  Moneys  appro- 
priated under  the  provisions  of  this  section  shall  be  kept  separate  and 
apart  from  those  provided  for  in  section  one  hundred  and  thirty-six  of 
this  chapter  and  shall  be  expended  under  the  direction  of  the  town 
board.  [Town  Law,  § 136-a,  as  added  by  L.  1912,  ch.  185,  and 
amended  by  L.  1915,  ch.  412.] 


400 


TOWN  BOARD. 


Explanatory  note. 


CHAPTEK  XXIX 

LICENSES  BY  TOWN  BOARDS. 

EXPLANATORY  NOTE. 


Licenses  in  Towns. 

A town  board  as  the  governing  board  of  a town  has  much  the  same 
power  in  regulating  the  granting  of  licenses  to  peddlers  and  other 
persons  desiring  to  transact  business  in  streets  and  public  places  as  is 
possessed  by  common  councils  in  cities  and  boards  of  trustees  in  villages. 

The  Town  Law  authorizes  a town  board  to  prohibit  hawking  and 
peddling  of  goods  and  produce,  either  in  the  streets  or  by  calling  from 
house  to  house,  without  a license.  There  are  certain  limitations  on 
this  power,  as  in  case  of  selling  meats,  fish,  fruit  or  farm  produce. 
If  a person  peddles  goods,  wares  or  merchandise  produced  in  any 
foreign  country,  other  than  groceries  and  provisions,  he  must  not  only 
be  licensed  as  provided  by  regulation  of  a town  board,  but  be  must 
also  have  a license  issued  by  the  Secretary  of  State. 

It  is  expressly  provided  by  § 81,  post,  of  the  General  Municipal  Law 
that  a town  board  shall  not  regulate  or  prohibit  the  hawking  and  peddl- 
ing of  farm  produce.  Where  a town  board  has  passed  an  ordinance  or 
regulation  requiring  a license  for  peddling  or  hawking,  a person  who 
refuses  to  show  such  a license  when  demanded  by  a peace  officer  for  the 
purpose  of  inspection,  is  liable  to  a penalty  of  twenty-five  dollars,  re- 
coverable by  the  supervisor.  He  is  also  guilty  of  a misdemeanor. 

A town  board  may  also  regulate  the  transaction  of  a transient  retail 
business  in  any  store  in  the  town,  for  the  sale  of  damaged  or  bankrupt 
goods.  No  such  business  may  be  conducted  without  a license  to  be  is- 
sued upon  the  payment  of  a license  fee  to  be  fixed  by  the  town  board, 
at  not  exceeding  fifty  dollars  and  not  less  than  ten  dollars  a month. 


LICENSES  BY  TOWN  BOARDS. 


401 


Town  Law,  § 210. 

Town  boards  are  also  authorized,  in  towns  of  more  than  3,000 
population  outside  of  villages,  to  license  hacks,  shows,  concerts  and 
public  amusements. 


Section  1.  Town  board  may  prohibit  hawking  and  peddling  without  a license; 
not  to  apply  in  certain  cases. 

2.  Licenses  to  be  issued  by  town  clerk  and  endorsed  by  supervisor; 

effect  of  license. 

3.  Hawking  and  peddling  by  soldiers,  sailors  and  marines;  license 

therefor. 

4.  Peddling  and  hawking  farm  produce. 

5.  Penalty  for  peddling  or  hawking  without  a license;  refusal  to  show 

license,  effect  of. 

6.  Unlawful  hawking  or  peddling,  or  refusal  to  produce  a license  a mis- 

demeanor. 

7.  Transacting  retail  business  for  sale  of  bankrupt  or  damaged  goods 

without  a license;  town  board  to  fix  license  fee;  supervisor  to  issue 
license. 

7a.  Taxation  of  transient  merchants. 

8.  Town  board  may  license  hacks,  venders,  shows,  concerts  and  public 

amusements;  rules  and  regulations  therefor;  penalty  for  violation. 

9.  Regulation  of  junk  business;  junk  dealers  to  be  licensed  by  town 

supervisor. 

10.  Restrictions  or  regulations  not  to  discriminate  against  non-residents. 

11.  Exhibitions  and  entertainments  on  fair  grounds  to  be  exempt  from 

license. 


§ 1.  TOWN  BOARD  MAY  PROHIBIT  HAWKING  AND  PEDDLING 
WITHOUT  A LICENSE;  NOT  TO  APPLY  IN  CERTAIN  CASES. 

The  town  board  of  any  town  may,  by  resolution,  prohibit  the  hawking  and 
peddling  of  goods  or  produce  in  public  streets  or  places,  or  the  vending 
of  the  same  by  calls  from  house  to  house,  without  a license;  but  such 
prohibition  shall  not  apply  to  the  peddling  of  meats,  fish,  fruit  or  farm 
produce,1  to  the  sale  by  sample  or  prospectus  of  goods,  books  or  other 
merchandise  where  the  same  are  not  delivered  at  the  time  the  order  therefor 
is  taken,  or  to  peddling  by  any  person  or  corporation  in  this  state, 
provided  no  sale  is  made  by  such  person  or  corporation  of  dry  goods,  cloth- 
ing, drugs  or  articles  of  food,  and  all  sales  are  wholly  or  partly  by  barter  for 
merchandise,  or  so  as  to  require  a license  from  an  honorably  discharged 
soldier,  sailor  or  marine  of  the  military  or  naval  service  of  the  United 


1.  Peddling  of  farm  produce.  General  Municipal  Law,  sec.  81,  post,  p.  403, 
prohibits  a town  board  from  regulating  by  ordinance  the  hawking  and  peddling 
of  farm  produce. 


402 


TOWN  BOARD. 


Town  Law,  § 211. 

States,  who  has  obtained  a license  from  the  county  clerk  to  hawk,  peddle,, 
vend  or  solicit  trade,  in  pursuance  of  law.2  [Town  Law,  § 210;  B.  C. 
& G.  Cons.  L.,  p.  6202.] 

§ 2.  LICENSES  TO  BE  ISSUED  BY  TOWN  CLERK  AND  ENDORSED 
BY  SUPERVISOR;  EFFECT  OF  LICENSE. 

If  any  such  occupation  in  any  town  shall  be  so  prohibited,  the  town 
board  thereof  shall  establish  uniform  annual  fees  for  such  licenses,  and 
the  town  clerk  shall  issue  a license,  specifying  the  fee  to  be  paid  therefor,, 
to  any  citizen  of  the  United  States,  applying  therefor,  that  he  deems  a 
suitable  person  to  pursue  such  calling.  Upon  the  presentation  of  such 
license  to  the  supervisor  of  the  town,  and  the  payment  to  him  of  the  fee 
specified  therein,  the  supervisor  shall  endorse  upon  the  license  a receipt 
of  such  payment  and  the  date  thereof.  Such  license  shall  take  effect  from 
the  date  of  such  payment,  and  shall  continue  in  force  for  the  term  specified 
therein.  Such  license  shall  not  be  issued  for  a longer  term  than  one  year 
nor  for  a shorter  term  than  three  months.  Any  applicant  that  has  been 
refused  such  license  by  the  town  clerk  may  apply  to  the  town  board  therefor, 
and  the  same  may  be  granted  or  refused  by  the  board.  [Town  Law,  '§ 
211;  B.  C.  &.  G.  Cons.  L.,  p.  6202.] 


§ 3.  HAWKING  AND  PEDDLING  BY  SOLDIERS,  SAILORS  AND 
MARINES;  LICENSE  THEREFOR. 

Every  honorably  discharged  soldier,  sailor  or  marine  of  the  military 
or  naval  service  of  the  United  States,  who  is  a resident  of  this  state  and 

2.  Hawking1  and  peddling  generally.  As  to  hawking  and  peddling  by  soldiers, 
sailors  and  marines,  see  General  Business  Law,  § 31. 

By  article  4 of  the  General  Business  Law,  a person  traveling  from  place  to 
place  within  this  state  for  the  purpose  of  selling  or  exposing  for  sale  of  any 
goods,  wares  or  merchandise  of  the  growth,  product  or  manufacture  of  any 
foreign  country,  other  than  family  groceries  and  provisions,  must  secure  a 
license  as  a peddler  from  the  secretary  of  state.  The  provisions  of  such  article 
do  not  affect  the  application  of  any  ordinance,  by-law  or  regulation  adopted  by 
a town  board  relating  to  hawkers  and  peddlers  within  the  limits  of  such 
town.  But  the  provisions  of  such  article  are  to  be  complied  with  in  addition 
to  the  requirements  of  any  such  ordinance,  by-law  or  regulation.  See  General 
Business  Law,  § 35.  It  follows,  therefore,  that  no  person  can  peddle  from 
house  to  house  in  a town  goods,  wares,  or  merchandise  of  the  growth  or  manu- 
facture of  a foreign  country  without  securing  a license  from  the  secretary  of 
state,  and  also  complying  with  the  rules  and  regulations  of  the  town  board  as 
to  peddling  in  the  town. 

Liability  for  false  imprisonment.  Where  information  is  presented  to  a jus- 
tice of  the  peace,  alleging  the  violation  of  a resolution  or  ordinance  passed  by 
a town  board,  jurisdiction  is  given  to  the  justice;  if  the  person  arrested  is 
discharged  because  the  resolution  related  only  to  non-residents  of  the  town, 
the  person  who  presented  the  information  is  not  liable  for  false  imprisonment. 
Gilbert  v.  Satterlee,  101  App.  Div.  313,  91  N.  Y.  Supp.  960. 


LICENSES  BY  TOWN  BOARDS. 


408 


General  Business  Law,  § 32. 

a veteran  of  the  late  rebellion,  or  of  the  Spanish- American  war,  or  who  shall  have 
served  beyond  the  sea,  shall  have  the  right  to  hawk,  peddle,  vend  and  sell  by  auction 
his  own  goods,  wares  or  merchandise  or  solicit  trade  within  this  state,  by  procuring 
a license  for  that  purpose  to  be  issued  as  herein  provided. 

On  the  presentation  to  the  clerk  of  any  county  in  which  any  soldier,  sailor  or 
marine  may  reside,  of  a certificate  of  honorable  discharge  from  the  army  or  navy  of 
the  United  States,  which  discharge  shall  show  that  the  person  presenting  it  is  a 
veteran  of  the  late  rebellion,  or  of  the  Spanish-American  war,  or  that  he  has  served 
beyond  the  sea,  such  county  clerk  shall  issue  without  cost  to  such  soldier,  sailor 
or  marine  a license  certifying  him  to  be  entitled  to  the  benefits  of  this  article.3  A 
license  issued  without  cost,  under  the  provisions  of  this  section,  shall  be  personal  to 
the  licensee,  and  any  assignment  or  transfer  thereof  shall  be  absolutely  void.  A 
person  assigning  or  transferring,  or  attempting  to  assign  or  transfer  any  such  license 
contrary  to  the  provisions  of  this  section  shall  be  guilty  of  a misdemeanor.  [General 
Business  Law,  § 32,  as  amended  by  L.  1915,  ch.  175;  B.  C.  & G.  Cons.  L.,  p.  1810.] 

§ 4.  PEDDLING  AND  HAWKING  FARM  PRODUCE. 

The  governing  board  of  a municipal  corporation  shall  not  by  ordinance  or  other- 
wise regulate  or  prohibit  the  pursuit  or  exercise  of  hawking  and  peddling  farm  pro- 
duce except  hay  and  straw  within  the  limits  of  any  such  municipal  corporation,  if 
such  farm  produce  is  hawked  or  peddled  by  the  producer  thereof,  or  his  servants  or 
employees;  nor  shall  the  governing  board  of  any  such  municipal  corporation  pass 
an  ordinance  requiring  such  producer  of  farm  produce  to  secure  a license  for  peddling 
and  hawking  such  farm  produce  within  the  limits  of  such  municipal  corporation. 3a 
Nothing  contained  herein  shall  affect  any  pending  action  or  proceeding  to 


Sale  of  goods,  through  orders  given  to  deliverymen,  does  not  come  within 
the  meaning  of  this  provision.  Rept.  of  Atty.  Genl.  (1899)  229. 

3.  Municipal  regulations.  A license  to  peddle  granted  under  this  article  does 
not  relieve  the  licensee  from  compliance  with  municipal  regulations  as  to 
licenses.  City  of  Buffalo  v.  Linsmann,  113  App.  Div.  584,  98  N.  Y.  Supp.  737. 

A veteran  who  holds  a license  under  this  section  which  entitles  him  to  peddle 
goods  anywhere  in  the  state,  must  nevertheless  observe  such  municipal  ordi- 
nances as  are  designed  to  prevent  obstruction  of  the  public  streets.  Eggleston 
v.  Scheibel,  60  Misc.  250,  112  N.  Y.  Supp.  114. 

An  ordinance  which  prohibits  any  person  from  selling  peanuts  or  popcorn 
from  a vehicle,  unless  drawn  by  a horse  or  horses,  is  unlawful,  because  it  un- 
reasonably discriminates  against  those  who  might  engage  in  such  business 
from  vehicles  drawn  by  hand.  People  v.  Gilbert,  68  Misc.  48,  123  N.  Y.  Supp.  264. 

Rights  under  license.  Veteran  holding  a license  cannot  solicit  trade  on  the 
Niagara  Reservation.  Rept.  of  Atty.  Genl.  (1899)  291.  See  also  Rept.  of  Atty. 
Genl.  (1904)  427. 

An  honorably  discharged  soldier  of  the  United  States,  who  has  procured  a 
license  from  the  county  clerk  pursuant  to  this  section,  is  not  guilty  of  a mis- 
demeanor on  account  of  the  violation  of  a municipal  ordinance  forbidding  all 
persons  from  occupying  or  obstructing  any  portion  of  any  street  for  the  sale 
of  certain  specified  commodities,  in  the  absence  of  proof  of  his  having  obstructed 
the  street.  People  v.  Gilbert,  68  Misc.  48,  123  N.  Y.  Supp.  264. 

3a.  Constitutionality  of  the  provision  requiring  certain  transient  retail  dealers 
to  obtain  licenses  from  local  authorities  before  doing  business,  cannot  be  sus- 
tained as  an  exercise  of  either  the  police  power  or  of  the  power  of  taxation. 
People  ex  rel.  Moskowitz  v.  Jenkins,  202  N.  Y.  53,  revg.  140  App.  Div.  786,  125 
N.  Y.  Supp.  817. 

Hawking  and  peddling  of  farm  produce  by  persons  who  have  purchased  the 
same  from  others,  cannot  be  prohibited  by  a village.  Rept.  of  Atty.  Genl.,  Apr. 
25,  1911. 

Farmers  peddling  milk,  which  they  produce  on  their  own  farms,  cannot  be 
compelled  to  take  out  a license  by  local  boards  of  health  operating  under  city 
ordinances.  Rept.  of  Atty.  Genl.,  Aug.  11,  1910. 


404 


TOWN  BOARD. 


General  Municipal  Law,  § 81;  Town  Law,  §§  212-214. 

recover  penalties  imposed  for  violations  of  existing  ordinances  and  regula- 
tions. Nothing  in  this  section  shall  be  construed  to  permit  wagons  from 
which  farm  produce  is  sold  to  stand  in  front  of  stores  or  private  residences 
for  a longer  time  than  may  be  necessary  for  the  sale  and  delivery  of 
produce  purchased  by  the  occupants  of  such  stores  or  residences;  nor  to 
permit  the  congregating  of  such  wagons  upon  any  street  or  thoroughfare 
not  set  apart  by  the  municipality  as  a public  market  for  the  sale  of  farm 
produce.  This  section  shall  not  apply  to  cities  of  the  first  class.  [General 
Municipal  Law,  § 81;  B.  C.  & G.  Cons.  L.,  p.  2135.] 


§ 5.  PENALTY  FOR  PEDDLING  OR  HAWKING  WITHOUT  A LI- 
CENSE; REFUSAL  TO  SHOW  LICENSE,  EFFECT  OF. 

Every  person  hawking  or  peddling  goods  or  produce  in  the  public  streets  or 
places,  or  vending  the  same  by  calls  from  house  to  house,  in  any  town,  the  town 
board  of  which  requires  a license  for  the  pursuit  of  such  calling,  without  having 
obtained  such  license,  or  who  refuses  to  produce  such  a license  to  any  peace  officer 
who  demands  inspection  of  the  same,  shall  be  liable  to  a penalty  of  twenty-five 
dollars,  recoverable  by  the  supervisor  of  the  town  in  any  court  having  jurisdiction 
thereof,  and  applicable  to  the  support  of  the  poor  of  the  town.  The  refusal  to 
produce  such  a license  when  demanded  by  a peace  officer  shall  be  presumptive  evi- 
dence that  such  person  is  hawking,  peddling  or  vending  without  a license.  An 
action  for  a penalty  imposed  by  this  section  shall  not  be  maintained  unless  it  is 
brought  within  sixty  days  after  the  commission  of  the  offense  charged.4  [Town 
Law,  § 212;  B.  C.  & G.  Cons.  L.,  p.  6202.] 

§ 6.  UNLAWFUL  HAWKING  OR  PEDDLING,  OR  REFUSAL  TO  PRO- 
DUCE A LICENSE  A MISDEMEANOR. 

Any  person  who  hawks,  peddles  or  vends  wtihout  a license  in  any  town,  as  re- 
quired by  this  article,  or  contrary  to  the  terms  of  his  license,  or  who  refuses  to 
produce  his  license  on  the  demand  of  a peace  officer  is  guilty  of  a misdemeanor. 
[Town  Law,  § 213;  B.  C.  & G.  Cons.  L.,  p.  6203.] 

Niagara  and  Orleans  counties  excepted.  Niagara  and  Orleans  counties  are  hereby 
excepted  from  the  provisions  of  the  last  four  sections  of  this  chapter.  [Town  Law, 
§ 214;  B.  C.  & G.  Cons.  L.,  p.  6203.] 


§ 7.  TRANSACTING  RETAIL  BUSINESS  FOR  SALE  OF  BANKRUPT 
OR  DAMAGED  GOODS  WITHOUT  A LICENSE;  TOWN  BOARD 
TO  FIX  LICENSE  FEE;  SUPERVISOR  TO  ISSUE  LICENSE. 

No  person  whether  acting  as  principal  or  as  agent  for  another,  shall  conduct  a 
transient  retail  business  in  any  store  in  any  city  of  the  third  class,  village  or  town 
of  this  state  for  the  sale  of  goods  which  shall  be  represented  or  advertised  as  a 
bankrupt  stock,  or  as  assigned  stock,  or  as  goods  damaged  by  fire,  water  or  other- 
wise, or  by  any  such  like  representation  or  device,  without  first  taking  out  a license 
therefor  from  the  mayor  of  such  city,  president  of  such  village  or  the  supervisor 


4.  Penal  provision.  By  section  1610  of  the  Penal  Law  it  is  provided  that:  “ A 
person  who  is  found  trading  as  a peddler  without  a license  or  contrary  to  the  terms 
of  his  license,  or  who  refuses  to  produce  his  license  on  demand  of  any  officer  or 
citizen  is  guilty  of  a misdemeanor.” 


LICENSES  BY  TOWN  BOARDS. 


405 


General  Municipal  Law,  § 85a;  Town  Law,  § 215. 

oi  such  town.  The  amount  of  the  fee  for  such  license  in  any  city  shall  be  fixed  by 
resolution  duly  passed  by  the  board  of  aldermen  or  common  council,  and  in  a village 
Ijy  resolution  duly  passed  by  the  board  of  trustees  of  such  village;  and  in  a town 
by  resolution  of  the  town  board  of  such  town.  Such  fee  shall  not  be  less  than 
twenty -five  dollars  nor  more  than  one  hundred  dollars  per  month  in  a city  or  an 
incorporated  village,  and  not  less  than  ten  dollars  nor  more  than  fifty  dollars 
per  month  in  a town.  No  such  license  shall  be  issued  for  a less  period  than  one 
month  and  it  shall  be  renewed  monthly  during  the  continuance  of  such  business. 
The  sum  paid  as  license  fees  shall,  in  a city  or  village,  be  paid  to  the  treasurer  of 
such  city  or  village,  and  in  a town  to  the  supervisor  thereof,  to  be  used  for  city, 
village  or  town  purposes. 

Any  person  as  principal  or  agent  conducting  a transient  retail  business  as  de- 
scribed in  this  section,  without  obtaining  a license  therefor,  shall  be  guilty  of  a 
misdemeanor  and  upon  conviction  thereof  shall  be  fined  a sum  not  less  than  one 
hundred  dollars  nor  more  than  two  hundred  dollars,  and  in  default  of  the  payment 
thereof  shall  be  imprisoned  for  a period  of  not  more  than  sixty  daysJa  [General 
Municipal  Law,  § 85;  B.  C.  & G.  Cons.  L.,  p.  2136.] 

§ 7a.  TAXATION  OF  TRANSIENT  MERCHANTS. 

The  legislative  body  of  a city,  the  town  board  of  a town  or  the  board  of  trustees 
of  a village  has  power  to  provide  that  a tax  shall  be  levied  upon  all  persons  or  cor- 
porations conducting  transient  retail  business  therein,  and  may  provide  for  the 
collection  of  such  tax  by  requiring  a permit  and  bond,  cash  deposit  or  other  secur- 
ity before  the  commencement  of  business  by  such  persons  or  corporations.  Such 
tax  shall  be  based  upon  the  gross  amount  of  sales  and  shall  be  at  the  same  rate  as 
other  property  is  taxed  for  the  year  in  such  city,  town  or  village.  If  at  the  time 
such  tax  becomes  due  and  payable,  the  tax  rate  for  the  current  year  of  such  city, 
town  or  village  has  not  been  fixed,  the  same  shall  be  estimated  by  the  assessors 
thereof.  An  ordinance  or  resolution  providing  for  a tax  hereunder  may  require  veri- 
fied reports  to  be  filed  from  time  to  time  relating  to  stock  and  sales,  and  may 
make  such  further  requirements  as  may  be  necessary  in  order  to  determine  the 
amount  of  such  tax,  and  to  provide  for  the  collection  thereof.  A transient  business 
is  one  conducted  in  a store,  hotel,  house,  building  or  structure  for  the  sale  at  retail 
of  goods,  wares  or  merchandise,  excepting  food  products,  and  which  is  intended  to 
be  conducted  for  a temporary  period  of  time  and  not  permanently.  If  the  place  in 
which  a business  is  conducted  is  rented  or  leased  for  a period  of  two  months  or  less, 
such  fact  shall  be  presumptive  evidence  that  the  business  carried  on  therein  is  a 
transient  business.  Any  person  or  corporation  failing  to  pay  said  tax,  or  failing  to 
obey  the  provisions  of  an  ordinance  or  resolution  adopted  hereunder,  shall  be  guilty 
of  a misdemeanor.  [General  Municipal  Law,  § 85a,  as  added  by  L.  1917,  ch.  199.] 

§ 8.  TOWN  BOARD  MAY  LICENSE  HACKS,  VENDERS,  SHOWS,  CONCERTS 
AND  PUBLIC  AMUSEMENTS;  RULES  AND  REGULATIONS  THERE- 
FOR; PENALTY  FOR  VIOLATION. 

License  fees , how  fixed , collected  and  applied. — The  supervisor,  jus- 
tice of  the  peace  and  town  clerk  of  any  town  are  hereby  authorized  and 
empowered  to  license  and  regulate  all  public  hacks,  vehicles,  vendors, 
shows,  concerts,  public  amusements,  merry-go-rounds,  carousals,  tobog- 
gan slides,  ferris  wheels,  rope  dancing,  loop-the>loop,  public  gardens, 
tragedy,  comedy,  opera,  ballet,  play,  farce,  minstrelsy  or  dancing,  or  any 
other  entertainment  of  the  stage,  or  any  part  or  parts  thereof,  or  any 

4-a.  Constitutionality  of  the  provision,  requiring  certain  transient  retail 
dealers  to  obtain  licenses  from  local  authorities  before  doing  business,  cannot  be 
sus  ui.-ied  as  an  exercise  of  either  the  police  power  or  of  the  power  of  taxation,  and.. 
In  line  .s  unconstitutional.  People  ex  rel.  Moskowitz  v.  Jenkins  (1911),  202  N.  Y, 
53,  revg.  140  App.  Div.  78G,  125  N.  Y.  Supp.  817. 


406 


TOWN  BOARD. 


Town  Law,  §§  216-218. 

equestrian,  circus  or  dramatic  performance,  or  any  performance  of 
jugglers  or  acrobats  in  such  town  outside  of  an  incorporated  city  or 
village,  and  to  fix  the  fee  to  be  paid  for  the  persons  so  licensed  to  said 
officers,  which  money  so  collected  shall  be  paid  over  to  the  supervisors  of 
such  town  within  thirty  days  after  the  receipt  of  the  same,  and  the  said 
supervisor  shall,  after  deducting  the  necessary  expenses  for  carrying  out 
the  provisions  of  this  article  place  the  same  in  the  general  town  fund. 
[Town  Law,  § 215,  as  amended  by  L.  1913,  ch.  496 ; B.  C.  and  G.  Cons. 
L.,  p.  6203.] 

Rules  and  regulations. — The  said  officers  shall  have  power  to  make 
and  establish  such  rules,  regulations  and  ordinances  not  inconsistent  with 
the  laws  of  this  state,  as  they  may  deem  necessary  for  the  proper  regula- 
tion of  such  hacks,  vehicles,  venders,  shows,  concerts,  public  amusements, 
merry-go-rounds,  carousals,  toboggan  slides,  ferris  wheels,  rope  dancing, 
loop-the-loop,  public  gardens,  tragedy,  comedy,  opera,  ballet,  play,  farce, 
minstrelsy  or  dancing,  or  any  other  entertainment  of  the  stage,  or  any 
part  or  parts  thereof,  or  any  equestrian,  circus  or  dramatic  performance, 
or  any  performance  of  jugglers  or  acrobats.  Such  rules,  regulations  and 
ordinances  shall  be  posted  in  at  least  ten  public  places  in  such  town. 
[Town  Law,  § 216;  B.  C.  & G.  Cons.  L.,  p.  6203.] 

Licenses  required,  and  violation  of  act  a misdemeanor. — It  shall  not  be 
lawful,  in  any  town  where  the  officers  mentioned  in  this  article  shall  have 
made  and  established  rules,  regulations  and  ordinances  as  in  this  article 
provided  for,  to  conduct,  or  operate,  any  public  hacks,  vehicles  or  peddling 
or  to  maintain,  operate,  carry  on  or  exhibit  any  shows,  concerts,  public 
amusements,  merry-go-rounds,  carousals,  toboggan  slides,  ferris  wheels, 
rope  dancing,  loop-the-loop,  public  gardens,  tragedy,  comedy,  opera,  ballet, 
play,  farce,  minstrelsy  or  dancing,  or  any  other  entertainment  of  the  stage, 
or  any  part  or  parts  thereof,  or  any  equestrian,  circus  or  dramatic  perform- 
ance, or  any  performance  of  jugglers  or  acrobats,  until  a license  for 
conducting,  maintaining,  carrying  on,  and  exhibiting  the  same  shall  have 
been  first  had  and  obtained,  signed  by  the  supervisor  and  town  clerk  of 
any  such  town,  and  each  and  every  violation  of  the  provisions  of  this 
article  shall  be  a misdemeanor.  [Town  Law,  § 217;  B.  C.  & G.  Cons. 
L.,  p.  6204.] 

Offenders:  where  tried. — Subject  to  the  power  of  removal  provided 
for  in  part  one,  chapter  one,  title  six  of  the  code  of  criminal  procedure, 
courts  of  special  sessions  in  any  such  town  have,  in  the  first  instances, 
exclusive  jurisdiction  to  hear  and  determine  charges  of  violating  the  pro- 
visions of  this  article  and  all  violations  of  any  rule,  regulation  or  ordinance 
established  by  the  officers  of  any  such  towns  as  provided  for  in  this  article ; 
and  any  person  violating  the  provisions  of  this  article,  or  any  rule,  regula- 
tion or  ordinance  established  by  said  officers  as  in  this  article  provided 


LICENSES  BY  TOWN  BOARDS. 


407 


Town  Law,  § 219;  General  Business  Law,  §§  60,  61. 

for,  shall  be  guilty  of  a misdemeanor.  [Town  Law,  § 218;  B.  C.  & 
G.  Cons.  L.,  p.  6204.] 

Injunction  by  town  authorities. — In  case  any  person  shall  operate  or 
conduct  any  public  hack,  vehicle  or  peddling  or  shall  open,  advertise  to 
open,  operate,  maintain  or  conduct  any  show,  concert,  public  entertain- 
ment, merry-go-round,  carousal,  toboggan  slide,  ferris  wheel,  rope  dancing, 
loop-the-loop,  public  garden,  tragedy,  comedy,  opera,  ballet,  play,  farce, 
minstrelsy  or  dancing,  or  any  other  entertainment  of  the  stage,  or  any 
part  or  parts  thereof,  or  any  equestrian,  circus,  or  dramatic  performance 
or  any  performance  of  jugglers  or  acrobats  in  any  town  without  first 
obtaining  a license  therefor  as  provided  for  by  this  article  or  as  provided 
for  by  the  rules,  regulations  and  ordinances  adopted  by  any  town  as  herein 
provided  for,  it  shall,  and  may  be  lawful  for  the  town,  in  its  corporate 
name,  to  apply  to  the  supreme  court,  or  any  justice  thereof,  for  an 
injunction  to  restrain  the  opening,  carrying  on,  or  maintaining  thereof, 
until  he  shall  have  complied  with  the  requisites  of  this  article  and  of 
the  rules,  regulations  and  ordinances  adopted  by  any  said  town  in  obtaining 
such  license,  which  injunction  may  be  allowed  upon  a complaint  to  be  in 
the  name  of  the  town  in  the  same  manner  as  injunctions  are  now  usually 
allowed  by  the  practice  of  said  court;  and  the  said  town  is  not  required  to 
give  any  undertaking  on  any  such  application  granted  or  applied  for 
under  the  provisions  of  this  article.  [Town  Law,  § 219 ; B.  C.  & G.  Cons. 
L.,  p.  6204.] 


§ 9.  REGULATION  OF  JUNK  BUSINESS;  JUNK  DEALERS  TO  BE  LI- 
CENSED BY  TOWN  SUPERVISOR. 

It  shall  be  unlawful  for  any  person,  association,  partnership  or  corpora- 
tion to  engage  in  the  business  of  buying  or  selling  old  metal, 
which  business  is  herein  designated  junk  business,  and  which  person, 
association,  partnership  or  corporation  is  herein  designated  junk  dealer, 
unless  such  junk  dealer  shall  have  complied  with  the  provisions  of  this 
article  and  obtained  a license  so  to  do  from  the  mayor  of  the  city,  if  the 
principal  place  of  business  of  such  junk  dealer  is  in  a city,  or  the  president 
of  the  village  if  such  place  of  business  is  in  an  incorporated  village,  other- 
wise from  the  supervisor  of  the  town  in  which  such  place  of  business  is 
located ; for  which  license  shall  be  paid  such  mayor,  president  or  supervisor 
for  the  use  of  such  city,  village  or  town,  the  sum  of  five  dollars,  which 
license  shall  expire  on  June  thirtieth  of  each  year.  [General  Business 
Law,  § 60;  B.  C.  & G.  Cons.  L.,  p.  1816.] 

Persons  not  entitled  to  license. — No  person,  association,  partnership 
or  corporation  shall  be  entitled  to  or  receive  such  license  who  or  which, 


408 


TOWN  BOARD. 


General  Business  Law,  §§  62-64;  General  Municipal  Law,  § 80. 

and  in  case  of  a partnership  or  association  any  member  of  which,  has 
been  since  January  first,  nineteen  hundred  and  three,  or  who  or  which 
shall  hereafter  be  convicted  of  larceny  or  knowingly  receiving  stolen 
property,  or  of  a violation  of  this  act.  [Idem,  § 61;  B.  C.  & G.  Cons.  L., 

p.  1816.] 

Statement  required  from  persons  selling  certain  property . — On  purchas- 
ing any  pig  or  pigs  of  metal,  bronze  or  brass  casting  or  parts  thereof,  sprues 
or  gates  or  parts  thereof,  copper  wire  or  brass  car  journals,  such  junk 
dealer  shall  cause  to  be  subscribed  by  the  person  from  whom  purchased 
a statement  as  to  when,  where  and  from  whom  he  obtained  such  property, 
also  his  age,  residence  by  city,  village  or  town,  and  the  street  and  number 
thereof,  if  any,  and  otherwise  such  description  as  will  reasonably  locate 
the  same,  his  occupation  and  name  of  his  employer  and  place  of  employ- 
ment or  business,  which  statement  the  junk  dealer  shall  forthwith  file  in 
the  office  of  the  chief  of  police  of  the  city  or  village  in  which  the  purchase 
was  made,  if  made  in  a city  or  incorporated  village,  and  otherwise  in  the 
office  of  the  sheriff  of  the  county  in  which  made.  [Idem,  § 62,  as  amended 
by  L.  1918,  ch.  20;  B.  C.  & G.  Cons.  L.,  p.  1816.] 

Certain  property  to  be  kept  in  certain  piles. — Every  junk  dealer  shall  on 
purchasing  any  of  the  property  described  in  the  last  Section  place  and 
keep  each  separate  purchase  in  a separate  and  distinct  pile,  bundle  or 
package,  in  the  usual  place  of  business  of  such  junk  dealer,  without  re- 
moving, melting,  cutting  or  destroying  any  article  thereof,  for  a period 
of  five  days  immediately  succeeding  such  purchase,  on  which  package, 
bundle  or  pile  shall  be  placed  and  kept  by  such  dealer  a tag  bearing  the 
name  and  residence  of  the  seller,  with  the  date,  hour  and  place  of  purchase, 
and  the  weight  thereof.  [Idem,  § 63 ; B.  C.  & G.  Cons.  L.,  p.  1816.] 

Penalty. — Each  violation  of  this  act,  either  by  the  junk  dealer,  the  agent 
or  servant  thereof,  and  each  false  statement  made  in  or  on  any  statement  or 
tag  above  mentioned  shall  be  a misdemanor,  and  the  person  convicted  shall, 
in  addition  to  other  penalties  imposed,  forfeit  his  license  to  do  business. 
But  nothing  herein  contained  shall  apply  to  cities  of  the  first  class.  [Idem, 
§ 64;  B.  C.  & G.  Cons.  L.,  p.  1817.] 


§ 10.  RESTRICTIONS  OR  REGULATIONS  NOT  TO  DISCRIMINATE 
AGAINST  NONRESIDENTS. 

Any  restriction  or  regulation  imposed  by  the  governing  board  of  a 
municipal  corporation  upon  the  inhabitants  of  any  other  municipal  cor- 
poration within  this  state,  carrying  on  or  desiring  to  carry  on  any  lawful 
business  or  calling  within  the  limits  thereof,  which  snail  not  be  necessary 
for  the  proper  regulation  of  such  trade,  business  or  calling,  and  shall  not 
apply  to  citizens  of  all  parts  of  the  state  alike,  except  ordinances  or  regu- 


LICENSES  BY  TOWN  BOARDS. 


409 


Membership  Corporations  Law,  § 197. 

lations  in  reference  to  traveling  circuses,  shows  and  exhibitions,  shall  be 
void.5  [General  Municipal  Law,  § 80 ; B.  C.  & G.  Cons.  L.,  p.  2134.] 


§ 11.  EXHIBITIONS  AND  ENTERTAINMENTS  ON  FAIR  GROUNDS 
TO  BE  EXEMPT  FROM  LICENSE. 

The  provisions  of  any  special  or  local  law  or  municipal  ordinance, 
requiring  the  payment  of  a license  fee  for  exhibitions  or  entertainments, 
shall  not  apply  to  any  exhibition  or  entertainment  held  on  the  grounds  of 
a town  or  county  fair  association,  if  the  association  derives  a pecuniary 
profit  from  such  exhibition  or  entertainment  by  the  lease  of  its  grounds 
for  such  purpose,  or  otherwise.  [Membership  Corporations  Law,  § 197; 
B.  C.  & G.  Cons.  L.,  p.  3449.] 


5.  This  section  is  operative  except  as  inconsistent  with  the  preceding  sec- 
tions of  this  chapter.  Sections  210-213  of  the  Town  Law,  and  General  Munici- 
pal Law,  § 85,  supersede  in  a measure  the  provisions  of  this  section. 

Licenses  of  vendors  which  discriminate  against  non-residents  are  void.  Rept. 
of  Atty.  Genl.  (1894)  189,  200. 


410 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Explanatory  note. 


CHAPTER  XXX. 

FIRE  PROTECTION;  WATER,  LIGHT  AND  SEWER  SYSTEMS;  SIDE- 

WALKS. 

EXPLANATORY  NOTE. 

Fire  Companies  in  Towns. 

It  is  sometimes  desirable  in  towns  having  thickly  settled  communities 
which  are  not  incorporated  as  villages,  to  provide  therein  for  fire  pro- 
tection. The  law  authorizes  the  town  board  in  such  cases  to  organize 
fire  companies.  Such  companies  are  permitted  to  choose  their  own 
officers  and  adopt  rules  for  their  government.  All  vacancies  in  such 
companies  are  filled  by  the  town  board,  although  it  would  be  proper  to 
make  such  appointments  on  recommendation  of  the  companies. 

Where  such  a company  is  organized  the  electors  of  the  district 
served  by  such  company  may  vote  to  purchase  necessary  fire  apparatus. 
The  cost  thereof  is  to  be  levied  upon  the  taxable  property  of  the  district. 

Water  Supply  District ; Water-Works. 

A town  board  may  establish  a water  supply  district  outside  of  any 
incorporated  village  in  the  town.  Where  such  a district  is  established, 
the  town  board  may  contract  with  village  water  commissioners  to 
furnish  water  for  fire,  sanitary  or  other  public  purpose  to  such  district. 
Such  a contract  may  also  be  made  with  a water  works  company.  The 
rental  to  be  paid  for  the  use  of  the  water  is  primarily  a charge  upon 
the  town,  but  must  be  levied  upon  the  taxable  property  in  the  district. 

Provision  is  also  made  in  the  Town  Law  for  the  purchase  of  existing 
water  works.  Town  bonds  may  be  issued  therefor  which  are  to  be 
paid,  principal  and  interest,  by  tax  levied  against  the  taxable  property 
of  the  district.  It  is  also  provided  that  a town  may  construct  its  own 
water  works  system  at  the  cost  of  a water  supply  district  established 
bv  the  town  board. 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS.  41 1 


Explanatory  note. 

Street  Lighting  Districts. 

Lighting  districts  may  be  established  in  towns  where  circumstances 
warrant  it.  In  such  cases  the  town  board  may  contract  for  the  lighting 
of  streets  and  public  places  in  such  districts,  upon  such  terms  and 
for  such  periods,  not  exceeding  ten  years,  as  they  may  deem  proper  or 
expedient.  Ho  such  contract  may  be  made  unless  petitioned  for  by 
a majority  of  the  taxpayers  of  the  district.  The  expense  incurred  is 
assessed  and  levied  on  the  taxable  property  in  the  district. 

Establishment  of  Sewer  System. 

A sewer  system  may  be  established  by  a town  board  in  a prescribed 
district  in  the  town,  outside  of  an  incorporated  village.  The  town 
board  acts  upon  the  petition  of  a majority  of  the  taxpayers  representing 
a majority  of  the  taxable  property  in  the  district.  The  petition  must 
describe  the  proposed  district.  The  town  board  upon  establishing  the 
system  must  appoint  three  taxpayers  of  the  district  as  sewer  com- 
missioners. These  commissioners  are  to  construct  the  sewer  as  provided 
by  law. 


Section  1.  Town  board  may  appoint  members  of  fire  companies  outside  of  incor- 
porated villages;  electors  of  highway  district  may  vote  to  pur- 
chase fire  apparatus. 

2.  Town  board  may  establish  water  supply  districts. 

3.  Water  works  corporations  must  furnish  water  to  town;  town  board  may 

establish  water  supply  district;  expense  chargeable  upon  district. 

4.  Purchase  of  water  works  by  town. 

5.  Establishment  of  water  districts  in  towns. 

5a.  Town  boards  may  establish  joint  water  supply  districts;  petition; 
map;  expenses,  how  paid;  action  by  joint  town  boards;  contract 
for  water  supply;  levy  of  taxes  for  payment  of  amount  of  contract. 

6.  Town  boards  may  establish  street  lighting  districts  and  contract  for 

the  lighting  of  streets  therein;  petition  therefor;  notice  to  be  pub- 
lished; amount  of  contract,  how  raised. 

6a.  Lighting  contracts  in  town  and  village. 

7.  Town  board  may  establish  sewer  system;  petition. 

8.  Sidewalk  districts  established. 

9.  Contracts  for  improvements;  improvements,  how  paid  for. 

10.  Control  over  sidewalks. 

11.  Proceedings  for  constructing  sidewalks  not  constructed  under  the  pre- 

ceding sections. 

§ 1.  TOWN  BOARD  MAY  APPOINT  MEMBERS  OF  FIRE  COMPANIES 
OUTSIDE  OF  INCORPORATED  VILLAGES;  ELECTORS  OF 
HIGHWAY  DISTRICT  MAY  VOTE  TO  PURCHASE  FIRE  AP- 
PARATUS. 

The  town  board  of  any  town  may  appoint  in  writing,  any  number  of 
inhabitants  of  their  town,  which  they  may  deem  necessary,  to  be  a fire  com- 
pany or  companies  for  the  extinguishment  of  fires  in  their  town.  [Town 
Law,  § 310,  as  amended  by  L.  1010,  ch.  408,  and  L.  1012,  ch.  238;  B.  C.  & 
G.  Cons.  L.,  p.  6221.] 


412 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  311,  312,  313. 

Establishment  of  rules  and  regulations  by  fire  company. — Each  fire  com- 
pany, thus  formed,  shall  choose  a captain  and  clerk  thereof,  and  may  es- 
tablish such  by-laws  and  regulations  as  may  be  necessary  to  enforce  the  per- 
formance, by  such  firemen,  of  their  dutjq  and  may  impose  such  penalties, 
not  exceeding  five  dollars  for  each  offense,  as  may  be  necessary  for  that 
purpose.  Such  penalties  may  be  collected  by  and  in  the  name  of  the  cap- 
tains, in  any  court  having  cognizance  thereof,  and,  when  collected,  shall 
be  expended  by  the  companies  for  the  repair  and  preservation  of  their  en- 
gines and  apparatus  for  the  extinguishment  of  fires.  [Town  Law,  § 311; 
B.  C.  & G.  Cons  L.,  p.  6221.] 

Vacancies  in  fire  company. — All  vacancies  which  may,  at  any  time  hap- 
pen in  such  companies  by  death,  resignation  or  otherwise,  shall,  from  time 
to  time,  be  filled  by  the  town  board.  [Town  Law,  § 312;  B.  C.  & G.  Cons. 
L.,  p.  6221.] 

Appropriations  for  fire  company . — The  electors  of  any  water  district, 
highway  district,  town  fire  district  or  water  supply  district,  in  which  any 
town  fire  company  shall  have  their  headquarters,  at  a special  meeting  law- 
fully called  by  the  town  clerk,  who  is  hereby  authorized  to  call  such  special 
meeting,  may  vote,  by  ballot,  a sum  of  money,  not  exceeding  four  thousand 
dollars,  except  that  in  any  such  district  in  a town  within  a county  having 
more  than  three  hundred  thousand  inhabitants  according  to  the  last  state 
census,  and  adjoining  a city  of  the  first  class,  such  sum  shall  not  exceed 
ten  thousand  dollars,  for  the  purchase  of  a fire  engine  and  apparatus  for 
the  extinguishment  of  fires,  and  for  the  purchase  or  lease  or  other  acqui- 
sition of  suitable  buildings  and  grounds  for  keeping  and  storing  such  fire 
engine  and  apparatus  for  the  extinguishment  of  fires,  and  other  property 
of  said  water  district,  highway  district  or  water  supply  district,  and  an 
additional  sum  for  the  maintenance  and  operation  of  the  engines,  apparatus 
and  buildings  and  of  said  fire  company  or  companies  within  such  district 
for  the  ensuing  year.  And  whenever  said  electors  shall  so  vote  said  money 
for  the  purchase  of  a fire  engine  and  apparatus  for  the  extinguishment  of 
fires,  and  for  the  purchase  or  lease  or  other  acquisition  of  suitable  build- 
ings and  grounds  for  keeping  and  storing  such  fire  engine  and  apparatus 
for  the  extinguishment  of  fires,  and  other  property  of  said  water  district, 
highway  district,  town  fire  district  or  water  supply  district,  the  water  com- 
missioners in  water  districts  and  the  town  boards  in  highway  and  water 
supply  districts  or  town  fire  districts  where  no  board  of  town  fire  commis- 
sioners has  been  established,  and  the  boards  of  town  fire  commissioners  in 
town  fire  districts  may  contract  for  and  purchase  for  such  district  a good 
and  sufficient  fire  engine  and  apparatus  for  the  extinguishment  of  fires,  and 
may  contract  for  and  purchase  or  lease  or  otherwise  acquire  for  such  dis- 
trict suitable  buildings  and  grounds  for  keeping  and  storing  such  fire  en- 
gine and  apparatus  for  the  extinguishment  of  fires,  and  other  property  of 
said  district  at  a price  not  to  exceed  the  sum  so  voted  therefor,  which  en- 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


413 


Town  Law,  §§  313,  313a,  313b,  314. 

gine  and  apparatus  for  the  extinguishment  of  fires,  and  buildings  and 
grounds,  shall  be  the  property  of  said  water  district,  highway  district,  town 
fire  district  or  water  supply  district,  but  may  be  used  and  cared  for  by 
such  fire  company  or  companies  under  the  direction  and  control  of  the 
water  commissioners  in  water  districts  and  the  town  board  in  highway  and 
water  supply  districts  and  in  town  fire  districts  where  no  board  of  town 
fire  commissioners  has  been  established;  all  of  which  boards  shall  in  such 
cases  respectively  have  such  powers  and  duties  as  are  hereafter  in  this  ar- 
ticle provided  for  boards  of  town  fire  commissioners.  [Town  Law,  § 313, 
as  amended  by  L.  1910,  ch.  408,  L.  1912,  ch.  238,  L.  1916,  ch.  226,  and 
L.  1917,  ch.  577;  B.  C.  & GL  Cons.  L.,  p,  6221.] 

In  any  such  district  authorized  to  raise  more  than  four  thousand  dollars, 
as  in  the  last  section  provided,  if  the  amount  so  voted  shall  exceed  in 
amount  one-fourth  of  one  per  centum  of  the  aggregate  assessed  valuation 
of  the  real  property  within  such  district,  as  shown  by  the  last  preceding 
town  assessment  roll,  and  request  so  to  do  is  made  of  the  town  board  by 
the  governing  commission,  or  board,  of  such  district,  it  shall  be  the  duty 
of  such  town  board  to  raise  the  amount  of  money  so  voted  by  the  issue  and 
sale  of  bonds.  Such  bonds  shall  be  signed  by  the  supervisor  and  attested 
by  the  town  clerk,  and  shall  be  paid  in  five  equal  annual  installments,  the 
first  of  which  shall  become  due  not  more  than  eighteen  months  from  their 
date.  Such  bonds  shall  bear  such  rate  of  interest  not  exceeding  six  per 
centum  per  annum,  and  be  in  such  form  as  the  town  board  of  such  town 
may  approve  and  shall  be  sold  at  public  sale  by  the  supervisor  of  such  town 
for  not  less  than  their  par  value.  Such  bonds  shall  be  consecutively  num- 
bered from  one  to  the  highest  number  issued,  and  the  town  clerk  shall  keep 
a record  of  the  number  of  each  bond,  its  date,  amount,  rate  of  interest, 
when  and  where  payable  and  the  purchaser  thereof,  or  the  person  to  whom 
they  are  issued.  Such  bonds  shall  be  a charge  upon  the  town  and  the 
amount  necessary  to  pay  said  bonds  and  the  interest  thereon  as  the  same 
becomes  due  shall  be  collected  from  the  property  within  such  district. 
[Town  Law,  § 313a,  as  added  by  L.  1917,  ch.  577.] 

In  any  town  in  which  bonds  are  issued  as  in  the  last  section  provided,  the 
town  board  shall  annually  transmit  a statement  of  the  amount  due  for 
the  payment  of  said  bonds  and  interest  to  the  board  of  supervisors  of  the 
county.  Such  board  of  supervisors  shall  levy  such  sums  against  the  prop- 
erty liable,  and  the  amount  of  such  taxes  shall  be  extended  against  such 
property  in  a separate  column  of  the  annual  tax  roll  of  such  town.  Such 
taxes  when  collected  shall  be  paid  to  the  supervisor  and  by  him  applied  in 
payment  of  such  bonds  and  interest.  [Town  Law,  § 313b,  as  added  by 
L.  1917,  ch.  577.] 

Assessments  for  expense  of  maintaining  fire  company. — The  purchase 
price  of  said  fire  engine  and  apparatus  or  other  apparatus  for  the  extin- 
guishment of  fires,  and  buildings  and  grounds,  and  the  expense  of  main- 


414 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  314a,  314b. 


taining  said  fire  engine  and  apparatus  for  the  extinguishment  of  fires  and 
other  property  and  apparatus  and  for  maintaining  said  fire  company  or 
companies  shall  be  assessed  and  levied  upon  the  property  of  said  district 
and  collected  in  the  same  manner  as  other  town  charges  are  assessed,  levied 
and  collected,  except  that  in  the  case  of  a water  district,  highway  district  or 
water  supply  district  the  amount  thereof  shall  be  put  in  a separate  column 
upon  the  tax-roll,  and  the  board  of  supervisors  of  the  county  shall  cause 
the  sum  as  certified  by  the  town  board,  to  be  levied  upon  the  taxable  prop- 
erty of  such  water  district,  highway  district  or  w^ater  supply  district.  The 
funds  so  collected  shall  be  paid  by  the  collector  to  the  supervisor  of  the 
town  who  shall  apply  the  same  to  the  expenses  incurred  pursuant  to  the 
provisions  of  this  article,  by  paying  the  same  on  the  order  of  the  board 
authorized  by  the  provisions  of  this  article  to  purchase,  direct  and  control 
said  engines,  apparatus,  buildings  and  grounds.1  [Town  Law,  § 314,  as 
amended  by  L.  1910,  ch.  408,  L.  1912,  ch.  238,  and  L.  1916,  ch.  226; 
B.  C.  & G.  Cons.  L.,  p.  6222.] 

Town  fire  companies  in  incorporated  cities  and  villages. — No  such  fire 
company,  as  herein  provided,  shall  be  formed  in  any  incorporated  city  or 
village  unless  such  incorporated  city  or  village  pays  a highway  tax  in  or 
to  such  highway  district,  in  which  case  such  fire  company  or  companies 
may  be  formed  to  include  the  whole  or  any  part  of  such  incorporated  city 
or  village,  with  the  consent  of  the  board  of  trustees  or  other  body  perform- 
ing like  duties  of  such  city  or  village.  [Town  Law,  § 314a,  added  by  L. 
1912,  ch.  238,  in  effect  April  9,  1912.] 

Incorporated  fire  companies. — Upon  the  written  petition  of  a majority 
of  the  resident  taxpayers  of  any  water  district,  highway  district  or  water 
supply  district  in  which  any  incorporated  fire  company  shall  have  its  head- 
quarters, the  town  board  of  any  town  may  make  a contract  with  any  such 
incorporated  fire  company  for  fire  protection  to  be  furnished  within  such 
\water  district,  highway  district  or  water  supply  district  for  a sum  not  to 
exceed  in  any  one  year  ten  cents  upon  each  one  hundred  dollars  of  assessed 
valuation  of  taxable  property  lying  within  such  water  district,  highway 
district  or  water  supply  district,  as  appears  by  the  last  preceding  town  as- 
sessment-roll of  said  town,  and  for  a period  not  exceeding  five  years  at  any 
one  time.  The  amount  of  any  contract  that  may  be  entered  into  pursuant 
to  the  provisions  of  this  section  shall  be  assessed,  levied  and  collected  upon 
the  taxable  property  in  said  district  in  the  same  manner,  at  the  same  time 

1.  Fire  districts.  Fire  districts  outside  of  incorporated  villages  are  established  by 
boards  of  supervisors  upon  the  petition  of  the  taxable  inhabitants  of  a proposed  fire 
district.  In  districts  so  established  fire  commissioners  are  elected  by  the  electors  re- 
siding therein  who  have  control  of  all  matters  pertaining  to  fire  protection  includ- 
ing the  organization  of  fire,  hook  and  ladder,  and  hose  companies.  See  County 
Law,  sec.  38,  ante,  p.  74. 

The  above  sections  contemplate  the  organization  of  town  fire  companies.  And  it 
is  also  provided  that  the  electors  of  any  highway  district  may  appropriate  money 
for  the  purchase  of  a fire  engine  and  apparatus.  The  above  section  is  independent 
of  section  38  of  the  County  Law,  and  provides  for  fire  protection  without  the  estab- 
lishment by  the  board  of  supervisors  of  a fire  district. 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


414a 


Town  Law,  §§  314c,  315. 

and  by  the  same  officers  as  the  taxes,  charges  or  expenses  of  said  town  are 
now  assessed,  levied  and  collected  and  the  same  shall  be  paid  over  by  the 
supervisor  to  the  corporation  or  incorporated  fire  company  furnishing  such 
fire  protection.  This  section  shall  apply  to  a water  supply  district  formed 
under  the  provisions  of  section  eighty-one  of  the  transportation  corpora- 
tions law,  as  well  as  to  water  districts,  highway  districts  or  water  supply 
districts  formed  under  the  provisions  of  this  chapter.  No  such  contract 
shall  be  made,  however,  with  any  such  fire  corporation  unless  it  has,  in  the 
opinion  of  the  town  board,  suitable  apparatus  and  appliances  for  the  fur- 
nishing of  such  fire  protection  in  said  district.  [Town  Law,  § 314b,  as 
added  by  L.  1913,  ch.  392.] 

Town  board  may  contract  for  fire  protection,  et  cetera. — The  town  board 
of  a town,  upon  the  written  petition  of  a majority  of  the  resident  taxpayers 
in  territory  adjoining  a city  or  incorporated  village  and  wholly  without 
such  city  or  village,  may  establish  such  territory  as  a fire  district  for  the 
purposes  of  this  section,  by  filing  in  the  office  of  the  town  clerk  a certificate 
describing  the  boundaries  thereof.  Upon  the  written  petition  of  a majority 
of  the  resident  taxpayers  of  any  water  district,  highway  district,  water 
supply  district  or  fire  district  adjoining  a city  or  an  incorporated  village, 
having  a fire  department  or  an  incorporated  fire  company  therein,  the  town 
board  of  any  town  may  make  a contract  with  any  such  city  or  incorporated 
village  for  fire  protection  to  be  furnished  within  such  water  district,  high- 
way district,  water  supply  district  or  fire  district  for  a sum  not  to  exceed 
in  any  one  year  ten  cents  upon  each  one  hundred  dollars  of  assessed  valu- 
ation of  taxable  property  lying  within  such  water  district,  highway  district, 
water  supply  district  or  fire  district  as  appears  by  the  last  preceding  town 
assessment-roll  of  said  town  and  for  a period  not  exceeding  five  years  at 
any  one  time.  The  amount  of  any  contract  that  may  be  entered  into  pur- 
suant to  the  provisions  of  this  section  shall  be  assessed,  levied  and  collected 
upon  the  taxable  property  in  said  district  in  the  same  manner,  at  the  same 
time  and  by  the  same  officers  as  the  taxes,  charges  or  expenses  of  said 
town  are  now  assessed,  levied  and  collected  and  the  same  shall  be  paid 
over  by  the  supervisor  to  the  city  or  incorporated  village  furnishing  such 
fire  protection.  This  section  shall  apply  to  a water  supply  district  formed 
under  the  provisions  of  section  eighty-one  of  the  transportation  corpora- 
tions law,  as  well  as  to  water  districts,  highway  districts,  water  supply  dis- 
tricts or  fire  districts  formed  under  the  provisions  of  this  chapter.  No  such 
contract  shall  be  made,  however,  with  any  such  city  or  incorporated  village 
unless  it  has  in  the  opinion  of  the  town  board  suitable  apparatus  and  appli- 
ances for  the  furnishing  of  such  fire  protection  in  said  district.  [Town 
Law,  § 314c,  as  added  by  L.  1917,  ch.  364,  and  amended  by  L.  1918,  ch  69.] 

Ordinances. — The  board  of  water  commissioners  in  any  water  dis- 
trict, established  pursuant  to  this  chapter,  and  the  town  board  in  any 
highway  district,  town  fire  district  or  water  supply  district  may  adopt 
ordinances,  not  inconsistent  with  law,  relating  to  fire  protection,  the 


414b  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  §§  316,  317. 

prevention  and  extinguishment  of  fires  and  conduct  thereat  within  said 
district,  and  to  regulate  or  prevent  the  discharge  of  fireworks  and  fire- 
arms and  to  regulate  the  use  of  inflammable  materials  and  the  storing, 
sale  and  transportation  of  gunpowder  and  other  explosives  within  said 
district,  and  may  enforce  the  observance  thereof  by  the  imposition  of 
penalties.  [Town  Law,  § 315,  as  added  by  L.  1910,  ch.  408,  and 
amended  by  L.  1912,  ch.  238,  and  L.  1916,  ch.  226.] 

Town  fire  districts;  boards  of  town  fire  commissioners. — The  town 
board  of  a town  may,  with  the  consent  of  the  proper  board  or  officers 
of  any  water  supply  district,  or  highway  district,  or  fire  district,  main- 
taining fire  apparatuses,  and  the  boards  of  trustees,  or  other  like  bodies 
performing  such  duties,  of  all  incorporated  cities  or  villages  wholly 
within  such  town,  establish  a town  fire  district,  the  boundaries  of  which 
shall  be  the  same  as  the  boundaries  of  the  town,  and  transfer  to  said 
town  fire  district  all  property  held  by  the  town  for  the  purpose  of 
extinguishment  of  fires.  The  town  board  of  any  town  where  such  town 
fire  district  is  established  may,  on  like  consent,  by  resolution  establish 
a board  of  town  fire  commissioners,  consisting  of  three  members,  and 
shall  appoint  the  first  members  of  such  board  for  the  term  of  one,  two 
and  three  years,  respectively;  and  shall  thereafter  appoint  successors 
to  such  members  for  the  term  of  three  years,  and  shall  fill  vacancies  in 
said  board  of  town  fire  commissioners.  [Town  Law,  § 316,  as  added 
by  L.  1916,  ch.  226.] 

Powers  and  duties  of  boards  of  town  fire  commissioners. — Such 
board  of  town  fire  commissioners  shall  have  the  care,  custody  and 
control  of  all  property  belonging  to  the  town  fire  district;  may,  on  the 
conditions  prescribed  in  this  article,  purchase  fire  engines,  and  other 
apparatus  for  the  extinguishment  of  fires  within  the  town,  purchase, 
lease,  otherwise  acquire  and  maintain  suitable  and  necessary  buildings 
and  grounds  for  the  keeping  and  storing  thereof;  may  construct  and 
maintain  reservoirs  and  cisterns  and  supply  them  with  water  for  use 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEM;  SIDEWALKS. 


Town  Law,  § 281. 

at  fires ; shall  have  the  exclusive  power  to  organize  a town  fire  company 
or  companies  by  appointment  in  the  manner  provided  in  this  article 
for  appointment  by  the  town  board,  and  to  fill  vacancies  in  such  com- 
pany or  companies;  may  adopt  rules  for  the  admission,  suspension, 
removal  and  discipline  of  the  members  and  officers  of  such  company 
or  companies;  may  prescribe  their  respective  powers  and  duties  and 
fix  their  compensation;  may  appoint  persons  other  than  members  or 
officers  of  the  company  or  companies  to  take  charge  of  and  operate 
the  property  of  the  fire  district,  and  may  fix  their  compensation;  shall 
have  the  control  and  supervision  of  such  members,  officers  and  em- 
ployees, may  direct  their  conduct  at  fires  and  prescribe  methods  for 
extinguishing  fires ; and  may  inquire  into  the  cause  and  origin  of  fires 
occurring  in  the  town  and  may  take  testimony  in  relation  thereto;  and 
may  expend  for  the  maintenance  and  operation  of  the  engines,  and  other 
apparatus  for  the  extinguishment  of  fires,  and  other  property  and  for 
maintaining  said  fire  company  or  companies  a sum  in  each  year,  not 
exceeding  the  sum  voted  for  such  purposes  as  prescribed  in  this  article. 
[Town  Law,  § 317,  as  added  by  L.  1916,  ch.  226.] 

§ 2.  TOWN  BOARD  MAY  ESTABLISH  WATER  SUPPLY  DISTRICTS. 

The  town  board  of  any  town  may  establish  one  or  more  water  supply 
districts  in  such  town  outside  of  an  incorporated  village  therein,  by 
filing  a certificate,  describing  the  bounds  of  any  such  district,  in  the 
office  of  the  town  clerk;  and  may  contract  in  the  name  of  the  town  for 
the  delivery,  by  the  water  commissioners  of  a village  owning  a system 
of  waterworks,  of  a supply  of  water  through  hydrants  or  otherwise,  for 
fire,  sanitary  or  other  public  purposes,  to  such  districts,  and  the  whole 
town  shall  be  bound  by  such  contract,  but  the  rental  or  expense  thereof 
shall  annually,  in  the  same  manner  as  other  expenses  of  the  town  are 
raised,  be  assessed,  levied  upon  and  collected  only  from  the  taxable 
property  within  such  water  supply  district.  Such  money  when  collected, 
shall  be  kept  as  a separate  fund  and  be  paid  over  to  such  board  of  water 


414(1 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Transportation  Corporations  Law,  § 81. 

commissioners  by  the  supervisor  of  the  town,  according  to  the  terms 
and  conditions  of  any  such  contract.2  [Town  Law,  § 281 ; B.  C.  & G. 
Cons.  L.,  p.  6215.] 

§ 3.  WATER  WORKS  CORPORATIONS  MUST  FURNISH  WATER  TO 
TOWN;  TOWN  BOARD  MAY  ESTABLISH  WATER  SUPPLY 
DISTRICT;  EXPENSE  CHARGEABLE  UPON  DISTRICT. 

Every  such  corporation  shall  supply  the  authorities  or  any  of  the 
inhabitants  of  any  city,  town  or  village  through  which  the  conduits  or 
mains  of  such  corporation  may  pass,  or  wherein  such  corporations  may 
have  organized,  with  pure  and  wholesome  water  at  reasonable  rates  and 
cost. 

The  town  board  of  any  town  may  establish  a water  supply  district  in 
such  town  outside  of  a city  or  incorporated  village  therein,  by  filing 
a certificate  describing  the  bounds  thereof,  in  the  office  of  the  town 
clerk;  and  may  contract  in  the  name  of  the  town  for  the  delivery, 
by  a corporation,  subject  to  the  provisions  of  this  article,  of  a supply 
of  water  for  fire,  sanitary  or  other  public  purposes,  to  such  districts, 
and  the  whole  town  shall  be  bound  by  such  contract,  but  the  rental  or 
expense  thereof  shall  annually,  in  the  same  manner  as  other  expenses 
of  the  town  are  raised,  be  assessed,  levied  upon  and  collected  only  from 
the  taxable  property  within  such  water  supply  district.  Such  money, 
when  collected,  shall  be  kept  as  a separate  fund  and  be  paid  over  to 

2.  Water  districts  are  also  to  be  established  when  the  town  board  contracts 
with  a water  works  corporation  for  furnishing  water  for  fire,  sanitary  or  other 
puplic  purposes  to  any  portion  of  the  town.  See  Transportation  Corporations  Law, 
sec.  81.  And  a water  district  may  also  be  established  by  the  town  board  upon  the 
petition  of  a majority  of  the  owners  of  taxable  real  property  in  a proposed  district 
for  the  purpose  of  making  contracts  for  the  construction  and  maintenance  of  a 
wrater  system  by  such  district.  See  Town  Law,  § 282. 

The  law  then  provides  for  the  establishment  of  wTater  districts  in  three  cases: 
(1)  Where  it  is  desired  to  contract  with  the  water  commissioners  of  a village  for 
the  furnishing  of  water  as  in  the  above  section;  (2)  where  it  is  desired  to  contract 
with  a water  works  company,  and  (3),  where  it  is  desired  to  construct  and  oper- 
ate water  works  for  the  furnishing  of  water  to  the  district  and  inhabitants  thereof 
by  the  district  itself. 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


415 


Town  Law,  §§  270,  271. 

such  corporation  by  the  supervisor  of  the  town,  according  to  the  terms 
and  conditions  of  any  such  contract.  No  such  contract  shall  be  made 
for  a longer  period  than  five  years,  nor  for  an  annual  expense  exceeding 
three  mills  upon  each  dollar  of  the  taxable  property  within  such  water 
supply  district,  provided,  however,  that  where  the  population  of  the 
wrater  supply  district  does  not  exceed  one  thousand  inhabitants  such 
contract  may  be  made  for  a period  not  longer  than  ten  years.3  [Trans- 
portation Corporations  Law,  § 81,  in  part,  B.  C.  & G.  Cons.  L.,  p.  6326.] 

§ 4.  PURCHASE  OF  WATER  WORKS  BY  TOWN. 

Toion  may  acquire  waterworks. — Any  town  in  this  state  which  has  a contract 
with  a water-works  company  for  supplying  such  town,  or  any  portion  thereof, 
with  water,  may  acquire  the  works,  franchises  and  property  of  such  water- 
works company,  in  the  manner  specified  in  sections  two  hundred  and  seventy- 
one  to  two  hundred  and  eighty  of  this  article.  [Town  Law,  § 270;  B.  C.  & G. 
Cons.  L.,  p.  6212.] 

Petition  of  taxpayers,  submission  of  proposition. — Upon  the  written  petition  of 
not  less  than  one-tenth  in  number  of  the  taxpayers  of  such  town,  who 
shall  be  assessed  for  at  least  one-tenth  of  the  total  amount  of  the 
property  assessed  in  said  town,  the  supervisor  of  the  town  shall  ascer- 
tain the  price  which  the  water-works  company  will  accept  for  its  works, 
franchises  and  property,  and  shall  submit  to  the  lawful  voters  of  such  town 

3.  Establishment  of  water  supply  district.  The  territory  supplied  with  water 
under  a contract  with  a water  company  should  correspond  in  area  with  the  terri- 
tory designated  as  the  water  supply  district.  A district  cannot  be  established  as 
including  the  whole  town  and  a contract  be  made  by  the  town  for  the  supply  of 
water  to  two  villages  occupying  a very  small  portion  of  the  territory  of  the  town. 
Such  a contract  is  invalid,  and  does  not  bind  the  town,  although  the  company  sup- 
plies water  to  the  village  in  pursuance  of  its  terms.  People  ex  rel.  Tupper  Lake 
Water  Co.  v.  Sisson,  75  App.  Div.  138,  77  N.  Y.  Supp.  376  (1902),  affirmed  173 
N.  Y.  606. 

Reasonable  rules  and  regulations  may  be  made  by  a water  company  in  order  that 
it  may  fulfill  its  obligations.  Pond  v.  New  Rochelle  Water  Co.,  143  App.  Div.  69, 
127  N.  Y.  Supp.  582. 

There  is  not  necessarily  an  unjust  discrimination  because  different  rates  are 
charged  to  different  consumers  if  the  circumstances  under  which  the  water  is  fur- 
nished differ  and  the  price  charged  in  each  case  is  reasonable.  People  v.  Albion 
Water  Works  Co.,  140  App.  Div.  646,  125  N.  Y.  Supp.  589. 

Contract  with  town  for  water  supply;  liability  of  company  to  taxpayer  for 
failure  to  supply. — Where  a water-works  company  contracts  with  a town  to  furnish 
water  for  fire  protection  to  the  inhabitants  thereof,  a taxpayer,  whose  buildings  are 
destroyed  by  fire  because  of  the  failure  of  the  company  to  keep  its  hydrants  in  good 
working  order,  and  to  have  a sufficient  head  or  force  of  water  for  the  extinguish- 
ment of  fires,  cannot  sue  the  company  to  recover  the  value  of  the  buildings  destroyed. 
The  contract  between  the  town  and  the  water-works  company  was  not  made  for  his 
benefit.  Smith  v.  Great  South  Bay  Water  Co.,  82  App.  Div.  427,  81  N.  Y.  Supp. 
812  (1903). 

Contracts  made  by  a town  board  with  reference  to  a water  system  constructed 
under  the  provisions  of  the  Town  Law,  are  the  contracts  of  the  town  and  the  town 
•alone  is  liable  under  them.  People  ex  rel.  Farley  v.  Winkler,  203  N.  Y.  445. 


416 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  272,  273,  274,  275. 

at  the  next  town  meeting  the  question  whether  such  works,  franchises  and 
property  shall  be  purchased  at  the  price  specified  as  aforesaid.  [Town 
Law,  §271;  B.  C.  & G.  Cons.  L.,  p.  6213.] 

Notice  of  submission  of  question.  Notice  that  such  question  will  be  so 
submitted  to  the  voters  of  the  town  shall  be  given  by  publishing  the  same 
once  a week,  for  at  least  four  weeks,  immediately  preceding  the  election,, 
in  every  newspaper  published  in  said  town,  and  by  posting  a copy  of  such 
notice  conspicuously  in  the  office  of  the  clerk  of  such  town  at  least  thirty 
days  prior  to  the  day  for  voting;  and  the  clerk  of  such  town  shall  see 
that  such  notice  is  so  published  and  posted.  [Town  Law,  § 272 ; B.  C.. 
& G.  Cons.  L.,  p.  6213.] 

If  vote  is  favorable  supervisor  to  contract  for  purchase  of  ivories. — At 
such  election  each  qualified  voter  shall  be  given  an  opportunity  to  vote 
either  for  or  against  such  proposed  purchase.  If  a majority  of  the  votes- 
cast  on  the  question  shall  be  for  making  the  proposed  purchase,  the  super- 
visor of  the  town  shall  forthwith  make  and  enter  into  a contract  with 
such  water  company  for  the  transfer  of  such  compan)^s  works,  franchises 
and  property  to  such  town ; and  the  said  town  officers  are  hereby  authorized 
and  empowered  to  enter  into  such  contracts  and  to  bind  their  respective, 
towns  thereby.  And  such  companies  are  authorized  and  empowered  to 
make  such  contracts  and  to  do  whatever  is  necessary  to  fulfill  them. 
[Town  Law,  § 273 ; B.  C.  & G.  Cons.  L.,  p.  6213.] 

Company  to  furnish  statement  of  debts,  etc. — At  the  time  of  the  making- 
such  a contract  the  water-works  company  shall  make  and  deliver  to  said 
officers  of  the  town  a full,  true  and  accurate  statement  in  detail  of  all  its 
debts,  contracts,  obligations  and  responsibilities  of  every  sort,  and  such 
statement  shall  be  verified  by  the  president  or  treasurer  of  said  company. 
The  amount  of  such  liabilities  shall  be  carefully  estimated  by  the  officers 
acting  on  behalf  of  the  town  and  the  gross  amount  thereof  shall  be 
deducted  from  the  purchase  price  named.  Should  there  be  any  difference 
between  said  town  officers  and  such  company  as  to  the  amount  of  such 
liabilities  the  same  shall  be  referred  by  them  to  the  county  judge  of  the 
county  and  decided  by  him.  [Town  Law,  § 274;  B.  C.  & G.  Cons.  L., 
p.  6213.] 

Town  board  to  raise  money  for  purchase  of  works. — As  soon  as  the 
amount  of  the  company’s  liabilities  has  been  thus  ascertained  and  deducted 
and  the  net  amount  remaining  to  be  paid  for  said  company’s  works,  property 
and  franchise  has  been  thus  determined,  the  town  board  of  the  town  shall 
proceed  to  raise  the  money  and  carry  out  in  behalf  of  the  town  the  contract 
so  made.  [Town  Law,  § 275;  B.  C.  & G.  Cons.  L.,  p.  6213.] 

Issuance  of  bonds  for  purchase  money. — Such  town  board  shall  make 
and  issue  bonds  for  the  town  for  the  entire  amount  of  the  purchase  price 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS.  417 
Town  Law,  §§  276,  277,  278,  279. 

of  the  property,  works  and  franchises  to  be  purchased  as  agreed  on  and 
voted  for  as  aforesaid.  Such  bonds  shall  run  for  not  more  than  thirty 
years  and  shall  bear  interest  at  a rate  not  exceeding  five  per  centum  per 
annum,  and  shall  be  a valid  and  binding  obligation  upon  the  town  in 
behalf  of  which  they  shall  be  issued.  They  may  contain  such  provisions  as 
to  payment  of  a part  of  those  issued  at  such  times,  short  of  the  full 
term  for  which  they  might  run,  as  in  the  judgment  of  the  town  board 
issuing  them  would  be  advantageous  to  the  town  bound  thereby.  [Town 
Law,  § 276;  B.  C.  & G.  Cons.  L.,  p.  6214.] 

Sale  of  bonds ; proceeds  of  sale. — Said  town  board  shall  proceed  to  sell 
such  bonds,  at  either  public  or  private  sale,  for  the  best  price  obtainable 
not  less  than  par.  Out  of  the  proceeds  of  such  sale  said  board  shall  pay 
to  the  water-works  company  that  portion  of  the  purchase  price  agreed  on 
and  voted  for  as  aforesaid  which  remains  due  the  company,  after  making 
the  deductions  mentioned  in  section  two  hundred  and  seventy-four,  upon 
receiving  an  assignment  or  transfer  of  all  the  works,  property  and  fran- 
chises of  said  company,  duly  executed  by  said  company  or  by  the  proper 
officers  thereof,  in  its  name  and  behalf.  The  balance  of  the  proceeds  of 
such  bonds  shall  be  used  as  far  as,  and  when,  necessary  to  discharge  the 
debts,  liabilities  and  obligations  of  said  water-works  company.  [Town 
Law,  § 277;  B.  C.  & G.  Cons.  L.,  p.  6214.] 

Stockholders'  consent  to  sale  of  works. — Before  naming  the  price  for  the 
property,  franchises  and  works  of  any  company  under  this  article,  as  con- 
templated in  section  two  hundred  and  seventy-one,  the  officers  thereof 
must  obtain  authority  so  to  do  from  a majority  in  number  and  amount 
of  the  stockholders;  such  consent  shall  be  given  in  writing  and  duly 
signed  and  acknowledged  by  the  stockholders.  [Town  Law,  § 278;  B.  C. 
& G.  Cons.  L.,  p.  6214.] 

Upon  sale,  debts,  etc.,  are  a charge  upon  town. — -Upon  making  such  trans- 
fer and  conveyance  to  the  town  the  debts,  liabilities  and  obligations  of  said 
company,  which  have  been  included  in  the  statement  referred  to  in  sec- 
tion two  hundred  and  seventy-four  of  this  article,  shall  become  a charge 
upon  the  town  and  may  be  enforced  against  it.  And  if  the  company  should 
be  called  upon  to  pay  any  claim  or  to  do  any  act  on  or  on  account  of 
such  debts,  liabilities  or  obligations,  it  may  enforce  the  same  against  the 
town.  [Town  Law,  § 279;  B.  C.  & G.  Cons.  L.,  p.  6214.] 

Works  to  be  managed  by  town  board. — The  works,  franchises  and 
property  thus  purchased,  shall  be  managed  and  controlled  for  and  in 
behalf  of  such  town  by  the  tow  board  which  purchased  the  same  and  their 
respective  successors  in  office.  [Town  Law,  § 280;  B.  C.  & G.  Cons.  L.. 
p.  6214.] 


41b 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 282,  283,  284. 

§ 5.  ESTABLISHMENT  OF  WATER  DISTRICTS  IN  TOWNS. 

Town  board  may  establish  water  district ; petition. — The  town  board 
on  the  petition  of  a majority  of  the  owners  of  taxable  real  property  in 
a proposed  district,  as  appears  by  the  last  preceding  completed  assessment- 
roll,  may  establish  a water  district  outside  any  incorporated  village  or  city 
and  wholly  within  such  town.  The  petition  must  describe  the  proposed 
district  and  state  the  maximum  amount  proposed  to  be  expended  in  the 
construction  of  such  water  system.  The  petition  must  be  signed  by  the 
petitioners  and  acknowledged  in  the  same  manner  as  a deed  to  be  recorded. 
[Town  Law,  § 282 ; B.  C.  & G.  Cons.  L.,  p.  6215.] 

Map  and  plans. — There  shall  be  annexed  to  the  petition  above  provided 
a map  and  plan  showing  the  sources  of  water  supply  and  a description  of 
the  lands,  streams,  water  or  water  rights  to  be  acquired  therefor,  and  the 
mode  of  constructing  the  proposed  waterworks  and  the  location  thereof, 
including  reservoirs,  mains,  distributing  pipes  and  hydrants.  The  petition, 
map  and  plans  shall  be  tiled  with  the  town  clerk,  and  a certified  copy  of 
such  map  shall  also  be  filed  in  the  county  clerk’s  office.  Such  map  and 
plan  shall  be  prepared  by  a competent  engineer.  [Town  Law,  § 283; 
B.  C.  & G.  Cons.  L.,  p.  6215.] 

Expenses , how  paid. — The  reasonable  expenses  of  the  necessary  proceed- 
ings on  the  organization  of  a water  district,  as  herein  prescribed,  are  a 
charge  against  the  district  so  organized.  If  a water  district  is  not  organ- 
ized, the  persons  who  signed  the  petition  for  the  establishment  of  a water 
district  are  jointly  and  severally  liable  for  such  expenses.  [Town  Law,  § 
284;  B.  C.  & G.  Cons.  L.,  p.  6215.] 

Action  by  town  board. — When  the  petition,  map  and  plans  are  filed  in 
the  town  clerk’s  office  the  town  clerk  shall  cause  notice  of  the  filing  of  said 
petition  and  the  object  thereof  to  be  published  for  one  week  in  a newspaper 
published  in  such  town  or  if  no  newspaper  be  published  therein,  then  by 
posting  said  notice  in  at  least  six  public  and  conspicuous  places  in  the 
proposed  water  district  described  in  such  petition.  Such  notice  shall  also 
specify  a time  and  place  where  the  town  board  will  meet  to  consider  the 
petition,  which  meeting  shall  not  be  less  than  ten  or  more  than  twenty 
days  after  the  petition  is  filed.  At  such  meeting  the  town  board  shall 
determine  if  said  petition  is  in  fact  signed  and  acknowledged  by  a majority 
of  the  owners  of  taxable  real  property  in  said  proposed  water  district.  Such 
determination  shall  be  in  writing  signed  by  said  board  and  recorded  in 
the  minutes  of  said  meeting.  If  the  decision  be  that  the  petition  is  signed 
and  acknowledged  by  a majority  of  the  owners  of  taxable  real  property 
in  the  proposed  district,  then  the  town  board  shall  make  an  order  establish- 
ing such  district  and  appointing  three  taxpayers  therein  as  water  com- 
missioners. The  order  shall  be  filed  with  the  town  clerk  and  recorded  in 
the  minute  book  of  said  board.  Such  commissioners  first  appointed  shall 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS, 


419 


Town  Law,  §§  285,  286,  287,  287a. 

hold  office  for  terms  of  one,  two  and  three  years,  to  be  determined  by  the  town  board 
in  making  the  appointments.  The  town  board  shall  thereafter  appoint  each  year 
one  commissioner  who  shall  hold  office  for  the  term  of  three  years  and  shall  fill 
any  vacancies  that  may  occur.  [Town  Law,  § 285;  B.  C.  & G.  Cons.  L.,  p.  6215.] 

Oaths,  undertakings  and  compensation  of  commissioners. — Each  commissioner  be- 
fore entering  on  the  duties  of  his  office  shall  take  the  constitutional  oath  of  office 
and  execute  to  the  town  and  file  with  the  town  clerk  an  official  undertaking  in  such 
sum  and  with  such  sureties  as  the  town  board  shall  direct.  The  town  board  may 
at  any  time  require  any  such  commissioner  to  file  a new  official  undertaking  far 
such  sum  and  with  such  sureties  as  the  board  shall  approve.  Such  water  commis- 
sioners may  each  be  paid  for  their  services,  at  such  times  as  the  town  board  may 
designate,  an  amount  to  be  fixed  by  the  town  board,  not  exceeding  three  dollars  per 
day  for  each  day  actually  and  necessarily  spent  in  the  business  of  the  water  dis- 
trict. Such  compensation  shall  be  deemed  an  expense  of  maintaining  the  water  dis- 
trict, and  shall  be  levied  against  the  taxable  property  in  the  water  district  and 
collected  annually  at  the  same  time  and  in  the  same  manner  as*  provided  in  section 
two  hundred  and  eighty-nine  of  this  chapter  for  the  levy  and  collection  of  taxes 
for  payment  of  bonds  and  interest.  [Town  Law,  § 286,  as  amended  by  L.  1915,  ch. 
379;  B.  C.  & G.  Cons.  L.,  p.  6216.] 

Contracts  for  the  construction  of  water  system. — The  water  commissioners  of  such 
district  shall  advertise  for  proposals  for  the  construction  of  a water  system  either 
under  an  entire  contract  or  in  parts  or  sections  as  the  board  may  determine.  Such 
advertisements  shall  be  published  once  in  each  of  two  successive  weeks  in  each 
newspaper  published  in  the  town  and  if  no  newspaper  is  published  therein,  in  two 
newspapers  published  in  a city  or  village  nearest  to  such  town.  The  commissioners 
may  require  a bond,  or  deposit  from  each  person  submitting  a proposal,  the  lia- 
bility on  such  bond  to  accrue  or  such  deposit  to  be  forfeited  to  the  town  in  case 
such  person  shall  refuse  to  enter  into  a contract  in  accordance  with  his  proposal. 
The  commissioners  may  accept  or  reject  any  proposal,  and  make  contracts  with 
other  than  the  lowest  bidder  or  may  reject  all  proposals  and  advertise  again.  No 
contract  shall  be  made  by  which  a greater  amount  shall  be  agreed  to  be  paid  than 
the  maximum  amount  stated  in  the  petition  for  the  construction  of  such  water 
system.  Each  contract  shall  be  executed  in  duplicate  one  of  which  shall  be  given 
to  the  contractor  and  the  other  shall  be  filed  in  the  office  of  the  town  clerk.  The 
water  commissioners  shall  immediately  after  letting  the  contract  or  contracts  for  the 
construction  of  the  water  system  serve  on  the  town  board  a written  notice,  speci- 
fying the  amount  of  such  contract  or  contracts  and  the  amount  of  money  needed  for 
the  construction  of  such  water  system.  It  shall  be  the  duty  of  the  town  board  to 
raise  the  money  necessary  by  the  issue  and  sale  of  bonds  as  provided  in  this  article.* 
[Town  Law,  § 287;  B.  C.  & G.  Cons.  L.,  p.  6216.] 

Acquisition  of  water  works. — The  water  commissioners  of  any  such  water  district 
may  acquire  the  works,  franchises,  contracts  and  property  of  any  water  works  com- 
pany supplying  such  water  district  or  a portion  thereof,  in  which  the  construction 
of  water  works  has  been  or  may  be  authorized  at  an  expense  not  exceeding  the 
amount  authorized  for  such  construction  in  the  manner  following: 

1.  In  the  event  such  water  commissioners  agree  with  the  owner  or  owners  of 
such  works,  franchises,  contracts  and  property  as  to  the  purchase  price  thereof, 

4.  Liability  of  town  for  breach  of  contract  made  by  water  commissioners.  A 
town  is  not  liable  for  damages  caused  by  a breach  of  contract  made  by  water 
commissioners  appointed  in  a water  district  in  a town  for  the  construction  of  water- 
works. Such  a contract  is  not  a contract  of  the  town  and  is  not  for  its  benefit. 
Holroyd  v.  Town  of  Indian  Lake,  180  N.  Y.  318,  affg.  85  App.  Div.  246,  83  N.  Y. 
Supp.  533  (1903). 

The  town  is  not  liable  for  contracts  made  by  district  water  commissioners.  They 
themselves  are  liable  in  their  official  capacity  upon  contracts  made  by  them  in  that 
relation.  District  water  commissioners  need  not  be  sued  in  actions  at  law,  as  they 
are  not  personally  liable  upon  their  official  contracts.  Farley  v.  Winkler,  203 
N.  Y.  445. 


420 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  288,  288a,  289. 

they  may  with  the  consent  of  the  majority  of  the  town  board  of  the  town  wherein 
such  water  district  is  situate,  acquire  the  same  by  purchase. 

2.  In  the  event  such  water  commissioners  are  unable  to  agree  with  such  owner 
or  owners  as  to  the  purchase  price  of  such  works,  franchises,  contracts  and  prop- 
erty, they  may,  with  the  consent  of  a majority  of  the  town  board  of  such  town,  by 
proceedings  in  the  supreme  court,  acquire  such  works,  franchises,  contracts  and 
property  by  condemnation. 

3.  The  purchase  price  may  be  paid  out  of  any  moneys  in  the  hands  of  or  to  the 
credit  of  such  water  district  or  the  commissioners  thereof  or  moneys  raised  or  au- 
thorized to  be  raised  for  the  construction  of  a water-works  system  in  such  dis- 
trict. In  the  event  of  condemnation,  the  appraisal  or  award  may  be  paid  out  of 
any  such  moneys  or  out  of  moneys  hereafter  raised  or  authorized  to  be  raised  for 
the  construction  of  a water- works  system  in  such  district.  [Town  Law,  § 287a, 
as  added  by  L.  1917,  ch.  588.] 

Issue  and  sale  of  bonds.  — Town  bonds  issued  under  authority  conferred  by  this 
article  shall  be  signed  by  the  supervisor  and  attested  by  the  town  clerk.  Such 
bonds  shall  become  due  within  twenty  years  from  the  date  of  issue,  and  unless 
the  whole  amount  of  the  indebtedness  represented  thereby  is  to  be  paid  within 
five  years  from  their  date,  they  shall  be  so  issued  as  to  provide  for  the  payment 
of  the  indebtedness  in  equal  annual  installments,  the  first  of  which  shall  be  pay- 
able not  more  than  five  years  from  their  date.  They  shall  bear  interest  at  a rate 
not  exceeding  five  per  centum  per  annum,  and  shall  be  sold  for  not  less  than 
their  par  value.  They  shall  be  sold  on  sealed  proposals  or  at  public  auction  upon 
notice  published  in  a paper  printed  in  the  town,  if  any,  and  also  in  such  other 
papers  as  may  be  designated  by  the  town  board,  and  posted  in  at  least  five  public 
places  in  the  town,  at  least  ten  days  before  the  sale,  to  the  person  who  will  take 
them  at  the  lowest  rate  of  interest.  Such  bonds  shall  be  consecutively  numbered 
from  one  to  the  highest  number  issued  and  the  town  clerk  shall  keep  a record  of 
the  number  of  each  bond,  its  date,  amount,  rate  of  interest,  when  and  where  pay- 
able and  the  purchaser  thereof  or  the  person  to  whom  they  are  issued.  The  bonds 
shall  be  a charge  upon  the  town  and  shall  be  collected  from  the  property  within 
the  water  district.  [Town  Law,  § 288;  B.  C.  & G.  Cons.  L.,  p.  6217.] 

Refunding  of  indebtedness. — The  town  board  of  a town  containing  a water  supply 
district  in  behalf  of  which  bonds  shall  have  been  issued  under  authority  conferred 
by  this  article  may,  upon  the  petition  of  the  water  commissioners  of  such  district, 
refund  the  whole  or  any  part  of  such  indebtedness  and  cause  new  bonds  of  the 
town  to  be  issued  in  substitution  for  such  outstanding  bonds  or  to  realize  money 
by  the  sale  thereof  for  the  payment  of  such  outstanding  bonds.  Such  new  bonds 
shall  become  due  within  twenty  years  from  the  date  of  issue,  shall  bear  interest 
at  a rate  not  to  exceed  five  per  centum  per  annum  and  shall  be  sold  for  not  less 
than  their  par  value.  Such  bonds  shall  be  a charge  upon  the  town  and  shall  be 
collected  from  the  property  within  the  water  supply  district  and  be  otherwise  sub- 
ject to  the  provisions  of  this  article  in  relation  to  the  issue,  sale  and  payment  of 
the  bonds  originally  issued.  [Town  Law,  § 288a,  added  by  L.  1912,  ch.  22,  in  effect 
March  6,  1912.] 

Tax  for  payment  of  bonds  and  interest. — The  water  commissioners  shall  annually 
apportion  the  amount  to  be  raised  for  the  payment  of  the  principal  and  interest 
of  the  bonds  upon  the  taxable  property  in  the  water  district  as  the  same  appears 
on  the  assessment-roll  and  present  a statement  thereof  to  the  town  board  on  the 
Thursday  preceding  the  annual  meeting  of  the  board  of  supervisors.  Such  state- 
ment shall  give  the  names  of  the  persons  liable  to  pay  the  same  and  the  amount 
chargeable  to  each.  The  town  board  shall  transmit  such  statement  to  the  board  of 
supervisors  at  its  next  annual  meeting.  The  board  of  supervisors  shall  levy  such 
sums  against  the  property  liable  and  shall  state  the  amount  of  the  tax  in  a separate 
column  in  the  annual  tax-roll  under  the  name  of  “ water  tax.”  Such  tax  when 
collected  shall  be  paid  to  the  supervisor  and  be  by  him  applied  in  payment  of  the 
bonds.  [Town  Law,  § 289;  B.  C.  & G.  Cons.  L.,  p.  6217.] 

Assessment  of  property  partly  in  district.  — In  all  cases  where  a farm 

Action  for  breach  of  contract;  pleadings.  A complaint  in  an  action  brought 
against  a town  for  breach  of  a contract  for  the  construction  of  a water  system,  en- 
tered into  pursuant  to  the  above  section,  which  merely  states  that  the  contract  was 
executed  by  the  town  officers,  without  alleging  that  any  of  the  preliminary  steps 
required  by  the  act  were  taken,  is  demurrable.  Holroyd  v.  Town  of  Indian  Lake, 
75  App.  Div.  197,  77  N.  Y.  Supp.  672. 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS.  421 
Town  Law,  §§  290-295. 

or  lot  or  the  real  property  of  a corporation  or  joint  stock  association  is 
divided  by  the  boundary  line  of  a water  district,  it  shall  be  the  duty  of  the 
town  assessors  after  fixing  the  valuation  of  the  whole  of  such  real  property 
as  now  required  by  law  to  determine  what  proportion  of  such  valuation  is 
on  account  of  that  part  of  such  real  property  lying  within  the  limits  of 
the  water  district,  and  shall  designate  the  same  upon  their  assessment-roll. 
The  valuation  of  real  property  lying  within  such  water  district  so  fixed 
and  determined  by  the  assessors  shall  be  the  valuation  on  which  the  water 
commissioners  of  the  water  district  shall  levy  the  water  tax.  [Town  Law, 
§ 290;  B.  C.  & G.  Cons.  L.,  p.  6218.] 

Supervising  engineer  and  inspectors. — The  water  commissioners  may 
employ  a supervising  engineer  to  superintend  and  inspect  the  construction 
of  the  water  system  or  works  connected  therewith,  and  also  such  inspectors 
as  may  be  necessary  and  fix  the  compensation  of  such  engineer  and  inspec- 
tors. Such  compensation  shall  be  treated  as  a part  of  the  expense  of 
construction.  [Town  Law,  § 291 ; B.  C.  & G.  Cons.  L.,  p.  6218.] 

Acquisition  of  property  by  condemnation. — If  the  water  commissioners 
are  unable  to  agree  with  the  owners  for  the  purchase  of  real  property 
necessary  for  the  construction  of  the  water  system,  they  may  acquire  the 
same  by  condemnation.  [Town  Law,  § 292;  B.  C.  & G.  Cons.  L.,  p. 
6218.] 

Establishment  of  water  rents. — The  board  of  water  commissioners  shall 
establish  a scale  of  rents  for  the  use  of  water,  to  be  called  “ water  rents,” 
and  to  be  paid  at  such  times  as  the  board  may  prescribe.  Such  rents  shall 
be  a lien  on  the  real  property  upon  which  the  water  is  used.  [Town  Law,  § 
293;  B.  C.  & G.  Cons.  L.,  p.  6218.] 

Reservoirs. — In  the  construction  of  a storage  reservoir  connected  with 
the  system  of  waterworks,  all  vegetable  or  other  matter  subject  to  decay 
shall  be  removed  from  the  banks  thereof  between  its  highest  and  lowest 
possible  flow  line  or  such  space  be  covered  by  gravel  or  stone  to  prevent 
such  decay.  [Town  Law,  § 294;  B.  C.  & G.  Cons.  L.,  p.  6218.] 

Connection  with  mains. — Supply  pipes  connecting  with  mains  and  used 
by  private  owners  or  occupants  shall  be  laid  and  kept  in  repair  at  their 
expense.  Such  pipes  can  only  be  connected  with  the  mains  by  the  permis- 
sion and  under  the  direction  of  the  board  of  water  commissioners.  A 
member  of  the  board  or  its  authorized  agent  may  at  any  time  enter  a 
building  or  upon  premises  where  water  is  used  from  supply  pipes,  and  make 
necessary  examinations.  [Town  Law,  § 295;  B.  C.  & G.  Cons.  L.,  p. 
6219.] 

Ordinances . — The  board  of  water  commissioners  may  adopt  ordinances, 
not  inconsistent  with  law,  for  enforcing  the  collection  of  water  rents  and 
relating  to  the  use  of  water,  and  may  enforce  observance  thereof,  by  cutting 


422  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  §§  296,  297. 

off  the  supply  of  water,  or  by  the  imposition  of  penalties.  [Town  Law,  § 
296;  B.  C.  & G.  Cons.  L.,  p.  6219.] 

Annual  report  of  water  commissioners. — The  board  of  water  commis- 
sioners shall  on  the  thirty-first  day  of  October  file  with  the  town  clerk 
a report  for  the  year  ending  that  day,  containing  a statement  of  the  follow- 
ing facts : 

1.  The  amount  of  money  on  hand  at  the  beginning  of  the  year,  and 
the  receipts  from  all  sources  during  such  year. 

2.  An  itemized  statement  of  the  amount  paid  out  during  such  year, 
and  the  balance  on  hand. 

3.  The  outstanding  indebtedness  of  the  district,  either  bonded  or  other- 
wise, separately  stated. 

4.  The  estimated  deficiency  in  the  amount  necessary  to  pay  principal 
or  interest  or  the  expenses  of  the  district  during  the  next  year,  after 
applying  thereto  the  probable  amount  of  water  rents. 

5.  The  improvements  and  extensions  made  during  such  preceding  year, 
and  the  general  condition  of  the  waterworks. 

6.  Such  other  facts  as  the  board  deems  important  for  the  information 
of  the  water  district,  together  with  such  recommendations  concerning  such 
district  as  may  be  deemed  proper.  [Town  Law,  § 297;  B.  C.  & G.  Cons. 
L.,  p.  6219.] 

Enlarging  water  district.  Granting  permission  for  use  of  water  out- 
side the  district. — After  the  establishment  of  a water  district  under 
the  provisions  of  sections  two  hundred  and  eighty-two  to  two  hundred 
and  eighty-five,  inclusive,  of  this  article,  the  water  commissioners 
thereof,  with  the  consent  of  the  town  board  and  upon  the  application 
of  a majority  of  the  owners  of  taxable  real  property  in  the  new  district, 
owning  more  than  one-half,  measured  by  its  assessed  valuation,  of  such 
taxable  real  property,  and  upon  the  written  application  of  the  person 
or  persons  owning  one  or  more  parcels  of  taxable  real  property  in  the 
town  outside  of  and  adjoining  said  water  district,  may  annex  and  add 
to  said  district  the  territory  comprising  such  outside  real  estate.  An 
amended  map  of  the  proposed  enlarged  district  shall  be  submitted  with 
said  applications  and  shall  be  filed  as  prescribed  in  section  two  hundred 
and  eighty-three  for  the  filing  of  the  map  of  the  original  district.  All 
applications  under  this  section  must  be  by  petition  or  petitions 
subscribed  by  the  petitioners  and  acknowledged  in  the  same  manner 
as  a deed  to  be  recorded.  The  reasonable  expenses  of  the  neces- 
sary proceedings  on  the  extension  of  a water  district,  as  herein  pre- 
scribed, are  a charge  against  the  enlarged  district ; excepting  that  if  the 
extension  is  not  granted,  such  expenses  shall  be  borne  by  the  petitioners 
owning  such  outside  real  estate.  A notice,  upon  such  application,  shall 
be  given  and  a hearing  and  determination  made  by  and  before  the  water 
commissioners  in  the  manner,  as  nearly  as  may  be,  as  is  provided  in 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS.  433, 


Town  Law,  §§  298,  299. 

section  two  hundred  and  eighty-five.  The  determination,  if  favorable  to 
the  applicants,  shall,  when  approved  by  the  town  board  at  any  regular  or 
special  meeting,  be  to  the  effect  that  the  district  is  extended  to  include  the 
outside  real  estate  described  in  the  application.  From  the  time  such  terri- 
tory is  annexed  it  shall  be  subject  to  annual  taxation  for  the  raising  of 
money  for  interest  and  installments  on  the  balance  of  unpaid  bonds  of  the 
original  district,  with  the  other  property  in  the  district,  as  enlarged,  in 
the  manner  prescribed  by  section  two  hundred  and  eighty-nine,  and  the 
owners  shall  enjoy  all  the  water  privileges,  subject  to  the  same  rents  and 
restrictions  as  the  owners  of  property  in  such  original  district.  A water 
district  may  be  repeatedly  enlarged  and  extended  under  the  provisions 
of  this  section  as  often  as  an  application,  in  conformity  thereto,  may  be 
made  and  approved  by  the  water  commissioners  and  town  board.  The 
water  commissioners,  with  the  consent  of  the  town  board,  may  also,  if 
authorized  by  a majority  vote  of  the  electors  owning  real  estate  in  the 
district,  taken  at  a public  meeting,  of  which  notice  has  been  given  by 
publication  in  a newspaper  in  the  town  once  a week  for  the  preceding  four 
weeks,  or,  if  there  be  no  such  newspaper,  then  by  posting  for  twenty-eight 
days  in  twenty  public  places  in  the  town,  permit  any  person  or  persons 
residing  or  owning  real  estate  outside  of  the  district  to  use  water  from  the 
district  system  outside  of  the  district,  for  a rental  and  subject  to  restrictions 
to  be  prescribed  by  the  commissioners.  Such  a meeting  shall  be  called  and 
notice  given  by  the  town  clerk  at  the  request  of  a majority  of  the  water  com- 
missioners or  at  the  request  of  twenty-five  taxpayers  of  the  district.  The 
notice  of  the  meeting,  in  addition  to  stating  the  time  and  place  where  the 
same  is  to  be  held,  shall  specify  the  purpose  thereof.  There  shall  be  a chair- 
man and  two  inspectors  of  election  at  such  meeting  to  take  charge  thereof,, 
who  shall  be  chosen  by  the  persons  entitled  to  vote  on  said  proposition. 
The  voting  shall  be  by  ballot.  The  chairman  shall  announce  the  result  and 
certify  the  same  in  writing  to  the  water  commissioners.  Such  certificate 
shall  be  prima  facie  evidence  of  the  statements  therein  contained,  and  if  the 
result  of  the  vote  as  certified  authorizes  the  commissioners  and  town  board 
to  grant  the  water  permits  hereinabove  mentioned,  they  may  do  so  unless 
restrained  by  a court  or  judge  having  jurisdiction  in  the  premises.  [Town 
Law,  § 298,  as  added  by  L.  1909,  ch.  356,  and  amended  by  L.  1915, 
ch.  49;  B.  C.  & G.  Cons.  L.,  p.  6220.] 

Enlarging  water  supply  system. — After  the  establishment  of  a water 
district  and  the  construction  of  a water  system  therein  as  provided  by 
this  article,  the  water  commissioners  thereof  with  the  consent  of  the 
town  board  and  on  the  petition  of  the  owners  of  more  than  one-half  of 
the  taxable  real  property  in  such  district  as  appears  by  the  last  preced- 
ing completed  assessment-roll,  may  enlarge  the  water  supply  system  in 
such  district  as  provided  by  this  section.  The  petition  must  state  the 
maximum  amount  proposed  to  be  expended  in  the  construction  of  such 
enlargement  of  the  water  system,  must  be  signed  by  the  petitioners  and 


424 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 2G0. 

acknowledged  in  the  same  manner  as  a deed  to  be  recorded.  The  peti- 
tion shall  also  be  accompanied  by  a map  showing  the  proposed  enlarge- 
ment of  the  water  supply  system,  which  map  shall  be  filed  as  prescribed 
in  section  two  hundred  and  eighty-three  for  the  filing  of  the  map  of  the 
original  district.  A notice  upon  such  petition  shall  be  given  and  a hear- 
ing and  determination  had  by  and  before  the  water  commissioners  in 
the  manner  as  nearly  as  may  be  as  is  provided  in  section  two  hundred 
and  eighty-five.  The  determination  if  favorable  to  the  petitioners  shall 
be  approved  by  the  town  board  at  any  regular  or  special  meeting  to  the 
effect  that  the  water  supply  system  in  such  district  shall  be  enlarged  in 
accordance  with  the  petition.  All  the  provisions  of  this  article  in  rela- 
tion to  contracts  for  the  construction  of  the  original  water  system  in 
such  district,  and  issue  and  sale  of  bonds  therefor  and  the  payment  of 
such  bonds  shall  apply  to  the  enlargement  of  such  water  supply  system, 
as  authorized  by  this  section.  [Town  Law,  § 299,  as  added  by  L.  1912, 
ch.  275.] 

§ 5a.  TOWN  BOARDS  MAY  ESTABLISH  JOINT  WATER  SUPPLY 
DISTRICTS;  PETITION;  MAP;  EXPENSES,  HOW  PAID;  AC- 
TION BY  JOINT  TOWN  BOARDS;  CONTRACT  FOR  WATER 
SUPPLY;  LEVY  OF  TAXES  FOR  PAYMENT  OF  AMOUNT  OF 
CONTRACT. 

Town  boards  may  establish  joint  water  supply  districts. — It  shall  be  law- 
ful for  the  town  boards  of  two  or  more  adjoining  towns  in  this  state  to 
form  a joint  water  supply  district  whenever  a petition  for  the  establishment 
signed  by  a majority  of  the  owners  of  taxable  real  property  in  the  proposed 
district  owning  more  than  one-half,  measured  by  its  assessed  valuation 
according  to  the  last  assessment  roll,  shall  file  with  the  town  clerk  of  one 
of  said  towns  in  which  proposed  district  lies,  and  cause  a certified  copy  or 
copies  thereof  to  be  filed  with  the  town  clerk  of  the  other  town  or  towns 
within  which  such  proposed  district  lies.  Such  proposed  water  supply  dis- 
trict may  be  either  an  entirely  new  district  or  the  extension  of  a water  supply 
district  heretofore  formed  wholly  in  one  of  said  towns,  or  as  a joint  water 
supply  district  in  two  or  more  towns.  A joint  meeting  of  the  town  boards 
of  such  towns  shall  be  held  after  the  fifing  of  the  petition  as  aforesaid  upon 
the  written  request  of  the  supervisor  of  any  such  town,  or  upon  the  written 
request  of  a majority  of  the  town  board  of  any  such  town  filed  with  the 
town  clerk  of  such  town,  and  upon  the  fifing  of  such  a written  request  such 


FIRE ; WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


425 


Town  Law,  §§  301,  302,  303. 

town  clerk  shall  call  a meeting  at  the  usual  meeting  place  of  the  town  board 
of  the  town  whose  official,  or  officials,  presented  the  request  therefor,  by  giv- 
ing ten  days’  notice  of  the  date,  hour  and  place  of  such  meeting,  which 
notice  shall  be  either  given  personally  or  by  mailing  the  same  to  the  mem- 
bers of  such  town  boards  at  least  ten  days  before  the  date  of  such  meeting 
and  addressed  to  such  members  at  their  last  known  post  office  address. 
[Town  Law,  § 300,  as  added  by  L.  1917,  ch.  423.] 

Petition;  map. — The  petition  to  be  filed  as  in  the  last  section  provided 
must  describe  the  proposed  district,  be  signed  by  the  petitioners  and  ac- 
knowledged in  the  same  manner  as  a deed  to  be  recorded,  and  there  shall  be 
annexed  thereto  a map  of  such  proposd  district,  which  map  shall  also  show 
the  proposed  method  of  procuring  a water  supply  for  said  district,  and  the 
proposed  line  of  mains,  distributing  pipes  and  hydrants,  and  the  parties 
presenting  the  petition  shall  present  sufficient  additional  copies  of  the 
petition  and  maps  in  order  that  the  town  clerk  with  whom  they  are  first 
filed  may  make  the  necessary  certified  copies.  [Town  Law,  § 301,  as 
added  by  L.  1917,  eh.  423.] 

Expenses;  how  paid. — The  reasonable  expenses  of  the  necessary  proceed- 
ings on  the  organization  of  a joint  water  supply  district,  as  herein  prescribed, 
shall  be  a charge  against  the  district,  if  organized;  if  such  water  district 
is  not  organized  the  persons  who  signed  the  petition  for  the  establishment 
of  such  joint  water  supply  district  shall  be  jointly  and  severally  liable  for 
such  expenses.  [Town  Law,  § 302,  as  added  by  L.  1917,  ch.  423.] 

Action  by  joint  town  boards. — When  the  petition  and  map  as  herein- 
before provided  have  been  filed,  the  town  clerk  of  the  town  with  whom  a 
request  for  a meeting  of  the  joint  town  boards  has  been  filed  shall  cause 
notice  of  the  filing  of  such  petition  to  be  published  for  one  week  in  a news- 
paper published  in  each  of  such  towns,  or  if  no  newspaper  be  published  in 
any  or  all  of  such  towns  then  by  posting  such  notice  in  at  least  six  public 
and  conspicuous  places  in  each  of  said  towns  within  the  proposed  water 
district  described  in  such  petition.  Such  notice  shall  also  specify  a time 
and  place  where  the  joint  town  boards  will  meet  to  consider  the  petition, 
which  meeting  shall  not  be  less  than  ten  days  nor  more  than  twenty  days 
after  the  filing  of  the  request  for  a meeting  and  the  publishing  or  posting 
of  the  notices.  At  such  meeting  the  joint  town  boards  shall  determine  if 
said  petition  is  in  fact  signed  and  acknowledged  by  a majority  of  the  owners 
of  the  taxable  property  in  said  proposed  water  district,  measured  by  its 


425a 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  304,  305. 

assessed  valuation  according  to  the  last  assessment  rolls  of  such  towns. 
Such  determination  shall  be  in  writing,  signed  by  said  joint  town  boards 
or  a majority  of  both  of  them,  and  recorded  in  the  minutes  of  said  meeting. 
If  the  decision  be  that  the  petition  is  signed  and  acknowledged  by  a majority 
of  the  owners  of  the  taxable  property  in  the  proposed  district,  measured  by 
its  assessed  valuation  according  to  the  last  town  assessment  rolls,  then  the 
joint  town  boards  shall  make  an  order  establishing  such  joint  water  supply 
district.  [Town  Law,  § 303,  as  added  by  L.  1917,  ch.  423.] 

Contract  for  water  supply. — If  the  town  boards  establish  a joint  water 
supply  district  as  in  the  last  section  provided,  it  shall  be  lawful  for  the 
supervisors  of  the  towns,  any  part  of  which  is  within  such  district,  to  enter 
into  a contract  on  behalf  of  such  towns  with  any  water  company,  or  other 
party  or  person,  to  supply  water  for  such  district  for  fire,  sanitary  or  other 
public  purposes.  Any  water  company  authorized  to  supply  water  to  any 
one  of  such  towns  may  enter  into  such  contract  and  lay  its  conduits,  mains 
and  distributing  lines,  and  set  its  hydrants  as  in  the  contract  provided, 
the  same  as  if  such  water  supply  district  was  wholly  within  the  town  in 
which  it  was  authorized  to  supply  water.  Such  water  company  may  supply 
water  to  persons  or  corporations  residing  within  such  water  supply  district, 
if  an  order  be  procured  from  the  public  service  commission  fixing  the  maxi- 
mum price  to  be  charged  therefor.  Application  for  such  order  may  be  made 
to  the  public  service  commission  either  by  such  town  boards  or  by  such 
water  company.  The  public  service  commission  shall  fix  a time  and  place 
for  a hearing  on  such  application,  of  which  due  notice  shall  be  given  to  the 
supervisors  of  such  towns  or  to  such  water  company,  as  the  case  may  be, 
at  which  shall  be  heard  all  persons  interested  in  such  application,  including 
any  corporation  or  person  residing  within  such  water  supply  district.  After 
such  hearing  the  public  service  commission  shall,  by  order,  fix  the  maximum 
price  which  may  be  charged  for  water  by  such  water  company,  which  order 
shall  be  binding  on  such  company  and  the  price  fixed  therein  shall  remain 
unchanged  until  a different  price  shall  have  been  fixed  by  the  public  service 
commission,  in  like  manner,  upon  application  either  by  such  town  boards, 
such  water  company  or  a corporation  or  person  residing  within  such  water 
supply  district.  [Town  Law,  § 304,  as  added  by  L.  1917,  ch.  423.] 

Levy  of  taxes  for  payment  of  amount  of  contract. — The  annual  amount 
due  under  and  pursuant  to  any  contract  that  may  be  entered  into  for  a joint 
water  supply  district  shall  be  apportioned  on  the  basis  of  the  assessed  valu- 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


425b 


Town  Law,  § 260. 

ation  of  the  real  property  within  said  district  between  each  of  said  towns  by 
the  supervisors  of  the  towns  affected,  on  the  basis  of  the  equalized  valuation 
and  the  amount  of  such  expense  shall  be  assessed  and  levied  on  the  taxable 
property  in  such  water  supply  district  in  each  of  said  towns,  and  collected 
in  the  same  manner  and  at  the  same  time  and  by  the  same  officers  as  the 
other  town  taxes  or  charges  or  expenses  of  the  towns  in  which  such  district 
is  located  are  now  assessed,  levied  and  collected,  and  such  money,  when 
collected,  shall  be  kept  as  a separate  fund  and  be  paid  over  by  the  super- 
visors of  said  towns  to  the  corporation,  company,  person  or  persons  furnish- 
ing such  water,  pursuant  to  the  terms  of  the  contract  therefor.  [Town 
Law,  § 305,  as  added  by  L.  1917,  ch.  423.] 

§ 6.  TOWN  BOARDS  MAY  ESTABLISH  STREET  LIGHTING  DIS- 
TRICTS AND  CONTRACT  FOR  THE  LIGHTING  OF  STREETS 
THEREIN;  PETITION  THEREFOR;  NOTICE  TO  BE  PUB- 
LISHED; AMOUNT  OF  CONTRACT,  HOW  RAISED. 

Town  boards  may  establish  lighting  districts. — It  shall  be  lawful  for 
the  town  board  of  any  town  in  this  state  to  contract  for  the  lighting  of 
the  streets,  avenues,  highways,  public  places  and  public  buildings 
therein,  outside  of  the  corporate  limits  of  any  incorporated  village  in 
said  town,  upon  such  terms  and  for  such  time  or  period  not  exceeding 
ten  years,  as  the  town  board  may  deem  proper  or  expedient,  and  for 
the  payment  of  the  expenses  thereof  may  establish  one  or  more  lamp  or 
lighting  districts  therein.  It  shall  be  lawful  for  the  town  boards  of  two 
or  more  adjoining  towns  in  this  state,  whenever  a petition  for  the  estab- 
lishment of  a lamp  or  lighting  district  shall  cover  territory  lying  in  two 
or  more  adjoining  towns  in  this  state,  to  contract  for  the  lighting  of  the 
streets,  avenues,  highways,  public  places  and  public  buildings  therein, 
outside  of  the  corporate  limits  of  any  incorporated  village  in  said  town, 
upon  such  terms  and  for  such  time  or  period  not  exceeding  ten  years,  as 
the  town  boards  of  two  or  more  adjoining  towns  in  joint  session  assembled 
may  deem  proper  or  expedient  and  for  the  payment  of  the  expenses  thereof.5 
[Town  Law,  § 260;  B.  C.  & G.  Cons.  L.,  p.  6210.] 


5.  Town  board  cannot  construct  or  purchase  a plant.  Rept.  of  Atty.  Genl. 
(1901)  237. 

Where  a town  board  illegally  establishes  a lighting  plant  with  moneys  of  the 
town  and  repays  such  town  with  money  raised  by  tax  in  the  lighting  district,  res- 


425c 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 261. 

Petition. — No  such  contract  shall  be  made  unless  a petition  for  such 
lighting,  signed  by  a majority  of  the  taxpayers  of  such  lamp  or  lighting 
district,  shall  be  filed  with  the  town  clerk  of  said  town  thirty  days  before 
the  contract  is  made,  but  in  the  counties  of  Nassau,  Suffolk  and  West- 
chester no  such  contract  shall  be  made  unless  the  petition  for  such 
lighting  is  signed  by  a majority  of  the  resident  taxpayers  in  such  lamp 
or  lighting  district,  unless  it  be  a renewal  or  extension  of  such  a con- 
tract. In  case  such  proposed  lamp  or  lighting  district  lies  in  two  or 
more  adjoining  towns,  a petition  signed  by  a majority  of  the  taxpayers 
of  such  lighting  district  may  be  filed  with  the  clerk  of  any  such  towns, 
and  a copy  of  such  petition  and  its  signatures,  certified  to  be  such  by 
the  clerk  of  the  town  with  whom  the  original  petition  is  filed  shall  there- 
upon be  filed  with  the  town  clerk  of  each  other  such  town,  and  such 
peition  shall  not  be  deemed  filed  within  this  section  until  so  filed  with 
the  clerk  of  each  such  town.  A joint  meeting  of  the  town  boards  of  such 
towns  for  the  purpose  of  transacting  any  business  of  such  joint  lamp 
or  lighting  district,  shall  be  held  at  any  time  upon  written  request  of 
the  supervisor  of  any  such  town  to  the  clerk  of  each  such  town.  It  shall 
be  lawful,  however,  for  the  town  board  of  each  town,  a part  of  which 
is  included  in  a joint  lamp  or  lighting  district  so  established,  to  transact 
all  business  thereof  in  separate  session,  except  that  the  establishment  of 
the  district  and  the  adoption  of  an  initial  contract  for  lighting,  shall 
be  done  in  joint  meeting  as  provided  in  section  two  hundred  and  sixty. 
For  the  purposes  of  such  joint  action  in  separate  session  a majority  vote 
at  a meeting  of  each  such  town  board,  upon  the  same  resolution,  shall 
be  necessary.  The  town  clerk  of  each  such  town  shall  file  a copy  of 
such  minutes  of  separate  meetings  as  refer  to  such  lighting  district  with 
the  town  clerk  of  each  other  town,  a part  of  which  is  included  in  such 
joint  lighting  district,  and  the  action  of  the  several  town  boards  shall 
thereupon  become  effective  for  such  joint  district.  [Town  Law,  § 261, 
as  amended  by  L.  1910,  ch.  671,  L.  1916,  ch.  99,  and  L.  1917,  ch.  19;  B. 
C.  & G.  Cons.  L.,  p.  6211.] 


toration  of  the  funds  to  the  lighting  district  must  be  sought  under  § 1969  of  Code 
of  Civil  Procedure.  But  a taxpayer’s  action  under  § 51  of  the  General  Municipal 
Law  will  lie  to  enjoin  the  further  operation  of  the  plant.  Montgomery  v.  Smead 
(1916),  97  Misc.  283,  161  N.  Y.  Supp.  431. 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


425(1 


Town  Law,  §§  261a,  £62,  262a. 

Consolidation  of  lighting  districts . — Two  or  more  adjoining  lighting 
districts  in  the  same  town  may  be  combined  in  a single  lighting  district 
by  a resolution  of  the  town  board  of  said  town,  and  two  or  more  adjoin- 
ing lighting  districts,  any  one  of  which  lies  in  two  or  more  adjoining 
towns,  may  be  combined  in  a single  lighting  district  by  resolution  of 
the  town  boards  of  said  towns  in  joint  session.  In  case  the  existing 
contracts  for  lighting  different  parts  of  such  combined  district  are,  by 
the  terms  thereof,  to  expire  at  different  times,  no  renewal  of  any  such 
contract  shall  be  for  a period  longer  than  the  unexpired  portion  of 
the  term  of  the  other  such  contract,  if  there  be  but  two,  or  in  case 
there  be  more  than  two  such  contracts,  for  a period  longer  than  the  unex- 
pired portion  of  that  one  of  such  contracts  which  has  the  longest  time  to 
run.  [Town  Law,  § 261-a,  added  by  L.  1916,  ch.  99.] 

Notice  of  filing  petition. — The  town  board,  or  if  such  district  shall 
lie  in  two  or  more  adjoining  towns,  then  the  town  boards  of  each  such 
towns  shall  cause  notices  of  the  same  to  be  published  for  one  week  in  one 
or  more  of  the  newspapers  published  in  such  town,  or  towns,  or  if  no 
newspaper  be  published  in  such  town  or  towns,  then  by  posting  said 
notice  in  at  least  six  public  and  conspicuous  places  in  said  district  of 
the  filing  of  said  peitition,  and  the  time  and  place  when  the  same  will  be 
acted  upon  by  said  town  board,  or  if  such  lighting  district  lies  in  two  or 
more  adjoining  towns,  then  when  the  same  will  be  acted  upon  at  a joint 
meeting  of  the  town,  boards  of  such  towns,  to  be  held  in  the  territory 
where  such  district  is  to  be  created.  [Town  Law,  § 262 ; B.  C.  & G. 
Cons.  L.,  p.  6211.] 

Consolidation  of  lighting  districts. — Any  existing  lighting  district 
may  be  extended  by  resolution  of  the  town  board  of  the  town  in  which 
such  district  is  situated,  or  by  resolution  in  joint  session  of  the  town  boards 
of  the  several  towns  in  which  such  district  is  situated,  so  as  to  include  there- 
in any  part  of  such  town  or  towns,  adjoining  such  district,  upon  the  writ- 
ten petition  of  a majority  of  the  owners  of  the  real  property  to  be  included 
in  such  proposed  extension,  duly  filed  with  the  clerk  of  the  town  in  which 
such  district  is  situated;  or  if  such  district  lies  in  two  or  more  adjoining 
towns,  with  the  clerk  of  any  one  of  su.eh  towns.  A lighting  district  may  be 
repeatedly  enlarged  and  extended  in  accordance  with  the  provisions  of  this 
section.  No  contract  for  lighting  such  extension  shall  be  made  for  a period 
of  time  longer  than  the  unexpired  portion  of  the  term  of  the  existing  con- 


425e 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  263,  264. 

tract  for  lighting  said  district;  or,  in  case  there  shall  be  at  the  time  of 
such  extension  more  than  one  existing  contract  for  lighting  said  district, 
for  a period  longer  than  the  unexpired  portion  of  that  one  of  such  contracts 
which  has  the  longest  time  to  run.  [Town  Law,  § 262-a,  added  by  L.  1916, 
ch.  99.] 

Amount  of  contract,  how  collected. — The  amount  of  any  contract  that 
may  be  entered  into  pursuant  to  the  provisions  of  this  article  shall  be 
assessed,  levied  and  collected  upon  the  taxable  property  in  said  town  or 
district  in  the  same  manner,  at  the  same  time,  and  by  the  same  officers  as 
the  town  taxes,  charges  or  expenses  of  said  town  are  now  assessed,  levied 
and  collected,  and  the  same  shall  be  paid  over  by  the  supervisor  to  the  corpor- 
ation, company,  person  or  persons  furnishing  or  supplying  said  light.  If 
the  the  town  boards  of  two  or  more  adjoining  towns  shall,  in  joint  session, 
establish  a lamp  or  lighting  district  in  two  or  more  adjoining  towns,  they 
shall  determine  the  relative  proportion  of  the  expense  of  such  lighting 
which  shall  be  borne  by  each  of  said  towns,  and  the  amount  of  such  expense 
shall  be  assessed  and  levied  on  the  taxable  property  in  such  lighting  district 
in  each  of  said  towns,  and  collected  in  the  same  manner  and  at  the  same 
time,  and  by  the  same  officers  as  the  town  taxes  or  charges  or  expenses  of  the 
town  in  which  said  district  is  located,  are  now  assessed,  levied  and  collected, 
and  such  relative  expense  shall  be  paid  over  by  the  supervisor  of  each  of 
said  towns  to  the  corporation,  company,  person  or  persons  furnishing  or 
supplying  the  light.5a  [Town  Law,  § 263;  B.  C.  & Gr.  Cons.  L.,  p.  6211.] 

§ 6a.  LIGHTING  CONTRACTS  IN  TOWN  AND  VILLAGE. 

Whenever  a town  board  has  established  a lighting  district  in  a town,  and, 
thereafter,  a portion  of  said  town  containing  a part  of  said  lighting  dis- 
trict, shall  have  been  included  within  the  boundaries  of  an  incorporated 


5a.  Misappropriation  of  moneys  collected  by  board  of  supervisors;  remedy  against 
town.  Where  a party  contracted  with  a town  board,  under  section  260  of  the  Town 
Law,  for  the  lighting  of  a district,  and  a tax  therefor  was  levied  and  collected 
under  this  section,  and  the  supervisors  into  whose  hands  the  money  was  paid,  mis- 
appropriated it,  the  claim  for  the  lighting  is  a liquidated  indebtedness  of  the  town, 
and  the  remedy  is  by  an  action  at  law  and  not  by  mandamus  against  the  town 
officers  to  compel  levy  and  collection  of  another  tax.  Dunn  v.  Town  of  Whites- 
town  (1911),  185  Fed.  585. 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


42  of 


Town  Law,  § 243. 

village,  it  shall  be  lawful  for  said  town  board  and  the  board  of  trustees  of 
said  village,  in  joint  session,  without  petition  therefor,  to  jointly  make, 
renew  or  extend  a contract  for  the  lighting  of  the  whole  of  said  village 
and  the  portion  of  said  district  in  said  town,  not  included  in  the  village, 
for  a period  not  to  exceed  five  years.  For  the  purpose  of  such  joint  action, 
in  separate  session  a majority  vote  at  a meeting  of  each  town  board  and 
village  board,  upon  the  same  resolution,  shall  be  necessary.  If  the  town 
board  and  village  board  of  trustees  in  joint  session,  shall  make,  renew,  or 
extend  such  a contract,  they  shall  determine  the  relative  proportion  of  the 
expense  of  such  lighting  which  shall  be  borne  by  such  town  and  village, 
respectively,  and  the  amount  of  such  expense  to  be  borne  by  such  town 
shall  be  assessed  and  levied  on  the  taxable  property  in  said  lighting  district 
in  said  town  and  collected  in  the  same  manner  and  at  the  same  time  and 
by  the  same  officers  as  town  taxes,  charges  and  expenses  of  such  town  in 
which  a portion  of  said  district  is  located,  are  now  assessed,  levied  and 
collected,  and  such  relative  expense  shall  be  paid  over  by  the  supervisor 
of  said  town  to  the  corporation,  company,  person  or  persons  supplying  or 
furnishing  said  light.  The  portion  of  the  expense  to  be  borne  by  said 
village,  shall  be  assessed,  levied  and  collected  at  the  same  time  and  in  the 
same  manner  as  other  village  charges,  expenses  and  taxes  are  levied,  assessed 
and  collected  and  shall  be  paid  in  annual  installments  commencing  with 
making,  renewal  or  extension  of  said  contract  to  the  corporation,  company, 
person  or  persons  furnishing  or  supplying  said  light  to  the  amount  of  the 
contract.  The  expense  of  such  lighting  in  such  village  shall  not,  for  each 
fiscal  year,  exceed  three  and  one-half  mills  on  every  dollar  of  the  taxable 
property  of  said  village  as  appears  on  the  last  preceding  assessment-roll 
before  the  making,  renewal  or  extension  of  such  a contract,  unless  authorized 
by  a village  election.  [Town  Law,  § 264,  as  added  by  L.  1917,  ch.  280.] 

§ 7.  TOWN  BOARD  MAY  ESTABLISH  SEWER  SYSTEM;  PETITION. 

The  town  board  of  any  town  on  the  petition  of  owners  of  real  property 
in  a proposed  district,  or  in  a proposed  extension  of  an  existing  district, 
representing  more  than  one-half  in  value  of  the  taxable  real  property 
therein  as  appears  by  the  last  preceding  completed  assessment-roll,  may 
establish  a sewer  system  outside  an  incorporated  village  or  city,  or  ex- 


Exemptions.  The  property  of  corporations  or  associations  falling  within  subdi- 
vision 7 of  section  4 of  the  Tax  Law,  is  exempt  from  payment  of  the  tax  levied 
pursuant  to  this  section.  Rept.  of  Atty.  Genl.  (1915),  p.  44. 


426 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 230. 

tend  the  boundaries  of  an  existing  district  and  the  sewer  system  therein 
accordingly.  The  petition  must  describe  the  proposed  district,  or  pro- 
posed extension  of  an  existing  district,  and  state  the  maximum  amount 
proposed  to  be  expended  in  the  construction  of  such  sewer  system  or  ex- 
tension. Each  petitioner  shall  state  opposite  his  name  the  assessed  val- 
uation of  the  real  property  owned  by  him  in  such  district,  or  extension 
of  an  existing  district,  according  to  the  last  preceding  completed  assess- 
ment-roll. The  petition  must  be  signed  by  the  petitioners  and  proved 
or  acknowledged  in  the  same  manner  as  a deed  to  be  recorded,  and  if  it 
be  a petition  to  extend  an  existing  district  and  the  sewer  system  therein 
shall,  in  addition  to  the  foregoing  provisions,  be  approved  in  writing  by 
the  sewer  commissioners  of  such  district.  There  shall  be  annexed  to  and 
presented  with  such  petition  a map  and  plan  of  the  proposed  sewer  sys- 
tem, or  extension,  with  specifications  of  dimensions  and  connections  and 
outlet  or  sewage  disposal  works  prepared  by  a competent  engineer  at  the 
expense  of  the  petitioners.  The  petitioners  may,  however,  present  to 
the  town  board  with  such  petition,  map,  plan  and  specifications,  a state- 
ment, verified  by  one  of  the  petitioners  having  personal  knowledge  of  the 
correctness  thereof,  showing  the  amount  of  the  actual  cost  to  them  of 
said  map,  plan  and  specifications  and  the  cost  of  the  acknowledgments 
of  the  signatures  to  such  petition,  and  by  whom  paid,  which  said 
amount,  if  found  by  the  town  board  to  be  just  and  reasonable,  and  if  the 
said  town  board  shall  make  one  of  the  orders  as  provided  by  section  two 
hundred  and  thirty-one  of  this  chapter,  shall  be  and  become  a part  of 
the  expense  of  construction,  and  shall  be  included  in  the  first  tax  levy 
therefor,  and  shall  be  refunded  to  the  person  or  persons  by  whom  paid, 
as  shown  by  the  aforesaid  statement,  by  the  supervisor  of  the  town,  who 
shall  take  a receipt  therefor.  At  any  time  after  the  town  board  has 
made  an  order  establishing  such  district,  or  extending  an  existing  dis- 
trict, the  maximum  amount  proposed  to  be  expended  in  the  construction 
of  such  sewer  system  in  said  district,  or  extension,  may  be  increased  by 
a petition  of  owners  of  real  property  in  said  district  or  extension,  repre- 
senting more  than  one-half  in  value  of  the  taxable  real  property  therein, 
as  appears  by  the  last  preceding  completed  assessment-roll,  setting  forth 
the  additional  amount  proposed  to  be  expended,  in  excess  of  the  maxi- 
mum amount  set  forth  in  the  petition  upon  which  the  said  district  or 
extension  was  established.  Such  petition  must  be  signed  and  proved  or 
acknowledged  in  the  same  manner  as  the  petition  for  the  establishment 
of  said  sewer  district  or  extension,  and  shall  be  filed  in  the  office  of  the 
town  clerk.  Every  petition  made  as  provided  in  this  section  shall  con- 
tain a statement  conspicuously  printed  thereon  as  follows : “ The  cost 
of  construction  and  maintenance  of  such  sewer  system  or  extension,  as 
the  case  may  be  shall  be  assessed,  from  year  to  year,  by  the  sewer  com- 
missioners to  be  appointed,  upon  the  lands  within  the  sewer  district  or 
extension  in  proportion  as  nearly  as  may  be  to  the  benefit  which  each 
lot  or  parcel  will  derive  therefrom.”  Any  petition  made  as  herein  pro- 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS  426 a 
Town  Law,  § 230a. 

-vided  shall  be  legal  for  all  purposes  herein,  although  some  of  the  peti- 
tioners therein  may  have  signed  and  acknowledged  the  same  before  this 
section,  as  hereby  amended,  takes  effect.6  [Town  Law,  § 230,  as 
amended  by  L.  1910  ch.  134,  and  L.  1911,  ch.  507 ; B.  C.  & G.  Cons. 
L.,  p.  6205.] 

Town  board  may  direct  construction  of  'portions  of  server  system ; ex- 
tension, notice  of , petition. — If  in  the  petition  for  the  establishment  of 
a sewer  district  or  for  an  extension  to  an  existing  district,  the  petitioners 
shall  pray  that  a portion  or  portions  only  of  the  system  designed  ulti- 
mately to  serve  the  entire  district  or  an  extension  to  the  said  district, 
shall  be  constructed  in  the  first  instance,  and  shall  describe  the  said 
portion  or  portions  in  their  said  petition,  and  indicate  the  same  on  the 
said  map  and  plan,  and  shall  specify  the  maximum  amount  proposed  to 
be  expended  in  the  construction  of  such  portion  or  portions  of  the  said 
system,  the  town  board  may  include  in  its  order  establishing  the  said 
district  or  extension,  a direction  that  the  sewer  commissioners  shall  con- 
struct only  the  portion  or  portions  of  the  said  system  designated  in  the 
said  petition,  until  extensions  thereto  shall  be  authorized  as  hereinafter 
provided.  In  case  the  town  board  shall  make  an  order  establishing  the 
said  district  and  containing  the  said  direction,  the  provisions  of  this 
chapter  shall  be  applicable  thereto  in  all  respects,  except  that  the  town 
board  shall  not  issue  bonds  to  provide  for  the  cost  of  such  portion  or  por- 
tions to  an  amount  exceeding  the  amount  mentioned  in  the  said  petition 
as  the  maximum  amount  proposed  to  be  expended  in  the  construction  of 
such  portion  or  portions.  Thereafter  extensions  to  the  said  system  may, 
from  time  to  time,  be  authorized  by  the  town  board  upon  the  petition  of 
the  owners  of  real  property  within  the  area  in  said  district  to  be  served 
by  any  proposed  extension  or  extensions  to  the  said  system,  representing 
more  than  one-half  in  value  of  the  taxable  real  property  within  such 
area,  as  appears  by  the  last  preceding  completed  assessment-roll,  which 
said  petition  shall  comply  in  form,  substance,  and  in  the  manner  of  exe- 
cution, so  far  as  applicable  thereto,  with  the  requirements  of  the  petition 
for  the  establishment  of  a sewer  district,  and  shall  state  the  maximum 
amount  proposed  to  be  expended  for  such  extension  or  extensions,  and 
shall  have  endorsed  thereon  a written  approval  of  a majority  of  the 
sewer  commissioners  of  such  district,  and  there  shall  be  presented  with 
the  said  petition  a map  prepared  by  a competent  engineer,  showing  the 
area  proposed  to  be  served  by  any  such  proposed  extension,  and  in  case 
such  proposed  extension  or  extensions  involve  a change  from  the  plans 
shown  by  the  map  and  plan  attached  to  the  petition  for  the  establish- 
ment of  the  said  sewer  district  such  petition  shall  be  accompanied  by  a 
map  and  plan  of  such  extension  or  extensions  prepared  in  the  same  man- 
ner as  the  original  map  and  plan,  and  approved  by  the  state  board  of 
health.  Before  acting  upon  a petition  to  extend  the  system  in  any  dis- 
trict or  extension  thereof,  the  town  board  shall  give  notice  of  the  time 

(>.  Outlet  for  the  system  may  be  outside  of  the  district  created.  Rept.  of  Atty. 
Genl.  (1902)  346. 


42U  b 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Town  Law,  § 231. 


and  place  at  which  it  will  meet  to  act  thereon,  by  posting  at  least  twenty- 
one  days  before  the  day  fixed  for  the  said  meeting  a notice  thereof  in  at 
least  four  public  places  in  the  said  district,  and  by  publishing  a notice 
thereof  once' in  each  of  the  three  calendar  weeks  immediately  preceding 
the  week  in  which  the  said  meeting  is  to  be  held  in  at  least  one  news- 
paper published  in  the  said  town,  if  a newspaper  is  published  therein. 
The  cost  to  the  petitioners  of  the  maps,  plans,  specifications,  and  of  the 
acknowledgments  of  the  signatures  to  such  petition  may  be  made  a part 
of  the  expense  of  constructing  the  said  extension  or  extensions  as  pro- 
vided in  section  two  hundred  and  thirty  of  the  town  law  with  respect  to 
the  like  expenditures  of  the  original  petitioners,  and  the  maximum 
amount  proposed  to  be  expended  in  the  construction  of  any  such  exten- 
sion or  extensions  to  the  sewer  system  in  any  such  district  may  be  in- 
creased by  the  petition  of  the  owners  of  real  property  in  the  area  pro- 
posed to  be  served  thereby,  representing  more  than  onedialf  the  taxable 
real  property  therein  as  appears  by  the  last  preceding  completed  assess- 
ment-roll of  said  town,  in  the  manner  specified  in  section  two  hundred 
and  thirty  of  the  town  law  for  increasing  the  maximum  amount  pro- 
posed to  be  expended  for  the  construction  of  the  original  system.  In 
case  said  extension  or  extensions  to  the  said  sewer  system  in  any  such 
district  shall  be  authorized  by  the  town  board  of  any  such  town,  such  ex- 
tension or  extensiQns,  shall  thereafter,  for  all  purposes,  be  regarded  as 
part  of  the  original  system,  and  shall  be  constructed  and  maintained  by 
the  sewer  commissioners  of  the  said  district,  and  the  cost  of  the  construc- 
tion thereof  shall  be  provided  for  by  the  issue  and  sale  of  town  bonds  in 
the  same  manner  as  provided  in  section  two  hundred  and  thirty-seven  of 
the  town  law  for  the  payment  of  the  cost  of  the  original  system,  which 
said  bonds  shall  be  a town  charge,  and  the  principal  and  interest  thereof, 
together  with  the  cost  of  maintenance  of  such  extension  or  extensions, 
shall  be  collected  from  the  real  property  within  the  said  district  by  the 
said  sewer  commissioners,  in  the  same  manner  as  though  said  extension 
or  extensions  had  formed  a part  of  the  original  system  constructed  in 
the  said  district.  [Town  Law,  § 230a,  as  added  by  L.  1912,  ch.  205.] 

. Order  of  town  board ; appointment  of  commissioners. — If  the  town 
hoard  is  satisfied  that  the  petitioners  are  owners  of  real  property  in  the 
proposed  district  or  extension,  and  own  more  than  one-half  in  value  of 
the  taxable  real  property  therein,  they  shall  make  an  order  establishing 
such  district,  or  extending  the  boundaries  of  an  existing  district,  and  if 
establishing  a new  district,  appointing  three  taxpayers  therein  as  sewer 
commissioners,  who  shall  hold  their  offices  at  the  pleasure  of  the  town 
board.  Such  sewer  commissioners  shall  each  be  paid  for  their  services, 
at  such  times  as  the  town  board  may  designate  in  said  order,  an  amount 
to  be  fixed  by  the  town  board,  which  amount  shall  not  exceed  three  dol- 
lars per  day  for  each  day  actually  and  necessarily  spent  in  the  business 
of  the  sewer  district  and  shall  be  deemed  an  expense  of  maintaining  the 
sewer  system  and  shall  be  collected  and  paid  as  provided  in  section  two- 
hundred  and  forty-three  of  this  chapter  for  expense  of  maintenance. 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS.  427 
Town  Law,  §§  232,  233,  234. 

[Town  Law,  § 231,  as  amended  by  L.  1910,  ch.  134,  and  L.  1911,  cb. 
507;  B.  C.  & G.  Cons.  L.,  p.  6206.] 

Oath  of  office  and  undertaking  of  commissioners. — Each  commissioner 
before  entering  on  the  duties  of  his  office  shall  take  the  constitutional  oath 
of  office  and  execute  to  the  town  and  file  with  the  town  clerk  an  official 
undertaking  in  such  sum  and  with  such  sureties  as  the  town  board  shall 
direct.  The  town  board  may  at  any  time  require  any  such  commissioner  to 
file  a new  official  undertaking  for  such  sum  and  with  such  sureties  as  the 
board  shall  direct.  [Town  Law,  § 232 ; B.  C.  & G.  Cons.  L.,  p.  6206.] 

Map  and  plan  of  system ; approval  of  state  board  of  health. — The  sewer 
commissioners  shall  cause  a copy  of  the  map  and  plan  of  the  proposed 
sewer  system,,  or  proposed  extension  thereof,  to  be  submitted  to  the  state 
board  of  health,  and  if  approved,  it  shall  be  filed  in  its  office.  Such  map 
and  plan  may  be  amended  with  the  approval  of  the  state  board  of  health, 
and  if  amended,  it  shall  be  filed  in  the  offices  of  the  state  board  of  health 
and  of  the  town  clerk.  [Town  Law,  § 233  as  amended  by  L.  1910,  ch. 
134;  B.  C.  & G.  Cons.  L.,  p.  6206.] 

Contracts. — The  sewer  commissioners  of  such  district  shall  advertise  for 
proposals  for  the  construction  of  a sewer  system,  or  an  extension  thereof, 
according  to  such  map  and  plan,  finally  filed,  either  under  an  entire  con- 
tract or  in  parts  or  sections  as  the  board  may  determine.  Such  advertise- 
ment shall  be  published  once  in  each  of  two  successive  weeks  in  each  news- 
paper published  in  said  sewer  district  and  extension  thereof,  and  if  no  news- 
paper is  published  therein,  in  the  two  newspapers  published  nearest  thereto. 
The  commissioners  may  require  a bond  or  deposit  from  each  person  sub- 
mitting a proposal,  to  be  not  less  than  twenty-five  per  centum  of  the  amount 
involved,  the  liability  on  such  bond  to  accrue,  or  such  deposit  to  be  forfeited 
to  the  town,  in  case  such  person  shall  refuse  to  enter  into  a contract  in 
accordance  with  his  proposal.  The  commissioners  may  accept  or  reject  any 
or  all  proposals,  and  when  the  contract  is  let  it  shall  be  let  to  the  lowest  bid- 
der. No  contract  shall  be  made  by  which  a greater  amount  shall  be  agreed 
to  be  paid  than  the  maximum  amount  stated  in  the  petition  for  the  construc- 
tion of  such  sewer,  as  amended  by  supplemental  petition,  if  any,  including 
the  expense  of  superintendence  and  inspection  as  provided  in  section  two 
hundred  and  thirty-five.  Each  contract  shall  be  executed  in  duplicate,  one 
of  which  shall  be  given  to  the  contractor  and  the  other  shall  be  filed  in  the 
office  of  the  town  clerk.  [Town  Law,  § 234  as  amended  by  L.  1910,  ch. 
134;  B.  C.  & G.  Cons.  L.,  p.  6206.] 

Engineers  and  inspectors. — The  sewer  commissioners  may  employ  an 
attorney,  a supervising  engineer  to  superintend  and  inspect  the  construction 
of  any  sewer,  or  extension  thereof,  or  works  connected  therewith,  and  also 
Ruch  inspectors  as  may  be  necessary  and  fix  the  compensation  of  such 
attorney,  engineer  and  inspectors.  Such  compensation,  together  with  the 


428 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Town  Law,  §§  235,  236,  237. 


fees,  charges  and  expenses  of  the  engineer  employed  to  prepare  the  map,  plan  a.nd 
specifications,  and  the  cost  of  the  acknowledgments  of  the  signatures  of  the  peti- 
tioners, as  provided  for  in  section  two  hundred  and  thirty  of  this  chapter,  shall  be 
treated  as  a part  of  the  expense  of  construction.  [Town  Law,  § 235,  as  amended  by 
L.  1910,  ch.  134;  B.  C.  & G.  Cons.  L.,  p.  6207.] 

Condemnation  of  real  property. — If  sewer  commissioners  are  unable  to  agree  with 
the  owners  for  the  purchase  of  real  property  necessary  for  the  construction  of  the 
sewer  system,  they  may  acquire  the  same  by  condemnation  system,  they  may  acquire 
the  same  by  condemnation,  whether  it  be  necessary  to  acquire  the  fee  or  an  ease- 
ment for  a right  of  way  therein,  and  whether  the  property  and  easements  necessary 
to  be  acquired  are  within  the  territorial  limits  of  the  sewer  district  as  established; 
said  sewer  commissioners  may  enter  into  an  agreement  with  the  board  of  trustees 
or  ether  duly  authorized  officers  of  an  adjoining  incorporated  village,  to  sewer  some 
part  or  portion  of  such  incorporated  village,  and  to  lay  and  maintain  pipes  therein, 
and  when  pipes  are  laid  and  maintained,  and  sewer  system  constructed  within  the 
limits  of  an  adjoining  incorporated  village  pursuant  to  an  agreement  so  made,  the 
sewer  commissioners  shall  have  the  same  control  and  exercise  the  same  rights  and 
privileges  in  connection  with  the  system  constructed  within  the  limits  of  an  in- 
corporated village  as  they  have  in  connection  with  the  system  established  within 
the  sewer  district  as  laid  out.  [Town  Law,  § 23G,  as  amended  by  L.  1913,  ch.  73; 
B.  C.  & G.  Cons.  L.,  p.  6207.] 

Apportionment  of  local  assessment  for  construction. — The  sewer  commissioners 
shall  prepare  and  file  in  the  pffice  of  the  town  clerk  a map  and  plan  of  such  dis- 
trict, or  extension,  which  shall-  show  the  highways  and  the  several  parcels  of  land 
therein.  The  commissioners  shall  report  to  the  town  board  the  amount  of  the  cost 
of  construction  of  such  sewer  system,  as  determined  under  the  foregoing  provisions 
hereof.  The  town  board  shall  direct  the  issue  and  sale  of  bonds  for  the  amount  of 
the  cost  of  construction  as  so  reported  to  said  hoard  by  the  said  commissioners, 
which  said  bonds  shall  be  redeemable  in  such  equal  yearly  instalments,  the  interest 
thereon  to  be  paid  semi-annually,  as  said  town  board  shall  prescribe,  and  shall  be 
a town  change.  In  the  month  of  July  in  each  year  the  town  board  shall  notify  the 
sewer  commissioners  of  the  amount  to  become  due  for  principal  and  interest  during 
the-  ensuing  year  on  the  bonds  so  issued.  The  sewer  commissioners  shall  forthwith 
proceed  to  assess  such,  amount  on  the  lands  within  such  district,  or  extension  of  an 
existing  district,  in  proportion  as  nearly  as  may  be  to  the  benefit  which  each  lot 
or  parcel  will  derive  therefrom.  After  making  such  apportionment,  said  commis- 
sioners shall  forthwith  serve  on  each  land  owner  a notice  of  at  least  ten  days  of  the 
completion  thereof  and  of  the  filing  of  such  map  and  plan,  and  that  at  a specified 
time  and  place  a hearing  will  be  had  to  consider  and  review  the  Same.  Such  notice 
must  be  served  upon  said  land  owners  personally  or  by  mailing  the  same  to  their 
last  known  respective  addresses  or  by  publishing  the  same  once  each  week  for  two 
weeks,  in  a newspaper  which  circulates  in  said  district,  or  by  either  or  any  of  said 
methods.  The  commissioners  shall  meet  at  the  time  and  place  specified  to  hear  ob- 
jections to  such-  apportionment,  and  may  modify  and  correct  the  same.  The  sewer 
commissioners  upon  the  completion  and  correction  of  such  apportionment  shall  forth- 
with file  the  same  in  the  office  of  the  toWn  clerk,  and.  shall  give  notice  of  the  filing 
of  such  completed  and  corrected  apportionment  in  the  manner  provided  for  by 
section  thirty-nine  of  the  tax  law  as  to  towns.  The  apportionment  shall  then  he 
deemed  final-  and  conclusive  unless  an  appeal  is  taken  therefrom,  as  hereinafter 
provided,  within  fifteen  days  after  the  filing  thereof.  The  town  board  shall  present 
to  the  board  of  supervisors  at  its  annual  meeting,  a statement  of  such  apportionment 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


429 


Town  Law,  §§  238,  239,  240,  241. 

as  so  corrected  and  filed,  showing  the  amount  due,  or  to  become  due,  for  principal 
and.  interest  during  the  ensuing  year,  on  the  bonds  issued  under  this  article;  'each- 
lot  or  parcel  liable  to  pay  the  same,  and  the  amount  chargeable  to  each.  The  board 
of  supervisors  shall  levy  such  sums  against  the  property  liable,  and  shall  state  the 
amount  of  the  tax  in  a separate  column  in  the  annual  taxroll  under  the  name 
“ sewer  tax.”  Such  tax  when. collected  shall  be  paid  to  the  supervisor  and  be  by  him 
applied  in  payment  of  the  bonds.  An  unpaid  assessment  shall  be  collected  in  the 
same  manner  and  shall  subject  the  land  and  land  owner  liable  therefor,  to  the 
same  interest,  burdens  and  penalties,  as  other  town  taxes  in  arrears.  [Town  Law, 
§ 237,  as  amended  by  L.  1910,  ch.  134,  and  L.  1915,  ch.  368;  B.  C.  & G.  Cons.  L.,  p. 
6207.] 

Appeal. — A person  aggrieved  by  an  apportionment  may  within  fifteen  days  after 
the  filing  thereof,  appeal  therefrom  to  the  County  Court  of  the  county  in  which 
such  district  is  situated.  Such  appeal  shall  be  taken  by  a notice  stating  the 
grounds  thereof,  served  personally  or  by  mail  upon  each  of  the  sewer  commis- 
sioners and  filed  with  the  town  clerk.  [Town  Law,  § 238;  B.  C.  & G.  Cons.  L., 

p.  6208.] 

Notice  of  appeal;  reversal. — Either  party  may  bring  on  the  appeal  on  a notice 
of  not  less  than  ten  nor  more  than  twenty  days.  All  appeals  from  the  same 
apportionment  must  be  consolidated  and  heard  as  one  appeal.  The  County 
Court  may  affirm  or  reverse  the  apportionment.  If  it  be  reversed  on  the 
ground  that  it  is  erroneous,  unequal  or  inequitable,  the  court  shall,  by  order 
of  reversal,  appoint  three  disinterested  freeholders  of  the  district  as  commis- 
sioners to  make  a new  apportionment  and  no  appeal  shall  be  allowed  from  such 
order.  [Town  Law,  § 239;  B.  C.  & G.  Cons.  L.,  p.  6208.] 

Reapportionment. — A reapportionment  shall  be  made  in  the  following  cases: 

1.  By  the  commissioners  appointed  by  the  County  Court  where  the  original 
apportionment  is  reversed  on  the  ground  that  it  is  erroneous,  unequal  or 
inequitable. 

2.  By  the  sewer  commissioners  of  the  districts  where  the  original  apportion- 
ment is  reversed  on  any  other  ground.  A reapportionment  under  this  subdi- 
vision shall  be  made  in  like  manner  as  the  original. 

3.  Reapportionments  shall  also  be  made  by  the  sewer  commissioners  in  like 
manner  as  original  apportionments  are  made  upon  the  petition  of  the  owners 
of  real  property  in  said  district  representing  a majority  of  the  taxable  prop- 
erty therein,  as  appears  by  the  last  preceding  completed  assessment  roll,  when 
the  said  petition  shall  state  that  the  existing  apportionments  have  become 
unequal  or  inequitable;  such  reapportionments  shall  be  made  from  time  to 
time,  but  not  oftener  than  once  in  three  years.  [Town  Law,  § 240,  as  amended 
by  L.  1911,  ch.  251;  B.  C.  & G.  Cons.  L.,  p.  6208.] 

Meeting  of  commissioners. — The  commissioners  appointed  by  the  County  Court 
shall  give  notice  of  the  time  and  place  at  which  they  will  meet  to  make 
such  reapportionment,  and  shall  serve  notice  thereof,  either  personally 
or  by  mail,  at  least  ten  days  before  such  meeting,  upon  each  owner  of  land 
within  such  district  or  extension  of  an  existing  district,  as  finally  fixed  by 
the  board  of  sewer  commissioners.  They  shall  meet  at  the  time  and  place 
specified  and  make  such  reapportionment  in  the  manner  herein  prescribed 


430 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Town  Law,  §§  241,  242,  243. 


for  the  sewer  commissioners.  They  shall  file  such  reapportionment  in  the 
office  of  the  town  clerk,  and  it  shall  be  final  and  conclusive.  [Town  Law, 
§ 241,  as  amended  by  L.  1910,  ch.  134;  B.  C.  & G.  Cons.  L.,  p.  6208.] 
Compensation  of  commissioners . — Each  commissioner  appointed  by  the 
County  Court  is  entitled  to  five  dollars  for  each  day  necessarily  spent  in 
making  such  reapportionment,  besides  his  actual  necessary  expenses.  Such 
fees  and  expenses  are  a charge  against  the  town,  and  must  be  audited  by 
the  town  board.  The  amount  thereof  shall  be  added  to  the  portion  of  the 
expense  of  constructing  such  sewer  or  sewer  system,  which  is  to  be  assessed 
against  property  in  such  sewer  district,  or  extension.  [Town  Law,  § 242, 
as  amended  by  L.  1910,  ch.  134;  B.  C.  & G.  Cons.  L.,  p.  6208.] 

Assessment  on  property  benefited. — After  the  sewer  system  is  constructed 
it  shall  be  maintained  by  the  commissioners,  and  the  cost  of  such  main- 
tenance shall  be  a charge  upon  the  sewer  district.  In  July  of  each  year,  the 
sewer  commissioners  shall  present  to  the  town  board  an  estimate  of  the 
amount  of  money  required  by  said  commissioners  to  meet  the  expenses  of 
maintaining  the  sewer  system  for  the  ensuing  year.  The  town  board 
shall  formally  pass  upon  such  estimate  and  approve,  or  correct  and  approve, 
the  same.  The  sewer  commissioners  shall  thereupon  assess  the  amount  of 
the  estimate  as  so  approved,  and  corrected,  on  the  lands  within  their  dis- 
trict, in  proportion,  as  nearly  as  may  be,  to  the  benefit  which  each  lot  or 
parcel  will  derive  therefrom,  and  shall  give  the  same  notice  thereof,  and 
shall  correct  and  file  such  apportionment  in  the  same  manner,  and  shall 
give  the  same  notice  of  the  filing  of  such  corrected  apportionment,  as  is  pro- 
vided for  in  section  two  hundred  and  thirty-seven  of  this  chapter.  An 
appeal  may  be  taken  from  such  corrected  apportionment  within  the  same 
time,  and  the  procedure  thereupon  shall  be  the  same  as  specified  in  sections 
two  hundred  and  thirty-eight  to  two  hundred  and  forty-two,  both  inclusive, 
of  this  chapter,  except  that  the  fees  of  the  commissioners  appointed  by  the 
county  court  to  readjust  the  apportionment  made  pursuant  to  this  section 
shall  be  a charge  upon  the  sewer  district,  and  shall  be  included  in  the  ex- 
penses of  maintenance.  Whenever  an  apportionment  is  to  be  made  to  meet 
an  instalment  of  principal  and  interest  on  the  bonds  issued  pursuant  to 
section  two  hundred  and  thirty-seven  of  this  chapter,  any  proceedings  for 
the  correction,  review  or  readjustment  thereof  shall  be  consolidated  with 
the  like  proceedings,  if  any,  with  respect  to  the  apportionment  made  as 
provided  in  this  secction.  The  town  board  shall  present  such  estimate  to 
the  board  of  supervisors  at  its  annual  meeting,  with  a statement  of  each 
property  or  parcel  liable  for  the  same  and  the  amount  chargeable  to  each. 
The  board  of  supervisors  shall  levy  such  sums  against  the  property  liable 
and  shall  state  the  amount  of  tax  in  the  annual  tax  roll  under  the  name 
“ sewer  tax,”  with  the  sewer  tax  to  be  raised  for  payment  of  bonds  as  pro- 
vided in  section  two  hundrel  and  thirty-seven  of  this  chapter,  and  after 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


431 


Town  Law,  §§  244,  129. 

such,  bonds  shall  have  been  entirely  paid  in  a similar  column  headed  “ sewer 
tax.”  This  tax  for  maintenance,  when  collected,  shall  be  paid  to  the  super- 
visor of  the  town  and  by  him  paid  to  the  sewer  commissioners  to  meet  the 
expense  of  maintenance  of  the  sewer  system.  An  unpaid  assessment  under 
this  section  shall  be  collected  in  the  manner  provided  for  in  section  two 
hundred  and  thirty-seven  of  this  chapter.  The  sewer  system  as  so  con- 
structed, or  as  hereafter  added  to  or  changed,  shall  be  under  the  charge 
and  control  of  the  sewer  commissioners,  under  whose  supervision  it  shall  be 
used  by  property  owners,  and  no  person  shall  enter  into,  open  or  interfere 
with  or  use  said  sewer  system  except  under  the  inspection  and  direction  of 
said  sewer  commissioners  and  after  formal  permission  shall  have  been  given 
by  said  commissioners.  The  sewer  commissioners  shall  adopt  rules  and 
regulations  to  govern  the  maintenance  and  use  of  the  sewer  system  and 
shall  therein  fix  the  amount  of  fees  that  shall  be  chargeable  to  individuals 
or  property  owmers,  who  may  wish  to  enter  or  use  the  sewer  system,  which 
fees  shall  be  sufficient  in  amount  to  pay  for  the  cost  of  inspection  of  such 
entry  or  entries.  Any  person  violating  any  provisions  hereof  and  inter- 
fering with,  entering  or  using  said  sewer  system  without  obtaining  such 
permission  shall  be  guilty  of  a misdemeanor  and  liable  to  punishment 
accordingly.  [Town  Law,  § 243  as  amended  by  L.  1910,  ch.  134;  B.  C.  & 
G.  Cons.  L.,  p.  6209.] 

Annual  statement  of  commissioners. — The  sewer  commissioners  shall  in 
the  month  of  December  in  each  year  file  in  the  office  of  the  town  clerk  a 
detailed  statement,  under  oath,  of  the  moneys  received  and  paid  by  them 
since  their  last  statement  under  the  provisions  of  this  chapter,  together 
with  the  names  of  the  persons  or  parties  from  whom  the  same  were  received 
and  to  whom  the  same  were  paid,  and  the  object  of  each  payment,  with 
the  vouchers  therefor.  Such  statement  shall  show  the  balance  remaining 
in  their  hands,  which  balance  shall  be  applied  to  maintenance  account  for 
the  following  year.  [Town  Law,  § 244,  as  amended  by  L.  1910,  ch.  134; 
B.  C.  & G.  Cons.  L.,  p.  6210.] 

§ 7a.  WATER  AND  SEWER  COMMISSIONERS  IN  TOWNS  OF  CER- 
TAIN COUNTIES. 

The  town  board  of  any  town  in  a county  adjoining  a city  of  the  first  class 
and  containing  not  more  than  five  towns,  upon  the  written  request  of  at 
least  ten  taxpayers  in  each  of  the  water  and  sewer  districts  in  such  town, 
shall  cause  to  be  submitted  at  a biennial  town  meeting  in  such  town  the 
following  proposition : “ Shall  there  be  established  in  the  town  of  (nam- 

ing the  town)  a water  and  sewer  commission?”  If  such  proposition  be 
adopted  by  the  affirmative  vote  of  a majority  of  the  qualified  voters  voting 
thereon  there  shall  be  established  in  such  town  a water  and  sewer  commis- 
sion with  the  powers  prescribed  by  this  section.  Such  commission  shall 
consist  of  three  members.  The  supervisor  of  such  town  shall  on  or  before 
the  first  day  of  December  following  the  biennial  town  meeting  at  which 
such  proposition  shall  have  been  adopted  appoint  three  water  and  sewer 
commissioners  for  such  town  to  hold  office  for  the  terms  of  one,  two  and 
three  years,  respectively,  from  the  first  day  of  December,  and  annually 
thereafter  the  supervisor  of  such  town  shall  on  or  before  December  first 
appoint  a water  and  sewer  commissioner  to  hold  office  for  a full  term  of 
three  years  from  such  date.  The  members  of  such  commission  shall  each 
receive  an  annual  salary  to  he  fixed  by  the  town  hoard,  not  exceeding  twenty- 


432 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  250,  251. 

live  hundred  dollars.  Such  salary  shall  be  apportioned  among  the  several 
water  and  sewer  districts  in  such  town  in  the  proportion  of  the  aggregate 
assessed  valuation  of  the  real  and  personal  property  in  such  districts  as 
appears  by  the  last  preceding  town  assessment  roll,  and  the  portion  thereof 
apportioned  to  a district  shall  be  levied  and  collected  therein  in  the  same 
manner  as  town  taxes  are  levied  and  collected,  and  when  collected  shall  be 
paid  to  the  supervisor  of  such  town  to  be  applied  toward  the  payment  of 
such  salary.  On  the  first  day  of  December  succeeding  the  adoption  of  a 
proposition  establishing  such  commission  the  terms  of  office  of  all  the  water 
and  sewer  commissioners  in  the  several  water  and  sewer  districts  of  such 
town  shall  expire,  and  all  the  powers  and  duties  of  such  commissioners  in 
respect  of  the  water  and  sewer  districts  for  which  they  were  appointed  shall 
be  vested  in  the  water  and  sewer  commission  of  such  town;  and  thereupon 
such  water  and  sewer  commissioners  shall  turn  over  to  the  water  and  sewer 
commission  of  such  town  all  books,  records,  documents  and  other  property 
of  their  respective  districts.  Pending  proceedings  shall  not  be  affected  by 
reason  of  the  creation  of  such  commission,  but  shall  be  continued  in  the 
same  manner  and  with  the  same  effect  as  if  such  commission  had  not  been 
created,  except  that  such  commission  shall  be  substituted  for  the  district 
commissioners.  [Town  Law,  § 129,  as  added  by  L.  1918,  ch.  397.] 

§ 8.  SIDEWALK  DISTRICT  ESTABLISHED;  IMPROVEMENTS  IN 
SUCH  DISTRICT. 

The  town  board  of  any  town,  on  the  petition  of  twenty-five  owners  of 
real  property  in  a proposed  district,  whose  names  appear  upon  the  last 
preceding  completed  assessment-roll,  may  establish  a sidewalk  district  out- 
side of  an  incorporated  village  or  city ; such  petition  must  be  filed  with  the 
town  clerk  of  said  town  at  least  ten  days  before  it  is  acted  upon  by  the 
town  board  as  hereinafter  mentioned  and  must  bound  the  territory  outside 
of  the  corporate  limits  of  any  incorporated  village  or  city  in  said  town, 
which  is  to  be  included  in  said  district,  and  thereafter  said  district  is  to  be 
known  as  a sidewalk  district,  and  the  taxable  property  within  said  district 
is  to  thereafter  become  subject  to  the  charges  and  assessments  hereinafter 
mentioned ; and  after  receiving  such  petition,  the  town  board  may  adopt  the 
same  by  resolution  and  lay  out  the  portion  of  the  town  described  in  said 
petition  as  a sidewalk  district.  [Town  Law,  § 250,  as  added  by  L.  1910, 
ch.  183,  in  effect  April  28,  1910.] 

Improvements  in-  such  districts . — The  town  board  of  any  town  in  which 
a sidewalk  district  is  laid  out  as  aforesaid  may  cause  a sidewalk  on  any 
street  or  part  thereof  in  said  sidewalk  district  to  be  graded  and 
a sidewalk  to  be  built,  curbed  or  guttered,  or  any  one  or  more  of  such  acts 
performed,  partly  at  the  expense  of  the  taxable  property  in  said  side- 
walk district,  and  partly  at  the  expense  of  the  owners  of  the  land  front- 
ing on  said  street  or  part  thereof,  improved  as  aforesaid,  but  such  sidewalk 
shall  not  be  so  graded,  built,  curbed  or  guttered  unless  a petition  therefor 
be  presented  to  said  town  board  signed  by  at  least  a majority  of  the  owners 
of  property  fronting  on  said  street  or  portion  thereof,  proposed  to  be  so  im- 
proved. The  town  board  shall  upon  the  receipt  of  such  petition  as  afore- 
said give  a public  hearing  thereon  to  all  persons  interested  on  a notice  of  at 
least  ten  days,  which  notice  shall  specify  the  time  and  place  said  hearing 
shall  be  held,  and  shall  be  served  upon  said  persons  personally  by  mailing 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS. 


433 


Town  Law,  §§  252,  253. 

the  same  to  their  last  known  respective  addresses,  or  by  publishing  the  same 
once  each  week  for  two  -weeks,  in  a newspaper  which  circulates  in  said  dis- 
trict, or  by  either  or  any  of  said  methods.  If  said  town  board  shall  act 
favorably  upon  said  petition,  it  shall  by  resolution  define  the  width  of  the 
sidewalk,  the  kind  and  character  of  materials  of  which  the  same  shall  be 
constructed,  and  whether  the  same  shall  be  curbed  or  guttered,  or  both, 
and  the  kind  and  character  of  curb  or  gutter,  or  both,  that  shall  be  laid. 
It  shall  cause  the  sidewalks  upon  said  street  or  portion  thereof  to  be  graded 
and  a sidewalk,  curb  and  gutter,  or  either,  to  be  constructed  and  laid  there- 
upon, and  such  sidewalks,  curbs  or  gutters  as  may  be  already  laid  upon  said 
street  or  portion  thereof,  to  be  repaired  and  made  to  conform  to  the  estab- 
lished grade.  [Town  Law,  § 251,  as  added  by  L.  1910,  eh.  183,  and 
amended  by  L.  1917,  ch.  593.] 

§ 9.  CONTRACT  FOR  IMPROVEMENTS;  IMPROVEMENTS,  HOW 
PAID  FOR. 

The  town  board  of  any  town  wherein  a sidewalk  district  is  laid  out  and 
defined  as  aforesaid  is  hereby  empowered  and  authorized,  after  it  has 
favorably  acted  upon  a petition  presented  by  the  property  owners  on  a 
street  or  portion  thereof  as  aforesaid,  to  cause  a survey  to  be  made,  grade 
to  be  established,  plans  and  specifications  to  be  drawn  and  to  advertise  for 
bids  to  grade  and  build  a sidewalk,  lay  a curb  or  gutter  on  the  street  or 
portion  thereof  described  in  said  petition,  or  do  any  one  or  more  of  said 
acts  and  award  a contract  therefor  to  the  lowest  bidder;  or  the  said  town 
board  may  with  or  without  a survey,  plan  or  specifications  obtain  from  the 
superintendent  of  highways  of  the  town,  an  estimate  of  the  costs  of  making 
said  improvements,  and  after  approving  the  estimate,  cause  the  same  to  be 
made  under  the  supervision  of  the  said  superintendent  of  highways  without 
a contract;  all  expenses  incurred  by  the  town  board  in  connection  with 
such  improvements  or  any  of  them,  shall  be  a charge  upon  said  district. 
[Town  Law,  § 252,  as  added  by  L.  1910,  ch.  183,  and  by  L.  1917,  ch.  593.] 

Improvements ; how  paid  for. — After  a town  board  has  ascertained  the 
expense  of  the  improvements  provided  for  herein,  it  may  borrow  upon  the 
credit  of  the  town  wherein  said  district  is  located  a sum  equal  to  the  total 
thereof,  for  a period  not  exceeding  eight  months  from  the  date  thereof,  at 
a rate  of  interest  not  exceeding  six  per  centum  and  use  the  same  to  pay 
the  expense  thereof,  which  certificate  with  interest  is  to  be  paid  out  of  the 
moneys  derived  as  herein  provided.  After  the  town  board  has  ascertained 
the  expense  of  grading  and  building  the  sidewalks  and  laying  the  curbs  and 
gutters  upon  any  street  or  portion  thereof  as  contemplated  herein,  it  shall 
apportion  and  assess  three-fourths  of  the  expense  thereof  upon  the  property 
fronting  upon  the  street  or  portion  thereof  improved  as  aforesaid.  Notice 
of  such  assessment  shall  be  given  to  the  owners  of  said  real  property  in  the 
same  manner  as  the  notice  above  mentioned  is  given,  which  notice  shall 
state,  among  other  things,  that  said  expenditures  have  been  made,  the  pur- 
pose and  the  amount  thereof,  and  that  at  a specified  time  and  place  the 
town  board  will  meet  for  the  purpose  of  making  said  assessments.  The 
town  board  shall  meet  at  the  time  and  place  specified  in  said  notice  and 
shall  determine  all  objections  made  to  such  assessment,  including  the 
amount  thereof,  and  shall  assess  upon  the  land  benefited  and  fronting  unon 
said  street  or  portion  thereof,  the  amount  it  may  deem  just  and  reasonable, 


434 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 254. 

not  exceeding  in  case  of  default  the  amount  stated  in  the  notice.  After  the 
expiration  of  thirty  days  from  the  time  said  assessment  is  finally  made  and 
assessed,  the  town  board  shall  direct  or  issue  a sale  of  bonds,  pledging  the 
credit  of  the  town  wherein  said  district  is  located  for  the  aggregate  amount 
of  the  assessments  remaining  unpaid,  which  bonds  shall  mature  within  a 
period  of  five  years  and  bear  interest  at  a rate  not  exceeding  six  per  centum 
and  shall  be  a town  charge.  The  town  board  shall  thereafter  annually 
apportion  the  amount  to  be  raised  for  the  payment  of  such  bonds  on  the 
lots  or  parcels  in  default,  so  that  the  tax  thereon  will  be  the  same  as  if  an 
equal  portion  of  the  general  assessment  was  then  paid.  Interest  on  the  un- 
paid assessment  shall  be  added  to  such  tax  at  the  rate  payable  on  the  bond 
or  certificate  of  indebtedness,  which  amounts  shall  be  computed  to  the  time 
when  the  principle  or  an  instalment  will  become  due,  or  if  no  principal 
will  become  due  during  the  ensuing  year,  then  the  interest  accrued  during 
that  year  upon  the  assessment  or  bonds  must  be  levied  upon  such  lot  or 
parcels.  The  town  board  shall  annually  report  to  the  board  of  supervisors 
at  its  annual  meeting,  and  submit  a statement  showing  the  amount  due  or 
to  become  due  with  principal  and  interest  the  ensuing  year  on  bonds  issued 
under  this  act,  and  the  lots  or  parcels  liable  to  pay  the  same  and  the  amount 
chargeable  to  each.  The  board  of  supervisors  shall  levy  such  amounts 
against  the  property  liable  and  shall  state  the  amount  of  the  tax  in  a sepa- 
rate column,  in  the  annual  tax  roll  under  the  name  “ sidewalk  tax such 
tax  when  collected  shall  be  paid  to  the  supervisor  and  be  by  him  applied  in 
payment  of  the  bonds.  The  amount  apportioned  by  the  said  town  board 
on  any  lot  or  parcel  and  any  tax  levied  for  collection  thereof  shall  be  a lien 
prior  and  superior  to  any  lien  or  claim  except  the  lien  of  an  existing  tax 
or  local  assessment.  The  remaining  one-fourth  of  said  expense  shall  be 
levied  and  assessed  upon  the  taxable  property  within  said  sidewalk  district, 
the  same  as  town  charges  are  levied  and  assessed  upon  the  taxable  property 
within  the  town  wherein  said  district  is  located.  An  aggregate  amount, 
however,  to  be  levied  and  assessed  upon  a sidewalk  district  during  any  one 
year,  shall  not  be  in  excess  of  two  per  centum  of  the  assessed  valuation  of 
when  the  principle  or  an  installment  will  become  due,  or  if  no  principal 
the  taxable  property  within  said  district  as  appears  upon  the  last  preceding 
assessment-roll.  [Town  Law,  § 253,  as  added  by  L.  1910,  ch.  183,  and 
amended  by  L.  1911,  ch.  139,  and  L.  1917,  ch.  593.] 

§ 10.  CONTROL  OVER  SIDEWALKS. 

After  a sidewalk  district  has  been  established  as  herein  provided,  all 
sidewalks  constructed  and  curbs  and  gutters  laid  within  said  district  shall 
be  done  under  the  supervision  of  the  superintendent  of  highways  of  the 
town  wherein  said  district  is  located.  He  is  hereby  authorized,  if  in  his 
judgment  he  believes  it  to  be  necessary,  to  establish  the  necessary  grades 
therefor.  It  shall  be  the  duty  of  the  owner  or  occupant  of  each  and  every 
lot  or  parcel  of  land  situate  upon  a street  or  avenue,  or  a portion  thereof, 
which  has  been  graded,  sidewalked,  curbed  or  guttered  as  herein  provided, 
to  remove  within  twelve  hours,  all  snow,  ice  or  other  obstructions  upon  the 
sidewalk  in  front  thereof.  If  such  owner  or  occupant  fails  to  remove  such 
snow,  ice  or  other  obstructions  as  provided  herein,  the  superintendent  of 
highways  of  a town  in  which  such  lots  are  situate  shall  cause  the  same 
to  be  removed  and  the  expense  thereby  incurred  shall  be  paid  in  the  first 
instance  out  of  moneys  provided  by  the  town  board  for  such  purposes 
available  therefor,  and  the  amount  thereof  shall  be  charged  against  such 
owner  or  occupant,  and  levied  and  collected  as  follows : Such  super- 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS.  435 
Town  Law,  § 254. 

intendent  of  highways  shall  serve  personally  or  by  mail  upon  such  owner, 
occupant  or  company  a written  notice  stating  that  at  a time  and  place 
therein  mentioned,  he  will  assess  such  cost  against  the  owner,  occupant 
or  company  neglecting  to  perform  such  duties.  Such  notice  shall  be 
served  at  least  eight  days  previous  to  the  time  specified  therein.  If 
directed  to  a company  it  may  be  served  upon  it  at  its  principal  place  of 
business,  or  upon  an  agent  of  the  company  within  the  town.  If  the 
property  be  unoccupied  and  the  name  and  address  of  the  owner  is  un- 
known, it  may  then  be  served  by  posting  the  same  upon  the  property 
affected  at  least  eight  days  previous  to.  the  time  specified  therein.  At  the 
time  and  place  so  specified,  he  shall  hear  the  parties  interested  and 
shall  thereupon  complete  the  assessment  stating  therein  the  name  of  each 
owner,  occupant  or  company,  if  he  can  ascertain  the  same  and  the 
amount  assessed  against  him  or  it,  and  shall  return  such  assessment  to 
the  town  clerk,  who  shall  present  the  same  to  the  town  board  of  his 
town  at  its  meeting  held  on  the  Thursday  preceding  the  annual  meeting 
of  the  board  of  supervisors.  Such  town  board  shall  certify  such  assess- 
ment to  the  board  of  supervisors,  who  shall  cause  the  amount  stated 
therein  to  be  levied  against  such  owner,  occupant  or  company,  and  any 
uncollected  tax  shall  be  a lien  upon  the  lot  or  parcel  of  land  affected. 
The  amount  so  levied  shall  be  collected  in  the  same  manner  as  other 
taxes  levied  by  such  board  and  shall  be  paid  to  the  supervisor  of  the 
town,  to  be  applied  in  reimbursing  the  fund  from  which  such  cost-  was 
defrayed.  The  town  board  of  any  town  in  which  a sidewalk  district 
is  laid  out  as  herein  provided  shall  annually  estimate  the  amount 
necessary  each  year  to  remove  snow,  ice  and  other  obstructions  from 
the  sidewalks  in  said. district  as  herein  provided,  which  sum  so  estimated 
shall  be  levied  and  assessed  upon  the  taxable  property  within  said  side- 
walk district  as  town  taxes  are  levied  and  assessed  upon  the  taxable 
property  within  said  town,  which  sum  after  the  same  is  collected  shall 
be  paid  to  the  supervisor  of  said  town  and  retained  by  him  for  the  pur- 
poses herein  provided.  [Town  Law,  § 254,  as  added  by  L.  1910,  ch. 
183,  in  effect  April  28,  1910.] 


435a 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  § 255. 

§11.  PROCEEDINGS  FOR  CONSTRUCTING  SIDEWALKS  NOT  CON- 
STRUCTED UNDER  THE  PRECEDING  SECTIONS. 

If  the  town  board  of  any  town  shall  determine  that  any  sidewalks 
should  be  constructed  outside  of  a sidewalk  district  or  within  a side- 
walk district  and  upon  a street  or  portion  of  street  as  to  which  no 
petition  is  filed  under  the  provisions  of  section  two  hundred  and  fifty- 
one,  of  stone,  cement,  brick  or  similar  substance,  it  may  cause  such 
sidewalk  to  be  so  constructed  along  the  front  of  one  or  more  parcels  of 
real  property  at  the  joint  and  equal  expense  of  such  property  and  of 
the  town.  The  board  shall  allow  to  each  land  owner  an  opportunity  to 
appear  and  object  to  such  proposed  action,  upon  five  days’  notice  of  the 
time  and  place  of  the  hearing.  If  the  town  board  shall  finally  deter- 
mine to  construct  such  sidewalk,  it  may  cause  the  same  to  be  constructed. 
The  board  shall  assess  fifty  per  centum  of  the  cost  of  such  construction 
upon  the  land  in  front  of  which  the  sidewalk  is  constructed.  The  other 
fifty  per  centum  of  such  cost  shall  be  borne  by  the  town,  and  moneys 
provided  therefor  by  taxation  in  the  same  manner  as  other  town  charges. 
The  entire  expense  shall  be  paid  in  the  first  instance  by  the  town.  Such 
expense  may  be  raised  in  an  entire  amount  or  in  small  amounts  from 
time  to  time  as  the  town  board  may  determine.  Bonds  or  certificates  of 
indebtedness  of  the  town  may  be  issued,  if  the  town  board  deem  it  neces- 
sary, to  provide  for  such  expense.  The  board  may  apportion  the  part 
to  be  assessed  upon  adjoining  land  and  assess  the  same  as  a whole  or  by 
installments.  Where  one  parcel  of  land  only,  owned  by  the  same  party, 
is  affected  by  the  improvement,  the  share  to  be  paid  by  such  land  owner 
shall  be  one-half  of  the  cost  of  the  improvement ; otherwise,  the  propor- 
tion payable  by  the  several  land  owners  shall  be  determined  according 
to  the  linear  feet  of  sidewalk  in  front  of  each  parcel.  Notice  of  an 
assessment  shall  be  given  to  the  land  owner  or  land  owners,  who  may  pay 
the  amounts  assessed  within  ten  days  after  such  notice.  At  the  expira- 
tion of  that  time,  town  bonds  or  certificates  of  indebtedness  may  be 
issued  for  the  aggregate  amount  of  such  assessment  then  remaining 
unpaid. 

The  town  board  shall  include  in  its  annual  budget  reported  to  the 


FIRE;  WATER,  LIGHT,  SEWER  SYSTEMS;  SIDEWALKS.  435^ 


Town  Law,  § 255. 

board  of  supervisors,  of  taxes  to  be  levied  in  the  town,  the  principal  or 
interest  accruing  during  the  same  fiscal  year  upon  bonds  or  certificates 
of  indebtedness  issued  on  account  of  default  in  the  payment  of  local 
assessments  under  this  section,  and  the  board  of  supervisors  shall  levy 
the  same  upon  the  lots  or  parcels  in  default.  Such  principal  shall  be 
apportioned  among  the  lots  or  parcels  in  default  in  such  manner  that 
the  tax  thereon  will  be  the  same  as  if  an  equal  portion  of  the  assess- 
ment were  then  to  be  paid.  Interest  on  an  unpaid  assessment  shall  be 
added  to  such  tax  at  the  rate  payable  by  the  bond  or  certificate  of  in- 
debtedness, which  must  be  computed  to  the  time  when  the  principal  or 
an  installment  will  become  due;  or  if  no  principal  will  become  due 
during  the  fiscal  year,  then  the  interest  accruing  during  that  year  upon 
the  assessment  must  be  levied  upon  such  lot  or  parcel. 

The  town  board  shall  annually  estimate  the  probable  amount  neces- 
sary each  year  to  enable  the  town  to  pay  for  construction  work  in  the 
first  instance  under  this  section,  which  sum  so  estimated  shall  be  levied 
and  assessed  upon  the  taxable  property  of  the  town  and  paid  to  the 
supervisor,  to  be  disposed  of  by  him  as  hereinafter  provided.  [Town 
Law,  § 255,  as  added  by  L.  1915,  ch.  513.] 


436 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


General  Municipal  Law,  §§  72,  77, 


CHAPTER  XXXI. 

OTHER  POWERS  AND  DUTIES  OF  TOWN  BOARDS;  GARBAGE. 

Section  1.  Acquisition  of  lands  by  town  board  for  soldiers’  or  other  monument  or 
memorial  structures. 

2.  Leases  of  public  buildings  to  grand  army  posts. 

2a.  Military  equipment  for  local  military  organizations,  etc. 

2b.  Convention  expenses  of  municipal  officers  and  employees. 

3.  Lease  of  buildings  for  justices  of  the  peace. 

4.  Collection  and  disposition  of  garbage. 

5.  Penalty  for  violating  ordinance  relating  to  garbage. 

6.  Assessments  for  expenses  of  disposition  of  garbage. 

7.  Purification  of  water  and  sewerage. 

7a.  Sewerage  and  sewage  systems. 

8.  Appropriation  by  town  board  for  shade  tree  fund. 

9.  Acquisition  and  development  of  forest  lands. 

§ 1.  ACQUISITION  OF  LANDS  BY  TOWN  BOARD  FOR  SOLDIERS’ 
OR  OTHER  MONUMENT  OR  MEMORIAL  STRUCTURES. 

The  governing  board  of  a village  or  town,  or  the  trustees  of  a monument 
association,  may  acquire  not  to  exceed  three  acres  of  land,  for  the  erection 
of  a soldiers’  monument,  or  a monument  or  other  structure  as  a memorial 
of  some  distinguishing  or  important  event  in  the  history  of  the  state  or 
nation,  and  for  laying  out  such  lands  as  a public  park  or  square,  if  such 
lands  are  vacant  or  have  buildings  thereon  not  exceeding  two  thousand  five 
hundred  dollars  in  value,  and  if  a judge  of  the  county,  or  a justice  of  the 
supreme  court  of  the  district,  in  which  such  memorial  is  to  be  erected,  shall 
give  his  written  approval  of  the  acquisition  of  such  lands  for  such  purpose. 
[General  Municipal  Law,  § 72;  B.  C.  & G.  Cons.  L.,  p.  2132.] 

§ 2.  LEASES  OF  PUBLIC  BUILDINGS  TO  GRAND  ARMY  POSTS. 

A municipal  corporation  may  lease,  for  not  exceeding  five  years,  to  a 
post  or  posts  of  the  Grand  Army  of  the  Bepublic,  or  other  veteran  organiza- 
tion of  honorably  discharged  Union  soldiers,  sailors  or  marines,  a public 
building  or  part  thereof,  belonging  to  such  municipal  corporation,  except 
schoolhouses  in  actual  use  as  such,  without  expense,  or  at  a nominal  rent, 


OTHER  POWERS  AND  DUTIES  OF  TOWN  BOARDS;  GARBAGE.  437 


General  Municipal  Law,  §§  77a,  77b. 

fixed  by  the  board  or  council  having  charge  of  such  buildings  and  provide 
furniture  and  furnishings,  and  heat,  light  and  janitor  service  therefor,  in 
like  manner.  [General  Municipal  Law,  § 77,  as  amended  by  L.  1917,  ch. 
583;  B.  C.  & G.  Cons.  L.,  p.  2134.] 

§ 2a.  MILITARY  EQUIPMENT  FOR  LOCAL  MILITARY  ORGANIZA- 
TIONS AND  TO  PROVIDE  FOR  EMERGENCIES  AND  THE 
SUPPORT  OF  PERSONS  DEPENDENT  UPON  MEN  ENLISTED 
IN  THE  FEDERAL  SERVICE,  NATIONAL  GUARD  OR  NAVAL 
MILITIA  DURING  THE  PRESENT  WAR. 

A county,  city,  town  or  village  may  provide  arms,  uniforms  and  equip- 
ments for  military  organizations  raised  within  the  municipality,  and  for 
the  purposes  of  security,  defense,  mobilization  of  resources  and  emergency 
aid  during  the  continuing  of  the  present  war  and  may,  in  its  discretion, 
provide  for  the  support  of  any  person  or  persons  residing  in  such  municipal- 
ity who  may  be  dependent  for  'support  upon  a man  enlisted  in  the  federal 
service,  national  guard  or  naval  militia.  The  governing  board  may  appro- 
priate necessary  moneys  therefor  and  provide  the  same  by  taxes  to  be  levied 
upon  the  taxable  property  of  the  municipality  in  the  same  manner  as 
other  municipal  taxes.  Such  board  may  borrow  the  amount  of  any  such 
appropriation  upon  certificates  of  indebtedness,  one-half  of  which  shall  be 
payable  within  two  years  and  the  remaining  half  part  within  four  years 
from  date  of  issue.  [General  Municipal  Law,  § 77-a,  as  added  by  L.  1917, 
ch.  235.] 

§ 2b.  CONVENTION  EXPENSES  OF  MUNICIPAL  OFFICERS  AND  EM- 
PLOYEES. 

The  governing  board  of  any  municipal  corporation,  except  of  a city 
of  the  first  class  or  of  a county  contained  wholly  within  a city  of  that 
class,  may  by  a majority  vote  of  its  members,  authorize  any  one  or  more 
of  its  officers,  or  either  the  executive  head  or  deputy  of  a department,  or 
the  executive  head  of  a bureau,  to  attend  an  official  or  unofficial  conven- 
tion of  municipal  officers  if  believed  to  be  of  benefit  to  the  municipality. 
Such  authorization  must  be  by  resolution  adopted  prior  to  such  attendance, 
duly  entered  in  the  record  of  the  proceedings  of  the  board.  All  sums 
actually  and  necessarily  expended  by  any  person  so  authorized  to  attend 
a convention,  for  railroad  fare  and  hotel  expenses,  shall  be  a charge  against 
his  or  her  municipality,  and  the  amount  thereof  shall  be  audited,  allowed 
and  paid  in  the  same  manner  as  are  other  claims  against  such  municipality. 
Xo  such  person  shall  be  entitled  to  any  compensation  for  the  time  spent 
in  attending  such  a convention,  except  that  no  deduction  shall  be  made 


438 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Town  Law,  §§  135,  320,  321. 

from  the  salary  of  a person  so  attending  because  of  such  attendance.  [Gen- 
eral Municipal  Law,  § 77-b,  as  added  by  L.  1918,  ch.  637.] 

§ 3.  LEASE  OF  BUILDINGS  FOR  JUSTICES  OF  THE  PEACE. 

The  town  hoards  of  any  town  in  a county  adjoining  or  containing  a 
city  of  the  first  or  second  class  may  from  time  to  time  lease  buildings  or 
parts  of  buildings  in  any  portion  of  said  town  for  the  use  of  justices  of  the 
peace  of  said  town  to  hold  court  therein.  There  shall  not  be  leased  for  the 
purposes  set  forth  in  this  section  more  than  one  building  for  each  justice 
of  the  peace  in  said  town.  [Town  Law,  § 135;  B.  C.  & G.  Cons.  L.,  p. 
6189.] 

§ 4.  COLLECTION  AND  DISPOSITION  OF  GARBAGE  AND  ASHES. 

Within  any  town  having  over  five  thousand  inhabitants  or  within  any 
town  adjoining  a city  of  the  first  class,  or  within  any  district  in  any  such 
town  established  by  the  town  board  of  such  town,  it  shall  be  lawful  for  the 
town  board  of  such  town  to  provide  for  the  collection  of  and  to  cause  to 
be  consumed  by  fire  or  heat  or  disposed  of  in  such  other  manner  as  the 
town  board  may  determine,  and  to  prohibit  the  throwing,  casting  or  de- 
posit in  any  body  or  stream  of  water,  or  upon  any  ash  heap  or  other  place 
than  such  as  may  be  provided  by  them  within  such  town  or  district,  any 
animal  or  vegetable  refuse,  dead  animal,  carrion,  offal,  swill  or  garbage. 
And  it  shall  be  lawful  for  the  town  hoard  of  any  such  town,  to  contract 
for  the  collection  and  for  the  consumption  by  heat  or  fire  or  for  the  dis- 
position in  such  other  manner  as  the  town  board  may  determine  of  any  such 
refuse  or  other  aforesaid  matter,  or  for  the  purchase,  maintenance  and  ope- 
ration of  any  appliances  for  the  collection  and  disposition  thereof.  Such 
town  board  may  also  provide  for  the  collection  and  disposition  of  ashes  and 
may  contract  for  such  collection  and  disposition,  or  for  the  purchase,  main- 
tenance and  operation  of  any  appliances  for  the  collection  and  disposition 
thereof.  [Town  Law,  § 320,  as  amended  by  L.  1917,  ch.  55,  and  L.  1918, 
ch.  432;  B.  C.  & G.  Cons.  L.,  p.  6222.] 

§ 5.  PENALTY  FOR  VIOLATING  ORDINANCE  RELATING  TO  GARB- 
AGE. 

Any  person  offending  against  any  such  provision  as  aforesaid  made  by 
any  such  town  board  for  the  collection,  or  for  the  prohibition  of  the  throw- 
ing, casting  or  deposit,  of  any  such  refuse  or  other  aforesaid  matter  shall 
be  deemed  guilty  of  a misdemeanor.  [Town  Law,  § 321 ; B.  C.  & G.  Cons. 
L.,  p.  6223.] 


OTHER  POWERS  AND  DUTIES  OF  TOWN  BOARDS;  GARBAGE.  438a 


Town  Law,  § 322;  General  Municipal  Law,  § 120. 

§ 6.  ASSESSMENTS  FOR  EXPENSES  OF  DISPOSITION  OF  GARBAGE. 

Any  expenses  incurred  in  any  town,  or  any  district  in  any  town,  pur- 
suant to  the  provisions  of  the  last  two  sections  shall  be  levied,  assessed 
and  collected  upon  the  taxable  property  in  the  town  or  district  as  to  which 
the  same  is  incurred  in  the  same  manner,  at  the  same  time  and  by  the 
same  officers  as  the  town  taxes,  charges  or  expenses  of  such  town  are 
assessed,  levied  and  collected,  and  shall  be  paid  over  to  the  supervisor  of 
such  town,  and  by  him  applied  to  the  payment  of  such  expenses.  [Town 
Law,  § 322;  B.  C.  & G.  Cons.  L.,  p.  6223.] 

§ 7.  PURIFICATION  OF  WATER  AND  SEWERAGE. 

The  local  authorities  of  the  several  cities,  towns  and  villages  of  the  state 
having  charge  of  the  supply  of  water  and  the  care  of  sewerage  in  their  re- 
spective localities,  are  hereby  authorized,  on  behalf  of  their  cities,  towns  and 
villages,  respectively,  to  enter  into  contracts  with  the  owners  of  any  process 
or  apparatus  for  the  purification  of  water  and  sewerage  whether  protected 
by  patents  or  not,  and  either  contract  for  the  use  of  apparatus  and  process 
for  a term  of  years  or  for  the  purchase  of  the  same,  as  to  them  shall  seem 
advisable.  It  shall  be  lawful  for  any  two  or  more  of  such  municipalities 
in  this  state,  excepting  only  cities  of  the  first  and  second  class,  without 
regard  to  the  form  of  their  incorporation,  including  towns  or  sewer  districts 
of  towns,  to  jointly  construct,  provide,  maintain  and  operate  a compre- 
hensive system  of  sewerage  including  trunk  lines  and  laterals,  or  a system 
of  conveying  or  conducting  sewerage  from  said  municipalities  from  a point 
or  points  to  be  agreed  upon  to  a common  destination  or  disposal  plant 
or  plants,  and  to  construct,  maintain  and  operate  within  or  without  the 
said  municipalities  or  any  of  them  one  or  more  outlet  or  trunk  sewers, 
plants,  works  or  stations  for  the  treatment,  disposal,  or  rendering  of  sewer- 
age, or  any  such  municipality  or  any  such  municipalities  may  jointly  or 
severally  contract  for  the  construction  for  it  or  them  of  any  such  system, 
extension  or  part  thereof,  including  any  such  sewers,  plants,  works  or  sta- 
tions, and  agree  to  pay  annually,  semi-annually  or  quarterly  for  the  use  or 
possession  thereof,  by  way  of  permanent  rental  reserved  therefor;  or  such 
lawful  authorities  of  the  respective  municipalities  may  jointly  or  severally 
contract  with  any  person,  persons  or  corporations  or  with  other  municipali- 
ties or  sewage  districts  for  the  removal  of  sewage  within  the  boundaries 
of  such  local  government,  upon  such  reasonable  terms  as  they  may  agree 
upon.  And  to  that  end  the  governing  bodies  or  boards  of  any  two  or  more 
municipalities,  including  sewer  districts  of  a town,  authorized  by  law  to 
have  charge  of  sewer  systems  established  or  to  be  established  in  said  mu- 


438b 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


General  Municipal  Law,  § 120a. 

nicipalities,  or  sewer  districts  of  a town,  respectively,  may  unite  and  jointly 
cause  to  be  made  at  their  joint  expense  (each  district  bearing  a part  of  the 
expense  in  proportion  to  the  assessed  valuation  of  real  estate  in  such  dis- 
trict, or  on  such  other  basis  or  division  as  may  be  jointly  agreed  upon)  by 
competent  engineers,  mechanics  and  others,  surveys,  maps,  plans,  reports 
and  estimates  of  proposed  works  and  improvements  relating  to  such  con- 
templated public  improvement  or  works  authorized  by  this  act,  which  such 
municipalities  may  desire  to  jointly  provide,  maintain,  operate  or  lease 
under  the  authority  conferred  by  this  act,  and  for  such  purpose  they  may 
determine  upon  the  final  route  and  plan  for  the  building  or  construction 
of  such  sewerage  system  and  for  the  making  of  such  surveys,  maps,  plans, 
reports  and  estimates  as  provided  in  this  section.  It  shall  be  lawful  for 
the  officers  and  agents  of  such  municipalities  to  enter  at  all  times  upon 
any  lands  or  waters  for  the  purpose  of  exploring,  surveying,  and  laying 
out  the  route  of  such  sewerage  system.  [Generaal  Municipal  Law,  § 120, 
as  amended  by  L.  1917,  ch.  709.] 

§ 7a.  SEWERAGE  AND  SEWER  SYSTEMS. 

Contracts  for  sewerage  disposal. — The  respective  municipalities  and  dis- 
tricts may  contract  with  each  other,  or  they  may  jointly  or  severally  con- 
tract with  a third  person,  corporation  or  municipality,  either  for  the  con- 
struction, operation,  maintenance  or  leasing  of  a complete  comprehensive 
system  for  the  removal  and  disposal  of  sewerage,  or  of  a trunk  line  system 
with  or  without  lateral  connections,  with  or  without  the  sewerage  disposal 
plant  or  of  a sewerage  disposal  plant;  each  of  the  boards  or  commissioners, 
however,  binding  only  the  municipalities  or  districts  which  they  respectively 
represent.  Such  municipalities  jointly  acting  through  such  board  or  com- 
missioners, if  they  deem  it  expedient  so  to  do,  may  contract  with  any  other 
municipality  or  municipalities  through  or  over  whose  territory  such  trunk 
sewer  or  sewers  are  intended  to  pass,  for  the  construction  of  said  outlet, 
trunk  sewer  or  sewers  and  appurtenances  located  within  the  territory  of 
such  other  municipality,  in  such  manner  as  may  be  agreed  upon  between 
such  other  municipality,  and  the  municipality  theretofore  jointly  contract- 
ing as  herein  authorized,  or  such  jointly  contracting  municipalities  may 
contract  in  writing  with  any  other  municipality  or  municipalities  for  the 
privilege  of  connecting  its  or  their  sewers  and  drains  with  such  outlet  or 
trunk  sewer  or  sewers  so  to  be  jointly  constructed  by  the  municipalities 
originally  contracting  for  the  public  improvements  or  works  hereby  author- 
ized, and  it  shall  be  lawful  for  such  other  municipality  or  municipalities 
to  enter  into  a contract  for  such  purpose,  upon  such  terms  and  for  such 


OTHER  POWERS  AND  DUTIES  OF  TOWN  BOARDS;  GARBAGE.  438c 


General  Municipal  Law,  § 120c. 

consideration  and  length  of  time  as  may  be  mutually  agreed  upon  between 
all  the  contracting  municipalities.  [General  Municipal  Law,  § 120-a,  as 
added  by  L.  1917,  ch.  709.] 

Supervision  of  sewage  system. — If  the  public  works  herein  provided 
be  constructed  and  operated  by  the  municipalities  acting  jointly,  the  local 
authorities  of  the  contracting  municipalities  or  districts  having  charge  of 
sewage  shall  jointly  supervise  the  construction  and  operation  of  such  sew- 
age system,  or  they  may  jointly  engage  or  employ  a competent  sanitary 
engineer  for  such  purpose.  They  shall  jointly  elect  or  appoint  all  neces- 
sary employees  at  the  disposal  plant  and  for  the  care  of  the  trunk  line 
sewer,  and  severally  appoint  such  employees  as  they  may  be  authorized  so 
to  do  by  the  respective  governing  bodies  to  work  on  the  system  within  the 
bounds  of  such  municipality.  [General  Municipal  Law,  § 120-b.  as  added 
by  L.  1917,  ch.  709.] 

Obligations  and  privileges  relating  to  sewerage  contracts. — No  contract 
for  the  construction,  use  or  possession  of  any  such  sewer  system  extension 
or  part  thereof,  including  any  such  sewers,  plants,  works  or  stations,  au- 
thorized by  section  one  hundred  and  twenty,  or  for  the  removal  of  sewage, 
or  agreement  to  pay  any  annual,  semi-annual  or  quarterly  sum  by  way  of 
permanent  rental  reserved  therefor,  shall  be  deemed  to  create  an  indebted- 
ness of  such  city,  town  or  village  under  any  act  limiting  the  amount  of 
such  indebtedness,  unless  and  to  the  extent  that  such  municipality  or  mu- 
nicipalities shall  covenant  to  pay  for  such  system,  extension  or  part  thereof, 
including  any  such  sewers,  works,  plants  or  stations  under  any  right  re- 
served in  such  contract  or  otherwise.  Such  system,  extension  or  part 
thereof  shall,  when  accepted  under  such  contract,  and  such  works,  plants 
or  stations,  may  if  so  provided  therein,  pass  into  the  use,  possession,  man- 
agement and  control  of  such  municipality  or  municipalities,  and  it  or  they 
shall,  by  proper  provision  in  the  said  contract,  subject  such  contract  to  its 
or  their  right  at  any  time  to  terminate  all  its  or  their  liability  under  the 
same  for  such  rental  by  paying  for  such  system,  extension  or  part  thereof 
a price  named  therein  or  to  be  determined  in  accordance  with  the  provi- 
sions thereof,  and  it  or  they  may  by  proper  division  in  such  contract,  cove- 
nant to  terminate  its  or  their  liability  in  such  manner  at  a time  or  within 
a period  named  therein,  but  the  sum  or  rental  to  be  paid  for  such  use  and 
possession  or  the  price  which  must  be  paid  for  such  system,  extension  or 
part  thereof  in  order  to  terminate  the  liability  of  such  municipality  or 
municipalities  under  such  contract,  shall  not  be  fixed  by  said  contract 
beyond  a period  of  thirty  years,  after  which  and  at  any  time  thereafter,  if 
such  municipality  or  municipalities  shall  not  have  terminated  its  or  their 


438d 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


General  Municipal  Law,  §§  120d,  120e. 

liability  under  said  contract,  the  sum  or  rental  to  be  paid  for  the  continued 
use  and  possession  of  such  system,  extension  or  part  thereof  or  the  price  at 
which  the  same  must  be  paid  for  in  order  to  terminate  such  liability,  which 
sum  or  rental  and  which  price  shall  be  based  on  the  value  of  such  system, 
extension  or  part  thereof  at  any  such  time,  shall  be  fixed  by  agreement,  or 
in  the  absence  of  agreement  by  application  to  a competent  court  and  under 
its  order,  but  each  such  agreement  or  order  shall  be  limited  to  a period  not 
exceeding  ten  years.  And  such  local  authorities  may  also  at  any  time 
contract  for  the  maintenance  and  operation  of  any  such  system,  extension 
or  part  thereof,  including  any  such  works,  plants  or  stations  or  of  any 
sewerage  or  sewage  disposal  system  or  part  thereof  owned  or  used  by  any 
such  municipality  or  municipalities.  [General  Municipal  Law,  § 120-c,  as 
added  by  L.  1917,  ch.  709.] 

Officers  of  meeting . — In  order  to  facilitate  business  procedure,  the  local 
authorities  of  the  several  municipalities  or  districts  meeting  jointly  for 
the  purposes  herein  provided  shall,  at  a meeting  at  which  all  the  municipal- 
ities and  districts  intending  to  act  jointly  are  represented,  choose  from 
among  their  number  a chairman,  who  shall  act  as  such  until  his  successor 
is  chosen  in  a similar  manner.  Such  meeting,  when  organized,  shall  elect 
a secretary  who  may  or  may  not  be  a member  of  one  of  the  local  boards 
meeting  jointly.  [General  Municipal  Law,  § 120-d,  as  added  by  L.  1917, 
ch.  709.] 

By  whom  proposed  district  meeting  represented. — Until  a sewer  district 
of  a town  is  organized  as  provided  by  the  town  law,  the  supervisor,  or  a 
member  of  the  town  board  appointed  by  the  supervisor,  of  the  town  in 
which  the  proposed  sewer  district  is  located,  may  act  for  and  on  behalf 
of  the  people  of  the  territory  proposed  to  be  embraced  in  a sewer  district, 
when  requested  so  to  do  by  a petition  in  writing  signed  by  not  less  than 
five  per  centum  of  the  voters  of  such  proposed  district,  at  such  joint  meet- 
ing of  municipalities  and  districts;  provided,  however,  that  neither  the 
town  nor  any  property  within  the  town,  except  such  property  as  may  be 
within  such  proposed  district,  shall  be  chargeable  with  any  debt  or  expenses 
created  by  such  municipalities  or  districts  acting  jointly.  [General  Munic- 
ipal Law,  § 120-e,  as  added  by  L.  1917,  ch.  709.] 

• Contract;  how  executed. — No  municipality  or  district  acting  jointly  as 
herein  provided  shall  be  bound  by  any  contract  or  agreement  unless  such 
contract  or  agreement  be  signed  and  executed  by  a majority  of  the  local 
authorities  of  such  municipality  having  care  of  sewerage  in  such  munici- 


OTHER  POWERS  AND  DUTIES  OF  TOWN  BOARDS;  GARBAGE.  438e 


General  Municipal  Law,  §§  120g,  120h,  120i. 

pality  or  district.  [General  Municipal  Law,  § 120-f,  as  added  by  L.  1917, 
ch.  709.] 

Apportionment  of  cost. — Before  any  such  contract  for  construction  men- 
tioned in  section  one  hundred  and  twenty-c  shall  become  effective,  such  local 
authorities  shall  determine  the  part  or  proportion  of  the  annual  cost  thereof, 
if  any,  which  is  to  be  assessed  upon  the  property  benefited  thereby,  and  the 
method  of  such  assessment,  and  shall  provide  that  any  part  thereof  not 
actually  paid  out  of  such  assessment  shall  be  paid  out  of  the  general  funds 
to  be  raised  by  a tax  in  such  city,  town,  village  or  sewer  district.  In  the 
case  of  a town,  the  petition  for  the  creation  of  such  sewer  district,  or  supple- 
mental petition,  shall  request  the  construction  of  such  sewer  system,  exten- 
sion or  part  thereof,  as  herein  provided,  and  such  petition  shall  comply  in 
form,  substance  and  in  the  manner  of  execution,  so  far  as  applicable  thereto, 
to  the  requirements  of  section  two  hundred  and  thirty  of  the  town  law, 
except  that  it  may  state  that  the  annual  sum  or  rental  to  be  paid  for  the  use 
of  said  plant  or  for  the  removal  of  sewage  as  herein  provided  shall  be  fixed 
and  assessed  in  the  first  instance  for  the  full  period  named  in  any  such  con- 
tract, not  exceeding  thirty  years,  and  that  any  part  thereof  not  actually  paid 
out  of  such  assessment  may  be  reassessed  upon  the  property  in  such  district. 
Before  acting  on  any  such  petition,  the  town  board  shall  give  the  notice 
provided  in  section  two  hundred  and  thirty-a  of  the  town  law,  and  the 
assessment  shall  be  made  in  form  and  substance  so  far  as  applicable  thereto 
as  provided  in  section  two  hundred  and  thirty-seven  of  said  law.  [General 
Municipal  Law,  § 120-g,  as  added  by  L.  1917,  ch.  709.] 

Further  provisions  as  to  apportionment  of  cost. — Each  of  the  contract- 
ing municipalities  or  districts  shall  pay  its  just  and  proportionate  share  for 
the  public  improvement  authorized  by  this  act  and  the  general  laws,  includ- 
ing its  just  and  proportionate  share  of  the  cost  for  the  removal  of  sewage 
and  of  maintenance  and  carrying  charges  of  the  system.  The  manner  of 
arriving  at  the  share  each  local  government  shall  bear  and  the  method  of 
payment  thereof  as  hereinafter  provided  shall  be  determined  by  its  local 
board  or  commissioners  having  charge  of  sewage,  before  such  contract  for 
construction  or  for  sewage  removal  becomes  effective,  as  hereinafter  pro- 
vided. [General  Municipal  Law,  § 120-h,  as  added  by  L.  1917,  ch.  709.] 

Bond  issues  and  assessments. — The  indebtedness  created  for  such  public 
works  may  be  paid  by  each  contracting  municipality,  including  a sewer 
district  of  a town,  wholly  by  a bond  issue;  or  partly  by  a bond  issue,  and 
partly  by  assessment  on  the  property  deemed  specially  benefited  by  such 
improvement  and  partly  by  money  raised  by  general  taxation ; or  partly  by 
a bond  issue  and  partly  by  assessment  on  the  property  deemed  specially 


438f 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


General  Municipal  Law,  §§  120j,  120k,  1201. 

benefited  by  such  improvement.  In  the  case  of  a sewer  district  of  a town 
the  petition  for  the  creation  thereof  or.  a supplemental  petition  may  state 
the  means  of  payment  as  above  provided  and  the  assessment  therein  shall 
be  made  in  form  and  substance  so  far  as  applicable  as  provided  in  section 
two  hundred  and  thirty-seven  of  said  law,  except  that  such  sewer  commis- 
sioner shall  assess  a part  of  the  district’s  proportionate  share  of  the  total 
cost  of  such  system  on  the  lands  within  such  district,  or  extension  of  an 
existing  district  in  proportion,  as  nearly  as  may  be,  to  the  benefit  which 
each  lot  or  parcel  will  derive  therefrom.  Such  sewer  commissioners  shall 
determine  the  amount  to  be  raised  by  general  taxation  for  such  expense 
and  the  amount  to  be  raised  by  bond,  if  any.  [General  Municipal  Law, 
§ 120-i,  as  added  by  L.  1917,  ch  709.] 

Notes  in  anticipation  of  assessments. — For  the  purpose  of  defraying 
the  costs  and  expenses  of  such  public  improvement  as  is  authorized  hereby 
in  respect  of  which  an  assessment  for  benefits  may  be  made  on  lands  and  real 
estate  situated  in  any  such  contracting  municipality,  the  governing  body  or 
board  having  charge  of  the  finances  of  any  such  contracting  municipality 
may,  if  necessary,  borrow  money  and  secure  the  payment  of  the  same  by  the 
notes  or  other  temporary  obligations  of  such  municipality;  these  notes  and 
obligations  may  be  renewed  from  time  to  time  until  such  improvement  or 
works  be  completed  or  the  assessment  for  benefits  confirmed;  when  so  con- 
firmed the  said  governing  body  or  board  of  such  municipality  shall  provide 
the  cost  and  expenses  of  such  improvements  in  the  manner  herein  or  in 
general  laws  provided.  [General  Municipal  Law,  § 120-j,  as  added  by  L. 
1917,  ch.  791.] 

Payments;  how  made. — It  shall  be  lawful  for  the  governing  body  or 
board  having  control  of  the  finances  of  such  contracting  municipality,  in 
lieu  of  issuing  the  bonds  of  such  municipality,  to  pay  its  proportion  of  the 
costs  and  expenses  of  any  improvements  jointly  contracted  for  and  made 
under  this  act,  with  money  to  be  raised  by  taxation,  after  the  making  of  the 
public  improvements  herein  authorized  have  been  determined  upon  and 
a joint  contract  made  and  entered  into  pursuant  to  the  provisions  of  this  act, 
or  by  paying  the  whole  or  part  of  such  indebtedness  out  of  all  moneys 
belonging  to  such  contracting  municipality  not  otherwise  appropriated  or 
required.  [General  Municipal  Law,  § 120-k,  as  added  by  L.  1917,  ch.  791.] 

Letting  of  contracts. — Whenever  any  work  to  be  performed  or  materials 
to  be  furnished  in  or  about  any  improvement  to  be  made  by  two  or  more 
municipalities  under  the  provisions  of  this  act  shall  involve  an  expenditure 
of  any  sum  of  money  exceeding  five  hundred  dollars,  the  municipal  bodies 
or  boards  of  the  contracting  municipalities,  by  their  official  action  taken 


OTHER  POWERS  AND  DUTIES  OF  TOWN  BOARDS;  GARBAGE.  438<r 

o 


General  Municipal  Law,  §§  120m,  120n,  120o. 

in  joint  meeting  as  herein  provided,  shall  designate  a time  when  they  will 
meet  at  their  usual  place  of  meeting  to  receive  proposals,  in  writing,  for 
doing  the  work  or  furnishing  the  materials,  and  such  joint  meeting  shall 
order  the  chairman  and  secretary  thereof  to  give  notice,  by  advertisement 
inserted  in  one  or  more  newspapers  published  or  circulating  in  the  munici- 
palities jointly  contracting,  at  least  two  weeks  before  the  time  of  such 
meeting,  of  the  work  to  be  done  or  materials  to  be  furnished,  of  which  at 
the  time  of  such  order  they  shall  cause  to  be  filed  in  the  office  of  such  joint 
meeting  particular  specifications;  all  proposals  received  shall  be  publicly 
opened  by  such  chairman  in  the  presence  and  during  a session  of  such 
joint  meeting,  and  of  all  others  who  choose  to  attend  the  said  meeting; 
not  more  than  one  proposal  shall  be  received  from  any  one  person,  directly 
or  indirectly,  for  the  same  contract  work  or  materials;  and  the  said  joint 
meeting  may  reject  any  and  all  of  said  proposals  and  direct  its  chairman 
and  secretary  to  advertise  for  new  proposals  and  accept  such  as  shall  in  the 
opinion  of  a majority  of  the  municipalities  represented  in  said  joint  meet- 
ing be  deemed  most  advantageous  for  the  said  municipalities,  subject,  how- 
ever, to  the  reservations  herein  provided ; the  board  may  require  a bond  or 
deposit  from  the  person  submitting  a proposal,  the  liability  of  such  bond 
to  accrue,  or  such  deposit  to  be  forfeited  to  the  municipality,  or  munici- 
palities, in  case  such  person  shall  refuse  to  enter  into  a contract  in  accord- 
ance to  his  proposal.  The  proposal  so  accepted  shall  be  reduced  to  a con- 
tract in  writing,  and  a satisfactory  bond  to  be  approved  by  such  joint 
meeting  shall  be  required  and  given  for  its  faithful  performance,  but  all 
contracts  when  awarded  shall  be  awarded  to  the  lowest  responsible  bidder 
offering  satisfactory  security;  this  section  shall  not  apply  to  any  engineer 
or  agent  of  the  joint  contracting  municipalities  engaged  in  supervising  or 
directing  the  work  of  such  improvements.  [General  Municipal  Law,  § 
120-1,  as  added  by  L.  1917,  ch.  709.] 

Application  of  other  laws  to  procedure. — Except  where  inconsistent  with 
this  act,  or  otherwise  permitted  hereunder  the  apportionment  of  local  assess- 
ments and  the  manner  of  payment  of  the  expense  of  construction  of  such 
public  works  shall  be  as  provided  in  the  town  law,  the  village  law,  the  general 
cities  law,  or  in  the  manner  provided  in  any  special  city  and  of  any  contract- 
ing city.  [General  Municipal  Law,  § 120-m,  as  added  by  L.  1917,  ch.  709.] 

Map  and  plan , etc. — Before  taking  any  proceedings  for  the  construction 
of  any  sewer  or  of  any  system  of  sewers  or  of  any  addition  thereto  or  alter- 
ation thereof,  such  municipality  or  municipalities  acting  severally  or  jointly 
shall  cause  to  be  made  a map  and  plan  therefor,  or  an  amendment  of  any 
map  and  plan  previously  approved,  as  the  case  may  be,  and  shall  submit  the 


438h 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


General  Municipal  Law,  §§  120o,  120p. 

same  to  the  state  commissioner  of  health  for  his  approval,  and  upon  his 
approval  the  same  shall  be  filed  in  his  office.  A copy  of  such  map  and  plan 
or  of  any  such  amendment  thereof  shall  also  be  filed  in  the  office  of  the 
clerk  of  each  such  municipality.  Any  such  map  and  plan  shall  include 
specifications  of  dimensions,  connections  and  outlets  or  sewage  disposal 
works  and  may  also  include  any  existing  sewer  which  it  shall  be  found 
feasible  and  proper  to  incorporate  or  include  in  the  proposed  system.  No 
work  of  any  kind  shall  be  done  on  or  for  the  construction,  extension,  recon- 
struction, removal  or  modification  of  any  system  of  sewers  or  of  any  sewer 
thereof  until  a map  and  plan  covering  the  entire  system  shall  first  have  been 
duly  approved  and  filed  as  above  provided,  and  in  the  execution  of  the 
construction,  extension,  reconstruction,  removal  or  modification  of  any 
system  of  sewers  or  of  any  sewer  thereof  no  deviations  from  the  plans  as 
finally  approved  and  filed  shall  be  made  until  plans  or  descriptions  ade- 
quately showing  such  deviations  are  first  approved  and  filed  as  above  pro- 
vided. The  state  commissioner  of  health,  in  approving  said  map  and  plan 
or  by  a certificate  supplementing  any  such  approval,  may  authorize  such 
municipality  or  municipalities  to  temporarily  omit  or  defer  the  construction 
of  any  portion  of  any  such  sewer  or  system  of  sewers.  A copy  or  copies 
of  his  approval  or  of  any  such  supplemental  certificate  shall  be  certified  to 
each  such  municipality  and  filed  in  the  office  of  the  clerk  thereof.  [General 
Municipal  Laws,  § 120-n,  as  added  by  L.  1917,  ch.  709.] 

Definitions. — The  words  “joint  meeting”  as  used  in  this  act  shall  be 
construed  to  mean  the  meeting  or  assembly  of  the  members  of  the  governing 
bodies  or  boards  of  the  several  municipalities  having  authority  to  make  and 
enter  into  a contract  for  the  construction  jointly  of  public  improvements, 
pursuant  to  and  by  virtue  of  the  provisions  of  this  act.  [General  Municipal 
Law,  120-O,  as  added  by  L.  1917,  ch.  709.] 

Referendum  in  cities  and  villages. — In  any  such  city  or  village,  whether 
acting  severally  or  jointly,  a copy  of  such  contract,  for  construction  men- 
tioned in.  section  one  hundred  and  twenty-c,  with  a copy  of  the  determination 
required  in  section  one  hundred  and  twenty-g,  shall  be  published  at  least 
twice  in  one  or  more  newspapers  published  therein,  including  the  official 
newspaper  or  newspapers,  if  any,  of  such  city  or  village,  or  posted  in  not  less 
than  five  public  places,  and  published  at  least  twice  in  a newspaper  circulat- 
ing in  such  municipality  if  no  newspaper  is  published  therein.  If,  within 
fifteen  days  after  the  publication  or  posting  of  such  contract  and  determi- 
nation, a protest  or  protests  against  such  contract  shall  be  filed  in  the  office 
of  the  clerk  of  such  city  or  village  signed  either  by  not  less  than  one-third 
of  the  governing  body  adopting  such  resolution  or  by  a three  per  centum 


OTHER  POWERS  AND  DUTIES  OF  TOWN  BOARDS;  GARBAGE.  43gj 


General  Municipal  Law,  § 120p. 


in  number  of  the  taxpayers  thereof  whose  names  appear  on  the  last  preced- 
ing assessment  roll  of  real  property,  excluding  special  franchises,  then  such 
contract  shall  not  become  effective  unless  the  governing  body  shall  by  a fur- 
ther resolution  provide  for  the  submission  to  the  taxpaying  voters  of  a 
proposition  to  ratify  such  contract,  nor  unless,  within  sixty  days  after 
such  publication  or  posting  such  proposition  shall  be  adopted  at  a general 
election  or  at  a special  election  to  be  called  and  held  for  that  purpose,  by  a 
majority  of  the  voters  voting  on  such  proposition.  At  any  such  election  only 
voters  entitled  to  vote  for  an  officer  and  women  qualified  to  vote  for  an  officer 
except  as  to  sex,  owning  real  property  other  than  special  franchises  assessed 
in  their  names  upon  the  last  preceding  assessment  roll  of  such  city  or 
village,  shall  be  entitled  to  vote  upon  such  proposition.  At  least  ten 
days5  notice  of  any  election  under  this  section  shall  be  given  by  the  clerk 
of  the  city  or  village  by  publication  at  least  twice  in  one  or  more  news- 
papers, including  the  official  newspaper  or  newspapers,  if  any,  of  such  city 
or  village,  or  by  posting  in  at  least  five  public  places,  if  no  newspaper  is 
published  therein.  Such  election  may  be  held  and  the  result  canvassed  and 
certified  as  may  be  required  by  any  general  or  special  law  applicable  to  an 
election  upon  a proposition  in  any  such  city  or  village,  or  in  the  absence  of 
any  such  law  as  may  be  prescribed  by  any  general  ordinance.  The  voting 
shall  be  by  ballot  prepared,  in  the  form  prescribed  by  the  election  law. 
The  facts  as  to  the  filing  and  sufficiency  of  any  protests  under  this  section, 
and  as  to  the  calling,  holding  or  result  of  any  election  which  may  be  required 
or  held  under  this  section  or  under  any  other  statute  with  respect  to  the 
authorization  of  any  such  improvement  or  the  ratification  of  any  ordinance 
authorizing  the  same,  and  all  facts  affecting  the  validity  of  any  contract 
mentioned  in  section  one  hundred  and  twenty-c,  including  the  organizations 
or  acts  of  any  town  or  sewer  district  shall,  for  the  purpose  of  this  section, 
be  conclusively  determined  by  a resolution  of  the  governing  body  of  any  such 
city,  town  or  village.  A copy  of  such  resolution  shall  be  published  twice 
in  one  or  more  newspapers,  including  the  official  newspaper  or  newspapers, 
if  any,  of  such  city,  town  or  village,  or  posted  in  not  less  than  five  public 
places  if  no  newspaper  is  published  therein,  and  the  facts  therein  stated 
shall  not  be  disputed  in  any  action  commenced  after  the  expirataion  of 
ten  days  after  such  publication  or  posting  involving  the  validity  of  such 
contract,  or  of  any  tax,  assessment  or  other  charge  to  meet  any  payment 
thereunder,  and  such  contract  shall  be  conclusively  deemed  to  be  valid 
unless  entered  into  in  violation  of  this  section,  section  one  hundred  and 
twenty,  or  section  one  hundred  and  twenty-c  of  this  chapter.  [General 
Municipal  Laws,  § 120-p,  as  added  by  L.  1917,  ch.  709.] 


43 8 j 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


General  Municipal  Law,  §§  120q,  i20r,  120s;  Town  Law,  § 140. 

Buies  and  regulations. — Such  person,  persons  or  corporation  operating 
and  maintaining  such  system  or  contracting  for  the  removal  of  sewage  as 
herein  provided  shall  be  subject  to  such  rules,  ordinances  and  regulations 
as  said  municipalities  may  establish,  not  inconsistent  with  any  contract 
made  therefor.  [General  Municipal  Law,  § 120-q,  as  added  by  L.  1917, 
ch.  709.] 

Failure  to  keep  system  in  good  condition ; penalty , etc. — In  the  event 
of  such  person,  persons  or  corporation  failing  and  neglecting  to  keep  said 
system  of  sewage  in  good  healthy  and  effective  condition  after  due  notice 
in  writing  of  not  less  than  sixty  days,  from  any  municipality  using  the  same, 
their  rights,  of  such  person,  persons  or  corporation,  guaranteed  under  such 
contract  may  be  canceled  by  such  municipality,  except  that  such  munici- 
pality or  municipalities  shall  pay  the  fair  and  reasonable  value  of  such 
sewerage  system  as  provided  in  such  lease  or  contract.  This  section  shall 
not  apply  if  such  system  is  under  the  management  and  control  of  one  or 
more  of  such  contracting  municipalities.  [General  Municipal  Law,  § 120-r, 
as  added  by  L.  1917,  ch.  709.] 

Municipalities  acting  jointly ; powers. — The  joint  meeting  representing 
any  two  or  more  of  such  municipalities,  as  aforesaid,  shall  have  power  with 
their  consent  and  on  their  behalf  and  by  its  own  proper  officers  to  enter  into 
any  contract  and  to  acquire,  by  purchase  or  condemnation,  and  to  hold, 
maintain  and  operate  any  property,  necessary  or  desirable  for  any  of  the 
purposes  authorized  as  aforesaid,  as  fully  and  to  the  same  extent  as  any 
municipality  acting  severally.  [General  Municipal  Law,  § 120-s,  as  added 
by  L.  1917,  ch.  709.] 

§ 8.  APPROPRIATION  BY  TOWN  BOARD  FOR  SHADE  TREE  FUND. 

A town  board  of  a town  in  which  a tree  warden  is  appointed  may,  by 
resolution,  appropriate  annually  not  exceeding  two  hundred  dollars,  to  be 
known  as  the  shade  tree  fund,  and  which  shall  be  used  and  expended  by 
the  tree  warden  for  the  setting  out  and  preservation  of  shade  trees  along 
the  highways  in  such  town.  [Town  Law,  § 140;  B.  C.  & G.  Cons.  L.,  p. 
6191.] 

§ 9.  ACQUISITION  AND  DEVELOPMENT  OF  FOREST  LANDS. 

The  governing  board  of  a county,  town  or  village  may  severally  acquire 
for  such  county,  town  or  village,  by  purchase,  gift,  lease  or  condemnation, 
and  hold  as  the  property  of  such  municipality,  tracts  of  land  having  forests 
or  tree  growth  thereon,  or  suitable  for  the  growth  of  trees,  and  may  appro- 
priate therefor  the  necessary  moneys  of  the  county,  town  or  village  for 


OTHER  POWERS  AND  DUTIES  OF  TOWN  BOARDS;  GARBAGE.  433k 


General  Municipal  Law,  § 72a. 

which  the  lands  are  acquired.  Such  lands  shall  be  under  the  manage- 
ment and  control  of  such  board  and  shall  be  developed  and  used  for 
the  planting  and  rearing  of  trees  thereon  and  for  the  cultivation  thereof 
according  to  the  principles  of  scientific  forestry,  for  the  benefit  and 
advantage  of  the  county,  town,  or  village.  The  determination  of 
any  such  board  to  acquire  lands  under  the  provisions  of  this  section  shall 
be  by  resolution ; but  the  question  of  the  final  adoption  of  such  resolution 
shall  be  taken  up  by  the  board  only  after  public  notice  thereof  has  been 
published  for  at  least  two  weeks,  as  follows : If  it  be  a resolution  of  a board 
of  supervisors,  the  publication  shall  be  made  in  the  newspapers  in  which  the 
session  laws  and  concurrent  resolutions  are  required  to  be  published:  if  it 
be  a resolution  of  a town  board  or  of  a board  of  trustees  of  a village,  the 
publication  shall  be  made  in  a newspaper  published  in  the  town  or  village, 
respectively.  The  board  shall  give  a hearing  to  all  persons  appearing  in 
support  of  or  in  opposition  to  such  proposed  resolution.  If  it  be  deter- 
mined to  purchase  such  lands  the  moneys  necessary  therefor  may  be  pro- 
vided as  follows : If  the  acquisition  be  by  a county,  the  board  of  supervisors 
may  cause  such  moneys  to  be  raised  by  taxation  and  levied  and  collected  as 
other  county  taxes  or  may  borrow  money  therefor  on  the  credit  of  the  county 
by  the  issuance  and  sale  of  county  bonds  in  the  manner  provided  by  law  for 
the  issuance  and  sale  of  other  county  obligations;  if  the  acquisition  be  by 
a town,  the  moneys  necessary  therefor  shall  constitute  a town  charge  and  be 
raised  by  taxation  as  other  town  charges,  or,  the  town  board  may  in  its 
discretion,  cause  town  bonds  to  be  issued  and  sold  in  the  manner  provided 
by  law  for  the  issuance  and  sale  of  town  bonds,  under  the  town  law,  to  pay 
judgments;  if  the  acquisition  be  by  a village,  the  moneys  therefor  may  be 
raised  by  taxation,  as  other  village  taxes,  or  by  the  issuance  and  sale  of 
village  bonds  in  the  manner  provided  by  the  laws  governing  such  village 
relating  to  village  obligations,  after  the  adoption  of  a resolution  therefor 
by  the  board  of  trustees,  without  other  authorization.  All  revenues  and 
emoluments  from  lands  so  acquired  shall  belong  to  the  municipality  and 
emoluments  from  lands  so  acquired  shall  belong  to  the  municipality  and 
in  reduction  of  taxation  therein.  Such  forest  lands  shall  be  subject  to  such 
rules  and  regulations  as  such  governing  board  of  the  municipality  shall 
prescribe;  but  the  principal  object  to  be  conserved  in  the  maintenance  of 
such  lands  shall  be  the  sale  of  forest  products  in  aid  of  the  public  revenues 
and  the  protection  of  the  water  supply  of  the  municipality.  Such  lands 
or  portions  thereof  may  be  sold  and  conveyed  or  leased,  if  a resolution 
therefor  be  adopted  by  the  affirmative  vote  of  two-thirds  of  all  the  members 
of  such  governing  board ; but  no  such  resolution  directing  an  absolute  con- 


4381 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


General  Municipal  Law,  § 72a. 

veyance  shall  be  effectual  unless  adopted  after  a public  hearing,  held  upon 
notice  given  in  the  manner  required  in  the  case  of  a resolution  to  acquire 
such  lands.  A deed  of  conveyance  or  lease  of  such  lands,  when  authorized 
as  aforesaid,  shall  be  executed  by  the  county  treasurer  of  the  county,  super- 
visor of  the  town  or  president  of  the  village  by  which  the  conveyance  or 
lease  is  made.  Moneys  may  be  appropriated  for  the  care  and  main- 
tenance of  such  lands  and  the  development  and  use  of  forests  thereon  annu- 
ally, by  the  county,  town  or  village,  respectively,  and  the  amount  thereof 
raised  by  taxation  in  the  same  manner  that  other  expenditures  of  such 
county,  town  or  village  are  provided  for  by  law.  [General  Municipal  Law, 
§ 72a,  as  added  by  L.  1912,  ch.  74.] 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


439 


Explanatory  note. 


CHAPTER  XXXII. 

TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 

EXPLANATORY  NOTE. 

Local  Boards  of  Health. 

The  town  board  and  a citizen  of  the  town  appointed  by  it  constitute 
local  board  of  health  of  the  town.  The  board  should  meet  as  a board 
of  health  at  stated  intervals,  to  be  prescribed  by  the  rules  of  the  board. 
The  presiding  officer  may  call  special  meetings  of  the  board  whenever 
the  protection  of  the  public  health  requires  it.  The  presiding  officer 
may  be  elected  by  the  board  at  its  meeting  to  be  held  after  each 
biennial  town  meeting.  If  no  such  officer  is  elected  the  supervisor 
should  act  as  the  presiding  officer.  The  board  should  at  its  first  meet- 
ing held  after  the  biennial  town  meeting  appoint  the  additional  member 
required  by  law.  This  member  has  the  same  powers  as  the  other 
members  of  the  board  and  should  participate  in  all  its  meetings. 

Health  Officer. 

The  board  of  health  must  appoint  a health  officer,  who  shall  be  a 
competent  physician,  residing  in  the  town  or  an  adjoining  town.  His 
term  of  office  is  four  years.  He  may  be  removed  for  just  cause  by  the 
board  or  the  state  commissioner  of  health,  after  a hearing.  The 
powers  and  duties  of  the  health  officer  are  to  be  prescribed  by  the  board, 
lie  is  the  chief  executive  officer  of  the  board,  and  as  such,  must 
carry  into  effect  the  orders  and  rules  and  regulations  of  the  hoard. 
The  compensation  of  the  health  officer  must  he  fixed  by  the  board,  but 
shall  not  be  less  than  ten  cents  per  annum  for  each  inhabitant  of  the 
town.  He  may  be  paid  his  reasonable  expenses  in  attending  the  annual 
conference  of  health  officers.  Such  expenses  are  a legal  charge  against 
the  town.  His  compensation,  and  all  other  necessary  expenses  incurred 
by  him  in  the  performance  of  his  duties,  should  be  audited  by  the  town 


440 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Explanatory  note. 

board  and  paid  in  the  same  manner  as  other  town  charges.  Additional 
compensation  may  be  allowed  where  an  epidemic  has  broken  out  in  the 
town,  and  the  health  officer  has  been  compelled  to  perform  extraordinary 
services. 

Orders  and  Regulations. 

The  board  must  make  and  publish  all  orders  and  regulations 
deemed  necessary  by  them  for  the  preservation  of  life  and  health 
in  the  town.  Such  orders  and  regulations  have  the  force  of  law,  and 
may  be  enforced  the  same  as  a law  passed  by  the  legislature,  provided  they 
are  reasonable  and  within  the  power  of  the  board  to  make.  Where 
special  cases  are  to  be  dealt  with,  as  the  suppression  of  nuisances,  an 
order  may  be  made  and  enforced,  without  publication.  For  the  pur- 
pose of  determining  whether  such  a special  order  should  issue  in  a 
particular  case,  the  board  may  conduct  hearings  and  compel  the 
attendance  of  witnesses  by  the  issue  of  subpoenas,  and  administer  oaths 
to  such  witnesses  and  compel  them  to  testify.  The  board  may  prescribe 
penalties  for  the  violation  of  any  of  its  orders  or  regulations,  not  exceed- 
ing one  hundred  dollars  for  a single  violation. 

Registration  of  Births,  Marriages  and  Deaths. 

The  board  must  see  to  it  that  proper  provisions  are  made  for  the 
registration  of  all  births  and  deaths  occurring  within  the  town,  and  the 
cause  of  death.  Birth  certificates  must  be  made  out  by  physicians  or 
midwives  attending  at  such  births.  The  cost  of  such  registration,  not 
exceeding  twenty-five  cents,  is  a charge  against  the  town. 

Burial  and  Burial  Permits. 

The  board  should  prescribe  sanitary  regulations  for  the  burial  and 
removal  of  corpses.  The  board  must  designate  the  town  clerk  and 
health  officer  to  grant  permits  for  the  burial  of  such  corpses  and  for 
their  transportation  beyond  the  country  where  the  death  occurred. 

Infectious  and  Contagious  Diseases. 

The  board  must  guard  against  the  introduction  and  spread  of  such 
infectious  and  contagious  diseases  as  are  designated  by  the  state  depart- 
ment of  health.  Infected  persons  may  be  quarantined  by  order  of  the 
board  and  suitable  places  for  the  treatment  and  care  of  such  persons 
must  be  provided,  where  they  cannot  be  otherwise  provided  for. 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


441 


Explanatory  note. 

Notice  of  every  case  of  any  such  disease  must  be  given  by  every 
physician  to  the  health  officer.  The  health  officer  is  required  to  report 
all  such  cases  to  the  state  department  of  health.  The  hoard  must 
provide  a suitable  supply  of  vaccine  virus  and  if  an  epidemic  of  small- 
pox exists  in  the  town  must  secure  a fresh  supply  at  least  once  a week, 
and  provide  thorough  and  safe  vaccination  for  all  persons  in  need  of  the 
same. 

Suppression  of  Nuisances. 

One  of  the  most  important  duties  of  a hoard  of  health  pertains  to  the 
suppression  of  nuisances.  The  hoard  is  required  to  receive  and  ex- 
amine into  all  complaints  made  concerning  nuisances.  The  members 
of  the  board,  or  persons  designated  by  it,  are  authorized  to  enter  upon 
premises  where  nuisances  are  alleged  to  exist,  and  to  examine  and 
inspect  such  premises.  If  facts  are  found  to  exist  warranting  supres- 
sion  of  a nuisance  an  order  should  be  issued  to  that  effect.  Notice 
should  be  given  to  the  owner  of  the  premises,  of  the  complaint  made, 
and  if  after  an  examination  of  the  premises  there  is  any  doubt  as  to 
the  existence  of  the  nuisance,  the  owner  should  be  given  a hearing  before 
an  order  is  issued  directing  its  suppression.  In  every  case  the  owner 
must  he  given  a statement  of  the  results  and  conclusions  of  an  examina- 
tion made  by  the  board  or  its  officers  or  servants.  The  court  of  appeals 
has  held  that  a board  may  act  upon  its  own  inspection  and  knowledge 
of  the  alleged  nuisance,  without  a hearing.  But  jurisdiction  depends 
upon  the  existence  of  facts  establishing  the  nuisance,  and  in  contested 
cases  it  will  he  advisable  to  give  a formal  hearing  to  the  owner  of  the 
premises. 

If  the  owner  or  occupant  of  premises  fails  to  comply  with  the  order 
of  the  hoard  directing  the  abatement  of  a nuisance,  provision  is  made 
by  the  law  for  the  abatement  at  the  expense  of  the  owner  or  occupant. 
The  expense  of  such  abatement  is  made  a lien  upon  the  premises 
affected. 


Section  1.  Town  board  to  act  as  local  board  of  health;  health  officer  of  town, 
la.  Expenses  of  consolidated  health  district. 

2.  General  powers  and  duties  of  local  boards  of  health;  rules  and  regu- 
lations; suppression  of  nuisances;  subpoenas;  warrants  of  arrest; 
penalties. 


442 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Public  Health  Law,  § 20. 


Section  3.  Board  to  supervise  registration  of  births,  marriages  and  deaths;  phy- 
sicians, midwives,  clergymen,  etc.,  to  furnish  certificates;  cost  of 
registration  a town  charge. 

4.  Burial  and  burial  permits. 

5.  Contagious  and  infectious  diseases;  duties  of  boards  of  health;  reports 

of  health  officers  to  state  commissioner  of  health;  disease  in  alms- 
house. 

5a.  Providing  for  the  care  and  maintenance  of  carriers  of  disease. 

6.  Complaints  as  to  nuisances;  order  of  board. 

7.  Removal  of  nuisances  by  board  or  its  officers;  expense  to  be  paid  by 

owner. 

8.  Expense  of  abatement  of  nuisances  a lien  upon  the  premises. 

9.  Removal  of  accumulation  of  water  tending  to  breed  mosquitoes;  pay- 

ment of  expense. 

10.  Jurisdiction  of  town  board  of  health  over  city  or  village;  uniting  of 

towns  and  villages  in  a combined  sanitation  and  registration  district. 

11.  Expenses  incurred  by  town  board  of  health  a town  charge;  property  of 

village  exempted  from  taxation  therefor. 

12.  Relief  of  indigent  Indians  in  case  of  epidemic. 

13.  Mandamus  against  local  board  of  health  at  instance  of  state  board  of 

health. 

§ 1.  TOWN  BOARD  TO  ACT  AS  LOCAL  BOARD  OF  HEALTH; 

HEALTH  OFFICER  OF  TOWN. 

Local  boards  of  health. — There  shall  continue  to  be  local  boards  of 
health1  and  health  officers  in  the  several  cities,  villages  and  towns  of  the  state 
except  as  hereinafter  provided.2  * * * In  towns  the  board  of  health  shall 
consist  of  the  town  board.3  The  local  board  of  health  shall  appoint  a 
competent  physician,  not  a member  of  the  local  board  of  health,  to  be  the 
health  officer  of  the  municipality.  Notwithstanding  the  provisions  of  any 
general  or  local  law  or  charter,  a physician  who  has  received  the  degree  of 
doctor  of  public  health  in  course  from  any  institution  of  learning  recognized 
by  the  regents  of  the  university  of  the  state  of  New  York,  or  who  has  com- 


1.  Power  to  sue  and  be  sued.  A board  of  health  is  not  a corporation  and  can- 
not sue  or  be  sued  unless  expressly  authorized  by  statute.  People  v.  Supervisors  of 
Monroe,  18  Barb.  567;  Gardner  v.  Board  of  Health,  4 Sand.  (6  Super.  Ct.)  153; 
affd.  10  N.  Y.  409. 

The  preferring  of  charges  and  holding  a hearing  before  declaring  the  office  of 
village  health  officer  vacant,  may  be  dispensed  with  where  said  officer  has  failed 
to  take  and  file  the  oath  of  office  required  by  statute.  Rept.  of  Atty.  Genl.,  Sept. 
9,  1910. 

Jurisdiction  of  the  local  board  of  health  and  the  state  commissioner  to  entertain 
charges  in  the  first  instance,  is  concurrent.  But  where  a complainant  has  failed  to 
sustain  his  charges  on  the  merits  before  one  tribunal,  he  cannot  institute  another 
proceeding,  on  the  same  charges,  before  the  other  authority.  Rept.  of  Atty.  Genl., 
Oct.  26,  1910. 

2.  Part  omitted,  relating  to  boards  of  lieajth  in  cities,  has  no  reference  to  town 
board  of  health. 

3.  Compelling  action  by  town  board.  If  the  town  board  fail  to  comply  with  the 
provisions  of  this  section  any  citizen  of  the  town  may  apply  to  the  court  for  a 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


443 


Public  Health  Law,  § 20. 

pleted  a course  in  public  health  approved  by  the  public  health  council  at 
the  time  of  his  appointment,  shall  be  eligible  for  appointment  as  health 
officer.  The  term  of  office  of  the  health  officer  shall  be  four  years  and  he 
shall  hold  office  until  the  appointment  of  his  successor.  He  may  be  removed 
for  just  cause  by  the  local  board  of  health  or  the  state  commissioner  of 
health  after  a hearing;  such  removal  by  the  local  board  of  health  must  be 
approved  by  the  state  commissioner  of  health.  The  health  officer  need  not 
reside  within  the  village  or  town  for  which  he  shall  be  chosen.3a  Notice 
of  the  membership  and  organization  of  every  local  board  of  health  shall  be 
forthwith  given  by  such  board  to  the  state  department  of  health.  The 
term  “ municipality/’  when  used  in  this  article,  means  the  city,  village, 
town  or  consolidated  health  district  for  which  any  such  local  board  may 
be  or  is  appointed.  The  provisions  herein  contained  as  to  boards  of  health, 
and  for  the  appointment  of  health  officers,  shall  apply  to  all  towns  and  vil- 
lages, whether  such  villages  are  organized  under  general  or  special  laws. 
The  members  of  town  boards  and  of  village  boards  of  trustees  and  of  boards 
of  health  of  consolidated  health  districts  shall  not  receive  additional  com- 
pensation by  reason  of  serving  as  members  of  boards  of  health.  Any 
matter  within  the  jurisdiction  of  a town  or  village  board  of  health  may  be 
considered  and  acted  upon  at  any  meeting  of  such  town  board  or  village 
board  of  trustees. 

The  state  commissioner  of  health,  on  the  request  of  the  town  board 
of  any  town  and  the  board  of  trustees  of  any  village  and  the  common 
council  or  other  like  authority  of  any  city,  may  combine  into  one  health 


mandamus  to  compel  such  compliance,  it  being  a fixed  and  established  rule  that 
every  citizen  has  a right  to  compel  the  performance  by  public  officers,  of  the  duty 
imposed  upon  them  of  executing  the  laws  of  the  state  which  are  enacted  for  the 
benefit  of  the  community.  People  ex  rel.  Boltzer  v.  Daley,  37  Hun  461.  For  full 
provisions  relating  to  the  powers  and  duties  of  local  boards  of  health,  see  Boyce’s 
Health  Officers’  Manual,  1910. 

3a.  Vacancy.  Mandamus  will  lie  to  compel  board  of  health  to  fill  vacancy  in 
office  of  health  officer.  People  ex  rel.  Lynch  v.  Pierce  (1912),  149  App.  Div.  286, 
133  N.  Y.  Supp.  802. 

Oath  of  office.  Health  officer  required  to  take  oath  of  office.  In  case  of  failure 
vacancy  exists  which  may  be  filled  by  local  board,  without  notice  or  judicial  proce- 
dure. People  ex  rel.  Walton  v.  Hicks,  173  App.  Div.  338,  153  N.  Y.  Supp.  757. 


443a 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Public  Health  Law,  § 20. 

district,  hereinafter  referred  to  as  a consolidated  health  district,  any 
ttvo  or  more  of  such  towns,  villages  or  cities  and  may  on  the  request 
of  the  town  board  of  any  town,  board  of  trustees  of  any  village  or 
common  council  or  other  like  authority  of  any  city  at  any  time  there- 
after set  apart  such  town,  village  or  city  as  a separate  health  district. 
In  any  consolidated  health  district  there  shall  he  a board  of  health  which 
shall  consist  of  the  supervisor  of  each  town,  the  president  of  the  board 
of  trustees  of  each  village,  and  the  mayor  of  each  city  included  in  each 
district,  provided  that  if  the  number  of  members  so  provided  for  is  an 
even  number,  such  members  shall  within  thirty  days  after  such  district 
shall  have  been  established  by  the  state  commissioner  of  health  choose 
an  additional  member  of  such  board  of  health  to  be  known  as  the  elective 
member.  An  elective  member  shall  serve  for  a term  of  two  years  from 
the  first  day  of  January  preceding  his  election  and  until  his  successor 
shall  have  been  appointed,  provided  that  if  at  any  time  the  number  of 
members  of  the  board  of  health,  excluding  the  elective  member,  shall 
become  an  odd  number,  the  term  of  office  of  the  elective  member  shall 
thereupon  cease. 

The  board  of  health  of  a consolidated  health  district  shall  from  time 
to  time  elect  a president  from  among  its  members.  The  health  officer 
of  a consolidated  health  district  shall  serve  as  the  secretary  of  the  board 
of  health  thereof  without  additional  remuneration  therefor. 

In  each  such  consolidated  health  district  the  board  of  health  shall 
appoint  a health  officer.  Each  board  of  health  and  each  health  officer 
of  a consolidated  health  district  shall  have  all  the  rights,  powers,  duties 
and  obligations  conferred  and  imposed  by  law  upon  boards  of  health 
and  health  officers  respectively. 

When  any  consolidated  health  district  is  established,  as  herein  pro- 
vided, the  boards  of  health  of  the  towns,  villages  or  cities  included 
within  such  district,  shall  thereupon  cease  to  exist  as  boards  of  health, 
and  all  their  rights,  powers,  duties  and  obligations  shall  thereupon  be 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH-  443^ 

Public  Health  Law,  § 20. 

transferred  to  the  board  of  health  of  such  district.  When  the  board  of 
health  of  any  such  consolidated  health  district  shall  have  appointed  a 
health  officer  therefor,  the  terms  of  office  of  the  health  officers  of  the 
towns,  villages  or  cities  included  in  such  district  shall  cease,  and  all 
their  rights,  powers,  duties  and  obligations  shall  thereupon  be  trans- 
ferred to  and  imposed  upon  the  health  officer  appointed  for  such  con- 
solidated health  district. 

The  board  of  health  of  any  such  consolidated  health  district  shall 
from  time  to  time  audit  all  accounts,  and  allow  or  reject  all  charges, 
claims  and  demands  against  such  health  district  for  the  remuneration 
and  expenses  of  the  health  officer,  registrar  or  registrars,  and  for  all 
other  expenses  lawfully  incurred  by  said  board  of  health  or  on  its  au- 
thority. Unless  such  board  of  health  of  such  consolidated  health  dis- 
trict adopts  the  estimate  system  of  payment  as  provided  by  this  section 
they  shall,  prior  to  the  annual  meeting  of  the  board  of  supervisors  each 
year,  make  an  abstract,  to  be  known  as  the  consolidated  health  district 
abstract,  of  the  names  of  all  persons  who  have  presented  to  them  ac- 
counts to  be  audited,  the  amounts  claimed  by  each  such  person  and  the 
amounts  finally  audited  and  approved  by  them  respectively,  and,  if 
such  district  be  wholly  in  one  county,  shall  deliver ’such  abstract  to  the 
clerk  of  the  board  of  supervisors.  If  such  consolidated  health  district 
be  located  in  more  than  one  county  the  board  of  health  of  such  district 
shall  divide  the  total  amount  of  the  consolidated  health  district  abstract 
as  audited  and  approved  in  proportion  to  the  assessed  valuation  of  the 
real  and  personal  property  of  the  towns,  villages  or  cities  of  such  con- 
solidated health  district  located  in  each  county,  as  determined  by  the 
last  preceding  assessment-rolls  of  the  towns  or  cities  wholly  or  partly 
included  in  such  district,  and  shall  deliver  a certified  copy  of  such 
abstract  to  the  board  of  supervisors  of  each  such  county,  with  a state- 
ment of  the  amount  due  from  the  real  and  personal  property  of  each 
town,  village  or  city  of  the  consolidated  heaJth  district  in  each  such 


443c  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Health  Law,  § 20. 

county  on  account  of  the  expenses  of  such  board.  The  board  of  super- 
visors of  each  such  county  shall  levy  a tax  upon  the  real  and  personal 
property  within  such  health  district  sufficient  to  provide  for  the  sums 
audited  and  approved  by  the  board  of  health  thereof  and  chargeable  to 
the  real  and  personal  property  of  each  town,  village  or  city  of  the  con- 
solidated health  district  in  each  such  county.  Such  sums,  when  col- 
lected and  paid  to  the  county  treasurer  of  each  such  county  respectively, 
shall  be  paid  by  him  to  the  president  of  such  board  of  health  and  shall 
be  disbursed  by  him  in  accordance  with  the  abstract  of  claims  audited 
and  approved  by  such  board  of  health,  as  hereinabove  provided. 

The  board  of  health  of  any  consolidated  health  district  may  annually 
make  an  estimate  of  the  expenses  of  such  board%for  the  ensuing  calendar 
year  and,  if  such  district  be  wholly  in  one  county,  shall  deliver  a 
certified  copy  of  such  estimate  to  the  clerk  of  the  board  of  supervisors 
of  such  county  prior  to  the  annual  meeting  of  the  board  preceding  such 
year.  If  such  consolidated  health  district  be  located  in  more  than  one 
counjty,  the  board  of  health  of  such  district  shall  proportion  the  total 
amount  of  such  estimate  in  the  same  manner  as  provided  by  this  section 
for  proportioning  the  expenses  of  such  a district  when  audited  and 
approved  by  the  board,  and  shall  deliver  to  the  clerk  of  the  board  of 
supervisors  of  each  such  county  a certified  statement  of  the  total  esti- 
mate and  the  amount  due  from  the  real  and  personal  property  of  each 
town,  village  or  city  of  the  consolidated  health  district  in  each  such 
county  on  account  thereof.  The  board  of  supervisors  of  each  such 
county  shall  levy  a tax  upon  the  real  and  personal  property  within  such 
health  district  sufficient  to  provide  for  the  portion  .of  the  amount  of 
such  estimate  chargeable  to  the  real  and  personal  property  of  each  town, 
village  or  city  of  the  consolidated  health  district  in  each  such  county. 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


443d 


Public  Healtli  Law,  §§  20a,  21. 

Such  sums,  when  collected  and  paid  to  the  county  treasurer  of  each  county 
respectively  shall  be  paid  by  him  to  the  president  of  such  board  of  health 
and  shall  be  disbursed  by  the  board  of  health  in  accordance  with  the  esti- 
mates. After  such  estimate  system  has  been  adopted  by  a consolidated 
health  district,  the  board  of  health  thereof  shall  deduct  from  the  estimate 
for  the  succeeding  calendar  year  the  amount,  if  any,  remaining  in  the  hands 
of  such  board  after  all  of  the  liabilities  incurred  on  account  of  the  preceding 
estimate  have  been  paid,  before  the  certified  statement  of  the  total  estimate 
and  the  amount  due  from  real  and  personal  property  of  each  town,  village 
or  city  of  the  consolidated  health  district  in  each  such  county  is  certified  to 
the  respective  clerks  of  the  boards  of  supervisors  for  collection.  [Public 
Health  Law,  § 20,  as  amended  by  L.  1909,  ch.  165,  L.  1913,  ch.  559,  L.  1915, 
ch.  124,  L.  1916,  ch.  369,  and  L.  1918,  ch.  275;  B.  C.  & G.  Cons.  L.,  p. 
4428.] 

§ la.  EXPENSES  OF  CONSOLIDATED  HEALTH  DISTRICT. 

A consolidated  health  district  may  adopt  the  estimate  system  as  provided 
by  section  twenty  of  this  chapter,  and,  as  provided  by  such  section,  may 
make  and  file  with  the  clerk  of  the  board  of  supervisors  of  the  county,  or  if 
such  district  be  located  in  more  than  one  county,  with  the  clerk  of  the  board 
of  supervisors  of  each  such  county,  an  estimate  for  the  remainder  of  the 
current  year  and  for  the  ensuing  calendar  year,  and  may  issue  a certificate 
of  indebtedness  upon  the  credit  of  the  district  for  such  portion  of  such 
estimate  as  may  be  needed  to  pay  the  expenses  of  the  board  until  the  tax 
levied  on  account  of  such  assessment  shall  have  been  collected  and  paid 
to  the  board  as  provided  by  section  twenty  of  this  chapter.  Such  tax  when 
collected  shall  be  applicable  in  the  first  instance  to  the  payment  of  such 
certificate.  [Public  Health  Law,  § 20-a,  as  added  by  L.  1917,  ch.  182.] 

% 2 . GENERAL  POWERS  AND  DUTIES  OF  LOCAL  BOARDS  OF 
HEALTH;  RULES  AND  REGULATIONS;  SUPPRESSION  OF 
NUISANCES;  SUBPOENAS;  WARRANTS  OF  ARREST;  PEN- 
ALTIES. 

Every  such  local  board  of  health  shall  meet  at  stated  intervals  to  be 
fixed  by  it  in  the  municipality.  The  presiding  officer  of  every  such 
board  may  call  special  meetings  thereof  when  in  his  judgment  the  pro- 
tection of  the  public  health  of  the  municipality  requires  it,  and  he  shall 
call  such  meeting  upon  the  petition  of  at  least  twenty-five  residents 
thereof,  of  full  age,  setting  forth  the  necessity  of  such  meeting.  Every 
such  local  board,  subject  to  the  provisions  of  the  public  health  law  and 
of  the  sanitary  code,  shall  prescribe  the  duties  and  powers  of  the  local 
health  officer,  who  shall  be  its  chief  executive  officer,  and  direct  him  in 
the  performance  of  his  duties,  and  fix  his  compensation,  which  in  case 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Public  Health  Law,  § 21. 


411 


of  health  officers  of  cities,  towns  and  villages,  having  a population  of 
eight  thousand  or  less,  shall  not  be  less  than  the  equivalent  of  ten  cents 
per  annum  per  inhabitant  of  the  city,  town  or  village  according  to  the 
latest  federal  or  state  enumeration;  and  in  cities,  towns  and  villages 
having  a population  of  more  than  eight  thousand  shall  not  be  less  than 
eight  hundred  dollars  per  annum.* * * * 5  In  addition  to  his  compensation  so 
fixed,  the  board  of  health  must  allow  the  actual  and  reasonable  expenses 
of  said  health  officer  in  the  performance  of  his  official  duties  and  in 
going  to,  attending  and  returning  from,  the  annual  sanitary  conference 
of  health  officers,  or  equivalent  meeting,  held  yearly  within  the  state, 
and  conferences  called  by  the  sanitary  supervisor  of  the  district,  and 
whenever  the  services  rendered  by  its  health  officer  shall  include  the  care 
of  smallpox,  the  board  of  health  shall  allow,  or  whenever  such  services 
are  extraordinary,  by  reason  of  infectious  diseases,  or  otherwise,  they 
may  in  their  discretion,  allow  to  him  such  further  sum  in  addition  to 
said  fixed  compensation  as  shall  be  equal  to  the  charges  for  consultation 
services  in  the  locality,  audited  by  the  town  board  of  a town,  by  the 
board  of  trustees  of  a village  or  by  the  proper  auditing  board  of  a city 
of  the  third  class,  which  said  expenses  and  said  additional  compensation 
shall  be  a charge  upon  and  paid  by  the  municipality  as  provided  in 
section  thirty-five  of  this  chapter.  Every  such  local  board  shall  make 
and  publish  from  time  to  time  all  such  orders  and  regulations,  not  in- 
consistent with  the  provisions  of  the  sanitary  code,  as  it  may  deem 
necessary  and,  proper  for  the  preservation  of  life  and  health  and  the 
execution  and  enforcement  of  this  chapter  in  the  municipality.6  It 

4a.  A village  is  not  liable  for  the  expenses  of  a health  officer  in  successfully 

defending  a suit  brought  against  him  for  alleged  willful,  careless  and  negligent 

acts  committed  by  him  as  health  officer,  nor  can  the  village  pay  the  same.  Rept. 

of  Atty.  Genl.  (1911),  vol.  2,  p.  556. 

5.  Compensation  of  local  health  officer. — The  local  board  of  health  may  fix 
compensation  of  a local  health  officer  and  allow  his  reasonable  expenses  in  attending 
the  annual  sanitary  conference  of  health  officers,  and  the  town  board  must  audit 
such  allowances  and  may  not  refuse  because  the  health  officer  serving  for  a fixed 
salary  failed  to  keep  a detailed  statement  of  services  rendered,  or  his  duties  were 
not  prescribed  by  the  board  of  health,  or  because  the  auditing  board  did  not  agree 
with  the  health  board  as  to  the  rate  of  compensation.  People  ex  rel.  Sherwood  v. 
Blood,  120  App.  Div.  614,  105  N.  Y.  Supp.  20. 

Compensation  of  a legally  appointed  local  health  officer  having  been  fixed  by  the 
board  of  health  appointing  him  should  not  be  diminished  during  his  regular  term. 
Rept.  of  Atty.  Genl.,  May  17,  1911. 

Delegation  of  authority  as  to  inspection  of  milk  and  dairies  unauthorized.  A 
local  board  of  health  has  no  power  to  delegate  its  authority  in  respect  to  matters  of 
judgment  and  discretion.  City  of  Hudson  v.  Fleming,  139  App.  Div.  327,  123  N.  Y. 
Supp.  1065. 

6.  Orders  and  regulations. — An  order  made  by  a town  board  of  health  at  a 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


445 


Public  Health  Law,  § 21. 

shall  make  without  publication  thereof,  such  orders  and  regulations  for 
the  suppresion  of  nuisances  and  concerning  all  other  matters  in  its 
judgment  detrimental  to  the  public  health  in  special  or  individual  cases, 
not  of  general  application,  and  serve  copies  thereof  upon  the  owner  or 
occupant  of  any  premises  whereon  such  nuisances  or  other  matters  may 
exist,  or  upon  which  may  exist  the  cause  of  other  nuisances  to  other 
premises,  or  cause  the  same  to  be  conspicuously  posted  thereon.7  The 
health  officer  may  employ  such  persons  as  shall  be  necessary  to  enable 

meeting  at  which  the  citizen  member  was  not  present,  not  having  been  notified  to 
attend,  is  invalid.  Schoepflin  v.  Calkins,  5 Misc.  159;  25  N.  Y.  Supp.  696.  There  is 
no  question  but  what  the  legislature  may  in  the  exercise  of  its  constitutional  au- 
thority confer  on  boards  of  health  the  power  to  enact  sanitary  ordinances  having  the 
force  of  law  within  the  districts  over  which  their  jurisdiction  extends.  Polinsky  v. 
People,  73  N.  Y.  65;  Health  Department  v.  Knoll,  70  N.  Y.  530;  Metropolitan  Board 
of  Health  v.  Heister,  37  N.  Y.  661;  People  ex  rel.  Cox  v.  Justices  of  Sessions,  7 Hun, 
214.  Regulations  so  adopted  have  the  force  of  a statute,  although  they  forbid  and 
prescribe  penalties  for  common  law  offenses.  People  ex  rel.  Meyer  v.  Special  Ses- 
sions. 12  Week.  Dig.  367.  But  the  ordinances  must  be  reasonable  and  declare  with 
certainty  the  object  and  purpose  for  which  they  are  enacted.  McNall  v.  Kales,  61 
Hun,  231;  16  N.  Y.  Supp.  7. 

Where  the  legislature  has  fixed  a standard  of  limitation  of  rights,  it  is  not  com- 
petent for  the  board  of  health  to  impose  additional  restrictions.  Metropolitan  Board 
of  Health  v.  Schmades,  10  Abb.  Pr.  (N.  S.)  205;  3 Daly  282. 

Ordinances  adopted  by  the  board  of  health  of  a town  forbidding  the  having  or 
keeping  within  the  town  of  any  refuse  vegetable  or  animal  matter  in  a decayed  or 
decaying  condition  and  the  boiling  or  cooking  of  garbage  or  refuse  in  an  open  vat 
or  kettle  permitting  exhalations  to  escape  into  surrounding  air,  were  held  reason- 
able and  valid.  Town  of  Newtown  v.  Lyons,  11  App.  Div.  105;  42  N.  Y.  Supp.  241. 
But  an  ordinance  providing  that:  “No  cow  shall  be  kept  within  two  hundred  feet 
of  any  dwelling  in  the  village  of  Flushing  without  a special  permit  obtained  from 
the  board  of  health,”  was  held  invalid  upon  the  ground  that  while  it  would  have 
been  competent  for  the  board  to  have  forbidden  the  keeping  of  cows  within  two  hun- 
dred feet  of  a dwelling  house,  it  was  not  authorized  to  license  cow  stables  in  cer- 
tain cases,  since  such  a power  is  not  conferred  by  the  statute.  Village  of  Flushing 
v.  Carraher,  87  Hun  63;  33  N.  Y.  Supp.  951. 

Rules  and  regulations  of  a local  board  of  health  should  be  posted  as  well  as  pub- 
lished. Rept.  of  Atty.  Genl.  (1900),  244. 

Power  to  make  ordinances;  penalty  for  disobedience  of  ordinances. — 
A village  board  of  health  has  the  power  under  this  section  to  make  both  general  and 
special  orders  for  the  protection  of  the  public  health.  Under  this  statute,  where 
such  an  order  was  made  which  did  not  prescribe  any  penalty,  such  board  is  without 
power,  after  the  order  has  been  disobeyed,  to  prescribe  for  the  first  time  a penalty 
for  the  wrong  already  done.  Village  of  Carthage  v.  Colligan  (1915),  216  N.  Y.  217, 
affg.  158  App.  Div.  793. 

Compensation  for  damages.— Laws  and  regulations  of  a police  nature,  though 
they  may  disturbe  the  enjoyment  of  individual  rights,  are  not  unconstitutional, 
though  no  provision  is  made  for  compensation  for  such  disturbances.  They  do  not 
appropriate  private  property  for  public  use,  but  simply  regulate  its  use  and  enjoy- 
ment by  the  owner.  If  he  suffer  injury  it  is  either  damnum  absque  injuria,  or,  in 
the  theory  of  the  law,  he  is  compensated  for  it  by  sharing  in  the  genral  benefits 
which  the  regulations  are  intended  to  secure.  Health  Department  v.  Rector,  145 
N.  Y.  32,  43. 

7.  Suppression  of  nuisances. — The  board  of  health,  while  authorized  to  order 
the  suppression  of  nuisances,  cannot  make  such  an  order  unless  there  be  a nuisance 
in  fact,  and  it  is  the  actual  existence  of  that  fact  which  gives  them  jurisdiction  to 


446 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Public  Health  Law,  § 21. 


him  to  carry  into  effect  the  orders  and  regulations  of  the  board  of  health 
and  the  provisions  of  the  public  health  law  and  of  the  sanitary  code, 
and  fix  their  compensation  within  the  limits  of  the  appropriation  there- 
for. The  board  of  health  may  issue  subpoenas,  compel  the  attendance 
of  witnesses,  administer  oaths  to  witnesses  and  compel  them  to  testify, 
and  for  such  purposes  it  shall  have  the  same  powers  as  a justice  of  the 
peace  of  the  state  in  a civil  action  of  which  he  has  jurisdiction.8  It 
may  designate  by  resolution  one  of  its  members  to  sign  and  issue  such 
subpoenas.  No  subpoena  shall  be  served  outside  the  jurisdiction  of  the 
board  issuing  it,  and  no  witness  shall  be  interrogated  or  compelled  to 
testify  upon  matters  not  related  to  the  public  health.  It  may  issue 
warrants  to  any  constable  or  policeman  of  the  municipality  to  apprehend 
and  remove  such  persons  as  cannot  otherwise  be  subjected  to  its  orders 
or  regulations,  and  a warrant  to  the  sheriff  of  the  county  to  bring  to  its 
aid  the  power  of  the  county  whenever  it  shall  be  necessary  to  do  so. 
Every  warrant  shall  be  forthwith  executed  by  the  officer  to  whom  di- 
rected, who  shall  have  the  same  powers  and  be  subject  to  the  same 
duties  in  the  execution  thereof,  as  if  it  had  been  duly  issued  out  of  a 
court  of  record  of  the  state.  Every  such  local  board  may  prescribe  and 
impose  penalties  for  the  violation  of  or  failure  to  comply  with  any  of 
its  orders  or  regulations,  not  exceeding  one  hundred  dollars  for  a single 
violation  or  failure,  to  be  sued  for  and  recovered  by  it  in  the  name  and 

act.  The  determination  of  the  board  as  to  the  existence  of  the  nuisance  is  not  final 
and  conclusive  upon  the  owner  of  the  premises,  where  it  is  alleged  to  exist.  People 
ex  rel.  Copcutt  v.  Board  of  Health,  140  N.  Y.  1;  35  N.  E.  320.  The  question  of 
whether  or  not  the  nuisance  exists  is  always  an  open  one,  upon  which  the  jurisdic- 
tion of  the  board  is  based.  Coe  v.  Schultz,  47  Barb.  64;  2 Abb.  Pr.  (N.  S.)  193; 
see,  also,  Village  of  Flushing  v.  Carraher,  87  Hun,  63;  33  N.  Y.  Supp.  951,  in  which 
it  was  held  that  a declaration  by  a board  of  health  that  a particular  establishment 
is  a nuisance  does  not  preclude  the  owner  from  contesting  the  question  in  the  courts. 

A resolution  declaring  the  damming  of  the  water  in  a particular  river  to  be  a 
dangerous  nuisance  and  detrimental  to  the  health  of  the  inhabitants,  and  ordering 
such  nuisance  to  be  removed  within  three  days,  is  too  vague,  indefinite  and  uncertain 
to  authorize  the  removal  of  a mill  dam  which  has  been  in  existence  for  more  than 
sixty  years.  Rogers  v.  Barker,  31  Barb.  447. 

Certiorari. — Determination  of  board  as  to  existence  of  nuisance  is  not  review- 
able  by  certiorari.  People  ex  rel.  Copcutt  v.  Board  of  Health.  140  N.  Y.  1,  revg.  in 
effect.  People  ex  rel.  N.  Y.  C.  & H.  R.  R.  R.  Co.  v.  Town  of  Seneca  Falls,  35  N.  Y. 
St,  Rep.  411,  12  N.  Y.  Supp.  561. 

Service  of  order  to  abate  nuisance  may  be  made  outside  of  jurisdiction  of 
board.  Gould  v.  City  of  Rochester,  105  N.  Y.  46. 

8.  Issue  of  subpoenas  and  taking  of  testimony.— A subpoena  may  be  enforced 
by  the  board  of  health  in  the  manner  authorized  by  sections  854-862  of  the  Code  of 
Civil  Procedure,  and  a witness  who,  without  reasonable  cause  refuses  to  be  examined 
or  to  answer  a legal  and  competent  question  may  be  committed  to  jail  under  a 
warrant  issued  by  a judge  of  a court  of  record.  Code  Civ.  Proc.,  sec.  856. 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


447 


Public  Health  Law,  § 21a. 

for  the  benefit  of  the  municipality;  and  may  maintain  actions  in  any 
court  of  competent  jurisdiction  to  restrain  by  injunction  such  violations, 
or  otherwise  to  enforce  such  orders  and  regulations.9  [Public  Health 
Law,  § 21,  as  amended  by  L.  1909,  ch.  480,  and  L.  1913,  ch.  559; 
B.  C.  & G.  Cons.  L.,  vol.  8,  p.  205.] 

§ 2.  POWERS  AND  DUTIES  OF  LOCAL  BOARDS  OF  HEALTH  AS  TO 
SEWERS. 

Whenever  such  local  board  of  health  in  any  incorporated  village  shall 
deem  the  sewers  of  such  village  insufficient  to  properly  and  safely  sewer 
such  village,  and  protect  the  public  health,  it  shall  certify  such  fact  in 
writing,  stating  and  recommending  what  additions  or  alterations  should 
in  the  judgment  of  such  board  of  health  be  made,  with  its  reasons  there- 
for, to  the  state  commissioner  of  health  for  his  approval,  and  if  such 
recommendations  shall  be  approved  by  the  state  commissioner  of  health, 
it  shall  be  the  duty  of  the  board  of  trustees  or  other  board  of  such  vil- 
lage having  jurisdiction  of  the  construction  of  sewers  therein,  if  ther; 
be  such  a board,  whether  sufficient  funds  shall  be  on  hand  for  such  pur- 
pose or  not,  to  forthwith  make  such  additions  to  or  alterations  in  the 
sewers  of  such  village  and  execute  such  recommendations,  and  the  ex- 
penses thereof  shall  be  paid  for  wholly  by  said  village  in  the  same 
manner  as  other  village  expenses  are  paid  or  by  an  assessment  of  the 
whole  amount  against  the  property  benefited,  or  partly  by  the  village 
and  partly  by  an  assessment  against  the  property  benefited,  as  the  board 
of  trustees  of  such  village  shall  by  resolution  determine.  If  the  board 
of  trustees  shall  determine  that  such  expenses  shall  be  paid  partly  by 
the  village  and  partly  by  an  assessment  against  the  property  benefited, 
as  authorized  by  this  section,  it  shall  in  the  resolution  making  such 
determination  fix  the  proportion  of  such  expense  to  be  borne  bv  each, 

9.  Penalties  for  violation. — Town  boards  of  health  should  fix  a definite  penalty 
for  the  violation  of  their  regulations,  and  the  amount  so  fixed  should  be  the  amount 
recovered  in  an  action  for  such  a penalty,  and  not  a sum  to  be  established  at  the 
trial  for  the  offense.  McNall  v.  Kales,  61  Hun,  231,  16  1ST.  Y.  Supp.  7;  40  N.  Y.  St. 
Rep.  719. 

In  the  case  of  Board  of  Health  of  New  Rochelle  v.  Valentine,  32  N.  Y.  St.  Rep. 
919;  11  N.  Y.  Supp.  112,  it  was  held  that  an  action  for  a penalty  may  be  brought 
in  the  name  of  the  board.  See,  also,  Board  of  Health  v.  Copcutt,  140  N.  Y.  12;  35 
N.  E.  320. 

Penal  provisions  respecting  the  public  health.— Section  1740  of  the  Penal 
Law  provides  that:  “A  person  who  wilfully  violates  any  provision  of  the  health 
laws,  the  punishment  for  violating  which  is  not  otherwise  prescribed  by  those  laws 
or  by  this  code,  p~<1  a person  who  wilfully  violates  or  refuses  or  omits  to  comply 
with  any  lawful  order  or  regulation  prescribed  by  any  board  or  health  officer,  or 
any  regulation  lawfully  made  or  established  by  any  public  officer  under  authority 


448 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Public  Health  Law,  § 21a. 

and  the  proportion  thereof  to  be  raised  by  an  assessment  against  the 
property  benefited  shall  be  assessed  and  collected  in  the  manner  pro- 
vided by  the  village  law  for  the  assessment  and  collection  of  sewer 
assessments.  Said  village  is  hereby  authorized  to  raise  such  sum  as 
may  be  necessary  for  the  payment  of  the  expenses  incurred,  which  are 
a village  charge,  if  any,  as  herein  provided,  in  addition  to  the  amount 
such  village  is  now  authorized  to  raise  by  law  for  corporation  purposes, 
and  such  board  shall  have  the  right  to  acquire  such  lands,  rights  of 
way,  or  other  easements,  by  gift,  or  purchase,  or  in  case  the  same  cannot 
be  acquired  by  purchase  may  acquire  the  same  by  condemnation  in  the 
manner  provided  by  law.  [Public  Health  Law,  § 21a,  as  amended  by 
L.  1913,  ch.  559;  B.  C.  & G.  Cons.  L.,  vol.  8,  p.  2054.] 

§ 8.  GENERAL  POWERS  AND  DUTIES  OF  HEALTH  OFFICERS. 

Health  officers  of  towns  and  villages,  in  addition  to  such  other  duties 
as  may  be  lawfully  imposed  upon  them  and  subject  to  the  provisions 
of  the  public  health  law  and  the  sanitary  code,  shall  perform  the  follow- 
ing duties: 

1.  Make  an  annual  sanitary  survey  and  maintain  a continuous  sani* 
tarv  supervision  over  the  territory  within  their  jurisdiction. 

2.  Make  a medical  examination  of  every  school  child  as  soon  as 
practicable  after  the  opening  of  each  school  year,  except  in  those  schools 
in  which  the  authorities  thereof  make  other  provision  for  the  medical 
examination  of  the  pupils.&a 

3.  Make  a sanitary  inspection  periodically  of  all  school  buildings  and 
places  of  public  assemblage,  and  report  thereon  to  those  responsible  for 
the  maintenance  of  such  school  buildings  and  places  of  public  assemblage. 

4.  Promote  the  spread  of  information  as  to  the  causes,  nature  and 
prevention  of  prevalent  diseases,  and  the  preservation  and  improvement 
of  health. 

5.  Take  such  steps  as  may  be  necessary  to  secure  prompt  and  full 
reports  by  physicians  of  communicable  diseases,  and  prompt  and  full 
registration  of  births  and  deaths. 

of  the  health  laws,  is  punishable  by  imprisonment  not  exceeding  one  year  or  by  a 
fine  not  exceeding  $2,000,  or  by  both.” 

It  is  further  provided  in  section  1741  of  the  Penal  Law  that:  “A  person  who 

wilfully  opposes  or  obstructs  a health  officer  or  physician  charged  with  the  enforce- 
ment of  the  health  laws  in  performing  any  legal  duty,  is  guilty  of  a misdemeanor.” 

As  to  public  nuisances  generally,  see  Penal  Law,  secs.  1530-1533. 

9a.  This  subdivision  is  superseded  in  effect  by  article  20-a  of  the  Education 
Law,  as  added  by  L.  1913,  ch.  227,  which  provides  that  inspection  of  school  children 
shall  be  made  by  medical  inspectors  appointed  by  boards  of  education  or  school 
trustees. 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


449 


Public  Health  Law,  § 21b 

6.  Enforce  within  their  jurisdiction  the  provisions  of  the  public  health 
law  and  the  sanitary  code. 

7.  Attend  the  annual  conferences  of  sanitary  officers  called  by  the 
state  department  of  health,  and  local  conferences  within  his  sanitary 
district,  to  which  he  may  be  summoned  by  the  sanitary  supervisor 
thereof. 

The  written  reports  of  public  health  officers,  inspectors,  nurses  and 
other  representatives  of  public  health  officers  on  questions  of  fact  under 
the  public  health  law  or  under  the  sanitary  code  or  any  local  health 
regulation  shall  be  presumptive  evidence  of  the  facts  so  stated,  and  shall 
be  received  as  such  in  all  courts  and  places.  The  persons  making  such 
reports  shall  be  exempt  from  personal  liability  for  the  statements  therein 
made,  if  they  have  acted  in  good  faith. 

jSTo  health  officer,  inspector,  public  health  nurse,  or  other  representa- 
tive of  a public  health  officer,  and  no  person  or  persons  other  than  the 
city,  village  or  town  by  which  such  health  officer  or  representative 
thereof  is  employed  shall  be  sued  or  held  to  liability  for  any  act  done 
or  omitted  by  any  such  health  officer  or  representative  of  a health  officer 
in  good  faith  and  with  ordinary  discretion  on  behalf  or  under  the  direc- 
tion of  such  city,  village  or  town  or  pursuant  to  its  regulations  or  ordi- 

10.  Registar  of  village  board  of  health  may  be  appointed  from  their  own 
number.  Rept.  of  Atty.  Genl.  (1901)  173. 

Town  clerk  should  be  designated  as  registrar.  Rept.  of  Atty.  Genl.  (1902)  148. 

A village  clerk  is  not  required  to  act  as  registrar  of  vital  statistics,  without  ap- 
pointment or  designation  by  the  village  board  of  health.  Rept.  of  Atty.  Genl.  (1911), 
vol.  2,  p.  622. 

Records  as  evidence.  While  it  was  the  primary  object  of  the  legislature  to 
furnish  information  on  the  subject  of  vital  statistics  for  sanitary  purposes,  yet  the 
language  employed  in  the  statute  is  broad  enough  to  make  the  certificates  of  the 
cause  of  death  of  persons  on  file  in  the  office  of  the  town  clerk  in  which  such  persons 
died,  admissible  in  evidence  upon  the  trial  of  an  action,  although  such  certificates 
are  not  under  oath;  and  such  certificates  are  prima  facie  evidence  of  the  facts 
therein  set  forth.  Woolsey  v.  Trustees  of  Ellenville,  84  Hun,  236;  32  N.  Y.  Supp. 
546;  see,  also,  Keefe  v.  Supreme  Council,  37  App.  Div.  276;  55  N.  Y.  Supp.  827. 

The  statute  making  certified  copies  of  record  as  to  the  death  of  a person  presump- 
tive evidence  as  to  the  facts  therein  stated  does  not  change  the  common  law  rule 
of  evidence  in  controversies  of  private  parties  growing  out  of  contracts.  A copy 
of  a record  of  a city  board  of  health  cannot,  therefore,  be  proved  in  an  action  upon 
a life  insurance  policy  for  the  purpose  of  showing  that  a material  statement  made 
by  an  applicant  for  insurance  as  to  the  cause  of  her  mother’s  death  was  false. 
Beglin  v.  Metropolitan  Life  Ins.  Co.,  173  N.  Y.  374. 

11.  Cost  of  registration  of  a town  charge. — The  statute  imposes  upon  every 
local  board  of  health  the  duty  of  supervising  and  making  complete  the  registration 


450 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Public  Health  Law,  §§  21c,  25. 

nances,  or  the  sanitary  code,  or  the  public  health  law.  Any  person  whose 
property  may  have  been  unjustly  or  illegally  destroyed  or  injured  pursuant 
to  any  order,  regulation  or  ordinance,  or  action  of  any  board  of  health  or 
health  officer,  or  representative  of  a health  officer,  for  which  no  personal 
liability  may  exist  as  aforesaid,  may  maintain  a proper  action  against  the 
city,  village  or  town  for  the  recovery  of  proper  compensation  or  damages. 
Every  such  suit  must  be  brought  within  six  months  after  the  cause  of  action 
arose  and  the  recovery  shall  be  limited  to  the  damages  suffered.  [Public 
Health  Law,  § 21b,  as  amended  by  L.  1913,  ch.  559 ; B.  C.  & G.  Cons.  L., 
vol.  8,  p.  2054.] 


§ 4.  EMPLOYMENT  OF  PUBLIC  HEALTH  NURSES. 

Each  health  officer  or  other  official  exercising  similar  duties,  by  what- 
ever official  designation  he  may  be  known,  shall  have  power  to  employ  such 
number  of  public  health  nurses  as  in  his  judgment  may  be  necessary 
within  the  limits  of  the  appropriation  made  therefor  by  the  city,  town  or 
village.  They  shall  work  under  the  direction  of  the  health  officer  and  may 
be  assigned  by  him  to  the  reduction  of  infant  mortality,  the  examination  or 
visitation  of  school  children  or  children  excluded  from  school,  the  discovery 
or  visitation  of  cases  of  tuberculosis,  the  visitation  of  the  sick  who  may  be 
unable  otherwise  to  secure  adequate  care,  the  instruction  of  members  of 
households  in  which  there  is  a sick  person,  or  to  such  other  duties  as  may 
seem  to  him  appropriate.  [Public  Health  Law,  § 21c,  as  amended  by  L. 
1913,  ch.  559.] 


§ 5.  INFECTIOUS  AND  CONTAGIOUS  OR  COMMUNICABLE  DIS- 
EASES; DUTIES  OF  BOARDS  OF  HEALTH;  REPORTS  OF 
HEALTH  OFFICERS  TO  STATE  COMMISSIONER  OF  HEALTH; 
DISEASE  IN  ALMSHOUSE. 

Every  local  board  of  health  and  every  health  officer  shall  guard  against 
the  introduction  of  such  infectious  and  contagious  or  communicable  dis- 
eases as  are  designated  in  the  sanitary  code,  by  the  exercise  of  proper 
and  vigilant  medical  inspection  and  control  of  all  persons  and  things 
infected  with  or  exposed  to  such  diseases,  and  provide  suitable  places 
for  the  treatment  and  care  of  sick  persons  who  cannot  otherwise  be  pro- 
provided  for.13  They  may,  subject  to  the  provisions  of  the  sanitary  code, 
prohibit  and  prevent  all  intercourse  and  communication  with  or  use  of  in- 
fected premises,  places  and  things,  and  require,  and  if  necessary,  provide 
the  means  for  the  thorough  purification  and  cleansing  of  the  same  before 
general  intercourse  with  the  same  or  use  thereof  shall  be  allowed.14  Every 
physician  shall  immediately  give  notice  of  every  case  of  infectious  and  con- 
tagious or  communicable  disease  required  by  the  state  department  of  health 


of  all  births,  marriages  and  deaths  occurring  within  its  jurisdiction;  and  the  cost 
of  so  doing,  not  to  exceed  the  amount  prescribed  in  the  act,  is  a town  charge  which 
must  be  audited  and  allowed  by  the  board  of  town  auditors.  People  ex  rel.  Wem- 
mell  v.  Town  Auditors,  34  Hun  336. 

12.  Burial  permits.  A permit  for  the  burial  of  the  dead,  with  a transit  permit 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


451 


Public  Health  Law,  § 25. 

to  be  reported  to  it,  to  the  health  officer  of  the  city,  town  or  village  where 
such  disease  occurs,  and  no  physician  being  in  attendance  on  such  case,  it 
shall  be  the  duty  of  the  superintendent  or  other  officer  of  an  institution, 
householder,  hotel  or  lodging  house  keeper,  or  other  person  where  such  case 
occurs,  to  give  such  notice.  Whenever  an  examination  for  diagnosis  by  a 
laboratory,  or  by  any  person  other  than  the  physician  in  charge  of  the  per- 
son from  whom  the  specimen  is  taken,  of  any  specimen  discloses  the  exist- 
ence of  a case  of  infectious  and  contagious  or  communicable  disease,  the 
person  in  charge  of  such  laboratory  or  the  person  making  such  examination 
shall  immediately  report  the  same,  together  with  all  the  facts  in  connection 
therewith,  to  the  health  officer  of  the  city,  town  or  village  where  such 
laboratory  is  situated  and  also  to  the  health  officer  of  the  city,  town  or  vil- 
lage from  which  such  specimen  came  and  shall  keep  a permanent  record 
of  all  the  facts  in  connection  with  such  examination,  including  the  identity 
of  the  person  from  whom  the  specimen  is  taken  and  the  name  of  the  physi- 
cian, if  any,  sending  such  specimen.  The  physician  or  other  person  giving 
such  notice  shall  be  entitled  to  the  sum  of  twenty-five  cents  therefor,  which 
shall  be  a charge  upon  and  paid  by  the  municipality  where  such  case  occurs. 
Every  local  health  officer  shall  report  to  the  state  department  of  health, 
promptly,  all  cases  of  such  infectious  and  contagious  or  communicable  dis- 
eases, as  may  be  required  by  the  state  department  of  health,  and  for  such 
reporting  the  health  officer  of  a village  or  town  shall  be  paid  by  the  munici- 
pality employing  him,  upon  the  certification  of  the  state  department  of 
health,  a sum  not  to  exceed  twenty  cents  for  each  case  so  reported.  The 
reports  of  cases  of  tuberculosis  made  pursuant  to  the  provisions  of  this  sec- 
tion shall  not  be  divulged  or  made  public  so  as  to  disclose  the  identity  of 
the  persons  to  whom  they  relate,  by  any  person ; except  in  so  far  as  may  be 
authorized  by  the  public  health  council.  The  board  of  health  shall  provide 


obtained  from  the  board  of  health  of  the  place  where  the  death  occurs,  authorizes  a 
body  to  be  buried  either  in  the  county  where  the  death  occurred  or  in  any  other 
county  without  any  permit  in  the  latter  case  from  the  local  board  of  health.  Eickel- 
berg  v.  Board  of  Health  of  Newtown,  47  Hun  371. 

13.  Quarantine.  To  justify  the  isolation  of  persons  infected  with  or  exposed  to 
contagious  and  infectious  diseases  the  fact  must  exist  that  such  persons  are  so 
infected  or  have  been  so  exposed.  No  authority  is  given  by  the  statute  to  the  board 
of  health  or  health  officer  to  quarantine  a person  simply  because  he  refuses  to  be 
vaccinated,  and  to  continue  him  in  quarantine  until  he  consents  to  such  vaccination. 
Matter  of  Smith,  146  N.  Y.  68;  revg.  84  Hun  465,  32  N.  Y.  Supp.  317.  The  mere 
fact  that  a person  has  been  exposed  to  the  smallpox,  although  he  refuse  to  be  vacci- 
nated, does  not  authorize  the  quarantine  of  such  person;  but  conditions  for  the 
communication  of  the  disease  must  exist.  Smith  v.  Emery,  11  App.  Div.  10,  42 
N.  Y.  Supp.  258.  As  to  liability  of  city  health  officer  in  enforcing  quarantine  es- 
tablished in  compliance  with  city  ordinance,  see  Crayton  v.  Larrabee,  220  N.  Y.  403. 

Infected  clothing  may  be  destroyed  by  a local  board  of  health.  Rept.  of  Atty. 
Genl.  (1894)  237. 

Services  of  a town  physician,  who  aids  in  inspecting  smallpox  cases  in  an  Indian 
reservation,  are  a town  charge.  Rept.  of  Atty.  Genl.  (1904)  282. 

14.  Exposing  person  affected  with  a contagious  disease.  Section  1756  of  the 

Penal  Law  provides  that:  “A  person  who  willfully  exposes  himself  or  another, 

affected  with  any  contagious  or  infectious  disease  in  any  public  place  or  thorough- 
fare, except  upon  his  necessary  removal  in  a manner  not  dangerous  to  the  public 
health  is  guilty  of  a misdemeanor.” 


452 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFEICERS. 


Public  Health  Law,  § 36a. 

at  stated  intervals,  a suitable  supply  of  vaccine  virus,  of  a quality  and  from 
a source  approved  by  the  state  department  of  health,  and  during  an  actual 
epidemic  of  smallpox  obtain  fresh  supplies  of  such  virus  at  intervals  not 
exceeding  one  week,  and  at  all  times  provide  thorough  and  safe  vaccination 
for  all  persons  in  need  of  the  same.  If  a pestilential,  infectious,  or  con- 
tagious disease  exists  in  any  county  almshouse  or  its  vicinity,  and  the  physi- 
cian thereof  shall  certify  that  such  disease  is  likely  to  endanger  the  health 
of  its  inmates,  the  county  superintendent  of  the  poor  may  cause  such  in- 
mates or  any  of  them  to  be  removed  to  such  other  suitable  place  in  the 
county  as  the  local  board  of  health  of  the  municipality  where  the  almshouse 
is  situated  may  designate,  there  to  be  maintained  and  provided  for  at  the 
expense  of  the  county,  with  all  necessary  medical  care  and  attendance  until 
they  shall  be  safely  returned  to  such  almshouse  or  otherwise  discharged. 
The  health  officer,  commissioner  of  health,  or  boards  of  health  of  the  cities 
of  the  first  class  shall  report  promptly  to  the  state  department  of  health  all 
cases  of  smallpox,  typhus  and  yellow  fever  and  cholera  and  the  facts  re- 
lating thereto.  [Public  Health  Law,  § 25,  as  amended  bv  L.  1913,  ch. 
559,  and  by  L.  1918,  ch.  177;  B.  C.  & G.  Cons.  L.,  p.  4436.] 

§ 5a.  PROVIDING  FOR  THE  CARE  AND  MAINTENANCE  OF  CAR- 
RIERS OF  DISEASE. 

Whenever  an  individual  is  declared  by  the  state  commissioner  of 
health  as  being  a carrier  of  typhoid  fever  bacilli  and  whenever,  for  the 
protection  of  the  public  health,  the  state  commissioner  of  health  shall 
have  certified  to  the  necessity  of  continued  quarantine;  or,  whenever, 
in  accordance  with  rules  and  regulations  adopted  by  the  state  commis- 
sioner of  health  a carrier  of  the  germs  of  typhoid  fever  is  prevented 
from  carrying  on  any  occupation  which  would  enable  him  to  gain  a 
livelihood,  such  individual  may  be  given  hospital  or  institutional  care 
under  the  surveillance  of  the  local  health  officer  at  the*  expense  of  the 
state  if  such  hospital  or  institution  in  the  judgment  of  the  state  com- 
missioner of  health  be  properly  equipped  for  the  care  and  maintenance 
of  said  individual. 

When  no  such  hospital  or  institution  is  available  and  when  in  the 
opinion*  of  the  state  commissioner  of  health  such  individual  may  be 
cared  for  at  home  or  in  a private  family  with  due  regard  to  the  pro- 
tection of  the  public  health  the  local  charities  commissioner  or  overseer 
of  the  poor  shall,  in  accordance  with  rules  and  regulations  adopted  by 
the  commissioner  of  health,  furnish  necessary  medical  attendance  and 
maintenance.  Ho  expenditure  for  the  purposes  herein  authorized  shall 
be  contracted  for  or  incurred  by  any  local  overseer  of  the  poor  or 
charities  commissioner  until  after  such  expenditure  has  been  authorized 
and  approved  by  the  state  commissioner  of  health.  A verified  state- 
ment of  any  such  approved  expense  incurred  hereunder  shall  be  trans- 
mitted by  the  local  overseer  of  the  poor  or  charities  commissioner  to 
the  state  commissioner  of  health.  The  commissioner  of  health  shall 
examine  this  statement  and  if  satisfied  that  such  authorized  expenses 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


453 


Public  Health  Law,  § 26. 

are  correct  and  necessary  in  accordance  with  rules  and  regulations 
adopted  by  him  he  shall  audit  and  allow  the  same  and  when  so  audited 
the  amount  thereof  shall  be  paid  by  the  state  treasurer  on  the  warrant  of 
the  comptroller  to  such  institution  or  local  poor  officer.  [Public  Health 
Law,  § 36a,  as  added  by  L.  1916,  ch.  371,  in  effect  May  1,  1916.] 

§ 6.  COMPLAINTS  AS  TO  NUISANCE;  ORDER  OF  BOARD. 

Every  such  hoard  shall  receive  and  examine  into  all  complaints  made 
hv  any  inhabitant  concerning  nuisances,  or  causes  of  danger  or  injury  to 
life  and  health  within  the  municipality,  and  may  enter  upon  or  within 
any  place  or  premises  where  nuisances  or  conditions  dangerous  to  life 
and  health  or  which  are  the  cause  of  nuisances  existing  elsewhere  are 
known  or  believed  to  exist,  and  by  its  members  or  other  persons  desig- 
nated for  that  purpose,  inspect  and  examine  the  same.  The  owners, 
agents  and  occupants  of  any  such  premises  shall  permit  such  sanitary 
examinations  to  be  made,  and  the  board  shall  furnish  such  owners, 
agents  and  occupants  with  a writtten  statement  of  the  results  and  con- 
clusions of  any  such  examination.  Every  such  local  board  shall  order 
the  suppression  and  removal  of  all  nuisances  and  conditions  detrimental 
to  life  and  health  found  to  exist  within  the  municipality.15  Whenever 
the  state  department  of  health  shall  by  notice  to  the  presiding  officer 

15.  Powers  conferred  by  section  are  broad  and  general  and  should  be 
interpreted,  in  the  light  of  the  beneficial  purposes  to  be  subserved.  They  include 
constant  and  necessary  inspection  and  supervision  with  the  view  of  anticipating, 
suppressing  and  preventing  all  dangers  which  may  threaten  the  public  health. 
Kent  v.  Village  of  North  Tarrytown,  26  Misc.  86,  56  N.  Y.  Supp.  885,  affd.  50 
App.  Div.  502,  64  N.  Y.  Supp.  178. 

To  justify  a board  of  health  in  determining  the  existence  of  a nuisance  facts 
must  exist  tending  to  show  that  the  thing  condemned  is  or  is  likely  to  become 
a nuisance.  Unless  such  facts  exist  there  is  no  justification  for  the  exercise  by 
the  health  officers  of  their  jurisdiction.  The  question  of  the  existence  of  a 
nuisance  is  in  each  case  jurisdictional.  If  there  is  no  nuisance  the  officers  have 
no  authority  to  act.  Coe  v.  Schultz,  47  Barb.  64;  2 Abb.  Pr.  (N.  S.)  193;  People 
ex  rel.  Copcutt  v.  Board  of  Health,  140  N.  Y.  1 ; 35  N.  E.  320;  Underwood  v.  Greene, 
42  N.  Y.  140. 

No  power  to  condemn  property. — Local  boards  of  health  have  no  power  to 
condemn  private  property  for  the  purpose  of  building  a sewer  through  it,  in  order 
to  abate  a nuisance  on  the  adjoining  property.  Rept.  of  Atty.  Genl.  (1894)  236. 

Force  of  ordinance. — The  legislature  may  confer  on  boards  of  health  the  power 
to  enact  sundry  ordinances  having  the  force  of  law  within  the  localities  for  which 
they  act.  Cartwright  v.  City  of  Cohoes,  39  App.  Div.  69,  56  N.  Y.  Supp.  731,  affd. 
165  N.  Y.  631. 

Under  the  provisions  of  this  section  a board  of  health  cannot  exercise  the  power 
of  license,  and  an  ordinance  declaring  certain  conduct  to  be  a nuisance  “ without 
special  permit”  is  invalid.  Village  of  Flushing  v.  Carraher,  87  Hun  63,  33  N.  Y. 
Supp.  951. 

What  constitutes  a nuisance. — A thing  is  a nuisance  when,  because  of  its  in- 
herent qualities  or  the  use  to  which  it  is  put,  it  works  an  injury  to  people  who 
live  in  its  neighborhood.  Health  Department  v.  Dassori,  21  App.  Div.  348,  47  N. 
Y.  Supp.  641. 

Fublic  nuisances.  As  to  what  are  public  nuisances,  and  as  to  the  crime  of 
maintaining  public  nuisances,  see  Penal  Law,  §§  1530-1531. 

Abatement  of  nuisances. — Officer  acts  at  his  peril,  and  is  liable  unless  it 
appears  that  the  thing  abated  was  in  fact  a nuisance.  Smith  v.  Irish,  37  App.  Div. 
220,  55  N.  Y.  Supp.  837 ; People  ex  rel.  Copcutt  v.  Board  of  Health,  140  N.  Y.  1. 


454 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Public  Health  Law,  § 31. 

of  any  local  board  of  health,  direct  him  to  convene  such  local  board 
to  take  certain  definite  proceedings  concerning  which  the  state  depart- 
ment of  health  shall  be  satisfied  that  the  action  recommended  by  them 
is  necessary  for  the  public  good,  and  is  within  the  jurisdiction  of  such 
board  of  health,  such  presiding  officer  shall  convene  such  local  board, 
which  shall  take  the  action  directed.  [Public  Health  Law,  § 26; 
B.  C.  & G.  Cons.  L.,  p.  4439.] 

§ 7.  REMOVAL  OF  NUISANCES  BY  BOARD  OR  ITS  OFFICERS;  EX- 
PENSE TO  BE  PAID  BY  OWNER. 

If  the  owner  or  occupant  of  any  premises  whereon  any  nuisance  or 
condition  deemed  to  be  detrimental  to  the  public  health  exists  or  the 
cause  of  the  existence  elsewhere,  fails  to  comply  with  any  order  or 
regulation  of  any  such  local  board  for  the  suppression  and  removal  of 
any  such  nuisance  or  other  matter,  in  the  judgment  of  the  board  detri- 
mental to  the  public  health,  made,  served  or  posted  as  required  in  this 

If  nuisance  is  outside  of  jurisdiction  board  cannot  summarily  abate,  but  may  in- 
voke the  aid  of  the  court  to  restrain  a violation  of  its  order.  Gould  v.  City  of 
Rochester,  105  N.  Y.  46,  revg.  39  Hun  79. 

The  right  to  abate  a nuisance  arises  from  the  necessity  of  the  case,  exists  only 
because  of  that  necessity  and  is  to  be  exercised  only  so  far  as  the  necessity  requires. 
A thing  which  is  a nuisance  because  of  the  use  to  which  it  is  put  cannot  be  de- 
stroyed by  way  of  abating  the  nuisance  unless  such  destruction  is  necessary.  If  a 
nuisance  can  be  abated  by  discontinuing  the  use  it  must  be  abated  in  that  way. 
Health  Department  v.  Dassori,  21  App.  Div.  348,  47  N.  Y.  Supp.  641. 

A town  board  of  health  has  no  jurisdiction  to  suppress  a nuisance  unless 
proof  is  made  before  the  board  that  a nuisance  exists.  The  board  cannot  impose 
a fine  upon  a person  who  tears  up  and  obstructs  a drain  contrary  to  the  rules  of 
the  board,  where  it  does  not  appear  by  proof  produced  before  the  board  that  the 
obstructed  drain  was  a nuisance,  and  where  the  person  obstructing  the  drain  has 
not  been  cited  to  appear  before  the  board  and  show  cause  why  he  should  not  be 
ordered  to  remove  the  obstruction.  Town  of  Fayette  v.  Greenleaf,  44  Misc.  352,  89 
N.  Y.  Supp.  1093. 

Notice.— In  construing  a local  act,  the  court  held  that  duties  of  the  board  of 
health,  in  respect  to  inquiring  into  and  determining  whether  or  not  a nuisance 
existed,  were  of  quasi  judicial  character  and  an  omission  to  give  notice  of  the 
proposed  action  was  fatal.  In  the  absence  of  any  prescribed  length  of  notice  a 
reasonable  opportunity  is  implied.  People  v.  Board  of  Health,  58  Hun  595,  12  N.  Y. 
S.  561.  See  also  People  v.  Wood,  62  Hun  131,  16  N.  Y.  Supp.  664;  Schoefflin  v. 
Calkins  & Davis,  5 Misc.  159,  25  N.  Y.  Supp.  696.  But  see  People  ex  rel.  Copcutt  v. 
Board  of  Health,  140  N.  Y.  1. 

Judicial  review.— The  acts  of  municipal  authorities  in  abating  nuisances  are 
not  subject  to  judicial  interference  unless  manifestly  unreasonable  or  oppressive, 
or  unwarrantably  invade  private  rights  or  clearly  transcend  the  powers  granted 
to  such  authorities.  Although  a local  act  contains  no  provision  that  notice  shall  be 
given  to  the  owner,  he  is  entitled  to  an  opportunity  to  contest  in  a judicial  pro- 
ceeding, the  reasonableness  of  the  order  and  the  facts  under  which  it  proceeded. 
Eckhardt  v.  City  of  Buffalo,  19  App.  1,  46  N.  Y.  Supp.  204,  affd.  156  N.  Y.  658. 

Existence  of  nuisance  although  declared  to  be  such  by  board  of  health  is  still 
open  to  determination  in  the  courts.  Village  of  Flushing  v.  Carraher,  87  Hun, 
63,  33  N.  Y.  Supp.  951 ; People  ex  rel.  Copcutt  v.  Borad  of  Health,  140  N.  Y.  1. 

Action  of  board  not  reviewable  by  certiorari. — The  board  of  health  has  a 
right  to  act  upon  its  own  inspection  and  knowledge  of  the  alleged  nuisance.  It 
is  not  obliged  to  hear  any  party.  It  can  obtain  its  information  from  any  source 
and  in  any  way,  hence  its  determination  upon  the  question  of  nuisance  is  not 
reviewable  by  certiorari.  People  ex  rel.  Copcutt  v.  Board  of  Health,  140  N.  Y.  1. 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


455 


Public  Health  Law,  § 31. 

article,  such  boards  or  their  servants  or  employees  may  enter  upon  the 
premises  to  which  such  order  or  regulation  relates,  and  suppress  or 
remove  such  nuisance  or  other  matter.16  The  expense  of  such  suppression 
or  removal  shall  be  paid  by  the  owner  or  occupant  of  such  premises,  or 
by  the  person  who  caused  or  maintained  such  nuisance  or  other  matters, 
and  the  board  may  maintain  an  action  in  the  name  of  the  municipality  to 
recover  such  expense,  and  the  same  when  recovered  shall  be  paid  to  the 
treasurer  of  the  municipality,  or  if  it  has  no  treasurer  to  its  chief  fiscal 
officer,  to  be  held  and  used  as  the  funds  of  the  municipality.  Whenever 


16.  Abatement  of  nuisances.  A board  of  health  may  abate  a nuisance 
of  a public  character,  and  exercise  every  power  necessary  to  this  end,  but  it 
cannot  go  into  the  domain  of  public  improvement  and  erect  buildings  and 
construct  drains  not  necessary  to  the  abatement  of  a nuisance  and  impose 
the  burden  upon  the  individual  or  his  property.  Haag  v.  City  of  Mt.  Ver- 
non, 41  App.  Div.  366;  58  N.  Y.  Supp.  581.  The  law  confers  upon  boards  of 
health  very  extensive  powers.  When  acting  in  good  faith,  and  when  the 
public  health  or  comfort  demands  summary  procedure  on  their  part,  they 
are  justified  in  taking  possession  of,  purifying,  or  even  destroying  the  build- 
ings or  other  property  of  a citizen.  Regan  v.  Fosdick,  19  Misc.  489;  43  N. 
Y.  Supp.  1102.  If  the  only  way  in  which  a nuisance  can  be  abated  is  by  the 
destruction  of  a building,  such  destruction  is  authorized.  Health  Department 
v.  Dassori,  21  App.  Div.  348;  47  N.  Y.  Supp.  641. 

The  abatement  of  a nuisance  and  the  charge  of  the  expense  thereof  upon 
the  owner  or  occupant  causing  the  nuisance,  should  be  exercised  only  in  ex- 
treme cases,  and  then  only  upon  notice  and  hearing.  People  v.  Wood,  62  Hun, 
131;  16  N.  Y.  Supp.  664. 

It  seems  that  whoever  abates  an  alleged  nuisance  and  thus  destroys  and 
injuries  private  property,  or  interferes  with  private  rights,  whether  he  be  a 
public  officer  or  a private  person,  unless  he  acts  under  a judgment  or  order 
of  the  court  having  jurisdiction,  does  it  at  his  peril,  and  when  his  act  is 
challenged  in  the  regular  judicial  tribunals  it  must  appear  that  the  thing 
abated  was  in  fact  a nuisance.  People  ex  rel.  Copcutt  v.  Board  of  Health, 
140  N.  Y.  1;  35  N.  E.  320. 

Under  the  act  from  which  this  section  was  derived  it  was  held  that  a town 
board  of  health  may  lawfully  make  an  order  for  the  suppression  and  removal 
of  a nuisance  consisting  of  the  discharge  of  sewage  on  lands  of  a town  by  a 
city.  Bell  v.  City  of  Rochester,  58  Hun,  602;  11  N.  Y.  Supp.  305. 

Local  board  may  order  the  removal  of  pulp  wood  from  a river  which  is  the 
source  of  the  water  supply.  Rept.  of  Atty.  Genl.  (1905)  362. 

Abatement  of  nuisances  on  private  property. — A resolution  of  the  board  of 
health  that  certain  ponds  are  a menace  to  public  health,  declaring  them  to  be 
nuisances  and  empowering  the  health  officer  to  abate  the  same,  is  not  sufficient 
to  entitle  a contractor  employed  by  the  health  officer  for  the  purpose  of  improv- 
ing ponds  to  charge  the  towns  with  sums  expended  in  working  upon  ponds 
belonging  to  private  owners,  who  are  not  notified  as  required  by  statute.  People 
ex  rel.  Burns  v.  Painter,  128  App.  Div.  69,  112  N.  Y.  Supp.  473. 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Public  Health  Law,  § 32. 


456 


the  suppression  or  removal  of  such  nuisance  or  conditions  detrimental 
to  health  demand  the  immediate  expenditure  of  money,  every  such  local 
board  of  health  shall  be  authorized  to  use  for  such  purpose  any  money 
in  the  hands  of  the  board,  or  may  call  on  the  city  council  for  such 
money  or  it  may  borrow  the  same  on  the  credit  of  the  municipality. 
All  such  moneys  so  expended  or  borrowed  shall  be  immediately  repaid 
to  the  fund  or  source  whence  they  were  received  on  the  recovery  of  the 
same  by  action  or  otherwise  from  the  persons  responsible  for  the  ex- 
penses of  suppression  or  removal.  [Public  Health  Law,  § 31,  as 
amended  by  L.  1913,  ch.  559;  B.  C.  & G.  Cons.  L.,  p.  4412.] 

§ 8.  EXPENSE  OF  ABATEMENT  OF  NUISANCES  A LIEN  UPON  THE 

PREMISES. 

If  execution  upon  a judgment  for  the  recovery  of  the  expense  of  the 
suppression  or  removal  of  a nuisance  or  other  matter,  pursuant  to  an 
order  or  regulation  of  any  such  local  board,  is  returned  wholly  or  in 
part  unsatisfied,  such  judgment,  if  docketed  in  the  place  and  manner 
required  by  law  to  make  a judgment  of  a court  of  record  a lien  upon 
real  property,  shall  be  a first  lien  upon  such  premises,  having  preference 
over  all  other  liens  and  incumbrances  whatever.  The  board  may  cause  such 
premises  to  be  sold  for  a term  of  time  for  the  payment  and  satisfaction 
of  such  lien  and  the  expenses  of  the  sale.  Notice  of  such  sale  shall  be 
published  for  twelve  weeks  successively,  at  least  once  in  each  week,  in  a 
newspaper  of  the  city,  village  or  town,  or  if  no  newspaper  is  published 
therein,  in  the  newspaper  published  nearest  to  such  premises.  If  the 
owner  or  occupant  of  the  premises,  or  his  agent,  is  known,  a copy  of  such 
notice  shall  be  served  upon  him,  either  personally,  at  least  fourteen  days 
previous  to  the  sale,  or  by  mail  at  least  twenty-eight  days  prior  thereto. 
The  premises  shall  be  sold  to  the  person  offering  to  take  them  for  the 
shortest  time,  paying  the  amount  unpaid  on  such  judgment  and  interest 
and  the  expenses  of  such  notice  and  sale.  A certificate  of  the  sale, 
signed  and  acknowledged  by  the  president  and  secretary  of  the  board, 
shall  be  made  and  delivered  to  the  purchaser,  and  may  be  recorded  as  a 
conveyance  of  real  property,  and  the  purchaser  shall  thereupon  be  entitled 
to  the  immediate  possession  of  such  premises,  and,  if  occupied,  may  main- 
tain an  action  or  proceeding  to  recover  the  possession  thereof  against  the 
occupant,  as  against  a tenant  of  real  property  holding  over  after  the 
expiration  of  his  term;  and  the  cost  of  any  such  action  or  proceeding, 
if  not  paid  by  the  occupant,  shall  also  be  a lien  upon  such  premises, 
having  the  same  preference  as  the  lien  of  such  judgment,  and  the  right 
of  the  purchaser  to  such  premises  shall  be  extended  for  a longer  term, 
which  shall  bear  the  same  proportion  to  the  original  term  as  the  amount 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


4 


Public  Health  Law,  §§  27,  28. 

of  such  costs  bears  to  the  amount  paid  by  the  purchaser  on  such  sale. 
The  term  of  the  purchaser  at  any  such  sale  shall  commence  when  he  shall 
have  acquired  possession  of  the  premises  sold.  At  any  time  within  six 
months  after  recording  such  certificate,  the  owner  of  the  premises  or  any 
lessee,  mortgagee  or  incumbrancer  thereof,  or  of  any  part  of  the  same, 
may  redeem  the  premises  or  any  such  part  from  such  sale  by  paying 
to  the  purchaser  the  amount  paid  by  him  on  the  sale,  and  all  costs  and 
expenses  incurred  by  him  in  any  action  or  proceeding  to  recover  possession 
with  interest  at  the  rate  of  ten  per  centum  per  annum  thereon.  If 
redemption  is  made  by  the  owner,  the  right  of  the  purchaser  shall  be 
extinguished;  if  by  a lessee,  the  amount  paid  shall  be  applied  as  a pay- 
ment upon  any  rent  due  or  which  may  accrue  upon  his  lease;  if  by  a 
mortgagee  or  an  incumbrancer,  the  amount  paid  shall  be  added  to  his 
mortgage,  incumbrance  or  other  lien,  or  if  he  have  more  than  one  to  the 
oldest,  and  shall  thereafter  be  a part  of  such  mortgage,  lien  or  incum- 
brance and  enforceable  as  such.  [Public  Health  Law,  § 32;  B.  C.  & 
G.  Cons.  L.,  p.  4143.] 

§ 9.  REMOVAL  OF  ACCUMULATION  OF  WATER  TENDING  TO  MOS- 
QUITOES; PAYMENT  OF  EXPENSE. 

Owner  to  bear  all  or  'part  of  expense  of  removal  of  waters  wherein 
mosquito  larvae  breed. — Whenever  the  local  board  of  health  of  a mu- 
nicipality shall  determine  that  any  accumulation  of  water  wherein  mos- 
quito larvge  breed,  constitutes  a nuisance  or  a danger  or  injury  to  life 
or  health,  the  owner  or  owners  of  the  premises  on  which  the  breeding 
place  is  located  shall  bear  the  expense  of  its  suppression  or  removal,  or 
so  much  thereof  as  the  local  board  may  have  determined  to  be  equitable 
as  hereinafter  provided,  and  for  the  amount  thereof  an  action  may  be 
maintained  in  the  name  of  the  municipality  and  the  same  shall  become 
a first  lien  on  the  premises  as  provided  by  sections  thirty-one  and  thirty- 
two  of  this  article.17  [Public  Health  Law,  § 27,  as  amended  by  L.  1913, 
ch.  559 ; B.  C.  & G.  Cons.  L.,  p.  4440.] 

Assessing  cost  on  property  benefited. — If  such  local  board  shall  deter- 
mine, in  its  discretion,  that,  owing  to  the  natural  conditions  which  are 
favorable  to  the  breeding  of  mosquitoes  and  owing  to  the  benefits  to  be  se- 
cured to  the  public  by  the  suppression  of  such  conditions,  some  part  or  all 
of  the  expense  of  suppressing  or  removing  a breeding  place  for  mos- 
quitoes should,  in  equity,  be  borne  by  the  owners  of  the  property  which 
will  be  benefited  by  such  suppression  or  removal,  the  local  board  shall 
make  application  as  hereinafter  provided,  for  the  appointment  of  three 
commissioners,  and  the  county  court  of  the  county  in  which  are  situated 
the  premises  whereon  the  breeding  place  is  located,  or,  in  case  such  prem- 

17.  As  to  establishment  of  commission  for  extermination  of  mosquitos  in  coun- 
ties adjacent  to  the  city  of  New  York,  having  a population  of  less  than  200,000,  see 
Article  21  of  Public  Health  Law,  as  inserted  by  L.  1916,  ch.  408. 


458 


TOWNS.  TOWN  MEETINGS  AND  TOWN  OFFICERS 


Public  Health  Law,  § 29. 


ises  are  situated  in  more  than  one  county,  the  supreme  court,  shall  there- 
upon appoint  three  persons  as  commissioners  to  proceed  with  the  work 
necessary  for  the  suppression  or  removal  of  such  breeding  place,  and  to 
apportion,  assess  and  collect  the  cost  thereof,  as  so  determined  from  the 
owners  of  such  property  benefited.  Such  appointment,  apportionment, 
assessment  and  collection  shall  he  made  in  the  manner  provided  for  the 
appointment  of  commissioners  to  suppress  and  remove  any  such  breeding 
place  by  draining  the  premises  on  wdiich  such  breeding  place  is  located  by 
means  of  ditches  and  channels  constructed  over  lands  belonging  to  others 
and  the  owners  of  the  premises  to  he  drained  and  to  apportion,  assess  and 
collect  the  cost  thereof  from  the  owners  of  the  property  benefited  thereby. 
In  any  case  where,  under  the  provisions  of  this  article  commissioners  are 
to  determine  what  property  is  benefited  and  to  what  extent  said  property 
is  benefited  by  the  suppression  or  removal  of  any  such  breeding  place, 
such  commissioners  shall  not  be  restricted  in  their  determination  to  prop- 
erty immediately  adjoining  the  premises  whereon  such  breeding  place  is 
located;  and,  in  apportioning  the  benefit  to  any  property,  such  commis- 
sioners may  consider  any  circumstances  by  reason  whereof  any  property 
will  be  benefited  by  the  suppression  and  removal  of  such  breeding  place. 
[Public  Health  Law,  § 28;  B.  C.  & G.  Cons.  L.,  p.  4440.] 

Municipality  may  bear  part  of  expense. — If  such  local  board  shall 
have  determined  that,  owing  to  the  natural  conditions  which  are  favorable 
to  the  breeding  of  mosquitoes  and  owing  to  the  benefit  to  be  secured  to  the 
public  by  the  suppression  of  such  conditions,  a part  of  the  expense  of  such 
suppression  or  removal  shall  be  borne  by  the  owner  of  such  premises  and 
a part  thereof  by  the  municipality  wherein  the  premises  are  situated,  such 
owner  or  occupant  may  proceed  to  suppress  or  remove  such  breeding  place 
and  shall  be  reimbursed  by  the  municipality  for  such  proportion  of  the 
reasonable  expense  of  such  suppression  or  removal  as  the  local  board  shall 
have  determined  should  be  borne  by  the  municipality.  For  the  purpose 
of  ascertaining  the  actual  cost  of  such  suppression  or  removal,  the  local 
board  or  its  duly  authorized  agents  may  at  all  times  have  access  to  the 
premises  whereon  the  work  is  being  carried  on ; and  the  owner  of  the  prem- 
ises shall  furnish  to  such  local  board  such  information  as  such  local 
board  may  deem  necessary  or  desirable  for  the  purpose  of  ascertaining  such 
actual  cost.  If  in  any  such  case  the  owner  of  the  premises  shall  not,  within 
a reasonable  time,  proceed  to  suppress  or  remove  such  breeding  place,  the 
local  board  may  proceed  to  suppress  and  remove  the  same,  and  for  such 
proportion  of  the  expense  of  such  suppression  and  removal  as  the  local 
board  shall  have  determined  to  be  equitable,  an  action  may  be  maintained 
against  such  owner,  and  the  same  shall  become  a first  lien  upon  the  prem- 
ises as  above  provided.  [Public  Health  Law,  § 29;  B.  C.  & G.  Cons. 
L.,  p.  4441.] 

Assessing  expense  upon  property  benefited. — If  such  local  board  shall 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


459 


Public  Health  Law,  §§  30,  34. 

deem  it  necessary,  in  order  to  suppress  or  remove  any  such  breeding 
place,  that  any  swamp,  bog,  meadow  or  other  low  or  wet  lands  within 
the  municipality  over  which  said  board  has  jurisdiction,  shall  be  drained 
and  that  it  is  necessary,  in  order  thereto,  that  a ditch  or  ditches  or  other 
channel  for  the  free  passage  of  water  should  be  opened  through  lands 
belonging  to  a person  or  persons  other  than  the  owners  of  said  swamp,  bog, 
meadow  or  other  low  or  wet  lands,  or  that  any  other  act  or  thing  be  done 
upon  or  over  land  belonging  to  others  than  the  owners  of  the  lands  whereon 
such  breeding  place  shall  be  located,  such  board  shall  make  application  for 
the  appointment  of  three  commissioners  to  construct  and  complete  such 
channels  and  ditches  for  the  free  passage  of  water,  or  to  do  such  other  act 
or  thing  as  such  local  board  shall  have  determined  to  be  necessary  upon 
such  lands  in  order  to  suppress  or  remove  such  breeding  place,  and  to 
apportion,  assess  and  collect  the  amount  of  the  cost  thereof  from  the  owners 
of  the  lands  which  will  be  benefited  by  the  suppression  and  removal  of  such 
breeding  place.  Such  commissioners  shall  be  appointed,  and  shall  proceed, 
when  appointed,  to  construct  and  complete  such  channels  and  ditches,  or 
do  such  other  act  or  thing  as  may  be  necessary,  and  to  apportion,  assess 
and  collect  the  cost  of  the  same  from  the  owners  of  the  lands  benefited 
by  such  suppression  or  removal,  in  the  manner  provided  for  the  appoint- 
ment of  commissioners  for  the  drainage  of  any  swamp,  bog,  meadow  or 
other  low  or  wet  land  and  the  apportionment,  assessment  and  collection 
of  the  cost  of  such  drainage,  by  the  drainage  law,  and  this  article  shall  be 
construed  with  the  provisions  of  such  drainage  law.  In  case  of  conflict 
the  provisions  of  this  article  shall  be  substituted  for  the  provisions  of  such 
drainage  law,  but  such  parts  of  the  provisions  of  the  drainage  law  as  are 
not  necessarily  superseded  shall  apply.  TPublic  health  Law,  § 30 ; B.  C. 
& G.  Cons.  L.,  p.  4441.] 


§ 10.  JURISDICTION  OF  TOWN  BOARD  OF  HEALTH  OYER  CITY  OR 
TILLAGE. 

A town  board  of  health  shall  not  have  jurisdiction  over  any  city  or 
incorporated  village  or  part  of  such  city  or  village  in  such  town.  [Pub- 
lic Health  Law,  § 34,  as  amended  by  L.  1913,  ch.  559;  B.  C.  & G. 
Cons.  Law,  p.  4445.] 

§ 11.  EXPENSES  INCURRED  BY  TOWN  BOARD  OF  HEALTH  A TOWN 
CHARGE;  PROPERTY  OF  TILLAGE  EXEMPTED  FROM  TAXATION 
THEREFOR. 

All  expenses  incurred  by  any  local  board  of  health  in  the  performance 
of  the  duties  imposed  upon  it  or  its  members  by  law  shall  be  a charge 
upon  the  municipality,  and  shall  be  audited,  levied,  collected  and  paid 
in  the  same  manner  as  the  other  charges  of,  or  upon,  the  municipality 


460  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Health  Law,  § 35. 

are  audited,  levied,  collected  and  paid.17  The  taxable  property  of  any 
incorporated  village  shall  not  be  subject  to  taxation  for  maintaining 
any  town  board  of  health,  or  for  any  expenditure  authorized  by  the  towTn 
board  of  health,  but  the  costs  and  expenditures  of  the  town  board  shall 


17.  Proper  charges  against  towns  as  health  districts.  When  a town  board  of 
health  incurs  expense  in  the  performance  of  its  duties  in  guarding  against  the  intro- 
duction into  the  town  of  contagious  or  infectious  diseases,  or  in  providing  suitable 
places  for  the  sick  who  cannot  otherwise  be  provided  for,  such  expense  is  a legal 
claim  against  the  town  and  should  be  audited  and  allowed  as  are  other  town  ex- 
penses. See  Matter  of  Taxpayers  of  Plattsburgh,  157  N.  Y.  86;  51  N.  E.  512. 
Where  poor  persons  under  quarantine  are  on  this  account  unable  to  provide  for 
themselves,  their  care  and  support  is  a proper  charge  against  the  health  district. 
Opinion  of  Comptroller  (1916),  9 State  Dept.  Rep.  455,  522.  Expenses  necessarily 
incurred  in  suppressing  an  epidemic  are  a charge  against  the  district.  Opinion  of 
Comptroller  (1916),  9 State  Dept.  Rep.  536. 

Where  a person  coming  from  another  state  and  not  having  yet  gained  a residence 
here,  who  is  dependent  upon  his  daily  labor  for  the  support  of  himself  and  his 
family,  but  who  has  never  been  a public  charge,  is  stricken  with  a contagious  disease 
and  quarantined  by  the  health  authorities,  and  being  unable  to  work  is  supplied 
with  necessaries  for  the  care  and  support  of  himself  and  family  until  he  recovers, 
upon  the  order  or  direction  of  the  town  board  of  health  to  charge  the  same  to  the 
town,  the  cost  of  such  necessaries  is  a proper  charge  against  the  town.  Matter  of 
Bellows  v.  Board  of  Supervisors,  73  Misc.  566. 

The  charge  by  a town  constable  for  burying  the  dead  bodies  of  animals  is  a 
proper  charge  against  the  town,  when  done  pursuant  to  the  direction  of  the  local 
board  of  health.  Matter  of  Town  of  Hempstead,  36  App.  Div.  321,  336;  55  N.  Y. 
Supp.  345,  affd.  100  N.  Y.  685. 

The  expense  of  building  a drain  designed  to  abate  a nuisance  is  a town  charge, 
the  contract  therefor  being  made  with  the  Town  Board  of  Health.  Malloy  v.  Board 
of  Health,  60  Hun  422,  15  N.  Y.  Supp.  487. 

A municipality  is  liable  under  a contract  by  the  board  of  health  with  a party 
to  carry  into  effect  its  orders  and  regulations  and  to  inspect  and  examine  premises 
of  which  complaint  has  been  made.  Kent  v.  Village  of  North  Tarrytown,  26  Misc. 
86,  56  N.  Y.  Supp.  885,  affd.  50  App.  Div.  502,  64  N.  Y.  Supp.  178. 

Expenses  of  quarantine  are  a charge  upon  the  municipality.  Kept,  of  Atty.  Genl. 
(1902)  205,  271. 

Expense  of  treatment  of  paupers  when  ill.  Rept.  of  Atty.  Genl.  (1902)  205. 

Expense  of  caring  for  smallpox  patients  should  be  audited  by  the  town  board. 
Rept.  of  Atty.  Genl.  (1903)  478. 

Fee  may  be  charged  for  preparing  certificates  regulating  the  employment  of 
women  and  children.  Rept.  of  Atty.  Genl.  (1897)  163. 


TOWN  BOARD  AS  LOCAL  BOARD  OF  HEALTH. 


461 


Public  Health  Law,  § 36. 


be  assessed  and  collected  exclusively  on  the  property  of  the  town  outside 
of  any  such  village.  [Public  Health  Law,  § 35,  as  amended  by  L.  1913, 
ch.  559;  B.  C.  & G.  Cons.  L.,  p.  4445.] 


§ 12.  RELIEF  OF  INDIGENT  INDIANS  IN  CASE  OF  EPIDEMIC. 

Whenever  an  epidemic  of  a contagious  or  infectious  disease  shall  prevail 
among  the  Indians  of  any  nation,  tribe  or  band  in  this  state,  the  overseer 
of  the  poor  of  any  town  in  which  the  reservation  of  such  nation,  tribe  or 
band,  is  wholly  or  partly  situated,  may  in  accordance  with  rules  and  regu- 
lations adopted  by  the  state  commissioner  of  health,  cause  needed  medical 
attendance,  provisions  and  maintenance  to  be  furnished  to  any  indigent 
Indian  residing  in  the  town,  who,  or  a member  of  whose  family,  is  afflicted 
with  such  disease,  while  such  disease  shall  continue;  and  the  cost  thereof 
after  being  audited  as  herein  provided  shall  be  a state  charge.  A verified 
statement  of  any  expenses  incurred  under  this  section  shall  be  transmitted 
by  the  overseer  of  the  poor  to  the  state  commissioner  of  health.  Such  com- 
missioner shall  examine  into  the  matter,  and  if  satisfied  that  such  expenses 
were  properly  and  necessarily  incurred  in  accordance  with  the  rules  and 
regulations  of  the  state  commissioner  of  health,  shall  audit  and  allow  the 
same,  and  when  so  audited,  the  amount  thereof  shall  be  paid  by  the  state 
treasurer  on  the  warrant  of  the  comptroller  to  such  overseer  of  the  poor. 
[Public  Health  Law,  § 36;  B.  C.  & G.  Cons.  L.,  p.  4446.] 


Expenses  of  the  boards  of  health  of  a village  and  of  a town  are  not  to  be  com- 
bined. Rept.  of  Atty.  Genl.  (1894)  359. 

Expenses  of  board  of  health  during  an  epidemic  of  smallpox  for  sanitary  police 
and  for  the  support  and  maintenance  of  different  families  quarantined  during  such 
epidemic  are  a charge  upon  the  municipality.  Rept.  of  Atty.  Genl.  (1908)  512. 

Compensation  of  attending  physician  and  watchers  in  a smallpox  case,  having 
been  lixed  by  the  local  board  of  health,  should  be  audited  and  paid  where  it  is 
shown  that  the  local  board  exercised  its  best  efforts.  Rept.  of  Atty.  Genl.  (1908) 
525. 

Claims  for  damages  arising  from  the  burning  or  fumigation  of  school  books  in  a 

schoolhouse,  by  order  of  the  town  board  of  health,  following  an  epidemic  of  scarlet 
fever,  are  not  proper  town  charges.  Rept.  of  Atty.  Genl.  (1912),  vol.  2,  p.  179. 

Reimbursement  by  the  state.  There  is  no  provision  in  the  statute  for  the  reim- 
bursement by  the  state  of  individuals  or  a locality  for  services  rendered  for  ex- 
penses incurred,  even  under  the  direction  of  the  state  board  of  health.  City  of 
Geneva  v.  State  of  New  York,  70  Misc.  206,  128  N.  Y.  Supp.  170. 


462 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 


Public  Health  Law,  § 37. 

§ 13.  MANDAMUS  AGAINST  LOCAL  BOARD  OF  HEALTH  AT  IN- 
STANCE OF  STATE  BOARD  OF  HEALTH. 

The  performance  of  any  duty  or  the  doing  of  any  act  enjoined,  pre- 
scribed or  required  by  this  article,  may  be  enforced  by  mandamus 
at  the  instance  of  the  state  department  of  health  or  its  president  or  secre- 
tary, or  of  the  local  board  of  health,  or  of  any  citizen  of  full  age  resident  of 
the  municipality  where  the  duty  should  be  performed  or  the  act  done. 
[Public  Health  Law,  37 ; B.  C.  & G.  Cons.  L.,  p.  4446.] 


DUTIES  AS  TO  VITAL  STATISTICS. 


462a 


Public  Health  Law,  § 370. 


CHAPTER  XXXII-A. 

DUTIES  OF  TOWN  OFFICERS  IN  RESPECT  TO  VITAL  STATISTICS. 

(This  chapter  contains  article  20  of  the  Public  Health  Law,  as  inserted  by 
L.  1913,  ch.  619,  in  effect  January  1,  1914.) 

Section  1.  Registration  of  births  and  deaths;  duties  of  state  department  of  health. 

2.  Duties  of  state  commissioner  of  health  as  to  vital  statistics. 

3.  Registration  districts. 

4.  Registrar  of  vital  statistics. 

5.  Correction  of  defective  registration. 

6.  Permits  for  burial  or  removal  of  dead  bodies. 

7.  Registration  of  stillborn  children. 

8.  Certificate  of  death. 

9.  Registration  of  deaths  occurring  without  medical  attendance. 

10.  Duties  of  undertakers. 

11.  Duties  of  undertakers;  interment  within  the  state. 

12.  Interments. 

13.  Registration  of  births. 

14.  Certificate  of  birth. 

15.  Registration  of  name  of  child  subsequent  to  filing  of  birth  certificate. 

16.  Registration  of  physicians,  midwives  and  undertakers. 

17.  Registration  of  persons  in  institutions. 

18.  Records  to  be  kept  by  state  commissioner  of  health. 

19.  Certified  copies  of  birth  certificates  evidence  of  age. 

20  District  records  to  be  kept  by  registrar. 

21.  Fees  of  registrar. 

22.  Certified  copies  of  records;  state  commissioner  of  health  to  furnish. 

23.  Penalties. 

24.  Enforcement. 

25.  Exemptions. 

§ 1.  REGISTRATION  OF  BIRTHS  AND  DEATHS;  DUTIES  OF  STATE  DE- 
PARTMENT OF  HEALTH. 

The  state  department  of  health  shall  have  charge  of  the  registration 
of  births  and  deaths,  shall  provide  the  necessary  instructions,  forms  and 
blanks  for  obtaining  and  preserving  such  records,  and  shall  procure  the 
faithful  registration  of  the  same  in  each  primary  registration  district  as 
constituted  by  this  article  and  in  the  division  of  vital  statistics  at  the 
capital  of  the  state.  The  said  department  shall  be  charged  with  the 


462b  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Health  Law,  §§  371,  372,  373. 

uniform  and  thorough  enforcement  of  this  article  throughout  the  state 
and  shall  from  time  to  time  recommend  any  additional  legislation  that 
may  he  necessary  for  this  purpose.  The  public  health  council  may 
establish  such  rules  and  regulations  supplementary  to  the  provisions  of 
this  article  and  not  inconsistent  therewith,  as  it  may  deem  necessary 
from  time  to  time,  in  relation  to  the  registration  of  births  and  deaths. 
Such  rules  and  regulations  shall  be  observed  by  all  authorities  upon 
whom  duties  are  imposed  by  this  article  in  connection  with  the  regis- 
tration of  births  and  deaths.  [Public  Health  Law,  § 370,  as  added  by 
L.  1913,  ch.  619.] 

§ 2.  DUTIES  OF  STATE  COMMISSIONER  OF  HEALTH  AS  TO  YITAL 
STATISTICS. 

The  state  commissioner  of  health  shall  have  general  supervision  of 
the  division  of  vital  statistics  which  shall  be  established  by  the  depart- 
ment of  health,  and  which  shall  be  under  the  immediate  direction  of  a 
director  to  be  appointed  by  the  commissioner,  who  shall  possess  such 
qualifications  as  may  be  prescribed  by  the  public  health  council.  The 
state  commissioner  of  health  shall  detail  to  the  division  of  vital  sta- 
tistics such  clerical  and  other  assistants  as  may  be  necessary  to  carry 
into  effect  the  provisions  of  this  act.  The  trustees  of  public  buildings 
shall  provide  suitable  offices  in  the  capitol  or  elsewhere  for  the  division 
of  vital  statistics,  which  shall  be  suitably  equipped  for  the  permanent 
and  safe  preservation  of  all  records  received  or  made  under  the  pro- 
visions of  this  act.  [Idem,  § 371.] 

§ 3.  REGISTRATION  DISTRICTS. 

The  state  shall  be  divided  into  registration  districts  as  follows:  Each 

city,  each  incorporated  village,  each  town,  and  each  state  hospital,  charitable 
or  penal  institution  shall  constitute  a primary  registration  district,  pro- 
vided that  the  state  commissioner  of  health  may  combine  two  or  more 
primary  registration  districts  or  divide  one  registration  district  into  two 
or  more  primary  districts  to  facilitate  registration.  [Idem,  § 372,  as 
amended  by  L.  1917,  ch.  321.] 

§ 4.  REGISTRAR  OF  VITAL  STATISTICS. 

In  each  primary  registration  district  there  shall  be  a registrar  of  vital 
statistics.  Qualifications  of  registrars  of  vital  statistics  hereafter  appointed 
shall  be  prescribed  by  the  public  health  council.  A local  health  officer 
shall  be  eligible  for  appointment  as  registrar  of  vital  statistics  and  if  so 
appointed  and  if  receiving  a salary  equivalent  to  not  less  than  fifteen  cents 
per  year  per  inhabitant  of  such  registration  district,  he  shall  serve  as 
registrar  of  vital  statistics  without  additional  remuneration  therefor. 
In  towns  and  villages  the  registrar  or  registrars  of  vital  statistics  shall 


DUTIES  AS  TO  VITAL  STATISTICS. 


462c 


Public  Health  Law,  § 374. 

be  appointed  by  the  town  board  and  by  the  village  board  of  trustees  re- 
spectively ; in  the  cities,  unless  otherwise  provided  by  the  charter,  the  regis- 
trar or  registrars  of  vital  statistics  shall  be  appointed  by  the  mayor.  In 
each  primary  registration  district  consisting  of  a state  hospital,  charitable 
or  penal  institution,  the  registrar  shall  be  the  superintendent  or  person  in 
charge  of  such  institution,  provided,  however,  that  he  shall  receive  no  addi- 
tional remuneration  for  acting  as  such  registrar.  The  term  of  office,  of  a 
registrar  of  vital  statistics,  unless  the  charter  of  the  city  or  village  shall 
provide  otherwise,  shall  be  four  years.  Each  registrar  of  vital  statistics 
shall  hold  office  until  his  successor  shall  have  been  appointed  and  shall  have 
qualified.  Any  registrar  of  vital  statistics  who  in  the  judgment  of  the  state 
commissioner  of  health  fails  or  neglects  to  discharge  efficiently  the  duties 
of  his  office  as  set  forth  in  this  article,  or  to  make  prompt  and  complete  re- 
turn of  births  and  deaths  as  required  thereby,  shall  be  forthwith  removed 
by  the  state  commissioner  of  health,  and  such  other  penalties  may  be  im- 
posed as  are  provided  by  this  article.  Each  registrar  of  vital  statistics  shall 
immediately  upon  his  acceptance  of  appointment  as  such,  appoint  a deputy 
whose  duty  it  shall  be  to  act  in  his  stead  in  case  of  his  absence  or  inability, 
and  such  deputy  shall  in  writing  accept  such  appointment  and  be  subject 
to  all  rules  and  regulations  governing  registrars.  When  it  appears  neces- 
sary for  the  convenience  of  the  people  in  any  rural  district,  the  registrar 
is  authorized,  with  the  approval  of  the  state  commissioner  of  health,  to  ap- 
point one  or  more  suitable  persons  to  act  as  subregistrars,  who  shall  be 
authorized  to  receive  birth  and  death  certificates  and  to  issue  burial  or  re- 
moval permits  in  and  for  such  portions  of  the  district  as  may  be  designated, 
and  each  such  subregistrar  shall  note  on  each  certificate  over  his  signature 
the  date  of  filing  and  shall  forward  all  certificates  to  the  local  registrar  of 
the  district  within  three  days,  and  in  all  cases  before  the  third  day  of  the 
following  month ; provided,  however,  that  each  subregistrar  shall  be  subject 
to  the  supervision  and  control  of  the  state  commissioner  of  health  and  may 
be  by  him  removed  for  neglect  or  failure  to  perform  his  duty  in  accordance 
with  the  provisions  of  this  act  or  the  regulations  of  the  public  health  coun- 
cil, and  shall  be  subject  to  the  same  penalties  for  neglect  of  duty  as  the 
local  registrar.  [Indem,  § 373,  as  amended  by  L.  1917,  ch.  321.] 

§ 5.  CORRECTION  OF  DEFECTIVE  REGISTRATION. 

If  defects  be  found  in  the  registration  under  the  supervision  of  a regis- 
trar of  vital  statistics,  the  state  commissioner  of  health  shall  notify  such 
registrar  that  such  defects  must  be  corrected  within  ten  days  of  the  date 
of  the  notice.  If  such  defects  are  not  so  corrected  the  state  commissioner 
of  health  shall  take  control  of  such  registration  and  of  the  records  thereof, 
and  enforce  the  rules  and  regulations  in  regard  thereto  and  secure  a com- 
plete registration  in  such  district,  and  such  control  shall  continue 
until  the  registrar  of  vital  statistics  shall  satisfy  the  commis- 
sioner of  health  that  he  will  make  such  record  and  registry  complete 
as  required  by  law  affid  by  the  rules  and  regulations  of  the  public  health 


462 d TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Health  Law,  §§  375,  376. 

council.  The  expenses  incurred  by  the  state  commissioner  of  health  or 
his  authorized  representative  while  in  control  of  such  registration  shall 
be  a charge  upon  the  city,  town  or  village  comprising  the  registration 
district.  [Idem,  § 374.] 

§ 6.  PERMITS  FOR  BURIAL  OR  REMOVAL  OF  DEAD  BODIES, 

The  body  of  any  person  whose  death  occurs  in  this  state  or  which 
shall  be  found  dead  therein  shall  not  be  interred,  deposited  in  a vault  or 
tomb,  cremated  or  otherwise  disposed  of  or  removed  from  or  into  any 
registration  district,  or  be  temporarily  held  pending  further  disposition 
more  than  seventy-two  hours  after  death,  unless  a permit  for  burial, 
removal,  or  other  disposition  thereof  shall  have  been  properly  issued  by 
the  registrar  of  vital  statistics  of  the  registration  district  in  which  the 
death  occurred  or  the  body  was  found.  Ho  such  burial  or  removal 
permit  shall  be  issued  by  any  registrar  until,  wherever  practicable,  a 
complete  and  satisfactory  certificate  of  death  has  been  filed  with  him 
as  heretofore  provided ; provided  that  when  a dead  body  is  transported 
from  outside  of  the  state  into  a registration  district  in  this  state  for 
burial,  the  transit  or  removal  permit  issued  in  accordance  with  the  law 
and  health  regulations  of  the  place  where  the  death  occurred  shall  be 
given  the  same  force  and  effect  as  the  burial  permit  herein  provided  for. 
Ho  registrar  of  vital  statistics  shall  receive  any  fee  for  the  issuance  of 
burial  or  removal  permits  under  this  act  other  than  the  compensation 
provided  in  this  article.  [Idem,  § 375.] 

§ 7.  REGISTRATION  OF  STILLBORN  CHILDREN. 

A stillborn  child  shall  be  registered  as  a birth  and  also  as  a death, 
and  separate  certificates  of  both  the  birth  and  the  death  shall  be  filed 
with  the  registrar  of  vital  statistics  in  the  usual  form  and  manner,  the 
certificate  of  birth  to  contain  in  place  of  the  name  of  the  child,  the  word 
“ stillbirth ; ” provided,  that  a certificate  of  birth  and  a certificate  of 
death  shall  not  be  required  for  a child  that  has  not  advanced  to  the  fifth 
month  of  uterogestation.  The  medical  certificate  of  the  cause  of  death 
shall  be  signed  by  the  attending  physician,  if  any,  and  shall  state  the 
cause  of  death  as  “ stillborn,”  with  the  cause  of  the  stillbirth,  if  known, 
whether  a premature  birth,  and,  if  born  prematurely,  the  period  of 
uterogestation,  in  months,  if  known;  and  a burial  or  removal  permit 
of  the  prescribed  form  shall  be  required.  Midwives  shall  not  sism  cer- 
tificates of  death  for  stillborn  children;  but  such  cases,  and  stillbirths 
occurring  without  attendance  of  either  physician  or  midwife  shall  be 
treated  as  deaths  without  medical  attendance,  as  hereinafter  provided 
in  this  article.  [Idem,  § 376.] 


DUTIES  AS  TO  VITAL,  STATISTICS. 


462e 


Public  Health  Law,  § 377. 

§ 8.  CERTIFICATE  OF  DEATH. 

The  certificate  of  death  shall  contain  the  following  items,  which  are 
hereby  declared  necessary  for  the  legal,  social  and  sanitary  purposes  sub- 
served by  registration  records. 

1.  Place  of  death,  including  state,  county,  township,  village  or  city. 
If  in  a city,  the  ward,  street  and  house  number ; if  in  a hospital  or  other 
institution,  the  name  of  the  same  to  be  given  instead  of  the  street  and 
house  number.  If  in  an  industrial  camp,  the  name  of  the  camp  to  be 
given. 

2.  Full  name  of  decedent.  If  an  unnamed  child,  the  surname  pre- 
ceded by  “ unnamed.” 

3.  Sex. 

4.  Color  or  race  — as  white,  black,  mulatto  (or  other  negro  de- 
scent), Indian,  Chinese,  Japanese,  or  other. 

5.  Conjugal  condition  — as  single,  married,  widowed  or  divorced. 

6.  Date  of  birth,  including  the  year,  month,  and  day. 

7.  Age,  in  years,  months  and  days.  If  less  than  one  day,  the  hours 
or  minutes. 

8.  Occupation.  The  occupation  to  be  reported  of  any  person,  male 
or  female,  who  had  any  remunerative  employment,  with  the  statement 
of  trade,  profession  or  particular  kind  of  work;  general  nature  of  in- 
dustry, business  or  establishment  in  which  engaged  or  employed. 

9.  Birthplace ; at  least  state  or  foreign  country,  if  known. 

10.  Name  of  father. 

11.  Birthplace  of  father;  at  least  state  or  foreign  country,  if  known. 

12.  Maiden  name  of  mother. 

13.  Birthplace  of  mother;  at  least  state  or  foreign  country,  if  known. 

14.  Signature  and  address  of  informant. 

15.  Official  signature  of  registrar,  with  the  date  when  certificate  was 
filed,  and  registered  number. 

16.  Date  of  death,  year,  month  and  day. 

17.  Certification  as  to  medical  attendance  on  decedent,  fact  and  time 
of  death,  time  last  seen  alive,  and  the  cause  of  death,  with  contributory, 
that  is  to  say,  secondary  cause  of  complication,  if  any,  and  duration  of 
each,  and  whether  attributed  to  dangerous  or  insanitary  conditions  of 
employment:  signature  and  address  of  physician  or  official  making  the 
medical  certificate. 

18.  Length  of  residence  at  place  of  death  and  in  the  state,  together 
with  the  place  where  disease  was  contracted,  if  not  at  place  of  death, 
and  former  or  usual  residence. 

19.  Place  and  date  of  burial,  cremation  or  removal. 

20.  Signature  and  address  of  undertaker  or  person  in  charge  of  the 
corpse. 


462f  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Health  Law,  § 378. 

The  particulars  called  for  by  items  one  to  thirteen  inclusive  shall  be 
authenticated  by  the  signature  of  the  informant,  who  may  be  any  com- 
petent person  acquainted  with  the  facts. 

The  statement  of  facts  relating  to  the  disposition  of  the  body  shall 
be  signed  by  the  undertaker  or  person  in  charge  of  the  corpse. 

The  medical  certificates  shall  be  made  and  signed  by  the  physician, 
if  any,  last  in  attendance  on  the  deceased,  who  shall  specify  the  time  in 
attendance,  the  time  he  last  saw  the  deceased  alive  and  the  hour  of  the 
day  at  which  death  occurred.  He  shall  further  state  the  cause  of  death, 
so  as  to  show  the  cause  of  disease  or  sequence  of  causes  resulting  in  the 
death,  giving  first  the  name  of  the  disease  causing  death,  that  is  to  say, 
the  primary  cause,  and  the  contributory,  that  is  to  say,  the  secondary 
cause,  if  any,  and  the  duration  of  each.  Indefinite  terms,  denoting  only 
symptoms  of  disease  or  conditions  resulting  from  disease,  shall  not  be 
held  sufficient  for  the  issuance  of  a burial  or  removal  permit.  Any 
certificate  stating  the  cause  of  death  in  terms  which  the  state  commis- 
sioner of  health  shall  have  declared  indefinite,  shall  be  returned  to  the 
physician  or  person  making  the  medical  certificate  for  correction  and 
more  definite  statement.  Causes  of  death  which  may  be  the  result  of 
either  diseases  or  violence  shall  be  explicitly  defined;  and  if  from  vio- 
lence, the  means  of  injury  shall  be  stated,  and  whether  apparently  acci- 
dental, suicidal,  or  homicidal.  For  deaths  in  hospitals,  institutions,  or 
of  non-residents,  the  physician  shall  supply  the  information  required 
under  Item  18,  if  he  is  able  to  do  so,  and  may  state  where,  in  his 
opinion,  the  disease  was  contracted.  [Idem,  § 377.] 

§ 9.  REGISTRATION  OF  DEATHS  OCCURRING  WITHOUT  MEDICAL  AT- 
TENDANCE. 

In  case  of  any  death  occurring  without  medical  attendance,  it  shall 
be  the  duty  of  the  undertaker  or  other  person  to  whose  knowledge  the 
death  may  come  to  notify  the  local  health  officer  of  such  death,  and  when 
so  notified  the  health  officer  shall  immediately  investigate  and  certify 
as  to  the  cause  of  death;  provided  that  if  the  health  officer  has  reason 
to  believe  that  the  death  may  have  been  due  to  unlawful  act  or  neglect 
he  shall  then  refer  the  case  to  the  coroner  or  other  proper  officer  for  his 
investigation  and  certification.  The  coroner  or  other  proper  officer 
whose  duty  it  is  to  hold  an  inquest  on  the  body  of  a deceased  person, 
and  to  make  the  certificate  of  death  required  for  a burial  permit,  shall 
state  in  his  certificate  the  name  of  the  disease  causing  death,  or  if  from 
external  causes,  the  means  of  death;  whether  probably  accidental,  sui- 
cidal or  homicidal;  and  shall,  in  any  case,  furnish  such  information 
as  may  be  required  by  the  state  commissioner  of  health  in  order  properl  v 
to  oln°sifv  the  death.  [Idem.  § 378.] 


DUTIES  AS  TO  VITAL  STATISTICS. 


4G2g 


Public  Health  Law,  § 379,  380,  381. 

§ 10.  DUTIES  OF  UNDERTAKER. 

In  each  case  the  undertaker,  or  person  having  charge  of  the  corpse, 
shall  file  the  certificate  of  death  with  the  registrar  of  the  district  in 
which  the  death  occurred  and  obtain  a burial  or  removal  permit  prior 
to  any  disposition  of  the  body.  He  shall  obtain  the  required  personal 
and  statistical  particulars  from  a person  qualified  to  supply  them,  over 
the  signature  and  address  of  his  informant.  He  shall  then  present  the 
certificate  to  the  attending  physician,  who  shall  forthwith  fill  out  and 
sign  the  medical  certificate  of  death,  or  to  the  health  officer  or  coroner, 
for  the  medical  certificate  of  the  cause  of  death  and  other  particulars 
necessary  to  complete  the  record  for  the  registration  of  deaths,  as  speci- 
fied in  this  article,  if  no  physician  was  in  attendance  upon  the  deceased. 
He  shall  then  state  the  facts  required  relative  to  the  date  and  place  of 
burial,  cremation  or  removal,  over  his  signature  and  with  his  address, 
and  present  the  completed  certificate  to  the  registrar  in  order  to  obtain 
a permit  for  burial,  removal  or  other  disposition  of  the  body.  The 
undertaker  shall  deliver  the  burial  permit  to  the  person  in  charge  of 
the  place  of  burial,  before  interring  or  otherwise  disposing  of  the 
body;  or  shall  attach  the  removal  permit  to  the  box  containing  the 
corpse,  when  shipped  by  any  transportation  company;  said  permit  to 
accompany  the  corpse  to  its  destination,  where  if  within  the  state  of 
Hew  York,  it  shall  be  delivered  to  the  person  in  charge  of  the  place  of 
burial.  [Idem,  § 379.] 

§ 11.  DUTIES  OF  UNDERTAKERS;  INTERMENT  WITHIN  THE  STATE. 

If  the  interment,  or  other  disposition  of  the  body  is  to  be  made  within 
the  state,  the  wording  of  the  burial  or  removal  permit  may  be  limited 
to  a statement  by  the  registrar,  and  over  his  signature,  that  a satisfactory 
certificate  of  death,  having  been  filed  with  him,  as  required  by  law, 
permission  is  granted  to  inter,  remove  or  dispose  otherwise  of  the  body, 
stating  the  name,  age,  sex,  cause  of  death,  and  other  necessary  details 
upon  the  form  prescribed  by  the  commissioner  of  health.  [Idem,  § 
380.] 

§ 12.  INTERMENTS. 

Ho  person  in  charge  of  any  premises  on  which  interments  or  crema- 
tions are  made  shall  inter  or  permit  the  interment  or  other  disposition 
of  any  body  unless  it  is  accompanied  by  a burial,  cremation  or  transit 
permit,  as  herein  provided.  Such  person  shall  endorse  upon  the  permit, 
the  date  of  interment,  or  cremation  over  bis  signature,  and  shall  return 
all  permits  so  endorsed  to  the  registrar  of  his  district  within  seven  days 
from  the  date  of  interment  or  cremation.  He  shall  keep  a record  of  all 
bodies  interred  or  otherwise  disposed  of  on  the  premises  under  bis 
charge,  in  each  case  stating  the  name  of  each  deceased  person,  place  of 


462k  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Health  Law,  §§  382,  383. 

death,  date  of  burial  or  disposal,  and  name  and  address  of  the  under* 
taker;  which  record  shall  at  all  times  be  open  to  official  inspection; 
provided  that  the  undertaker  or  person  having  charge  of  the  corpse, 
when  burying  a body  in  a cemetery  or  burial  ground  having  no  person 
in  charge,  shall  sign  the  burial  or  removal  permit,  giving  the  date  of 
burial,  and  shall  write  across  the  face  of  the  permit  the  words  “ No 
person  in  charge,”  and  file  the  burial  or  removal  permit  within  three 
days  with  the  registrar  of  the  district  in  which  the  cemetery  is  located. 
[Idem,  § 381.] 

§ 13.  REGISTRATION  OF  BIRTHS. 

The  birth  of  each  and  every  child  born  in  this  state  shall  be  registered 
within  five  days  after  the  date  of  each  birth,  there  shall  be  filed  with  the 
registrar  of  the  district  in  which  the  birth  occurred  a certificate  of  such 
birth,  which  certificate  shall  be  upon  the  form  prescribed  therefor  by 
the  state  commissioner  of  health.  In  each  case  where  a physician, 
midwife  or  person  acting  as  midwife,  was  in  attendance  upon  the  birth, 
it  shall  be  the  duty  of  such  physician,  midwife  or  person  acting  as 
midwife,  to  file  said  certificate.  In  each  case  where  there  was  no 
physician,  midwife,  or  person  acting  as  midwife,  in  attendance  upon 
the  birth,  it  shall  be  the  duty  of  the  father  or  mother  of  the  child,  the 
householder  or  owner  of  the  premises  where  the  birth  occurred,  or  the 
manager  or  superintendent  of  the  public  or  private  institution  where 
the  birth  occured,  each  in  the  order  named,  within  five  days  after  the 
date  of  such  birth,  to  report  to  the  local  registrar  the  fact  of  such  birth. 
In  such  case  and  in  case  the  physician,  midwife  or  person  acting  as 
midwife  in  attendance  upon  the  birth  is  unable,  by  diligent  inquiry,  to 
obtain  any  item  or  items  of  information  required  in  this  article,  it  shall 
then  be  the  duty  of  the  registrar  to  secure  from  the  person  so  reporting, 
or  from  any  other  person  having  the  required  knowledge,  such  informa- 
tion as  will  enable  him  to  prepare  the  certificate  of  birth  herein  required, 
and  it  shall  be  the  duty  of  the  person  reporting  the  birth  or  who  may 
be  interrogated  in  relation  thereto  to  answer  correctly  and  to  the  best 
of  his  knowledge  all  questions  put  to  him  bv  the  registrar  which  may  be 
calculated  to  elicit  any  information  needed  to  make  a complete  record 
of  the  birth  as  contemplated  by  this  article,  and  it  shall  be  the  duty  of 
the  informant  as  to  any  statement  made  in  accordance  herewith  to  verify 
such  statement  by  the  signature  when  requested  so  to  do  by  the  local 
registrar.  [Idem,  § 382.] 

§ 14.  CERTIFICATE  OF  BIRTH. 

The  certificate  of  birth  shall  contain  the  following  items,  which  are 
hereby  declared  necessary  for  the  legal,  social  and  sanitary  purposes 
subserved  by  registration  records. 


DUTIES  AS  TO  VITAL  STATISTICS. 


462i 


Public  Health  Law,  § 383. 

1.  Place  of  birth,  including  state,  county,  town,  village  or  city.  If 
in  a city,  th^  ward,  street  and  house  number;  if  in  a hospital  or  other 
institution,  the  name  of  the  same  to  be  given,  instead  of  the  street  and 
house  number. 

2.  Full  name  of  child.  If  the  child  dies  without  a name,  before  the 
certificate  is  filed,  enter  the  words  “ Died  unnamed.”  If  the  living 
child  has  not  yet  been  named  at  the  date  of  filing  certificate  of  birth, 
the  space  for  “ full  name  of  child  ” is  to  be  left  blank,  to  be  filled  out 
subsequently  by  a supplemental  report,  as  hereinafter  provided. 

3.  8ex  of  child. 

4.  Whether  a twin,  triplet,  or  other  plural  birth.  A separate  cer- 
tificate shall  be  required  for  each  child  in  case  of  plural  births. 

5.  For  plural  births,  number  of  each  child  in  order  of  birth. 

6.  Whether  legitimate  or  illegitimate. 

7.  Date  of  birth,  including  the  year,  month  and  day. 

8.  Full  name  of  father;  provided,  that  if  the  child  is  illegitimate, 
the  name  of  the  putative  father  shall  not  be  entered  without  his  con- 
sent, but  the  other  particulars  relating  to  the  putative  father  may  bo 
entered  if  known,  otherwise  as  “ unknown.” 

9.  Residence  of  father. 

10.  Color  or  race  of  father. 

11.  Age  of  father  at  last  birthday,  in  years. 

12.  Birthplace  of  father ; at  least  state  or  foreign  country,  if  known. 

13.  Occupation  of  father.  The  occupation  to  be  reported  if  engaged 
in  any  remunerative  employment,  with  the  statement  of  trade,  profes- 
sion, or  particular  kind  of  work;  general  nature  of  industry,  business 
or  establishment  in  which  engaged  or  employed. 

14.  Maiden  name  of  mother. 

15.  Residence  of  mother. 

16.  Color  or  race  of  mother. 

17.  Age  of  mother  at  last  birthday,  in  years. 

18.  Birthplace  of  mother;  at  least  state  or  foreign  country,  if  known. 

19.  Occupation  of  mother.  The  occupation  to  be  reported  if  engaged 
in  any  remunerative  employment,  with  the  statement  of  trade,  profes- 
sion, or  particular  kind  of  work;  general  nature  of  industry,  business 
or  establishment  in  which  engaged  or  employed. 

20.  Humber  of  children  bom  to  this  mother,  including  present  birth. 

21.  Humber  of  children  of  this  mother  living. 

22.  The  certification  of  attending  physician  or  midwife  as  to  attend- 
ance at  birth,  including  statement  of  year,  month,  day  and  hour  of 
birth,  and  whether  the  child  was  born  alive  or  stillborn.  This  certifica- 
tion shall  be  signed  by  the  attending  physician  or  midwife,  with  date 


462j 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Public  Health  Law,  §§  384,  385,  386. 


of  signature  and  address;  if  there  was  no  physician  or  midwife  in  at- 
tendance, then  by  the  father  or  mother  of  the  child,  householder,  owner 
of  the  premises,  manager  or  superintendent  of  public  or  private  institu- 
tion where  the  birth  occurred,  or  other  competent  person,  whose  duty  it 
shall  be  to  notify  the  local  registrar  of  such  birth. 

23.  Exact  date  of  tiling  in  office  of  local  registrar,  attested  by  his 
official  signature,  and  registered  number  of  birth,  as  hereinafter  pro- 
vided. [Idem,  § 383.] 

§ 15.  REGISTRATION  OF  NAME  OF  CHILD  SUBSEQUENT  TO  FILING  OF 
BIRTH  CERTIFICATE. 

When  any  certificate  of  birth  of  a living  child  is  presented  without 
the  statement  of  the  given  name,  the  local  registrar  shall  make  out  and 
deliver  to  the  parents  of  the  child  a special  blank  for  the  supplemental 
report  of  the  given  name  of  the  child,  which  shall  be  filed  out  as  directed, 
and  returned  to  the  local  registrar  as  soon  as  the  child  shall  have  been 
named.  [Idem,  § 384.] 

§ 16.  REGISTRATION  OF  PHYSICIANS,  MIDWIVES*  AND  UNDERTAKERS. 

Every  physician,  midwife  and  undertaker  shall,  on  or  before  the  day 
on  which  this  article  takes  effect,  register  his  or  her  name,  address  and 
occupation  with  the  registrar  of  the  district  in  which  he  or  she  resides, 
and  shall  so  register  in  any  district  in  which  he  or  she  may  hereafter 
establish  a residence ; and  shall  thereupon  be  supplied  by  the  registrar 
with  a copy  of  this  article,  together  with  such  rules  and  regulations  as 
may  be  prepared  by  the  public  health  council  relative  to  its  enforcement. 
Within  thirty  days  after  the  close  of  each  calendar  year  each  registrar 
shall  make  a return  to  the  state  commissioner  of  health  of  all  physi- 
cians, midwives,  or  undertakers  who  have  been  registered  in  his  district 
during  the  whole  or  any  part  of  the  preceding  calendar  year ; provided, 
that  no  fee  or  other  compensation  shall  be  charged  by  registrars  to  physi- 
cians, midwives  or  undertakers  for  registering  their  names  under  this 
section  or  making  returns  thereof  to  the  state  commissioner  of  health. 
[Idem,  § 385.] 

§ 17.  REGISTRATION  OF  PERSONS  IN  INSTITUTIONS. 

All  superintendents  or  managers  or  other  persons  in  charge  of  hos- 
pitals, almshouses,  lying-in  or  other  institutions,  public  or  private,  to 
which  persons  resort  for  treatment  of  diseases  or  confinement,  or  to 
which  persons  are  committed  by  process  of  law,  shall  make  a record  of 
all  the  personal  and  statistical  particulars  relative  to  the  inmates  in  their 
institutions  when  this  act  takes  effect;  which  are  required  in  the  forms 


DUTIES  AS  TO  VITAL  STATISTICS, 


462k 


Public  Health  Law,  § 387. 

of  the  certificate  provided  for  by  this  article  as  directed  by  the  state 
commissioner  of  health ; and  thereafter  such  record  shall  be  by  them 
made  for  all  future  inmates  at  the  time  of  their  admittance.  In  the 
case  of  persons  admitted  or  committed  for  treatment  of  disease,  the 
physician  in  charge  shall  specify  for  entry  in  the  record,  the  nature  of 
the  disease,  and  where,  in  his  opinion,  it  was  contracted.  The  personal 
particulars  and  information  required  by  this  section  shall  be  obtained 
from  the  individual  himself  if  it  is  practicable  to  do  so ; and  when  they 
cannot  be  so  obtained,  they  shall  be  obtained  in  as  complete  a manner  as 
possible  from  relatives,  friends,  or  other  persons  acquainted  with  the 
facts.  [Idem,  § 386.] 

§ 18.  RECORDS  TO  BE  KEPT  BY  STATE  COMMISSIONER  OF  HEALTH. 

The  state  commissioner  of  health  shall  prepare,  print,  and  supply  to 
all  registrars  all  blanks  and  forms  used  in  registering,  recording  and 
preserving  the  returns,  or  in  otherwise  carrying  out  the  purposes  of  this 
article,  and  shall  prepare  and  issue  such  detailed  instructions,  not  in- 
consistent with  the  regulation  established  by  the  public  health  council, 
as  may  be  required  to  prepare  the  uniform  observance  of  its  provision 
and  the  maintenance  of  a perfect  system  of  registration;  and  no  other 
blanks  shall  be  used  than  those  supplied  by  the  state  commissioner  of 
health.  He  shall  carefully  examine  the  certificates  received  monthly 
from  the  registrars,  and  if  any  such  are  incomplete  or  unsatisfactory  he 
shall  require  such  further  information  to  be  supplied  as  may  be  neces- 
sary to  make  the  record  complete  and  satisfactory.  All  physicians,  mid- 
wives, undertakers,  or  informants,  and  all  other  persons  having  knowl- 
edge of  the  facts,  are  hereby  required  to  supply,  upon  a form  provided 
by  the  state  commissioner  of  health  or  upon  the  original  certificate,  such 
information  as  they  may  possess  regarding  any  birth  or  death  upon 
demand  of  the  state  commissioner  of  health,  in  person,  bv  mail,  or 
through  the  registrar;  provided,  that  no  certificate  of  birth  or  death, 
after  its  acceptance  for  registration  by  the  registrar,  and  no  other  record 
made  in  pursuance  of  this  article,  shall  be  altered  or  changed  in  any 
respect  otherwise  than  by  amendments  properly  dated,  signed  and  wit- 
nessed. The  state  commissioner  of  health  shall  arrange,  and  perma- 
nently preserve  the  certificates  in  a systematic  manner,  and  shall  prepare 
and  maintain  a comprehensive  and  continuous  card  index  of  all  births 
and  deaths  registered;  said  index  to  be  arranged  alphabetically,  in  the 
case  of  deaths,  by  the  names  of  decedents,  and  in  the  case  of  births,  by 
the  names  of  fathers  or  mothers  if  born  out  of  wedlock.  He  shall  in- 
form all  registrars  what  diseases  are  to  be  considered  infectious,  con- 
tagious, or  communicable  and  dangerous  to  the  public  health,  a<?  decided 


4621  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Health  Law,  §§  388,  389. 

by  the  public  health  council  in  order  that  when  deaths  occur  from  such 
diseases  proper  precautions  may  be  taken  to  prevent  their  spread. 
[Idem,  § 387.] 

§ 19.  CERTIFIED  COPIES  OF  BIRTH  CERTIFICATES  EVIDENCE  OF  AGE. 

Certified  copies  of  birth  certificates,  or  of  statements  based  on  duly 
registered  certificates  of  birth  shall  be  accepted  by  public  school  author- 
ities in  this  state  as  prima  facie  evidence  of  age  of  children,  registering 
for  school  attendance,  and  by  the  legally  constituted  authorities  as 
prima  facie  proof  of  age  for  the  issuance  of  employment  certificates, 
provided  that  when  it  is  not  possible  to  secure  such  certified  copy  of 
birth  registration  certificate  for  any  child,  the  school  authorities  may 
accept  as  secondary  proof  of  age  any  of  the  kinds  of  evidence  specified 
in  the  labor  law.  [Idem,  § 388.] 

§ 20.  DISTRICT  RECORDS  TO  BE  KEPT  BY  REGISTRAR. 

Each  registrar  shall  supply  blank  forms  of  certificates  to  such  persons 
as  require  them.  Each  registrar  shall  carefully  examine  each  certificate 
of  birth  or  death  when  presented  for  record  in  order  to  ascertain  whether 
or  not  it  has  been  made  out  in  accordance  with  the  provisions  of  this 
act  and  the  instructions  of  the  state  commissioner  of  health ; and  if  any 
certificate  of  death  is  incomplete  or  unsatisfactory,  it  shall  be  his  duty 
to  call  attention  to  the  defects  in  the  return,  and  to  withhold  the  burial 
or  removal  permit  until  such  defects  are  corrected.  All  certificates, 
either  of  birth  or  death,  shall  be  written  legibly,  in  durable  black  ink, 
and  no  certificate  shall  be  held  to  be  complete  and  correct  that  does  not 
supply  all  of  the  items  of  information  called  for  therein,  or  satisfactorily 
account  for  their  omission.  If  the  certificate  of  death  is  properly  exe- 
cuted and  complete,  he  shall  then  issue  a burial  or  removal  permit  to 
the  undertaker;  provided,  that  in  case  the  death  occurred  from  some 
disease  which  is  held  by  the  public  health  council  to  be  infectious,  con- 
tagious, or  communicable  and  dangerous  to  the  public  health,  no  permit 
for  the  removal  or  other  disposition  of  the  body  shall  be  issued  by  the 
registrar,  except  to  an  undertaker  licensed  under  section  two  hundred 
and  ninety-five  of  the  public  health  law,  under  such  conditions  as  may 
be  prescribed  by  the  state  public  health  council.  If  a certificate  of  birth 
is  incomplete,  the  local  registrar  shall  immediately  notify  the  informant, 
and  require  him  to  supply  the  missing  items  of  information  if  they  can 
he  obtained.  He  shall  number  consecutively  the  certificates  of  birth  and 
death,  in  two  separate  series,  beginning  with  the  number  one  for  the 
first,  birth  and  the  first  death  in  each  calendar  year,  and  sign  his  name 
as  registrar  in  attest  of  the  date  of  filing  in  his  office.  He  shall  also 


DUTIES  AS  TO  VITAL  STATISTICS. 


462m 


Public  Health  Law,  §§  390,  391. 

make  a complete  and  accurate  copy  of  each  birth  and  each  death  cer- 
tificate registered  by  him  in  a record  book  supplied  by  the  state  com- 
missioner of  health,  to  be  preserved  permanently  in  his  office  as  the  local 
record,  in  such  manner  as  directed  by  the  commissioner  of  health.  He 
shall,  on  the  fifth  day  of  each  month,  transmit  to  the  state  commissioner 
of  health  all  original  certificates  registered  by  him  for  the  preceding 
month.  If  no  births  or  no  deaths  occurred  in  any  month,  he  shall  on 
the  fifth  day  of  the  following  month,  report  that  fact  to  the  state  com- 
missioner of  health  on  a card  provided  for  such  purpose.  [Idem,  § 
389.] 

§ 21.  FEES  OF  REGISTRAR. 

Except  as  hereinbefore  otherwise  provided  each  registrar  and  each  physician 
shall  be  paid  the  sum  of  twenty-five  cents  for  each  birth  certificate  and  each 
death  certificate  properly  and  completely  made  out  and  registered  and  each 
death  certificate  properly  and  completely  made  out  in  accordance  with  the 
international  list  of  causes  of  death  and  returned  and  filed  with  the  registrar 
and  correctly  recorded  and  promptly  returned  by  him  to  the  state  commis- 
sioner of  health,  as  required  by  this  article.  And  in  case  no  births  or  no 
deaths  were  registered  during  any  month,  the  local  registrar  shall  be  entitled 
to  be  paid  the  sum  of  twenty-five  cents  for  each  report  to  that  effect,  but  only 
if  such  report  be  made  promptly  as  required  by  this  article.  All  amounts 
payable  to  the  local  registrar  under  the  provisions  of  this  article  shall  be 
paid  by  the  municipality  comprising  the  registration  district,  upon  certifi- 
cation by  the  state  commissioner  of  health  and  all  amounts  payable  to 
physicians  shall  be  certified  to  by  the  local  registrar  annually  and  paid  to 
said  physicians  by  said  municipality.  The  state  commissioner  of  health  shall 
annually  certify  to  the  municipality  the  number  of  births  and  deaths 
properly  registered,  with  the  name  of  the  local  registrar  and  the  amount 
due  him  at  the  rate  fixed  herein.  In  addition  thereto  the  local  registrar 
shall  be  paid  a fee  of  twenty-five  cents  for  each  burial,  removal  or  transit 
permit  issued  by  him.  [Idem,  § 390,  as  added  by  L.  1913,  ch.  619,  and 
amended  by  L.  1915,  ch.  385,  and  L.  1917,  ch.  111.] 

§ 22.  CERTIFIED  COPIES  OF  RECORDS;  STATE  COMMISSIONER  OF 
HEALTH  TO  FURNISH. 

The  state  commissioner  of  heafth  may,  upon  request,  supply  to  any  appli- 
cant a certified  copy  of  the  record  of  any  birth  or  death  registered  under 
the  provisions  of  this  act,  for  the  making  and  certification  of  which  lie 
shall  be  entitled  to  a fee  of  one  dollar,  to  be  paid  by  the  appli- 
cant ; provided  that  the  United  States  census  bureau  may  obtain 
without  expense  to  the  state,  transcripts  of  certified  copies  of  births  and 
deaths  without  payment  of  the  fee  here  prescribed,  for  use  solely  as 
statistical  data.  Any  copy  of  the  record  of  a birth  or  death,  when 
properly  certified  by  the  state  commissioner  of  health,  shall  be  prima 
facie  evidence  in  all  courts  and  places  of  the  facts  therein  stated.  For 
any  search  of  the  files  and  records  when  no  certified  copy  is  made,  the 
state  commissioner  of  health  shall  be  entitled  to  a fee  of  fifty  cents  for 


4U2ll  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Public  Health  Law,  § 392. 

each  hour  or  fractional  part  of  an  hour  of  time  of  search,  said  fee  to  he 
paid  by  the  applicant. 

If  any  time  within  ten  years  of  the  birth,  or  one  year  of  the  death 
of  any  person  within  this  state,  a certified  copy  of  the  official  record  of 
said  birth  or  death  with  the  information  required  to  be  registered  by 
this  act,  be  necessary  for  legal,  judicial,  or  other  proper  purposes,  and, 
after  search  by  the  state  commissioner  of  health,  it  should  appear  that 
no  such  certificate  of  birth  or  death  was  made  and  filed  as  provided  by 
this  act,  then  the  person  asking  for  such  certified  copy  may  file  a sworn 
statement,  to  be  accompanied  by  the  affidavits  of  two  competent  wit- 
nesses, as  to  the  fact  of  birth  or  death,  with  as  many  particulars  of  the 
standa rd  certificate  supplied  as  possible,  and  the  state  commissioner  of 
health  shall  file  it  and  issue  a certified  copy  thereof  to  said  applicant 
without  fee  and  without  charge  for  time  of  search;  and  the  state  com- 
missioner of  health  shall  immediately  require  the  physician,  or  midwife, 
who,  being  in  attendance  upon  a birth  since  the  date  of  the  taking  effect 
of  this  act,  failed  or  neglected  to  file  a certificate  thereof  or  the  under- 
taker, or  other  person  who  having  charge  of  the  interment  or  removal 
of  the  body  of  a deceased  person  since  the  date  of  the  taking  effect  of 
this  act,  failed  or  neglected  to  file  the  certificate  of  death,  if  he  or  she 
be  living,  to  obtain  and  file  at  once  with  the  local  registrar  such  certifi- 
cate in  as  complete  form  as  the  lapse  of  time  will  permit,  together  with 
a fee  of  five  dollars,  which  shall  be  transmitted  to  the  state  commissioner 
of  health  and  accounted  for  as  a fee  for  certified  copies.  With  said 
certificate  shall  be  filed  the  sworn  statements  and  affidavits  hereinabove 
mentioned.  The  delinquent  physician,  midwife,  undertaker,  or  other 
person  may  also,  in  the  discretion  of  the  state  commissioner  of  health 
be  prosecuted  as  required  by  this  article,  and  shall  be  prosecuted  without 
bar  from  the  statute  of  limitations,  if  he  or  she  shall  neglect  or  fail  to 
file  promptly  the  certificate  required  by  this  section  as  a substitute  for 
the  certificate  not  filed  as  required  by  this  article,  and  to  pay  the  filing 
fee  provided  for  in  this  section. 

The  state  commissioner  of  health  shall  keep  a true  and  correct  account 
of  all  fees  by  him  received  under  this  section,  and  turn  the  same  over 
to  the  state  treasurer.  [Idem,  § 391.] 

§ 23.  PENALTIES. 

Any  person,  who  for  himself  or  as  an  officer,  agent,  or  employee  of 
any  other  person,  or  of  any  corporation  or  partnership,  shall  inter, 
cremate,  or  otherwise  finally  dispose  of  the  dead  body  of  a human  being, 
or  permit  the  same  to  be  done,  or  shall  remove  said  body  from  the 
primary  registration  district  in  which  the  death  occurred  or  the  body 


DUTIES  AS  TO  VITAL  STATISTICS. 


462o 


Public  Health  Law,  § 393. 

v’as  found,  without  the  authority  of  a burial  or  removal  permit  issued 
by  the  local  registrar  of  the  district  in  which  the  death  occurred,  or  in 
which  the  body  was  found ; or  shall  refuse  or  fail  to  furnish  correctly 
any  information  in  his  possession,  or  shall  furnish  false  information 
affecting  any  certificate  or  record,  required  by  this  article;  or  shall 
willfully  alter,  otherwise  than  is  provided  by  this  article,  or  shall  falsify 
any  certificate  of  birth  or  death,  or  any  record  established  by  this 
article ; or  being  required  by  this  article  to  fill  out  a certificate  of  birth 
or  death  and  file  the  same  with  the  local  registrar,  or  deliver  it,  upon 
request,  to  any  person  charged  with  the  duty  of  filing  the  same,  shall 
fail,  neglect  or  refuse  to  perform  such  duty  in  the  manner  required  by 
this  article ; or  being  a registrar,  deputy  registrar,  or  subregistrar,  shall 
fail,  neglect  or  refuse  to  perform  his  duty  as  required  by  this  article 
and  by  the  instructions  and  direction  of  the  state  commissioner  of  health 
thereunder,  shall  be  deemed  guilty  of  a misdemeanor  and  upon  con- 
viction thereof  shall  for  the  first  offense  be  fined  not  less  than  five  dollars 
nor  more  than  fifty  dollars  and  for  each  subsequent  offense  not  less  than 
ten  dollars,  or  more  than  one  hundred  dollars  or  be  imprisoned  in  the 
county  jail  not  more  than  sixty  days,  or  be  both  fined  and  imprisoned 
in  the  discretion  of  the  court.  [Idem,  § 392,  as  amended  by  L.  1916, 
eh.  58.] 

§ 24.  ENFORCEMENT. 

Each  registrar  is  hereby  charged  with  the  strict  and  thorough  en- 
forcement of  the  provisions  of  this  article,  in  his  registration  district, 
under  the  supervision  and  direction  of  the  state  commissioner  of  health. 
He  shall  make  an  immediate  report  to  the  state  commissioner  of  health 
of  any  violation  of  any  provision  of  this  article  coming  to  his  knowledge, 
by  observation  or  upon  complaint  of  any  person,  or  otherwise. 

The  state  commissioner  of  health  is  hereby  charged  with  the  thorough 
and  efficient  execution  of  the  provisions  of  this  article  in  every  part  of 
the  state,  and  is  hereby  granted  supervisory  power  over  registrars, 
deputy  registrars,  and  subregistrars,  to  the  end  that  all  of  its  require- 
ments shall  be  uniformly  complied  with.  The  state  commissioner  of 
health,  either  personally  or  by  an  accredited  representative,  shall  have 
authority  to  investigate  cases  of  irregularity  or  violation  of  law,  and  all 
registrars  shall  aid  him,  upon  request,  in  such  investigations.  When 
he  shall  deem  it  necessary,  he  shall  report  cases  of  violation  of  any  of 
the  provisions  of  this  article  to  the  district  attorney  of  the  county,  with 
a statement  of  the  facts  and  circumstances ; and  when  any  such  case  is 
reported  to  him  by  the  state  commissioner  of  health,  the  prosecuting 
attorney  shall  forthwith  initiate  and  promptly  follow  up  the  necessary 
court  proceedings  against  the  person  or  corporation  responsible  for  the 


462p 


TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 
Public  Health  Law,  § 394. 


alleged  violation  of  law.  Upon  request  of  the  state  commissioner  of 
health,  the  attorney-general  shall  assist  in  the  enforcement  of  the  pro- 
visions of  this  article.  [Idem,  § 393.] 

§ 25.  EXEMPTIONS. 

Nothing  in  this  article  shall  be  construed  to  affect,  alter,  or  repeal 
laws  now  in  force  applying  to  the  city  of  New  York.1  [Idem,  § 394.] 

1.  L.  1913,  ch.  619,  § 3.  Section  5 of  such  chapter  as  amended  by  chapter  557,. 
Laws  of  1909  and  section  22  of  such  chapter  as  amended  by  chapter  407,  Laws  of 
1909,  chapter  639  of  the  Laws  of  1910  and  chapter  279  of  Laws  of  1911,  and  section 
23  of  such  chapter  as  amended  by  chapter  407,  Laws  of  1909,  are  hereby  repealed. 


PARKS  AND  PLAY  GROUNDS. 

Town  Law,  §§  342,  343. 


462q 


CHAPTEK  XXXII-B. 

PARKS  AND  PLAY  GROUNDS  IN  CERTAIN  TOWNS. 

(This  chapter  contains  article  17-a  of  the  Town  Law,  as  inserted  by  L.  1914, 
ch.  382,  in  effect  April  16,  1914.) 

Section  I.  Town  boards  in  certain  counties  may  establish  public  parks  and  play 
grounds. 

2.  Special  meetings  of  the  taxpayers. 

3.  Purchase  and  improvement  of  parks  and  play  grounds. 

4.  Issue  and  sale  of  town  bonds. 

5.  Cost  of  maintenance. 

6.  Rules  and  regulations. 

7.  Acquisition  of  property  by  condemnation. 

§ 1.  TOWN  BOARDS  IN  CERTAIN  COUNTIES  MAY  ESTABLISH 
PUBLIC  PARKS  AND  PLAY  GROUNDS. 

When  authorized  by  a special  meeting  of  the  taxpayers  therein,  as 
hereinafter  provided,  the  town  board  of  any  town  may,  from  time  to 
time,  acquire  one  or  more  parcels  of  land  in  such  town  outside  an  incor- 
porated village  for  the  purpose  of  establishing  thereon  one  or  more  pub- 
lic parks  or  play  grounds,  and  upon  like  authority  may  equip  the  same 
with  suitable  buildings,  structures  and  apparatus,  and  may  thereafter 
maintain  and  improve  the  same  at  the  expense  of  the  town.1  [Town 
Law,  § 342,  as  inserted  by  L.  1914,  ch.  382,  and  amended  by  L.  1915, 
ch.  300.] 

§ 2.  SPECIAL  MEETINGS  OF  THE  TAXPAYERS. 

Before  the  town  board  of  any  such  town  shall  acquire  land  for  such 
purposes,  except  by  dedication,  it  shall,  by  resolution,  call  a special 
meeting  of  the  taxpayers  of  such  town  for  the  purpose  of  voting  upon 
one  or  more  propositions  to  be  submitted  thereat,  which  propositions 
shall  be  in  substantially  the  following  form : “ Shall  the  town  board  of 
the  town  of county  of be  authorized  to  pur- 

chase one  or  more  parcels  of  land  in  such  town  for  the  purpose  of 
establishing  and  maintaining  thereon  one  or  more  public  parks  or  play 

1.  In  town9  in  counties  exceeding  two  hundred  square  miles  in  extent,  adjacent 
to  cities  of  the  first  class,  the  town  boards  may  establish  park  districts,  in  which 
parks  may  be  laid  out  and  maintained  at  the  expense  of  the  owners  of  real  estate 
in  such  district.  See  Town  Law,  §§  349-349j,  as  added  by  L.  1916,  ch.  54. 


462r  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 343. 

grounds  and  to  pay  therefor  a sum  not  exceeding dollars 

and  shall  the  amount  to  be  expended  therefor,  including  principal  and 
interest  of  any  bonds  which  may  be  issued  therefor,  pursuant  to  the 
provisions  of  article  seventeen-a  of  the  town  law,  be  paid  in  such  instal- 
ments as  the  town  board  shall  determine,  and  shall  there  be  raised 
annually,  by  tax,  upon  the  taxable  property  in  such  town,  a sum  suffi- 
cient to  pay  interest  and  principal  of  such  bonds,  as  the  same  shall 
become  due  ? ” 

“ Shall  the  town  board  of  the  town  of county  of 

be  authorized  to  expend  in  equipping  one  or  more  public  parks  or  play 
grounds  in  such  town  with  suitable  buildings,  structures  and  apparatus 

a sum  not  exceeding dollars,  and  shall  the  amount  to  be 

expended  therefor,  including  principal  and  interest  of  any  bonds  which 
may  be  issued  therefor,  pursuant  to  the  provisions  of  article  seventeen-a 
of  the  town  law  be  paid  in  such  instalments  as  the  town  board  shall  de- 
termine, and  shall  there  be  raised  annually,  by  tax,  upon  the  taxable 
property  in  such  town,  a sum  sufficient  to  pay  interest  and  principal  of 
such  bonds,  as  the  same  shall  become  due  ? ” 

Notice  of  the  time,  place  and  purpose  of  the  meeting  and  of  the 
proposition  or  propositions  to  be  voted  upon  thereat  shall  be  posted 
conspicuously  in  at  leasst  six  of  the  most  public  places  in  such  town  at 
least  ten  days  before  the  meeting,  and  be  published  once  in  each  week 
for  two  consecutive  weeks  immediately  prior  to  the  week  in  which  such 
special  meeting  is  to  be  held  in  a newspaper  published  in  such  town, 
or  if  no  newspaper  be  published  in  such  town,  then  in  such  newspaper 
published  in  the  county  as  the  town  board  shall  designate.  Such  notice 
shall  specify  the  number  of  hours,  not  less  than  five,  between  sunrise 
and  nine  o’clock  in  the  afternoon,  during  which  the  polls  will  be  open. 
The  town  clerk  shall,  at  the  expense  of  such  town,  provide  the  necessary 
ballot  boxes  and  shall  also  prepare  and  have  at  such  special  meeting  a 
sufficient  number  of  written  or  printed  ballots,  on  which  the  voters  may 
vote  either  for  or  against  the  proposition  or  propositions.  The  meeting 
shall  be  conducted  according  to  the  provisions  of  section  forty-nine  of 
the  town  law,  and  the  presiding  officers  thereat  shall  sign  and  file  within 
three  days  thereafter  in  the  office  of  the  clerk  of  such  town  a certificate 
showing  the  total  number  of  votes  cast  at  such  meeting  and  the  number 
of  votes  cast  for  and  against  the  proposition  or  propositions,  respectively, 
together  with  a list  of  the  persons  voting  thereat.  The  qualifications  of 
voters  at  such  special  town  meeting  shall  be  the  qualifications  specified 
in  sections  fifty- three  and  fifty-five  of  the  town  law.  [Idem,  § 343.] 


PARKS  AND  PLAY  GROUNDS. 


462s 


Town  Law,  §§  344,  345,  346,  347. 

§ 8.  PURCHASE  AND  IMPROVEMENT  OF  PARKS  AND  PLAY  GROUNDS. 

In  case  the  majority  of  all  votes  lawfully  cast  upon  any  such  propo- 
sition at  such  special  meeting  shall  be  in  the  affirmative,  the  town  board 
of  any  such  town  shall  be  authorized  to  purchase  in  the  name  of  such 
town  such  parcel  or  parcels  of  land  therein  as  it  may  select  for  either  or 
both  of  such  purposes  at  a cost  not  exceeding  in  the  aggregate  the 
amount  specified  in  such  proposition,  and  to  expend  in  equipping  such 
parcel  or  parcels  of  land  with  suitable  buildings,  structures  and  ap- 
paratus an  amount  not  exceeding  in  the  aggregate  the  amount  specified 
in  such  proposition,  and  to  enter  into  suitable  contracts  therefor.  [Idem, 
§ 344.] 

§ 4.  ISSUE  AND  SALE  OF  TOWN  BONDS. 

In  case  the  amount  authorized  to  be  expended  for  any  such  purpose 
by  a special  meeting  of  taxpayers  as  herein  provided,  is,  in  the  opinion 
of  the  town  board  of  any  such  town,  greater  than  should  be  collected 
in  one  instalment,  the  town  board  may  issue  bonds  of  such  town  under 
its  seal,  signed  by  the  supervisor  and  attested  by  the  town  clerk.  Such 
bonds  shall  be  a charge  upon  such  town  and  shall  become  due  within 
thirty  years  from  the  date  of  issue,  in  such  instalments  as  the  town 
board  may  determine.  They  shall  be  sold  on  sealed  proposals  or  at 
public  auction  on  notice  published  in  a newspaper  printed  in  such  town, 
if  any,  and  posted  in  at  least  six  public  places  in  such  town,  at  least  ten 
days  before  the  sale,  to  the  person  who  will  purchase  the  same  at  par 
at  the  lowest  rate  of  interest,  not  exceeding  six  per  centum  per  annum. 
The  bonds  shall  be  a charge  upon  the  town  and  shall  not  exceed  in  the 
aggregate  the  amount  authorized  at  such  special  taxpayers’  meeting  <r 
meetings.  The  proceeds  of  such  bonds  shall  be  paid  to  the  supervisor 
and  by  him  expended  under  the  direction  of  the  town  board,  for  the 
purposes  for  which  such  bonds  were  sold.  [Idem,  § 345.] 

§ 5.  COST  OF  MAINTENANCE. 

The  town  board  is  authorized  to  provide  for  the  care  and  maintenance 
of  such  parks  and  play  grounds  and  for  the  improvement  thereof,  and 
the  cost  thereof  shall  be  a town  charge.  [Idem,  § 346.] 

§ G.  RULES  AND  REGULATIONS. 

Such  parks  and  play  grounds  shall  be  under  the  care  and  control  of 
the  town  board,  and  the  town  board  may  adopt,  and,  from  time  to  time, 


462t  TOWNS,  TOWN  MEETINGS  AND  TOWN  OFFICERS. 

Town  Law,  § 348. 

repeal,  modify  or  amend,  rules  and  regulations  for  the  use  of  such 
public  parks  and  play  grounds.  [Idem,  § 347.] 

§ 7.  ACQUISITION  OF  PROPERTY  BY  CONDEMNATION. 

If  the  town  board  are  unable  to  agree  with  the  owners  for  the  pur- 
chase of  real  property  for  the  establishment  of  public  parks  and  play 
grounds,  the  town  may  acquire  the  same  by  condemnation.  [Idem, 
§ 348.] 


PART  V, 


TAXATION. 


CHAPTER  XXXIII. 

TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 

EXPLANATORY  NOTE. 

Law  Relating  to  Taxation. 

In  this  state  the  entire  subject  of  taxation,  so  far  as  it  is  controlled 
by  statute,  is  covered  by  the  provisions  of  the  Tax  Law,  constituting 
chapter  sixty  of  the  Consolidated  Laws,  as  enacted  by  chapter  62  of  the 
laws  of  1909.  The  powers  and  duties  of  town  and  county  officers  rela- 
tive to  the  levy,  assessment  and  collection  of  taxes  are  prescribed  by 
this  law.  In  this  part  of  the  manual  is  included  the  several  sections 
of  the  Tax  Law  which  concern  such  officers. 

Taxable  Property. 

All  property,  real  and  personal,  is  taxable  unless  expressly  exempt 
by  law.  Where  real  property  is  situated  in  a town  and  county  it  is 
taxable  in  that  town  and  county  for  both  town  and  county  purposes. 
So  where  the  owner  of  personal  property  has  a residence  in  a town  and 
county,  such  property  is  taxable  for  town  and  county  purposes  in  that 
town  and  county.  For  taxation,  as  well  as  for  other  purposes,  personal 
property  is  deemed  situated  in  the  place  where  the  owner  has  his  resi- 
dence. The  Tax  Law  defines  both  real  and  personal  property  (See  § 2). 
Assessors  should  consult  such  definitions  in  determining  the  character  of 
taxable  property. 

Exemptions  from  Taxation. 

Section  4 of  the  Tax  Law  declares  what  property  is  exempt  from 

463 


464 


TAXATION. 


Explanatory  note. 

taxation.  There  must  be  an  express  statutory  provision  declaring  that 
property  shall  not  be  taxed,  to  bring  such  property  within  an  exemption. 
The  legislative  intent  to  exempt  must  be  clear  and  unambiguous.  The 
assessors  are  to  determine  whether  certain  property  is  entitled  to  exemp- 
tion in  accordance  with  the  law  relative  to  exemptions  and  the  facts 
bringing  such  property  within  such  exemptions.  They  act  judicially  in 
making  such  determination,  and  are  not  personally  liable  for  any  mis- 
take which  they  may  make. 

Taxation  of  Non-residents  of  State. 

Non-residents  of  the  state,  doing  business  in  the  state,  are  taxed  on 
the  capital  invested  in  such  business  within  the  state.  Such  capital 
is  taxed  as  personal  property,  at  the  place  where  the  business  is  car- 
ried on.  This  applies  to  individuals,  partnerships  and  corporations. 
It  is  also  provided  that  personal  property  of  non-residents  of  the 
state,  not  forming  a part  of  invested  capital,  but  having  an  actual  situs 
in  the  state,  is  to  be  taxed  in  the  tax  district  where  it  is  situated. 

Place  of  Taxation  of  Personal  Property. 

This  subject  is  governed  by  § 8 of  the  Tax  Law.  Personal  property 
of  residents  of  the  state  is  taxable  where  the  owner,  or  the  person  having 
the  control  of  it,  has  his  residence.  The  question  of  residence  is  one 
of  fact  to  be  determined  in  each  case  by  the  particular  circumstances. 
A number  of  rules  applicable  to  this  question  has  been  laid  down  by 
the  courts  and  the  cases  are  cited  in  the  notes  under  the  proper  section 
in  this  chapter.  The  residence  at  the  time  the  assessment  is  made  must 
govern.  If  after  the  assessment  is  made  the  owner  of  the  personal 
property  taxed  leaves  the  town,  he  is  not  released  from  the  tax.  The 
time  of  assessment  referred  to  in  the  law  relates  to  the  time  when  the 
assessors  designate  the  taxpayers  and  the  amount  of  their  taxable  prop- 
erty. This  must  be  July  1 in  each  year,  as  the  assessors  are  required  to 
complete  their  preparatory  inquiries  in  May  and  June. 

Place  of  Taxation  of  Real  Property. 

Real  property  is  taxable  in  the  town  where  it  is  situated.  When 
owned  by  a resident  it  is,  of  course,  taxable  to  him  in  his  own  name. 
If  owned  by  a non-resident  and  is  occupied  by  a resident,  it  may  be 
assessed  to  either  the  owner  or  occupant.  If  the  land  is  unoccupied,  or 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION.  4(35 

Tax  Law,  § 2. 

the  occupant  resides  outside  of  the  town,  the  land  must  be  assessed  as 
non-resident  as  provided  in  § 30  of  the  Tax  Law.  (See  next  chapter, 
p.  527.) 

Section  10  of  the  Tax  Law  (post,  p.  497),  provides  for  cases  where 
land  is  divided  by  town  line. 

Property  of  Corporations. 

The  real  property  of  a corporation  must  be  assessed  where  it  is 
situated.  For  instance,  the  right  of  way,  tracks,  yards  and  stations  of  a 
railroad  company,  located  in  a town  are  to  be  assessed  in  that  town. 
The  personal  property  of  a corporation  is  to  be  assessed  in  the  town  or 
city  where  the  corporation  has  its  principal  place  of  business.  The  value 
of  the  capital  stock  of  a corporation  must  be  determined,  and  after  de- 
ducting real  property  which  has  been  assessed,  the  balance  is  the  assess- 
able value  of  the  personal  property. 


Section  1.  Definitions. 

2.  Property  liable  to  taxation. 

3.  Exemption  from  taxation. 

4.  Exemption  of  the  property  of  hospital  corporations. 

5.  Exemption  of  cemeteries. 

6.  Exemption  of  property  belonging  to  a plank  road  or  turnpike  cor- 

poration. 

7.  Exemption  of  property  of  soldiers’  monument  association. 

7a.  Exemption  and  reduction  in  assessment  of  lands  planted  with  trees 
for  forestry  purposes. 

7b.  Exemption  and  reduction  in  assessment  of  lands  maintained  as 
wood  lots  and  to  encourage  the  growth  of  trees  for  such  pur- 
poses. 

8.  Taxation  of  lands  sold  or  leased  by  the  state. 

9.  No  deduction  allowed  for  indebtedness  fraudulently  contracted. 

10.  Where  property  of  non-residents  is  taxable. 

11.  Place  of  taxation  of  personal  property  of  residents;  state  board  of 

tax  commissioners  may  determine  place. 

12.  Place  of  taxation  of  real  property. 

13.  Taxation  of  real  property  divided  by  line  of  tax  district;  when 

owner  may  elect  in  which  district  property  shall  be  taxed. 

14.  Corporations;  place  of  taxation;  personal  property  to  be  taxed  where 

principal  office  is  located;  taxation  of  toll  bridges  and  turnpike. 

15.  Taxation  of  corporate  stock  of  corporations. 

16.  Stock  holders  of  bank  taxable  op  shares. 

17.  Place  of  taxation  of  individual  bank  capital. 

18.  Report  of  exempt  property  by  assessors. 

§ 1.  DEFINITIONS. 

“ Tax  commission  ” as  used  in  this  chapter  means  the  state  tax  com- 
mission and  “ tax  department”  means  the  state  tax  department.  [Tax 
Law,  § 2,  subd.  1,  added  by  L.  1916,  ch.  232.] 

“ Assessor  ” as  used  in  this  chapter  shall  be  deemed  to  include  any 
elected  or  appointed  officer  of  any  civil  or  political  subdivision  of  the 
state,  charged  by  law  with  the  duty  of  assessing  property  for  taxation 


466 


TAXATION. 


Tax  Law,  § 2. 

for  state,  county  or  local  purposes.  [Tax  Law,  § 2,  subd.  3,  added  by 
L.  1916,  ch.  323.] 

“Tax  district”  as  used  in  this  chapter  (the  Tax  Law)  means  unless 
otherwise  herein  provided  a city  or  town  of  this  state.1 2  [Tax  Law,  § 2, 
sub.  4,  as  amended  by  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5799.] 


1.  Tax  district.  A town  is  the  only  political  subdivision  within  the  meaning 
of  tax  district  as  defined  in  the  above  section  which  is  within  the  scope  of  this 
work.  It  is  not  the  purpose  of  this  work  to  treat  of  taxation  in  any  other  sense 
than  as  connected  with  the  powers  and  duties  of  town  and  county  officers. 

A village  incorporated  under  the  Village  Law,  whose  board  of  assessors  has  no 
power  to  assess  property  for  state  and  county  taxes,  is  not  a tax  district.  People 
ex  rel.  Champlin  v.  Gray,  185  N.  Y.  196,  reversing  109  App.  Div.  116,  95  N.  Y. 
Supp.  825. 

2.  Rule  for  determining1  what  is  real  or  personal  property.  To  determine 
the  character  of  property  for  the  purpose  of  taxation  principles  no  less  rigid 
than  those  which  would  be  applied  to  a question  of  fixtures  arising  between  a 
vendor  and  vendee  must  be  considered.  In  the  case  of  People  ex  rel.  Starch  Co. 
v.  Waldron,  26  App.  Div.  527;  50  N.  Y.  Supp.  523,  it  was  held  that  machinery 
standing  on  brick  or  wooden  foundations,  fastened  with  bolts,  capable  of  being 
removed  without  material  injury  to  the  buildings  in  which  they  are,  and  which 
was  placed  in  the  building  by  the  owner  thereof,  a manufacturing  corporation, 
for  the  purpose  of  conducting  a manufacturing  business  to  which  such  machinery 
was  essential,  and  which  had  been  purchased  together  with  the  land  by  a 
corporation  conducting  a similar  business  thereon,  must  be  deemed  to  have  been 
permanently  annexed  to  the  land  for  the  purposes  of  business,  and  as  such  to  be 
taxable  as  “ land  ” within  the  meaning  of  the  term  as  defined  in  the  above 
section. 

In  the  case  of  Herkimer  County  Light  and  Power  Co.  v.  Johnson,  37  App. 
Div.  257 ; 55  N.  Y.  Supp.  924,  apparatus,  including  an  engine  and  boiler,  used  by 
the  corporation  in  the  manufacture  and  supply  of  gas,  and  engines,  boilers  and 
apparatus  used  by  such  corporation  in  generating  electricity,  all  of  which  are 
known  as  trade  fixtures,  are  situated  in  buildings  standing  upon  land  leased  by 
the  corporation,  and  can  be  removed  from  the  buildings  without  injury  thereto, 
were  held  to  be  assessable  for  state  and  county  taxes  as  real  property  in  the  tax 
district  where  the  property  is  situated.  But  gas  mains  or  pipes  laid  by  a gas 
company  under  the  streets  of  a city  are  not  real  estate  for  the  purpose  of  taxa- 
tion. People  ex  rel.  Citizens’  Gas  Light  Co.  v.  Board  of  Assessors,  39  N.  Y.  81. 
The  latter  case  was  decided  prior  to  the  amendment  of  the  above  section  by  the 
act  of  1897,  known  as  the  Special  Franchise  Tax  Act.  Under  the  law  as  it  now 
stands,  gas  mains  laid  in  public  streets  are  to  be  taxed  as  real  property.  See, 
also.  People  ex  rel.  Equitable  Gas  Light  Co.  v.  Barker,  81  Hun,  22;  30  N.  Y.  Supp. 
586. 

Interest  in  real  estate  subject  to  taxation.  The  term  lands  as  used  in 
relation  to  taxation,  includes  such  an  interest  in  real  estate  as  will  protect  the 
erection  thereon,  and  the  possession  of  buildings  and  fixtures,  whether  such 
buildings  and  fixtures  are  held  in  connection  with  the  ownership  of  a fee  in  the 
soil  or  not.  People  ex  rel.  Dunkirk,  etc.,  R.  R.  Co.  v.  Cassity,  46  N.  Y.  46. 
See,  also,  People  ex  rel.  Muller  v.  Assessors,  93  N.  Y.  308;  Trustees  of  Elmira  v. 
Dunn,  22  Barb.  402. 

Right  to  draw  water  from  river  is  realty. — The  right  of  the  Niagara  Falls 
Hydraulic  Power  Company  to  draw  water  from  Niagara  river  for  the  purpose 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


467 


Tax  Law,  § 2. 

“ County  treasurer  ” includes  any  officer  performing  the  duties  de- 
volving upon  such  officer  under  whatever  name.  [Idem,  § 2,  sub.  5, 
as  amended  by  L.  1916,  ch.  323.] 

The  terms  “ land  ” “ real  estate  ” and  " real  property  ” 2 as  used  in 
this  chapter,  include  the  land  itself  above  and  under  water,  all  buildings 
and  other  articles  and  structures,  substructures  and  superstructures, 
erected  upon,  under  or  above,  or  affixed  to  the  same;  all  wharves  and 
piers,  including  the  value  of  the  right  to  collect  wharfage,  cranage  or 
dockage  thereon ;  * *  3 all  bridges,  all  telegraph  lines,  wires,  poles  and  ap- 
purtenances; all  supports  and  inclosures  for  electrical  conductors  and 
other  appurtenances  upon,  above  and  under  ground ; all  surface,  under- 
ground or  elevated  railroads,4  including  the  value  of  all  franchises, 
rights  or  permission  to  construct,  maintain  or  operate  the  same  in,  under, 
above,  on  or  through,  streets,  highways  or  public  places;  all  railroad 
structures,  substructures  and  superstructures,  tracks  and  the  iron 
thereon;  branches,  switches  and  other  fixtures  permitted  or  authorized 
to  be  made,  laid  or  placed  in,  upon,  above  or  under  any  public  or  private 
road,  street  or  ground ; all  mains,  pipes  and  tanks  laid  or  placed  in, 
upon,  above  or  under  any  public  or  private  street  or  place  for  con- 
ducting steam,  heat,  water,  oil,  electricity  or  any  property,  substance 

of  its  business,  as  defined  by  ch.  968,  Laws  of  1896,  is  not  a franchise,  but  an 
incorporeal  hereditament  appurtenant  to  its  land,  and  the  value  of  which  should 
be  considered  in  assessing  the  land.  People  ex  rel.  Niagara  Falls  Power  Co.  v. 
Smith,  70  App.  Div.  543,  75  N.  Y.  Supp.  1100;  affirmed  175  N.  Y.  469. 

Safe  deposit  vaults  as  real  property. — Vaults  owned  by  a safe  deposit  com- 
pany, situated  in  buildings  owned  by  other  parties  a*nd  constructed  in  such  a manner 
as  to  be  part  of  the  realty,  constitute  an  interest  in  real  property,  and  should  be 
treated  as  such  for  the  purpose  of  taxation.  People  ex  rel.  Knickerbocker  Safe 
Deposit  Co.  v.  Wells,  181  N.  Y.  245,  affirming  99  App.  Div.  455,  91  N.  Y.  Supp.  283. 

Municipal  property  without  corporation. — An  engine  or  pump  and  a pipe 
line  maintained  by  a city  as  a part  of  its  water-works  system  outside  of  the  cor- 
porate limits  of  a city,  while  not  subject  to  a special  franchise  tax  is  subject  to 
taxation  as  real  property.  People  ex  rel.  City  of  Auburn  v.  Duryea,  59  App.  Div. 
488,  69  N.  Y.  Supp.  388.  People  ex  rel.  City  of  Rochester  v.  De  Witt,  59  App. 
Div.  493,  69  N.  Y.  Supp.  366;  affirmed  167  N.  Y.  575. 

3.  Wharves  and  piers  have  always  been  held  to  be  taxable  as  real  property. 
See  Smith  v;  ^layor,  68  N.  Y.  552;  People  ex  rel.  Smith  v.  Commissioners  of  Taxes, 
10  Hun,  207.  Under  the  old  revised  statutes  the  right  to  receive  wharfage  was  held 
to  be  neither  real  nof  personal  property  and  not  subject  to  taxation.  Boreel  v. 
Mayor,  etc.,  of  New  York,  .4  Sup.  Ct.  (2  Sandf.)  552.  But  the  above  definition  of 
real  estate  includes  the  value  of  the  right  to  collect  wharfage  and  supersedes  in 
effect  the  decision  in  such  case. 

4.  Elevated  railroads. — The  foundations,  columns  and  superstructure  of  an 
elevated  railway  are  within  the  statutory  definition  of  land,  and  are  liable  to 
taxation  as  realty.  People  ex  rel.  N.  Y.  Elevated  R.  Co.  v.  Commissioners  of  Taxes, 
83  N.  Y.  45.9.  It  makes  no  difference  in  respect  to  taxation,  whether  the  rail  is 
laid  upon  the  surface  of  the  ground  or  placed  upon  pillars  or  carried  through  a 
covered  way  or  tunnel.  In  either  case,  the  structures  adopted  to  sustain  it,  or 
facilitate  and  protect  its  use,  are,  within  the  meaning  of  the  law,  land,  and  taxable 
as  such.  People  ex  rel.  New  York  & Harlem  R.  R.  Co.  v.  Comrs.  of  Taxes,  101  N.  Y. 
322,  reversing  23  Hun  687. 

Tunnels  under  streets.— Tunnels  of  concrete  construction  under  certain  streets 
in  the  city  of  New  York  used  for  the  conveyance  of  eoal  and  ashes,  and  tunnels  for 
the  intake  and  discharge  of  water  from  a power  house  that  are  merely  extensions 
thereof,  are  taxable  as  real  estate  and  not  as  special  franchise?.  People  ex  rel. 
Interborough  R.  T.  Co.  v.  Purdy  (1914),  85  Misc.  581,  148  N.  Y.  Supp.  1074. 


468 


TAXATION. 


Tax  Law,  § 2. 

or  product  capable  of  transportation  or  conveyance  therein  or  that  is 
protected  thereby,  including  the  value  of  all  franchises,  rights,  authority 
or  permission  to  contsruct,  maintain  or  operate,  in,  under,  above,  or 
through,  any  streets,  highways  or  public  places,  any  mains,  pipes,  tanks, 
conduits  or  wires,  with  their  appurtenances,  for  conducting  water, 
steam,  heat,  light,  power,  gas,  oil  or  other  substance,  or  electricity  for 
telegraphic,  telephonic  or  other  purposes ; all  trees  and  underwood  grow- 
ing upon  land,  and  all  mines,  minerals,  quarries  and  fossils  in  and  under 
the  same,  except  mines  belonging  to  the  state.  A franchise,  right, 
authority  or  permission  specified  in  this  subdivision  shall  for  the  purpose 
of  taxation  be  known  as  a “ special  franchise.”  5 A special  franchise 
shall  be  deemed  to  include  the  value  of  the  tangible  property  of  a person, 
copartnership,  association  or  corporation  situated  in,  upon  under  or 
above  any  street,  highway,  public  place  or  public  waters  in  connection 
with  the  special  franchise.  The  tangible  property  so  included  shall 
be  taxed  as  a part  of  the  special  franchise.  No  property  of  a municipal 
corporation  shall  be  subject  to  a special  franchise  tax.  [Idem,  § 2, 
sub.  6,  as  amended  by  L.  1916,  ch.  323.] 

5.  Special  franchise.  Subdivision  2 of  tbe  above  section  of  the  former  Tax 
Law  was  amended  by  L.  1899,  ch.  712,  for  the  purpose  of  including  as  real  prop- 
erty all  franchises  granted  by  municipalities  for  the  use  of  streets,  highways  and 
other  public  places.  All  rights,  privileges  or  easements  which  a person,  copart- 
nership or  corporation  may  have  in  such  streets,  highways  and  public  places  by 
virtue  of  a grant  from  public  authorities,  made  pursuant  to  law,  are  to  be  sub- 
jected to  taxation.  Among  the  more  common  franchises  thus  to  be  taxed  are 
those  of  street  railroad’s,  electric  light  and  gas  companies,  telegraph  and  telephone 
companies  stringing  their  wires  in  streets  and  highways,  water  companies,  pipe 
line  companies  and  steam  surface  railroad  companies  operating  their  railroads  or 
any  part  thereof  or  across  these  streets  or  highways.  The  taxation  of  these  fran- 
chises as  real  property  seems  to  be  based  upon  the  fact  that  the  right  to  use  public 
streets  and  highways  for  the  transaction  of  business  of  a public  or  quasi-public 
nature,  is  a property  right  similar  in  its  character  to  an  easement  granted  by  a 
private  person  for  the  use  of  private  property;  and  that  since  an  easement  granted 
by  a private  person  is  subject  to  taxation,  a similar  easement  granted  by  a munici- 
pality should  also  be  subject  to  taxation. 

The  franchise  prior  to  the  modification  of  the  definition  of  real  property  by  the 
franchise  tax  act  was  generally  held  not  taxable.  See  People  ex  rel.  Panama  R.  R. 
Co.  v.  Commissioner  of  Taxes,  104  N.  Y.  240. 

A special  franchise  is  “ a right  to  do  something  in  the  public  highway,  which, 
except  for  the  grant,  would  be  a trespass.”  People  ex  rel.  Metropolitan  St.  Rv. 
Co.  v.  Tax  Comrs.,  174  N.  Y.  417  (1903),  affirmed  199  U.  S.  1,  in  which  case  the 
constitutionality  of  the  special  franchise  tax  law  was  upheld.  See,  also,  for  defini- 
tion of  special  franchise,  People  ex  rel.  Interborough  R.  T.  Co.  v.  Tax  Comrs.,  126 
App.  Div.  610,  110  N.  Y.  Supp.  577, 

A special  franchise  involves  a grant  from  competent  public  authority,  and  there 
can  be  no  franchise  if  an  act  is  done  within  the  boundaries  of  a street  “ by  virtue 
of  the  ownership  of  the  soil  or  of  Some  interest  therein.”  Hence,  where  a rail- 
road company,  after  a city  opens, a street  and  builds  a bridge  over  its  tracks  acquir- 
ing a mere  easement  for  street  purposes,  acquires  additional  lands  adjacent  i o its 
original  right  of  way,  and  uses  it  for  switch  tracks  underneath  the  bridge,  it  should 
not  be  assessed  as  a special  franchise.  So,  also,  additional  lands  acquired  by  a 
railroad  company  across  streets  laid  out  subsequent  and  adjacent  to  its  right  of 
way,  upon  which  no  structures  have  been  erected,  are  not  assessable  as  a special 
franchise.  People  ex  rel.  N.  Y.  Cent.  & H.  R.  R.  R.  Co.  v.  Woodbury  (1915),  167 
App.  Div.  428,  153  N.  Y.  Supp.  537. 

The  special  franchise  tax  act  does  not  affect  the  liability  of  a city  to  taxation 
upon  its  real  property  situated  without  its  corporate  limits.  An  engine  or  pump 
and  a pipe  line  maintained  by  the  city  as  a part  of  its  water  works  system  out- 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


469 


Tax  Law,  § 2. 

The  term  special  franchise  shall  not  be  deemed  to  include  the  crossing 
of  a street,  highway  or  public  place  outside  the  limits  of  a city  or  incor- 
porated village  where  such  crossing  is  less  than  two  hundred  and  fifty 
feet  in  length,  unless  such  crossing  be  the  continuation  of  an  occupancy 
of  another  street,  highway  or  public  place.53  The  subdivision  shall  not 
apply  to  any  elevated  railroad.  [Idem,  § 2,  sub.  7,  as  amended  by  L. 
1916,  ch.  323.] 

The  terms  “ personal  estate  ” and  " personal  property,”  as  used  in 
this  chapter,  include  chattels,  money,  things  in  action,  debts  due  from 
solvent  debtors,  whether  on  account,  contract,  note,  bond  or  mortgage ; 
debts  and  obligations  for  the  payment  of  money  due  or  owing  to  persons 
residing  within  this  state,  however  secured  or  wherever  such  securities 
shall  be  held ; debts  due  by  inhabitants  of  this  state  to  persons  not  re- 
siding within  the  United  States  for  the  purchase  of  any  real  estate; 

side  of  the  corporate  limits  of  the  city  is  not  subject  to  a special  franchise  tax, 
although  it  may  be  subject  to  taxation  as  other  real  property.  Poeple  ex  rel.  City 
of  Auburn  v.  Duryea,  59  App.  Div.  488;  69  N.  Y.  Supp.  388. 

In  the  case  of  People  ex  rel.  Retsof  Mining  Co.  v.  Priest,  75  App.  Div.  131;  77 
N.  Y.  Supp.  382,  affd.  175  N.  Y.  511,  it  was  held  that  a corporation  which  lays  a 
line  of  pipe  in  the  town  highways,  the  fee  of  which  is  owned  by  the  abutting  owners, 
with  the  consent  and  grant  of  such  abutting  owners,  but  without  any  express  grant 
from  the  city  or  other  public  body,  does  not  enjoy  a special  franchise  as  that  term 
is  defined  in  the  above  subdivision.  The  court  in  this  case  said,  “ £ The  franchise  * 
here  defined  does  not  mean  the  right  to  exercise  corporate  functions,  but  the  right 
to  use  the  public  streets,  highways  or  public  places,  either  as  an  individual  or  a 
corporation.  The  right  to  so  use  the  public  streets,  highways  or  public  places  is  a 
property  right,  and  it  is  because  such  property  has  value  that  the  right  exists  to 
assess  it.  ‘ The  franchise  right,  authority,  or  permission  * here  mentioned  must 
mean  some  special  privilege  derived  from  some  governmental  body  or  some  political 
body  having  authority  to  grant  the  property  right  sought  to  be  taxed.  It  is  this 
species  of  property,  intangible  in  its  nature,  which  the  law  was  enacted  to  reach. 

All  tangible  property,  real  and  personal,  was  assessed,  before  the  passage  of  this 
law.  The  tangible  property  which  by  this  law  is  added  to  the  intangible  was  pre- 
sumably before  assessed,  and  there  was  no  apparent  difficulty  in  reaching  its  value 
under  the  general  provisions  governing  local  taxation.  The  purpose  of  the  law,  I 
think,  is  obvious.  Its  purpose  was  to  reach  and  assess  those  rights  in  streets, 
highways  and  public  places  which  once  belonged  to  the  public  at  large  or  to  political 
divisions  of  the  state  and  which  had  been  granted  for  the  term  or  in  perpetuity  to 
individual  or  corporate  bodies.” 

A viaduct  erected,  maintained  and  used  by  a street  railway  company,  which  has 
an  insurable  interest  in  it,  is  a part  of  the  company’s  tangible  property  and  may  be 
assessed  as  such.  People  ex  rel.  B.  L.  & E.  T.  Co.  v.  Tax  Commissioners,  77  Misc. 
235,  136  N.  Y.  Supp.  474,  affd.  156  App.  Div.  466. 

YVhere  a railroad  company  incorporated  under  a special  statute  (L.  1866,  ch. 
763)  was  authorized  by  such  statute  to  construct,  maintain  and  operate  its  railroad 
over  certain  navigable  rivers  and  streams,  subject  to  the  public  easement  of  navi- 
gation, upon  condition  that  it  should  construct  and  maintain  in  a manner  prescribed 
by  the  statute  “substantial  bridges  with  suitable  draws,  and  viaducts  with  proper 
openings,  over  or  across  the  same,  whenever  the  same  may  be  necessary,”  and  the 
railroad  company  has  erected  and  maintains  bridges  and  trestles  for  its  railroad 
to  pass  over  such  navigable  waters,  such  bridges  and  trestles  are  tangible  property 
situated  above  public  waters,  and  the  franchise  or  right  of  the  company  to  cross 
such  waters  and  to  construct  and  maintain  its  bridges  and  trestles  over  the  same  is 
a special  franchise  liable  to  assessment  and  taxation.  People  ex  rel.  Harlem  River 
and  Port  Chester  R.  R.  Co.  v.  State  Board  of  Tax  Commissioners  (1915),  215  N.  Y. 
507.  affg.  165  App.  Div.  609. 

5a.  A highway  "bridge,  forming  part  of  an  overhead  crossing  of  a rail- 
way, if  less  than  250  feet  in  length,  cannot  be  deemed  a special  franchise.  Rept.  of 
Atty.  Genl.,  Oct.  28,  1910. 


470 


TAXATION. 


Tax  Law,  § 2. 

public  stocks,  stocks  in  moneyed  corporations,515  and  suck  portion  of  the 
capital  of  incorporated  companies  liable  to  taxation  on  their  capital, 
as  shall  not  be  invested  in  real  estate.6  [Idem,  § 2,  sub.  8,  as  amended 
by  L.  1916,  ch.  323.] _ 

A railroad  which  maintains  a bridge  which  crosses  the  Erie  canal  and  an  abutting 
highway  at  an  angle  other  than  a right  angle  for  a distance  of  more  than  250  feet 
is  liable  for  a special  franchise  tax  thereon.  People  ex  rel.  N.  Y.  C.  & H.  It.  R.  R. 
Co.  v.  Woodbury,  140  App.  Div.  848,  125  N.  Y.  Supp.  728. 

Overhead  bridges,  which  are  entirely  unnecessary  for  the  operation  of  a rail- 
road, but  which  are  erected  and  maintained  for  the  benefit  of  the  community,  are 
not  tangible  property  taxable  as  a part  of  the  special  franchise.  People  ex  rel. 
N.  Y.  C.  & H.  R.  R.  R.  Co.  v.  Tax  Commissioners  (1917),  179  App.  Div.  421,  166 
N.  Y.  Supp.  26. 

5b.  The  words  “ stocks  in  moneyed  corporations,”  as  used  in  subdivision  5,  in- 
cludes shares  of  stock  in  State  and  national  banks.  Atty.  Genl.  Opin.,  5 State 
Dept.  Rep.  471  (1915). 

6.  Debts  due  to  persons  in  state.  The  clause  including  in  the  definition  of  per- 
sonal property  debts  and  obligations  due  or  owing  to  persons  residing  within  the 
state  re-enacts  Laws  1883,  ch.  392. 

The  rule  of  exemption  of  personal  estate  situate  in  another  state,  though  owned 
by  a resident  of  this  state,  applies  only  to  property  capable  of  having  an  actual 
situs  away  from  the  owner,  or  his  domicile.  Choses  in  action  or  securities  in  the 
hands  of  an  agent  out  of  the  state  for  collection  or  investment,  are  so  situated  as 
to  be  regarded  as  having  foreign  and  not  domestic  situs.  People  ex  rel.  Hoyt  v. 
Comrs.  of  Taxes,  23  N.  Y.  224. 

Property  of  a resident  in  the  form  of  loans  in  other  states,  the  securities  for 
which  are  in  the  hands  of  agents  there,  is  not  taxable  in  this  state.  People  ex  rel. 
Jefferson  v.  Gardner,  51  Barb.  352. 

Under  the  above  section  debts  due  to  residents  of  this  state,  however  secured, 
and  wherever  such  securities  may  be  held,  are  deemed  personal  property  and  sub- 
ject to  taxation.  Before  the  enactment  of  L.  1883,  ch.  392,  from  which  a portion 
of  the  above  subdivision  was  derived,  it  was  held  that  mortgage  securities  on  lands 
in  another  state  held  permanently  by  an  agent  in  such  state  for  the  owner  who 
resided  in  this  state  and  which  mortgage  was  subject  to  taxation  in  the  state 
where  the  agent  resided  was  held  not  to  be  personal  property  and  subject  to  taxa- 
tion in  this  state.  People  ex  rel.  Jefferson  v.  Smith,  88  N.  Y.  576. 

In  construing  the  provision  of  the  act  of  1883  declaring  that,  “All  debts  and 
obligations  for  the  payment  of  money  due  or  owing  to  persons  residing  within  this 
state  . . . wherever  said  securities  shall  be  held  shall  be  deemed,  for  the 

purpose  of  taxation,  personal  property  within  this  state,  and  shall  be  assessed  as 
such  to  the  owner  or  owners,”  it  was  held  that  it  referred  to  debts  or  obligations 
which  are  solely  due  or  owing  to  residents  of  this  state;  but  that  it  did  not  include 
as  owners  persons  who  are  trustees  only;  the  court  said:  “Generally  a man  is  not 
spoken  of  as  an  owner  of  property,  who  merely  holds  it  as  a trustee  and  in  a rep- 
resentative capacity.  He  has  the  legal  title,  and  he  is  to  be  assessed  for  it  when 
it  is  within  the  state,  but  this  is  by  express  provision  of  statute  and  such  pro- 
vision is  not  mentioned  in  the  case  of  a trustee  whose  trust  property  is  outside  of 
the  state  and  not  in  his  possession.”  People  ex  rel.  Darrow  v.  Coleman,  119  N.  Y. 
137. 

If  a trustee  residing  in  this  state  is  in  possession  of  the  securities,  he  can  be 
assessed  for  them  as  a trustee  in  possession  even  though  there  be  other  trustees 
who  are  non-residents.  I'n  the  case  last  cited  it  appeared  that  the  real  acting 
trustee  lived  in  New  Jersey  and  that  he  had  possession  and  control  of  the  securi- 
ties consisting  of  bonds  and  mortgages  upon  lands  in  other  states,  and  that  the 
beneficiaries  were  all  non-residents.  The  tax  commissioners  contended  that  because 
two  of  the  trustees  were  residents  of  this  state,  although  neither  of  them  had 
possession  or  control  of  the  property  and  none  of  it  was  in  this  state,  that  the  trust 
estate  was  taxable  in  this  state.  The  Court  of  Appeals  emphatically  overruled 
this  contention. 

Debts  due  to  nonresidents  by  residents.  The  clause  including  in  the  definition  of 
personal  property  debts  due  by  inhabitants  of  this  state  to  persons  not  residing 
within  the  United  States  is  derived  from  Laws  1851,  ch.  371. 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION.  47 1 

Tax  Law,  § 3. 

§ 2.  PROPERTY  LIABLE  TO  TAXATION. 

All  real  property  within  this  state,  and  all  personal  property  situated 
or  owned  within  this  state,  is  taxable  unless  exempt  from  taxation  by  law.* * * * * * 7 
[Tax  Law,  § 3;  B.  C.  & G.  Cons.  L.,  p.  5804.] 


Assessment  of  city  bonds.  The  assessment  and  collection,  by  a city,  of  a 
tax  on  its  own  bonds  in  the  hands  of  a taxpayer,  in  the  same  manner  as  on  other 
like  property,  is  proper.  People  ex  rel.  Manhattan  Fire  Ins.  Co.  v.  Comrs.  of 
Taxes,  76  N.  Y.  64. 

Patented  article.  A tax  may  be  imposed  on  a patented  article,  although  the 
patent  itself  is  not  taxable.  Webber  v.  Virginia,  103  U.  S.  344,  347. 

Award  in  condemnation  proceedings  is  taxable  to  owner,  although  appeal  is 
pending.  People  ex  rel.  Ryan  v.  Halstead,  26  App.  Div.  316,  49  N.  Y.  Supp.  685, 

affd.  159  N.  Y.  533. 

A seat  in  the  New  York  Stock  Exchange  has  been  held  by  the  Court  of  Ap- 
peals to  be  property.  Powell  v.  Waldron,  89  N.  Y.  328;  Belton  v.  Hatch,  109 
N.  Y.  593.  But  such  a membership  is  not  personal  property  arid  taxable  under 
the  laws  of  this  State.  People  ex  rel.  Lemmon  v.  Feitner,  167  N.  Y.  1;  People 
ex  rel.  Slade  v.  Comrs^  of  Taxes,  53  Misc.  336,  104  N.  Y.  Supp.  756. 

Switches  and  conduits  connecting  the  street  feed  mains  of  an  electric  supply 
company  in  a city  with  the  customer’s  premises  are  personal  property  and  are 
not  assessable  to  the  corporation  as  real  estate.  People  ex  rel.  N.  Y.  Edison  Co. 
v.  Feitner,  99  App.  Div.  274,  90  N.  Y.  Supp.  904;  affd.  181  N.  Y.  549. 

7.  Statute,  how  construed.  It  is  the  general  purpose  of  statutes  relating  to 
assessments  and  taxation,  to  secure  an  assessment  upon  all  property,  real  and 
personal,  at  its  actual  value,  and  they  must  be  construed  and  enforced  with 
this  purpose  constantly  in  view.  An  intent  to  exempt  any  property  or  any 
portion  of  the  value  of  any  property,  from  taxation  must  not  be  presumed  but 
found  plainly  expressed  in  the  statutes.  People  ex  rel.  Railroad  Co.  v.  Com- 
missioners of  Taxes,  95  N.  Y.  554. 

In  construing  this  section  the  court  said  in  the  case  of  City  of  Rochester  v. 
Coe,  25  App.  Div.  300,  305;  49  N.  Y.  Supp.  52:  “ The  language  used  is  broad  and 
comprehensive  and,  presumptively,  is  intended  to  reach  all  the  real  property 
and  personal  property  found  in  any  tax  district  of  the  state  except  such  as  is 
exempted  from  taxation  by  statutory  law.  We  think  the  words  ‘ unless  ex- 
empted from  taxation  by  law  ’ were  used  with  the  intention  of  limiting  the 
exemptions  to  such  as  should  be  enumerated  by  statutory  law.” 

Real  and  personal  property  of  aliens  situated  in  this  state  is  subject  to  taxa- 
tion by  the  city  or  county  where  it  is  located.  People  ex  rel.  Cook  v.  Dunckel, 
69  Misc.  361,  125  N.  Y.  Supp.  385. 

The  seryient  estate  cannot  be  taxed  upon  the  basis  of  the  easement  which  has 
been  made  appurtnant  to  the  dominant  estate.  People  ex  rel.  Topping  v.  Purdy, 
143  App.  Div.  389,  128  N.  Y.  Supp.  569. 

Ownership  of  property.  The  addition,  by  the  revision  of  1896,  of  the  words 
“ or  owned  ” did  not  change  the  rule  in  People  ex  rel.  Hoyt  v.  Comrs.  of  Taxes, 
23  N.  Y.  224,  that  personal  property  of  a resident  having  a situs  out  of  the  state 
is  not  taxable.  “ It  is  possible,  however,  that  it  was  intended  to  apply  to  a 
species  of  property  that  has  no  actual  situs,  such  as  credits  or  the  like;  but  a 
chattel  or  property  having  a definite  situs  is  not  owned  in  this  state  when  it  is 
actually  located  in  a foreign  state.”  People  ex  rel.  Orinoka  Mills  v.  Barker,  84 
App.  Div.  469,  83  N.  Y.  Supp.  33. 

If  a farm  belonging  to  the  wife  is  assessed  to  the  husband  who  resides  with 
her  upon  it,  the  assessment  is  void  for  want  of  jurisdiction.  Hallock  v.  Rumsey, 
22  Hun,  89.  But  see  Powell  v.  Jenkins,  14  Misc.  83. 


472 


TAXATION. 


Tax  Law,  § 4. 

§ 3.  EXEMPTION  FROM  TAXATION. 

The  following  property  shall  be  exempt  from  taxation: 


The  land  itself  may  be  taxed  to  one  person  as  owner  of  the  fee  and  the  structures 
thereon  or  the  minerals  or  quarries  therein  may  be  taxed  to  another  person.  Smith 
v.  Mayor,  etc.,  of  New  York,  68  N.  Y.  552.  A person  or  corporation  owning  fixtures, 
such  as  the  foundations,  columns  and  superstructure  of  an  elevated  railway,  may  be 
assessed  therefor,  although  the  fee  of  the  land  to  which  they  are  affixed  is  in 
another;  and  this  is  so  without  regard  to  the  question  whether  that  other  is  a 
natural  person,  or  a municipality,  or  whether  the  land  is  or  is  not  liable  to  tax- 
ation. People  ex  rel.  N.  Y.  Elevated  It.  It.  Co.  v.  Commissioners  of  Taxes,  82  N.  Y. 
459. 

Parties  may  by  contract  so  regulate  their  respective  interests  in  real  estate  that 
one  may  be  the  owner  of  the  buildings  and  the  other  of  the  land.  In  such  case  each 
interest  may  be  assessed  to  its  owner,  and  the  assessment  of  the  buildings  as  real 
estate  is  proper.  So  where  a lessee  is  the  owner  of  the  buildings  upon  the  demised 
premises  the  fact  that  the  lessor  has  by  the  lease  a right  of  re-entry  in  case  of 
non-performance  by  the  lessee,  does  not  affect  his  present  right  in  the  buildings,  or 
the  right  to  assess  them  to  him.  People  ex  rel.  Muller  v.  Board  of  Assessors,  93 
N.  Y.  308. 

In  the  case  of  People  ex  rel.  International  Navigation  Co.  v.  Barker,  153  N.  Y. 
98;  47  N.  E.  46,  it  appeared  that  a shed  was  erected  by  the  lessee  upon  a pier 
leased  from  the  city  of  New  York,  under  a lease  requiring  its  erection  and  pro- 
viding that  it  is  to  become  the  property  of  the  city  on  the  expiration  of  the 
lease.  It  was  held  that  such  .shed  became  the  property  of  the  city  on  being  erected 
and  affixed  to'the  realty,  and  was  therefore  not  taxable  as  property  of  the  lessee. 

Statutes  providing  the  procedure  for  assessing  and  collecting  taxes  for  the  sale 
of  lands  for  their  non-payment,  and  for  the  redemption  of  lands  sold  for  unpaid 
taxes  are  applicable  to  infants  and  persons  under  disabilities  unless  they  are 
excepted  from  the  operation  of  the  act.  Levy  v.  Neuman,  130  N.  Y.  11 ; 28  N.  E.  660. 

Valuation  of  suburban  real  estate. — In  ascertaining  the  actual  value  of  real 
estate  in  a purely  agricultural  community,  which  is  in  a state  of  transfer  to  subur- 
ban conditions,  some  consideration  should  be  taken  of  the  present  availability  ot 
the  land  for  other  than  farm  purposes.  People  ex  rel.  Town  of  Hempstead  v.  Tax 
Commissioners  (1914),  163  App.  Div.  803,  149  N.  Y.  Supp.  239. 

Mortgages  executed  before  recording  act  of  1906  are  subject  to  local  tax. 
Cassavoy  v.  Dimond,  121  App.  Div.  559,  106  N.  Y.  Supp.  277. 

Mortgage  on  real  property  not  to  be  deducted  from  assessment.  Paddell  v. 
City  of  New  York,  50  Misc.  422,  100  N.  Y.  Supp.  581;  affd.  114  App.  Div.  911, 
100  N.  Y.  Supp.  1133,  affd.  188  N.  Y.  544. 

Taxation  of  personal  property  within  state.  The  old  rule  of  mobilia  sequuntur 
personam  has  been  modified  so  that  the  owner  of  personal  property  may  be 
taxed  on  its  account  at  its  situs  although  not  his  residence  or  domicile;  but  the 
mere  presence  of  notes  within  a state  which  is  not  the  residence  or  domicile 
of  the  owner  does  not  bring  the  debts  of  which  they  are  the  written  evidence 
within  the  taxing  jurisdiction  of  the  state.  Buck  v.  Beach,  206  U.  S.  392. 

As  a state  cannot  directly  tax  tangible  property  permanently  outside  the  state 
and  having  no  situs  within  the  state,  it  cannot  attain  the  same  end  by  taxing 
the  enhanced  value  of  the  capital  stock  of  a corporation  which  arises  from  the 
value  of  the  property  beyond  its  jurisdiction.  D.,  L.  & W.  R.  R.  Co.  v.  Penn- 
sylvania, 198  U.  S.  341. 

8.  Rule  of  construction  as  to  exemption  clauses.  Exemptions  from  taxa- 
tion are  not  favored  and  are  to  be  strictly  construed.  They  will  not  be 
sustained  unless  such  clearly  appears  to  have  been  th©  intent  of  the 
Legislature.  People  ex  rel.  Andrews  v.  CamerOn,  140  App.  Div.  76, 
124  N.  Y.  Supp.  949,  affd.  200  N.  Y.  585.  Taxation  is  the  rule  and 


I 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION.  473, 

Tax  Law,  § 4. 

Property  of  the  United  States.9  [Tax  Law,  § 4,  sub.  1;  B.  C.  & G 
Cons.  L.,  p.  5805.] 


exemption  is  not  to  be  established  by  doubtful  implication.  People  ex  rel. 
Insurance  Co.  v.  Commissioners  of  Taxes,  76  N.  Y.  64;  People  ex  rel.  Railroad  Co. 
v.  Commissioners  of  Taxes,  82  N.  Y.  459,  465;  People  ex  rel.  D.  K.  E.  Society  v. 
Law  lor,  74  App.  Div.  553;  77  N.  Y.  Supp.  840.  An  intent  to  exempt  any  property, 
or  any  portion  of  the  value  of  any  property  may  not  be  presumed,  but  must 
be  found  plainly  expressed  in  the  statutes.  People  ex  rel.  Railroad  Co.  v.  Com- 
missioners of  Taxes,  95  N.  Y.  554.  In  determining  whether  a given  case  is  within 
a clause  in  a statute  exempting  certain  property  or  interests  from  taxation  the 
policy  of  the  law  in  making  the  exemption  must  be  considered  and  should  have 
great  weight.  People  ex  rel.  Brush  Electric  Mfg.  Co.  v.  Wemple,  129  N.  Y.  543, 
552;  29  N.  E.  808.  A presumption  that  the  legislature  intended  to  surrender  its 
right  of  taxation  in  the  future  by  a present  exemption  therefrom,  cannot  be 
entertained,  unless  such  intention  is  clearly  expressed.  People  ex  rel.  Cunning- 
ham v.  Roper,  35  N.  Y.  629;  People  ex  rel.  Westchester  Fire  Insurance  Co.  v. 
Davenport,  91  N.  Y.  574.  Statutes  of  exemption  are  to  be  strictly  construed. 
Winona  & St.  Paul  Land  Co.  v.  Minnesota,  159  U.  S.  526;  16  Sup.  Ct.  83.  They 
are  not  to  be  extended  beyond  their  exact  and  express  requirements.  Yazoo 
R.  R.  Co.  v.  Thomas,  132  U.  S.  174;  10  Sup.  Ct.  68.  Exemptions  must  be  clearly 
expressed,  and  not  left  to  implication  or  inference.  Schurz  v.  Cook,  148  U.  S. 
397;  13  Sup.  Ct.  645;  Keokuk,  etc.,  Co.  v.  Missouri,  152  U.  S.  301;  14  Sup.  Ct.'  592. 

Not  transferable.  Immunity  from  taxation  is  not  transferable.  It  is  a per- 
sonal privilege  and  not  extended  beyond  the  immediate  grantee  unless  otherwise 
expressly  declared.  Pickard  v.  Railroad  Co.,  130  U.  S.  637. 

Conditional  exemption.  Exemption  may  be  granted  upon  conditions  or  con- 
tingencies which  may  happen  in  the  future.  Mobile,  etc.,  R.  R.  Co.  v.  Tennessee, 
153  U.  S.  486. 

Effect  of  exemptions  as  to  assessments  for  local  improvements.  Exemption 
from  taxation  does  not  necessarily  embrace  exemption  from  assessment  for  a 
local  improvement.  Buffalo  City  Cemetery  v.  City  of  Buffalo,  46  N.  Y.  506; 
Matter  of  St.  Joseph’s  Asylum,  69  Id.  353. 

In  the  case  of  Roosevelt  Hospital  v.  Mayor,  etc.,  of  N.  Y.,  84  N.  Y.  108,  where 
a provision  in  an  act  incorporating  the  Roosevelt  Hospital  exempted  its  real 
estate  from  taxation,  it  was  held  that  such  real  estate  was  not  properly  ex- 
exempted  from  an  asessment  for  a local  improvement;  that  the  assessment  was 
not  taxation  within  the  meaning  of  the  act.  The  court  said:  “ In  a broad  sense, 
taxes  undoubtedly  include  assessments,  and  the  right  to  impose  assessments  has 
its  foundation  in  the  taxation  power  of  the  government;  and  yet  in  practice, 
and  generally  understood,  there  is  a broad  distinction  between  the  two  terms. 
Taxes,  as  the  term  is  generally  used,  are  public  burdens  imposed  generally  upon 
the  inhabitants  of  the  whole  state  or  upon  some  civil  division  thereof,  for 
governmental  purposes  without  reference  to  peculiar  benefits  to  particular  indi- 
viduals or  property.  Assessments  have  reference  to  impositions  for  improve- 
ments which  are  specially  beneficial  to  particular  individuals  or  property  and 
which  are  imposed  in  proportion  to  the  particular  benefits  supposed  to  be  con- 
ferred. They  are  justified  only  because  the  improvements  confer  special  benefits 
and  are  just  only  when  they  are  divided  in  proportion  to  such  benefits.”  It 


474 


TAXATION. 


Tax  Law,  § 4. 


Property 

preserve.10 


of  this  state  other  than  its  wild  or  forest  lands  in  the  forest 
[Id.,  § 4,  sub.  2.] 


follows  therefore  that  an  exemption  from  taxation  is  not  sufficient  to  exempt 
the  property  specified  from  an  assessment  for  local  improvements.  See,  also, 
Matter  of  Mayor,  etc.,  of  New  York,  11  Johns.  80;  Bleecker  v.  Ballou,  3 Wend. 
263;  Hassan  v.  City  of  Rochester,  67  N.  Y.  528. 

In  the  case  of  Roosevelt  Hospital  v.  Mayor,  etc.,  supra,  the  court  also  said: 
“ There  is  a still  further  suggestion  to  be  made.  Laws  exempting  property  from 
taxation  are  to  be  strictly  construed.  Taxation  is  the  rule;  exemption  the  ex- 
ception, and  before  any  one  can  claim  exemption  from  what  would  otherwise  be 
his  just  share  of  a tax  or  assessment,  he  must  find  a plain  warrant  for  such 
exemption  in  the  law.  In  view  of  what  has  been  said,  it  would  certainly  be  going 
to  an  extraordinary  length  to  say  that  the  exemption  from  assessments  in  the 
plaintiff’s  charter  is  plain  or  free  from  reasonable  doubt.  We  must  therefore 
hold  that  plaintiff’s  property,  while  exempt  from  taxation,  is  not  exempt  from  im- 
provement assessments.” 

Powers  of  assessors  as  to  exempt  property.  The  office  of  assessor  in  deter- 
mining what  property  is  subject  to,  and  what  is  exempt  from  taxation,  is 
judicial;  and  the  assessor  in  determining  such  questions  acts  judicially  and  is 
not  liable  for  errors  committed  in  arriving  at  his  conclusion  upon  that  subject. 
Barhyte  v.  Shepherd,  35  N.  Y.  238.  See,  also,  Vale  v.  Owen,  19  Barb.  22;  Foster 
v.  Van  Wyck,  2 Abbt.  Ct.  of  App.  Dec.  167;  41  How.  Pr.  493;  Matter  of  Peek, 
80  Hun,  122;  39  N.  Y.  Supp.  59.  But  see  Prosser  v.  Secor,  5 Barb.  607;  National 
Bank  of  Chemung  v.  City  of  Elmira,  53  N.  Y.  49;  Clark  v.  Norton,  49  Id.  243; 
Overing  v.  Foote,  65  Id.  263;  Lapolt  v.  Maltby,  10  Misc.  330,  31  N.  Y.  Supp.  686. 

Assesors  having  jurisdiction  of  the  subject  matter  and  of  the  person  assessed 
are  protected  against  liability  as  private  persons  for  the  erroneous  exercise 
of  their  judgment  when  acting  judicially  and  their  determination  cannot  be 
assailed  collaterally  or  furnish  ground  for  a private  action  against  them.  Rob- 
inson v.  Rowland,  26  Hun,  501;  Weaver  v.  Devendorf,  3 Denio,  117. 

9.  Property  of  United  States  is  only  taxable  by  consent.  Fort  Leavenworth 
R.  R.  Co.  v.  Low,  114  U.  S.  525;  Van  Brocklin  v.  Tennessee,  117  Id.  151;  Railroad 
Co.  v.  Price  Co.,  133  Id.  496.  Property  of  the  United  States  is  not  taxable  for 
municipal  or  other  purposes  unless  expressly  authorized  by  statute.  People  ex 
rel.  Mayor,  etc.,  v.  Assessors  of  Brooklyn,  19  Abb.  New  Cases,  158. 

Property  of  a corporation  of  the  United  States  may  be  taxed  by  the  state, 
although  its  franchises  may  not  be.  Central  Pac.  R.  R.  Co.  v.  California,  162 
U.  S.  125  (1896). 

10.  Property  owned  by  the  state  under  a valid  tax  sale  is  exempt  from  taxa- 
tion. Rept.  of  A tty.  Genl.,  Feb.  24,  1911. 

State  lands  in  forest  preserve.  Wild  and  forest  lands  belonging  tx>  the  state 
within  the  forest  preserve  are  assessed  at  a like  valuation  and  rate  as  similar  lands 
of  individuals  within  the  county  where  situated.  Section  22  of  the  Tax  Law,  post, 
p.  518.  The  forest  preserve  includes  the  lands  owned  by  the  state  within  the  county 
of  Clinton,  excepting  towns  of  Altoona  and  Dannemora,  and  the  counties  of  Dela- 
ware, Essex,  Franklin,  Fulton,  Hamilton,  Herkimer,  Lewis,  Oneida,  Saratoga,  St. 
Lawrence,  Warren,  Washington,  Greene,  Ulster  and  Sullivan,  except  lands  within 
the  limits  of  any  village  or  city,  and  lands  not  wild  lands  acquired  by  the  state  on 
foreclosure  of  mortgages  made  to  loan  commissioners.  Conservation  Law,  § 50,  as 
amended  by  L.  1916,  ch.  451. 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


475 


Tax  Law,  § 4. 

3.  Property  of  a municipal  corporation11  of  the  state  held  for  a 
public  use,  including  real  property  held  or  used  for  cemetery  purposes, r- 
and  all  lots  and  plats  therein  conveyed  by  the  municipal  corporation  as 
places  for  the  burial  of  the  dead,  except  the  portion  of  municipal  property 
not  within  the  corporation.  [Id.,  § 4,  sub.  3.] 


11*  Property  of  municipal  corporation.  A municipal  corporation  is  defined 
in  section  3 of  the  General  Corporation  Law,  as  including  “county,  town,  school 
district,  village  and  city  and  any  other  partial  division  of  the  state  established  by 
law  with  powers  of  local  government.”  The  above  subdivision  is  a substitute  for 
sub.  3 and  4 of  sec.  4 of  tit.  1,  ch.  13,  pt.  1,  of  the  Revised  Statutes,  which 
provided  that  “ every  school  house,  court  house  and  jail  used  for  either  of  such 
purposes;  and  the  several  lots  whereon  such  buildings  are  situated,  and  the 
furniture  belonging  to  each  of  them,”  and,  also,  “ every  poorhouse,  almshouse, 
and  the  real  and  personal  property  used  for  such  purposes  belonging  to  or  con- 
nected with  the  same,”  are  exempted  from  taxation.  The  above  subdivision 
extended  the  former  provisions  of  the  revised  statutes  so  that  all  pioperty  of 
a municipal  corporation  held  for  the  public  use  except  such  property  as  is  not 
included  within  the  limits  of  a corporation,  is  exempt  from  taxation.  This 
change  was  made  by  the  revision  of  1896  in  conformity  with  the  decisions  of 
the  court  that  property  owned  by  the  municipality  and  held  it  for  municipal 
purposes  was  not  taxable.  See  City  of  Rochester  v.  Town  of  Rush,  80  N.  Y.  302; 
People  ex  rel.  Murphy  v.  Kelley,  76  N.  Y.  479,  486-89. 

It  is  not  property  about  to  be  taken  or  become  the  property  of  a municipal  cor- 
poration that  is  exempt,  but  real  property  actually  owned  and  held  by  a municipal 
corporation  for  public  use.  Matter  of  Board  of  Education,  59  App.  Div.  258;  69 
N.  Y.  Supp.  572.  Property  of  a city  constituting  part  of  its  water  works  system 
and  located  beyond  the  boundaries  of  such  city  is  subject  to  general  taxation  in  the 
town  in  which  it  is  located.  People  ex  rel.  City  of  Amsterdam  v.  Hess,  157  N.  Y. 
42;  51  N.  E.  410.  (This  case  was  decided  before  the  addition  of  the  last  clause  to 
this  section.) 

Property  of  a municipality  is  not  subject  to  taxation,  whether  it  be  employed 
for  public  uses  or  held  in  a proprietary  capacity  in  trust  for  the  public.  People 
ex  rel.  Hollock  v.  Purdy,  72  Misc.  122. 

Presumption  of  exemption.  Property  of  a municipality,  acquired  and  held  for 
governmental  and  public  uses,  and  used  for  public  purposes,  is  not  taxable  subject 
within  the  purview  of  the  tax  laws  unless  specially  included.  People  v.  Assessors, 
111  N.  Y.  505. 

12.  Exemption  of  cemeteries.  The  consent  of  the  supervisors  is  not  essential  to 
secure  exemption  from  taxation  where  the  lands  owned  by  a cemetery  corporation 
were  acquired  under  a special  statute.  People  ex  rel.  Trustees  of  Cathedral  v. 
Davren.  16  N.  Y.  Supp.  794;  41  N.  Y.  St.  Rep.  779;  affd.  131  N.  Y.  601.  Water 
rates  assessed  against  cemetery  corporations  by  municipalities  are  not  public  rates 
within  the  meaning  of  this  section.  Batterman  v.  City  of  New  York,  65  App.  Div. 
576,  73  N.  Y.  Supp.  44. 

Lands  within  the  terms  of  this  section  are  exempt  from  taxation  from  the  mo- 
ment of  their  acquisition,  although  no  dead  are  buried  there  and  such  burial  is  for- 
bidden by  a municipal  ordinance.  People  ex  rel.  Oak  Hill  Cemetery  v.  Pratt,  129 
N.  Y.  68;  29  N.  E.  7. 

13.  Indian  lands.  Where  the  title  of  Indians  to  lands  occupied  by  them  is 
not  such  as  implies  ownership  but  is  only  temporary  in  its  character,  the  above 


TAXATION. 


4?  6 

Tax  Law,  § 4. 

The  lands  in  any  Indian  reservation  owned  by  the  Indian  nation,  tribe 
or  band  occupying  them.* 1 2 3 4 5 6 * * * * * * 13  [Id.,  § 4,  sub.  4.] 

All  property  exempt  by  law  from  execution  other  than  an  exempt 
homestead.14  But  real  property  purchased  with  the  proceeds  of  a pension 
granted  by  the  United  States  for  military  or  naval  services,  and  owned 
and  occupied  by  the  pensioner,  or  by  his  wife  or  widow,  is  subject  to 
taxation  as  herein  provided.15  Such  property  shall  be  assessed  in  the 
same  manner  as  other  real  property  in  the  tax  districts.  At  the  meeting 


sub-division  does  not  apply  and  such  lands  may  be  subject  to  taxation.  It  is 
only  where  the  lands  in  an  Indian  reservation  are  owned  by  the  Indian  nation 
or  tribe  occupying  them  that  the  exemption  applies.  Fellows  v.  Denniston, 
23  N.  Y.  420,  435.  See,  also,  People  ex  rel.  Erie  R.  R.  Co.  v.  Bearus,  52  Barb. 
105,  affd.,  41  N.  Y.  619. 

14.  Property  exempt  from  execution. 

(1.)  Personal  property  exempt.  The  following  personal  property,  when 
owned  by  a householder,  is  exempt  from  levy  and  sale  by  virtue  of  an  execution; 
and  each  movable  article  thereof  continues  to  be  so  exempt,  while  the  family, 
or  any  of  them,  are  removing  from  one  residence  to  another: 

1.  All  spinning  wheels,  weaving  looms,  and  stoves,  put  up,  or  kept  for  use,  in 
a dwelling  house;  and  one  sewing  machine,  with  its  appurtenances. 

2.  The  family  bible,  family  pictures,  and  school  books,  used  by  or  in  the 
family;  and  other  books,  not  exceeding  in  value  fifty  dollars,  kept  and  used  as 
part  of  the  family  library. 

3.  A seat  or  pew,  occupied  by  the  judgment  debtor,  or  the  family,  in  a place 
of  public  worship. 

4.  Ten  sheep,  with  their  fleeces,  and  the  yarn  or  cloth  manufactured  there- 
from; one  cow;  two  swine;  the  necessary  food  for  those  animals;  all  necessary 
meat,  fish,  flour,  groceries  and  vegetables,  actually  provided  for  family  use; 
and  necessary  fuel,  oil,  and  candles,  for  the  use  of  the  family  for  sixty  days. 

5.  All  wearing  apparel,  beds,  bedsteads,  and  bedding,  necessary  for  the 
judgment  debtor  and  the  family;  all  necessary  cooking  utensils;  one  table;  six 
chairs;  six  knives;  six  forks;  six  spoons;  six  plates;  six  tea  cups;  six  saucers; 
one  sugar  dish;  one  milk  pot;  one  tea  pot;  one  crane  and  its  appendages;  one 
pair  of  andirons;  one  coal  scuttle;  one  shovel;  one  pair  of  tongs;  one  lamp,  and 
one  candlestick. 

6.  The  tools  and  implements  of  a mechanic,  necessary  to  the  carrying  on  of 
his  trade,  not  exceeding  in  value  twenty-five  dollars.  (Code  of  Civ.  Proc.,  sec. 

1390,  as  amended  by  L.  1891,  ch.  112.) 

In  addition  to  the  exceptions  allowed  by  the  last  section,  necessary  house- 

hold furniture,  working  tools  and  team,  professional  instruments,  furniture  and 

library,  not  exceeding  in  value  two  hundred  and  fifty  dollars,  together  with 

the  necessary  food  for  the  team  for  ninety  days,  are  exempt  from  levy  and  sale 

by  virtue  of  an  execution,  when  owned  by  a person,  being  a householder,  or 

having  a family,  for  which  he  provides,  except  where  the  execution  is  issued 
upon  a judgment,  recovered  wholly  upon  one  or  more  demands,  either  for  work 

performed  in  the  family  as  a domestic,  or  for  the  purchase  money  of  one  or 

more  articles  exempt  as  prescribed  in  this  or  the  last  section.  Where  a judgment 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION.  477 

Tax  Law,  § 4. 

of  the  assessors  to  hear  the  complaints  concerning  assessments,  a verified 
application  for  the  exemption  of  such  real  property  from  taxation  may  be 
presented  to  them  by  or  on  behalf  of  the  owner  thereof,  which  appli- 
cation must  show  the  facts  on  which  the  exemption  is  claimed,  including 

lias  been  recovered,  etc.  ( Code  Civ.  Proc.,  sec.  1391,  as  amended  by  L.  1879,  ch.  542; 
L.  1901,  ch.  116;  L.  1903,  ch.  461,  and  L 1908,  ch.  148,  L.  1911,  chs.  489,  532,  and  L. 
1914,  ch.  352. 

Where  the  judgment  debtor  is  a woman,  she  is  entitled  to  the  same  exemptions, 
from  levy  and  sale,  by  virtue  of  an  execution,  subject  to  the  same  exceptions,  as 
prescribed  in  the  last  two  sections,  in  the  case  of  a householder.  (Code  Civil  Pro- 
cedure, sec.  1392.) 

(2.)  Military  pay , bounty  and  pension  exempt  from  taxation.  The  pay  and 
bounty  of  a non-commissioned  officer,  musician  or  private,  in  the  military  or  naval 
service  of  the  United  States  or  the  state  of  New  York;  a land  warrant,  pension,  or 
other  reward,  heretofore  or  hereafter  granted  by  the  United  States  or  by  a state, 
for  military  or  naval  services;  a sword,  horse,  medal,  emblem,  or  device  of  any 
kind  presented,  as  testimonial  for  services  rendered  in  the  military  or  naval  service 
of  the  United  States  or  a state;  and  the  uniform,  arms  and  equipments,  which  were 
used  by  a person  in  that  service,  are  also  exempt  from  levy  and  sale,  by  virtue  of 
an  execution,  and  from  seizure  for  non-payment  of  taxes,  or  in  any  other  legal 
proceeding;  except  that  real  property  purchased  with  the  proceeds  of  a pension 
granted  by  the  United  States  for  military  or  naval  services,  and  owned  by  the 
pensioner,  or  by  his  wife  or  widow,  is  subject  to  seizure  and  sale  for  the  collection 
of  taxes  or  assessments  lawfully  levied  thereon.  (Code  Civ.  Proc.,  sec.  1393,  as 
amended  by  L.  1897,  ch.  348.) 

(3.)  Burial  grounds  exempt  from  execution.  Land  set  apart  as  a family  or  pri- 
vate burying  ground,  and  heretofore  designated,  as  prescribed  by  law,  in  order  to 
exempt  the  same,  or  hereafter  designated  for  that  purpose,  as  prescribed  in  the  next 
section,  is  exempt  from  sale,  by  virtue  of  an  execution,  upon  the  following  condi- 
tions only: 

1.  A portion  of  it  must  have  been  actually  used  for  that  purpose. 

2.  It  must  not  exceed  in  extent  one-fourth  of  an  acre. 

3.  It  must  not  contain,  at  the  time  of  its  designation,  or  at  any  time  afterwards, 
any  building  or  structure,  except  one  or  more  vaults,  or  other  places  of  deposit  for 
the  dead,  or  mortuary  monuments.  (Code  Civ.  Proc.,  sec.  1395.) 

15.  Real  property  purchased  with  pension  money  exempt.  Property  purchased 
with  the  pay  and  bounty  of  a soldier  is  not  entitled  to  any  greater  or  different 
exemption  than  that  in  the  above  subdivision  for  the  exemption  from  taxation  of 
real  property  purchased  with  pension  moneys.  It  therefore  follows  that  real  prop- 
erty purchased  with  a soldier’s  pay  or  bounty  is  subject  to  taxation  for  local  school 
and  highway  purposes  in  the  same  manner*  as  such  property  purchased  with  pen- 
sion moneys.  People  ex  rel.  Kenney  v.  Reilly,  41  Aipp.  Div.  378;  58  N.  Y.  Supp.  558. 

Property  purchased  with  money  received  by  a retired  soldier  is  exempt  the  same 
as  property  of  a pensioner.  Rept.  of  Atty.  Genl.,  Dec.  23,  1910,  following;  People 
ex  rel.  Kenny  v.  Reilly,  41  App.  Div.  378. 

Real  property  purchased  with  bounty  money  or  pay  of  a retired  soldier  of  the 
United  States  Army  is  not  exempt  from  taxation.  Rept.  of  Atty.  Genl.,  March  27, 
1911. 

Exemption  of  property  purchased  with  pension  money  extends  to  the  amount 
invested,  when  assessed  as  one  item.  It  is  not  the  intent  of  the  statute  to  make 
a pro  rata  basis  depending  upon  the  extent  of  occupancy.  Rept.  of  Atty.  Genl., 

Jan.  31,1911.  . A J ... 

A veteran  is  entitled  to  exemption  on  property  purchased  with  pension  money, 
although  he  rents  a portion  of  such  property  and  occupies  the  remainder.  Rept. 
of  Atty.  Genl.,  Oct.  17,  1910. 

The  property  of  pensioners  is  exempt  from  a tax  imposed  to  meet  bonds  issued  for 
the  purpose  of  installing  a village  water  system.  Rept.  of  Atty.  Genl.,  May  15,  1911. 

The  exemption  from  taxation  of  all  real  property  to  the  extent  of  $5,000  pur- 
chased with  the  proceeds  of  a United  States  pension  applies  to  non-residents  as  well 
as  to  residents  of  this  State.  Rept.  of  Atty.  Genl.,  July  1,  1914. 

Amendment  of  1897,  providing  for  the  exemption  from  assessment  and  taxa- 
tion of  real  property,  purchased  with  pension  money,  to  the  extent  of  the  pension 
money  used  in  its  purchase,  is  not  retroactive.  People  ex  rel.  Jones  v.  Feitncr,  157 
N.  Y.  363,  affg.  32  App.  Div.  23. 


478 


TAXATION. 


Tax  Law,  § 4. 

the  amount  of  pension  money  used  in  or  toward  the  purchase  of  such 
property.16  No  such  exemption  on  account  of  pension  money  shall  be 
allowed  in  excess  of  five  thousand  dollars.  If  the  assessors  are  satisfied 
that  the  applicant  is  entitled  to  the  exemption,  and  that  the  amount  of 
pension  money  exempt  to  the  extent  authorized  by  this  subdivision  used 
in  the  purchase  of  such  property  equals  or  exceeds  the  assessed  valuation 
thereof,  they  shall  enter  the  word  “ exempt  ” upon  the  assessment-roll 
opposite  the  description  of  such  property.  If  the  amount  of  such  pen- 
sion money  exempt  to  the  extent  authorized  by  this  subdivision  used  in 
the  purchase  of  the  property  is  less  than  the  assessed  valuation,  they 
shall  enter  upon  the  assessment-roll  the  words  “ exempt  to  the  extent 

of dollars  ” (naming  the  amount)  and  thereupon  such 

real  property,  to  the  extent  of  the  exemption  entered  by  the  assessors, 
shall  be  exempt  from  state,  county  and  general  municipal  taxation,  but 
shall  be  taxable  for  local  school  purposes,  and  for  the  construction  and 
maintenance  of  streets  and  highways.  If  no  application  for  exemption  be 
granted,  the  property  shall  be  subject  to  taxation  for  all  purposes.  The 
entries  above  required  shall  be  made  and  continued  in  each  assessment 
of  the  property  so  long  as  it  is  exempt  from  taxation  for  any  purpose. 
The  provisions  herein,  relating  to  the  assessment  and  exemption  of 
property  purchased  with  a pension  apply  and  shall  be  enforced  in  each 
municipal  corporation  authorized  to  levy  taxes.  [Id.,  § 4,  sub.  5,  as 
amended  by  L.  1914,  ch.  278.] 

Bonds  of  this  state  or  any  civil  division  thereof.17  [Id.,  § 4,  sub.  6,  as 
amended  by  L.  1917,  ch.  97.] 


16.  Application  for  exemption.  For  form  of  application  for  exemption,  see  Form 
No.  37,  post. 

The  assessors  are  required  under  the  above  subdivision  to  place  the  real  property 
of  a veteran  purchased  with  pension  money  upon  the  roll  in  the  usual  manner  of 
assessment,  and  the  claimant  for  an  exemption  must  prefer  it  in  writing  stating 
the  amount  on  which  the  exemption  is  claimed.  People  ex  rel.  McGrane  v.  Reilly, 
21  Misc.  360;  47  N.  Y.  Supp.  742.  To  secure  the  exemption  of  real  estate  pur- 
chased in  part  with  pension  moneys  the  owner  must  make  his  claim  known  on 
grievance  day  and  in  default  thereof  the  assessment  will  stand.  Matter  of  Baum- 
garten,  391  App.  Div.  174,  57  N.  Y.  Supp.  284;  Tucker  v.  City  of  Utica,  35  App. 
Div.  206,  54  N.  Y.  Supp.  855;  McKibben  v.  Oneida  County,  25  App.  Div.  361, 
49  N.  Y.  Supp.  553;  Broderick  v.  City  of  Yonkers,  22  App.  Div.  448,  48  N.  Y. 
Supp.  265. 

17.  Under  the  amendment  of  1917,  bonds  of  school  districts,  lighting  districts,  etc., 
are  exempt  from  taxation,  which  was  not  the  case  under  the  former  law. 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


479 


Tax  Law,  § 4. 

The  real  property  of  a corporation  or  association  organized  exclusively 
for  the  moral  or  mental  improvement  of  men  or  women,  or  for  religious, 
bible,  tract,  charitable,  benevolent,  missionary,  hospital,  infirmary,  educa- 
tional, scientific,  literary,  library,  patriotic,  historical  or  cemetery  purposes, 
or  for  the  enforcement  of  laws  relating  to  children  or  animals,  or  for  two 
or  more  such  purposes,  and  used  exclusively  for  carrying  out  thereupon 
one  or  more  of  such  purposes;  and  the  personal  property  of  any  such  cor- 
poration shall  be  exempt  from  taxation.18  But  no  such  corporation  or 


18.  Corporations  entitled  to  exemption.  In  the  case  of  People  ex  rel. 
D.  K.  E.  Society  v.  Lawlor,  74  App.  Div.  553;  77  N.  Y.  Supp.  840,  it  appeared 
that  a house  owned  by  a chapter  of  a Greek  letter  college  fraternity,  organized 
as  stated  in  its  certificate  of  incorporation  for  literary  purposes  and  the 
promotion  of  fine  arts,  was  primarily  used,  with  the  exception  of  the  society 
room,  as  a boarding  place  for  the  active  members  of  the  chapter,  at  which  they 
enjoyed  the  privileges  of  home  life  and  met  for  social  recreation  and  fellowship 
without  intrusion  from  uninvited  guests;  it  was  held  that  such  property  was 
not  exempt  from  taxation  under  the  above  subdivision  although  it  was  incident- 
ally used  for  literary,  educational  and  scientific  purposes.  The  property  entitled 
to  exemption  under  this  subdivision  must  be  exclusively  used  for  the  purposes 
therein  specified.  See  Church  of  St.  Monica  v.  Mayor,  119  N.  Y.  91;  23  N.  E. 
294;  People  ex  rel.  Church  of  St.  Mary  v.  Feitner,  168  N.  Y.  494,  N.  E. 

In  the  case  of  People  ex  rel.  D.  K.  E.  Society  v.  Lawdor,  supra,  the  court 
said:  “Now  the  adverb  ‘exclusively’  is  defined  by  lexicographers  to  mean 

4 with  the  exclusion  of  all  others,  without  admission  of  others  to  participa- 
tion ’ (Century  Dictionary);  and  with  this  definition  in  mind  it  is  apparent 
that  the  partial  or  occasional  use  of  the  relator’s  chapter  house  for  literary, 
educational  or  scientific  purposes  is  not  sufficient  to  sustain  its  claim  to  ex- 
emption, unless  it  can  be  said  that  such  purposes  are  primary  and  inherent, 
while  all  others  are  secondary  and  incidental;  for  although  we  ought  not  per- 
haps to  give  the  word  ‘exclusively  ’ an  interpretation  so  literal  as  to  pre- 
vent an  occasional  use  of  the  relator’s  property  for  some  purpose  other  than 
one  or  more  of  those  specified,  yet  the  policy  of  the  law  is  to  construe 
statutes  exempting  property  from  taxation  somewhat  rigidly,  and  not  to  permit 
such  exemption  to  be  established  by  doubtful  implication.” 

In  the  case  of  People  ex  rel.  Young  Men’s  Association  v.  Sayles,  32  App. 
Div.  197;  53  N.  Y.  Supp.  67;  affd.,  157  N.  Y.  677,  it  appeared  that  the  relator 
was  a corporation  organized  exclusively  for  the  mental  and  moral  improve- 
ment of  men  and  women  and  for  benevolent  purposes.  Any  respectable  young 
man  could  become  a member  and  enjoy  its  privileges  upon  the  payment  of  a 
nominal  membership  fee.  It  owned  a building  in  the  city  of  Albany  of  which 
a portion  was  used  for  the  purpose  of  a public  library,  gymnasium,  reading, 
lecture  and  bath  rooms,  while  the  remainder  consisted  of  a spacious  and 
elaborately  constructed  theater  or  hall  suitable  for  public  meetings,  exhibitions 
and  entertainments.  This  hall  was  leased  at  fixed  rates  of  rental  and  used  for 
such  purposes  only,  the  income  therefrom  being  devoted  exclusively  to  the 
maintenance  of  the  library.  It  was  held  by  the  appellate  division  and  sub- 


480 


TAXATION. 


Tax  Law,  § 4. 

association  shall  be  entitled  to  any  such  exemption  if  any  officer,  member 
or  employe  thereof  shall  receive  or  may  be  lawfully  entitled  to  receive  any 
pecuniary  profit  from  the  operation  thereof  except  reasonable  compensa^ 


sequently  affirmed  by  the  Court  of  Appeals  that  such  property  was  subject  to 
taxation. 

In  the  ease  of  People  ex  rel.  Catholic  Union  v.  Sayles,  32  App.  Div.  203;  53  N. 
Y.  Supp.  65;  affd.  157  N.  Y.  679,  a like  conclusion  was  reached  upon  a very  similar 
state  of  facts.  The  rent  of  athletic  grounds  by  a college  to  persons  not  connected 
therewith  deprives  it  of  the  exemption.  People  ex  rel.  Adelphi  College  v.  Wells, 
97  App.  Div.  312,  89  N.  Y.  Supp.  957.  See,  also,  People  ex  rel.  Medical  Society  v. 
Neff,  34  App.  Div.  83;  53  N.  Y.  Supp.  1077.  As  to  effect  of  lease  of  academy  by 
educational  corporation,  see  People  ex  rel.  Trustees,  etc.,  v.  Mezgar,  98  App.  Div. 
237,  90  N.  Y.  Supp.  488.  Land  held  by  a voluntary  unincorporated  religious  order 
for  charitable  purposes — held  exempt.  People  ex  rel.  Missionary  Sisters  v.  Reilly, 
85  App.  Div.  71,  83  N.  Y.  Supp.  39,  affd.  178  N.  Y.  609.  The  proceeds  of  crops 
raised  on  land  owned  by  the  religious  society  of  Friends — held  not  exempt.  People 
ex  rel.  Blackburn  v.  Barton,  63  App.  Div.  581,  71  N.  Y.  Supp.  933.  The  property  of 
the  Brooklyn  Masonic  Guild,  held  exempt.  People  ex  rel.  Crook  v.  Wells,  179  N.  Y. 
257,  revg.  93  App.  Div.  500,  87  N.  Y.  Supp.  826. 

In  the  case  of  Congregation  K.  I.  A.  P.  v.  Mayor,  52  Hun,  507,  it  was  held  that 
the  building,  of  which  the  principal  story  was  used  as  a synagogue,  while  the  lower 
story  contained  the  living  rooms  of  the  janitor  of  the  synagogue  and  bath  tubs  and 
plunging  pools  for  men  and  women,  which  were  accessible  for  a pecuniary  considera- 
tion, payable  to  the  janitor  in  lieu  of  salary,  to  all  Jews,  whether  worshippers  at 
that  synagogue  or  not,  was  not  exempt  from  taxation,  for  the  reason  that  the 
building  was  not  “ exclusively  used,”  for  one  or  more  of  the  purposes  specified  in 
the  statute. 

The  religious  society  of  Friends  owned  four  hundred  and  fifty  acres  of  land  upon 
which  was  con, ducted  an  institution  for  the  education  of  Indian  children.  A portion 
of  this  land  was  cultivated  and  used  for  raising  crops  and  the  pasturage  of  cattle. 
The  crops  raised  were  more  than  sufficient  for  the  use  of  the  school  and  the  surplus 
was  sold  and  the  proceeds  devoted  to  the  school.  It  was  held  that  only  the  land 
used  for  crops  and  pasturage  was  exempt  from  taxation.  People  ex  rel.  Blackburn 
v.  Barton,  63  App.  Div.  581.  But  where  all  the  products  of  the  farm  upon  which  is 
situated  an  institution  exempt  from  taxation  under  the  above  subdivision  are  used 
for  the  maintenance  of  the  inmates  of  the  institution,  the  farm  is  entitled  to  ex- 
emption. People  ex  rel.  Seminary,  etc.  v.  Barbour,  42  Hun,  27 ; affd.  106  N.  Y.  669. 

A church  corporation  engaged  in  charitable  and  missionary  work  among  the  poor 
carried  on  such  work  by  the  aid  of  guilds  of  men  and  women,  and  a staff  consisting 
of  the  rector,  curates  and  three  sisters.  Annexed  to  the  church  building  in  which 
religious  services  were  held,  and  forming  a part  thereof,  was  the  clergy  house  and 
a rectory  devoted  to  the  use  of  the  work  of  the  corporation.  It  was  held  in  the 
appellate  division  that  the  entire  building  was  exempt  from  taxation  under  the 
above  subdivision.  People  ex  rel  Society  of  the  Free  Church  v.  Feitner,  63  App. 
Div.  181.  But  the  Court  of  Appeals  modified  its  decision  by  holding  that  the  rec- 
tory, being  located  on  another  corner  of  the  church  lot  and  separate  from  the 
other  property,  was  not  exempt  from  taxation  except  as  a dwelling  house  used 
by  the  officiating  clergyman  of  the  church.  See  sub.  9 of  sec.  4,  post.  n.  482. 

Property  bequeathed  to  a university  organized  under  the  laws  of  a foreign  state 
exclusively  for  educational,  scientific  and  literary  purposes  is,  before  payment  to 
the  beneficiary,  liable  to  taxation  in  the  town  or  village  of  the  testator’s  residence 
even  though  the  property  would  be  exempt  from  taxation  if  the  beneficiary  were 
organized  under  our  laws.  People  ex  rel.  Anderson  v.  Cameron,  140  App.  Div.  76. 
124  N.  Y.  Supp.  949,  affd.  200  N.  Y.  505.  The  power  under  a charter  to  make  al- 
lowances or  pensions  to  teachers  does  not  affect  the  right  of  the  school  to  exemption 
under  this  subdivision.  People  ex  rel.  Master  School  v.  Keys  (1917),  178  App.  Div. 
677,  165  N.  Y.  Supp.  863. 

Bequests  to  the  American  Society  for  the  Prevention  of  Cruelty  to  Animals,  or- 
ganized under  L.  1886,  ch.  469,  are  exempt  from  taxation.  People  ex  rel.  Anderson 
v.  Cameron,  140  App.  Div.  76,  124  N.  Y.  Supp.  949,  affd.  200  N.  Y.  585. 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


481 


Tax  Law,  § 4. 

tion  for  services  in  effecting  one  or  more  of  such  purposes,  or  as  proper 
beneficiaries  of  its  strictly  charitable  purposes;  or  if  the  organization 
thereof  for  any  such  avowed  purposes,  be  a guise  or  pretense  for  directly 
or  indirectly  making  any  other  pecuniary  profit  for  such  corporation  or 
association,  or  for  any  of  its  members  or  employes,  or  if  it  be  not  in  good 
faith  organized  or  conducted  exclusively  for  one  or  more  of  such  purposes. 
The  real  property  of  any  such  corporation  or  association  entitled  to  such  ex- 
emption held  by  it  exclusively  for  one  or  more  of  such  purposes  and  from 
which  no  rents,  profits  or  income  are  derived,  shall  be  so  exempt,  though 
not  in  actual  use  therefor  by  reason  of  the  absence  of  suitable  buildings  or 
improvements  thereon,  if  the  construction  of  such  buildings  or  improve- 
ments is  in  progress,  or  is  in  good  faith  contemplated  by  such  corporation 
or  association;  or  if  such  real  property  is  held  by  such  corporation  or 
association  upon  condition  that  the  title  thereto  shall  revert  in  case  any 
building  not  intended  and  suitable  for  one  or  more  of  such  purposes  shall 
be  erected  upon  said  premises  or  some  part  thereof.  The  real  property  of 
any  such  corporation  not  so  used  exclusively  for  carrying  out  thereupon 
one  or  more  of  such  purposes,  but  leased  or  otherwise  used  for  other 


Where  the  charter  of  a literary  corporation,  organized  to  promote  social  inter- 
course and  a general  knowledge  of  literature,  states  that  one  of  its  corporate  pur- 
poses is  to  own  a building  and  sublet  portions  thereof,  it  is  not  entitled  to  exemp- 
tion. People  ex  rel.  Forward  Assn.  v.  Purdy  (1917),  173  App.  Div.  926,  158  N.  Y. 
Supp.  551. 

Lincol-n  Agricultural  School  at  Iowa,  owned  by  the  New  York  Catholic  Protec- 
tory, is  exempt  from  taxation.  Rept.  of  Atty.  Genl.,  July  26,  1910. 

Real  property  of  Greely  Lodge  No.  69,  L O.  O.  F.,  used  exclusively  for  purposes  for 
which  it  was  formed,  is  exempt  from  taxation.  Rept.  of  Atty.  Genl.,  Aug.  23,  1910. 

Building  and  lot  of  Masonic  lodge  held  not  exempt.  Rept.  of  Atty.  Genl.,  July 
29,  1910. 

Real  property  of  fraternal  association,  a portion  of  which  is  rented  for  commer- 
cial purposes,  is  taxable  to  the  extent  that  it  is  so  rented,  although  the  surplus  re- 
maining after  payment  of  carrying  charges  of  property  is  devoted  to  payment  of 
benefits  to  worthy,  but  not  indigent,  members  of  the  association.  People  ex  rel. 
Delphian  Lodge  v.  Cahoon  (1917),  179  App.  Div.  287,  166  N.  Y.  Supp.  348. 

Hospital  owned  by  religious  corporation  — held  not  exempt.  People  ex  rel.  Sisters 
of  Mercy  v.  Nowles,  34  Misc.  501,  70  N.  Y.  Supp.  277.  Lands  of  hospital  corpora- 
tion used  for  care  of  consumptive  patients,  held  exempt.  Sanitorium  v.  Keese,  112 
App.  Div.  738,  98  N.  Y.  Supp.  1088.  The  charge  made  by  a hospital  for  treating 
some  of  its  patients,  the  sum  so  received  being  applied  to  the  use  of  other  poor  pa- 
tients, is  not  an  income  of  the  hospital  of  such  a nature  a3  to  deprive  the  institution 
of  its  exemption  from  taxation  under  the  above  act.  People  ex  rel.  Society  of  the 
New  York  Hospital  v.  Purdy,  58  Hun  386,  12  N.  Y.  Supp.  307;  affd.  126  N.  Y.  679. 

Effect  of  subdivision  upon  special  provisions.  The  provisions  of  the  above  subdi- 
vision exempting  the  property  of  a charitable  corporation  and  association  from  tax- 
ation supersede,  and  by  implication  repeal,  the  provisions  of  all  special  acts  exempt- 
ing the  property  of  such  corporations  and  associations  from  taxation.  Matter  of 
Huntington,  168  N.  Y.  399’;  Pratt  Institute  v.  City  of  New  York,  183  N.  Y.  151. 
Ihe  provision  of  the  charter  of  the  Roosevelt  Hospital  exempting  its  property  from 
taxation,  held  not  to  be  repealed  by  the  General  Tax  Law,  on  the  ground  that  the 
courts  will  not  assume  that  the  legislation  exercised  by  implication  its  reserved 
power  to  alter  or  repeal  a charter,  where  the  transfer  of  property,  in  endowment, 
was  thus  indirectly  induced  by  a promise  of  an  exemption  from  taxation.  People 
ex  rel.  Roosevelt  Hospital  v.  Raymond,  194  N.  Y.  189,  revg.  126  App.  Div.  720,  111 
N.  Y.  Supp.  177,  and  distinguishing  Matter  of  Huntington,  168  N.  Y.  399;  Pratt  In- 
stitute v.  City  of  New  York,  183  N.  Y.  151;  People  ex  rel.  Cooper  Union  v.  Gass, 
190  N.  Y.  323. 


482 


TAXATION. 


Tax  Law,  § 4. 

purposes,  shall  not  be  exempt,  but  if  a portion  only  of  any  lot  or  building 
of  any  such  corporation  or  association  is  used  exclusively  for  carrying 
out  thereupon  one  or  more  such  purposes  of  any  such  corporation  or 
association,  then  such  lot  or  building  shall  be  so  exempt  only  to  the 
extent  of  the  value  of  the  portion  so  used,  and  the  remaining  or  other 
portion,  to  the  extent  of  the  value  of  such  remaining  or  other  portion, 
shall  be  subject  to  taxation;  provided,  however,  that  a lot  or  building 
owned,  and  actually  used  for  hospital  purposes,  by  a free  public 
hospital,  depending  for  maintenance  and  support  upon  voluntary  charity, 
shall  not  be  taxed  as  to  a portion  thereof  leased  or  otherwise  used  for  the 
purposes  of  income,  when  such  income  is  necessary  for,  and  is  actually 
applied  to  the  maintenance  and  support  of  such  hospital,  and  further  pro- 
vided that  the  real  property  of  any  fraternal  corporation,  association  or 
body  created  to  build  and  maintain  a building  or  buildings  for  its  meet- 
ing or  meetings  of  the  general  assembly  of  its  members,  or  subordinate 
bodies  of  such  fraternity  and  for  the  accommodation  of  other  fraternal 
bodies  or  associations,  the  entire  net  income  of  which  real  property  is 
exclusively  applied  or  to  be  used  to  build,  furnish  and  maintain  an 
asylum  or  asylums,  a home  or  homes,  a school  or  schools,  for  the  free 
education  or  relief  of  the  members  of  such  fraternity,  or  for  the  relief, 
support  and  care  of  worthy  and  indigent  members  of  the  fraternity, 
their  wives,  widows  or  orphans,  shall  be  exempt  from  taxation,  and 
provided  also  that  the  real  estate  owned  by  a free  public  library  or  held  in 
trust  by  an  educational  corporation  for  free  public  library  purposes  situate 
outside  of  a city,  shall  not  be  taxed  as  to  that  portion  thereof  leased  or 
otherwise  used  for  purposes  of  income,  when  such  income  is  necessary 
for  and  actually  applied  to  the  maintenance  and  support  of  such  library. 
Property  held  by  any  officer  of  a religious  denomination  shall  be  entitled  to 
the  same  exemptions,  subject  to  the  same  conditions  and  exceptions,  as 
property  held  by  a religious  corporation.  Property  held  by  trustees  named 
in  a will  or  deed  of  trust  or  appointed  by  the  supreme  court  of  the  state 
of  New  York  for  hospital  and  library  purposes,  as  set  forth  in  this  sub- 
division, shall  be  exempt  to  the  same  extent  and  subject  to  the  same  condi- 
tions and  exceptions  as  if  held  by  a corporation.  [Id.,  § 4,  sub.  7,  as 
amended  by  L.  1916,  ch.  411,  and  L.  1918,  ch.  288.] 

Real  property  of  an  incorporated  association  of  present  or  former  volun- 
teer firemen  actually  and  exclusively  used  and  occupied  by  such  corpora- 
tion and  not  exceeding  in  value  fifteen  thousand  dollars.18a  [Id.,  § 4, 
sub.  8.] 


Maintenance  of  lamp  district.  The  property  of  corporations  or  associations  fall- 
ing within  the  classifications  made  by  subdivision  7,  is  exempt  from  payment  of  a 
tax  levied  pursuant  to  the  provisions  of  article  XTI  of  the  Town  Law  for  the  estab- 
lishment and  maintenance  of  a lamp  or  lighting  district.  Rept.  of  Atty.  Genl. 
(1915)  44. 

18a.  Firemen’s  association.  Under  the  statute  exempting  from  taxation  “real 
property  of  an  incorporated  association  of  present  or  former  volunteer  firemen 
actually  and  exclusively  used  and  occupied  by  such  corporation  and  not  exceeding 
in  value  fifteen  thousand  dollars,”  property  of  such  an  association  of  the  value  of 
$15,000  or  less  is  exempt,  and  the  assessing  officers  have  no  jurisdiction  over  it. 
Elmhurst  Fire  Co.  v.  City  of  New  York  (1914),  213  N.  Y.  87. 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


483 


Tax  Law,  § 4. 


All  dwelling-houses  and  lots  of  religious  corporations  while  actually 
used  by  the  officiating  clergymen  thereof,  but  the  total  amount  of  such 
exemption  to  any  one  religious  corporation  shall  not  exceed  two  thousand 
dollars.  Such  exemption  shall  be  in  addition  to  that  provided  by  subdivi- 
sion seven  of  this  section.19  [Id.,  § 4,  sub.  9.] 

The  real  property  of  an  agricultural  society  permanently  used  by  it  for 
exhibition  grounds.20  [Id.,  § 4,  sub.  10.] 

The  real  and  personal  property  of  a minister  of  the  gospel  or  priest  of 
any  denomination  being  an  actual  resident  and  inhabitant  of  this  state , 
who  is  engaged  in  the  work  assigned  to  him  by  the  church  or  denomination 
to  which  he  belongs,  or  who  is  disabled  by  impaired  health  from  the  per- 
formance of  such  duties,  or  over  seventy  years  of  age,  and  the  property  of 
the  widow  of  such  minister  while  she  remains  such  and  is  an  actual  resi- 
dent and  inhabitant  of  this  state,  but  the  total  amount  of  such  exemption 
on  account  of  both  real  and  personal  property  shall  not  exceed  fifteen  hun- 
dred dollars.21  [Id.,  § 4,  sub.  11,  as  amended  by  L.  1916,  ch.  412,  and  L. 
1917,  ch.  42.] 

All  vessels  registered  at  any  port  in  this  state  and  owned  by  an  Amer- 
ican citizen , or  association,  or  by  any  corporation,  incorporated  under  the 
laws  of  the  state  of  New  York,  engaged  in  ocean  commerce  between  any 
port  in  the  United  States  and  any  foreign  port,  are  exempted  from  all 
taxation  in  this  state,  for  state  and  local  purposes;  and  all  such  corpora- 
tions, all  of  whose  vessels  are  employed  between  foreign  ports  and  ports 
in  the  United  States,  are  exempted  from  all  taxation  in  this  state,  for 
state  and  local  purposes,  upon  their  capital  stock,  franchises  and  earnings, 
until  and  including  December  thirty-first,  nineteen  hundred  and  twenty- 
two.  [Id.,  § 4,  sub.  12.] 

A bond , mortgage , note,  contract,  account  or  other  demand,  belonging 
to  any  person  not  a resident  of  this  state,  sent  to  or  deposited  in  this  state 
for  collection ; the  products  of  another  state,  owned  by  a nonresi- 
dent of  this  state  and  consigned  to  his  agent  in  this  state  for  sale  on 

19.  Property  used  for  religious  purposes,  owned  by  an  individual,  to  whom 
rent  is  paid  for  such  use,  is  not  exempt  from  taxation.  Rept.  of  Atty.  Genl.  (1894) 
211. 

20.  Lands  which  an  agricultural  society  holds  by  a lease  are  not  exempt.  Rept. 
of  Atty.  Genl.  (1895)  222. 

21.  Exemption  of  ministers  and  priests.  A minister  who  is  withdrawn 
from  active  duty  as  such  by  reason  of  age  or  infirmity,  but  is  engaged  in  no  secular 
occupation  is  entitled  to  an  exemption.  People  ex  rel.  Mann  v.  Peterson,  31  Hun, 
421.  Where  the  value  of  a minister’s  property  exceeds  the  sum  of  $1,500,  he  is 
entitled  to  a deduction  for  that  amount,  although  he  has  not  occupied  the  real 
property.  Idem. 

Property  of  clergyman  regularly  engaged  in  his  duties  or  permanently  disabled 
is  exempt,  no  matter  where  he  resides.  Rept.  of  Atty.  Genl.  (1903)  226. 

The  assessors’  acts  in  determining  the  value  of  the  property  of  a minister  are 
judicial  and  they  cannot  be  held  liable  for  assessing  the  property  in  excess  of  the 
valuation  exempted.  Weaver  v.  Devendorf,  3 Denio,  117;  Vale  v.  Oyen,  19  Barb.  22. 

To  enable  a minister  of  the  gospel  to  maintain  an  action  against  assessors,  for 
assessing  his  property,  and  thereby  subjecting  him  to  the  payment  of  taxes,  he 
must  show  that  he  is  such  minister,  and  that  the  value  of  both  his  real  and  personal 
property  does  not  exceed  $1,500.  Prosser  v.  Secor,  5 Barb.  607. 

The  property  of  a minister  of  the  gospel  engaged  in  secular  occupation  discharg- 
ing occasional  duties  as  a minister  is  not  regularly  engaged  in  performing  his  duties 
as  such,  and  is  not  entitled  to  the  statutory  exemption  from  taxation.  Rept.  of 
Atty.  Genl.  (1914)  386. 


484 


TAXATION. 


Tax  Law,  § 4. 

commission  for  the  benefit  of  the  owner;  moneys  of  a nonresident  of  this 
state,  under  the  control  or  in  the  possession  of  his  agent  in  this  state, 
when  transmitted  to  such  agent  for  the  purpose  of  investment  or  other- 
wise.22 [Id.,  § 4,  sub.  13.] 


22.  Exemption  of  securities  belonging  to  non-residents.  The  statute  pro- 
vides that  a person  shall  be  taxed  in  the  tax  district  where  he  resides,  when 
the  assessment  for  taxation  is  made,  for  all  personal  property  owned  by 
him  or  under  his  control  as  agent,  trustee , guardian,  executor  or  administrator. 
Tax  Law,  sec.  8,  post,  p.  492.  This  provision  if  standing  alone  would  doubtless 
autnorize  the  assessment  of  all  personal  property  belonging  to  a non-resident 
in  the  hands  of  his  agent  in  this  state.  But  by  virtue  of  the  above  subdivision 
there  are  appended  to  this  general  provision  two  important  qualifications;  first, 
that  the  products  of  any  state  of  the  United  States  consigned  to  any  agent 
in  this  state  for  sale  on  commission  shall  not  be  assessed  to  such  agent;  second, 
that  agents  of  moneyed  corporations  of  capitalists  shall  not  be  liable  to  taxa- 
tion for  any  moneys  in  their  possession  or  under  their  control,  transmitted  to 
them  for  the  purpose  of  investment  or  otherwise. 

The  Court  of  Appeals,  in  the  case  of  Williams  v.  Board  of  Supervisors,  78 
N.  Y.  561,  in  speaking  of  these  exemptions,  says:  “Nothing  can  be  more 

plain  than  the  policy  and  purpose  of  these  exemptions.  They  are  clearly 
intended  to  further  the  trade  and  commerce  of  the  state  and  to  encourage  and 
even  invite  the  sending  of  foreign  capital  here  for  investment.  It  is  argued, 
however,  that  the  exemption  as  to  capital  continues  only  so  long  as  it  remains 
uninvested,  and  that  when  invested,  if  the  securities  remain  in  the  hands  of 
the  agent  they  are  taxable.  If  such  were  the  true  construction  of  the  provision 
it  would  be  quite  ineffectual  and  rather  a lure  than  a protection  to  foreign 
capitalists  who  might  send  their  capital  here  to  be  invested  under  the  assurance 
that  it  should  be  free  from  taxation.  But  such  a construction  is  precluded  by 
the  express  provisions  of  the  statute  contained  in  the  same  chapter,  which 
declares  that  when  any  bond,  mortgage,  note,  contract,  account,  or  other 
demand  belonging  to  any  person,  not  being  a resident  of  this  state,  shall  be  sent 
to  this  state  for  collection,  or  shall  be  deposited  in  this  state  for  the  same  pur- 
pose, such  property  shall  be  exempt  from  taxation.  . . . These  provisions 
are  clearly  designed  to  afford  to  the  foreign  capitalist  who  invests  his  funds 
here  every  conceivable  protection.  His  capital  cannot  be  taxed  while  awaiting 
investment.  If  the  securities  are  taken  by  him  out  of  the  state  he  may  with 
impunity  send  them  back  to  the  agent  here  for  the  collection  of  principal  or 
interest.  And  if  instead  of  being  removed  from  the  state,  they  are  deposited 
here  with  an  agent  for  collection,  they  are  equally  free.  The  capital  is  pro- 
tected from  taxation  whether  invested  or  uninvested,  and  whether  the  securities 
are  taken  away  or  remain  here  for  collection.”  Funds  sent  here  for  investment 
are  not  taxable.  People  ex  rel.  Ferrer  v.  Comrs.  of  Taxes,  42  Hun  560.  Con- 
tracts for  the  sale  of  land  in  the  hands  of  a resident  agent  are  not  taxable. 
Lord  v.  Arnold,  18  Barb.  104.  See  also  Boardman  v.  Supervisors  of  Tompkins, 
85  N.  Y.  359;  People  ex  rel.  Smith  v.  Comrs.  of  Taxes,  100  Id.  215. 

Debts  due  to  non-residents  upon  contracts  for  the  sale  of  real  estate 
situated  within  the  state,  which  contracts  were  in  the  hands  of  an  agent 
residing  within  the  state,  are  liable  to  assessment  and  taxation  against  such 
agent.  People  ex  rel.  Young  v.  Willis,  133  N.  Y.  383;  31  N.  E.  125.  The  above 
subdivision  does  not  apply  to  assets  in  the  hands  of  an  administrator  of  a 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


485 


Tax  Law,  § 4. 

The  deposits  in  any  bank  for  savings  which  are  due  depositors,23  the 
accumulations  in  any  domestic  life  insurance  corporation,  held  for  the 
exclusive  benefit  of  the  insured,  other  than  real  estate  and  stocks,  now 
liable  to  taxation,  the  accumulations  of  any  incorporated  co-operative  loan 
association  upon  the  shares  of  such  association  held  by  any  person;  certifi- 
cates of  investment  or  other  evidences  of  indebtedness,  together  with  any 
accumulations  thereon,  issued  by  any  investment  company  organized  pur- 
suant to  the  provisions  of  article  seven  of  the  banking  law  and  actually 
exercising  the  powers  conferred  by  both  subdivisions  two  and  four  of  section 
two  hundred  and  ninety-three  of  the  banking  law ; and  personal  property  of 
any  corporation,  person,  company  or  association  transacting  the  business 
of  fire,  casualty  or  surety  insurance  in  this  state  equal  in  value  to  the 
unearned  premiums  required  by  the  laws  of  this  state,  or  the  regulations  of 
its  insurance  department,  to  be  charged  as  a liability.24  [Id.,  § 4,  sub.  14, 
as  amended  by  L.  1917,  ch.  707.] 

Moneys  collected  in  the  course  of  the  business  of  any  corporation,  asso- 
ciation or  society  doing  a life  or  casualty  insurance  business  or  both,  upon 
the  co-operative  or  assessment  plan,  and  which  are  to  be  used  for  the  pay- 
ment of  assessments,  or  for  death  losses  or  for  benefits  to  disabled  members. 
[Id.,  § 4,  sub.  15.] 

The  owner  or  holder  of  stock  in  an  incorporated  company  liable  to 


resident  of  Scotland  where  such  assets  consists  of  debts  due  on  bond  and  mort- 
gage on  real  property  located  in  this  state,  and  where  the  residuary  legatees 
reside  therein.  People  ex  rel.  Cochrane  v.  Coleman,  128  N.  Y.  524;  28  N.  E.  465. 
Nor  to  drafts  upon  a foreign  corporation  doing  business  within  the  state. 
People  ex  rel.  International  Banking  Corp.  v.  Raymond,  117  App.  Div.  62, 
102  N.  Y.  Supp.  85,  affg.  52  Misc.  194,  102  N.  Y.  Supp.  84. 

23.  Deposits  in  savings  banks.  The  exemption  from  taxation  conferred  by 
the  above  subdivision  upon  “ deposits  in  any  bank  for  savings  which  are  due 
depositors,”  applies  to  the  depositors  as  well  as  to  the  bank  and  relieves  them 
from  assessment  for  taxation  as  to  their  deposits.  People  ex  rel.  Hiermance 
v.  Dederick,  158  N.  Y.  414;  53  N.  E.  163;  People  ex  rel.  Ithaca  Sav.  Bank  v. 
Beers,  67  How.  Pr.  219. 

Every  savings  bank  is  required  to  pay  to  the  state  annually  for  the  privilege 
of  exercising  its  corporate  franchise  or  carrying  on  its  business  in  such 
corporate  or  organized  capacity  an  annual  tax,  which  shall  be  equal  to  one  per 
centum  on  the  par  value  of  its  surplus  and  undivided  earnings.  Tax  Law,  sec. 
189,  as  added  by  L.  1901,  ch.  117.  Prior  to  this  statute  it  was  held  that  the 
surplus  of  a savings  bank  exempt  under  the  above  subdivision.  People  ex  rel. 
Newburg  Savings  Bank  v.  Peck,  157  N.  Y.  51;  51  N.  E.  412. 

24.  The  amendment  of  1901  adding  the  exemption  of  property  equal  in  value 
to  unearned  premiums  supersedes  Nat.  Surety  Co.  v.  Feitner,  166  N.  Y.  129, 
which  held  that  the  unearned  premiums  of  a surety  company  are  not  deductable 
as  debts. 

Deposits  are  exempt  to  the  bank.  People  ex  rel.  Ithaca  Savings  Bank  v. 
Beers,  67  How.  Pr.  219.  And  also  to  depositors.  People  ex  rel.  Hermance  v. 
Dederick,  158  N.  Y.  414,  affg.  35  App.  Div.  29,  54  N.  Y.  Supp.  519. 

Surplus  of  savings  bank  is  exempt  under  this  subdivision.  People  ex 
rel.  Newburgh  Bank  v.  Peck,  157  N.  Y.  51,  affg.  32  App.  Div.  624,  52  N.  Y. 
Supp.  259. 


486 


TAXATION. 


Tax  Law,  § 4,  subs.  17-19;  Trans.  Corp.  Law,  § 141. 

taxation  on  its  capital,  shall  not  be  taxed  as  an  individual  for  such  stock.25 
[Id.,  § 4,  sub.  16.] 

The  personal  property  in  excess  of  one  hundred  thousand  dollars  of  a 
mutual  life  insurance  corporation  incorporated  in  this  state  before  April 
tenth,  eighteen  hundred  and  forty-nine.  [Id.,  § 4,  sub.  17.] 

Property  real,  from  which  no  income  is  derived,  and  personal  property, 
situated  within  any  city  of  the  first  class  and  belonging  to  the  medical 
society  of  any  county,  which  county  is  either  wholly  or  partly  within  such 
city  and  which  society  was  heretofore  incorporated  under  the  provisions 
of  chapter  ninety-four,  laws  of  eighteen  hundred  and  thirteen,  entitled 
“ An  act  to  incorporate  medical  societies  for  the  purpose  of  regulating 
the  practice  of  physic  and  surgery  in  this  state,”  provided  that  such 
property  is  used  for  the  purposes  of  such  a society  and  not  otherwise,  and 
provided  that  such  exemption  of  property  for  any  society  in  the  coun- 
ties of  Kings  or  New  York,  shall  not  exceed  one  hundred  and  fifty  thou- 
sand dollars,  and  in  any  other  county  affected  hereby,  shall  not  exceed 
fifty  thousand  dollars.  [Id.,  § 4,  sub.  18.] 

Property  real  from  which  no  rent  is  derived  and  personal  property 
situated  within  any  city  of  the  first  class  and  belonging  to  any  incorpo- 
rated pharmaceutical  society  of  any  county  which  is  either  wholly  or  partly 
within  such  city,  which  society  has  heretofore  been  or  may  hereafter  be 
authorized  and  empowered  by  act  of  the  legislature  to  establish  and  which 
has  established  or  may  hereafter  establish,  a college  of  pharmacy  in  such 
city;  provided  that  such  property  is  used  for  the  purposes  of  such  college 
and  not  otherwise,  and  provided  also  that  the  exemption  of  such  property 
for  any  society  in  the  counties  of  Kings  and  New  York  shall  not  exceed 
one  hundred  thousand  dollars  and  in  any  other  county  affected  hereby, 
shall  not  exceed  fifty  thousand  dollars.  [Id.,  § 4,  sub.  19.] 

Household  furniture  and  personal  effects  to  the  value  of  one  thousand 
dollars.  [Id.,  § 4,  sub.  21,  as  added  by  L.  1912,  ch.  267.] 

§ 6.  EXEMPTION  OF  PROPERTY  BELONGING  TO  A PLANK  ROAD 
OR  TURNPIKE  CORPORATION. 

So  much  of  any  bridge  or  toll -house  of  any  bridge  corporation  as  may 


25.  Exemption  of  corporate  stock.  The  shares  of  stock  of  corporations 
created  under  the  laws  of  this  state  are  not  taxable  in  the  hands  of  the  stock- 
holders, nor  are  shares  of  stock  of  corporations  created  by  other  states  taxable, 
since  the  presumption  is  that  they  are  taxed  upon  their  capital  in  the  same 
states.  Bonds  being  evidence  of  a fixed  indebtedness  are  taxable  at  their  actual 
value.  People  ex  rel.  Trowbridge  v.  Commissioners  of  Texas,  4 Hun,  595., 
affd.,  62  N.  Y.  630. 

A corporation  is  not  subject  to  taxation  upon  stock  of  another  corporation 
owned  by  it  and  the  capital  of  which  is  taxable,  any  more  than  an  individual 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION.  437 

Membership  Corporation  Law,  § 171. 

be  within  any  town,  city  or  village,  shall  be  liable  to  taxation  therein  as 
real  estate.  Toll  houses  and  other  fixtures,  and  all  property  belonging 
to  any  plank  road  or  turnpike  corporation  shall  be  exempt  from  assessment 
and  taxation  for  any  purpose  until  the  surplus  annual  receipts  of  tolls 
on  its  road  over  necessary  repairs  and  a suitable  reserve  fund  for  repairs 
or  relaying  of  plank,  shall  exceed  seven  per  centum  per  annum  on  the  first 
cost  of  the  road.26  If  the  assessors  of  any  town,  village  or  city  and  the 
corporation  disagree  concerning  any  exemption  claim,  the  corporation  may 
appeal  to  the  county  judge  of  the  county  in  which  such  assessment  is 
proposed  to  be  made,  who  shall,  after  due  notice  to  both  parties,  examine 
the  books  and  vouchers  of  the  corporation,  and  take  such  further  proof 
as  he  shall  deem  proper,  and  decide  whether  such  corporation  is  liable 
to  taxation  under  this  section,  and  his  decision  shall  be  final.  [Transpor- 
tation Corporations  Law,  § 141;  B.  C.  & G.  Cons.  L.,  p.  6350.] 


§ 7,  EXEMPTION  OF  PROPERTY  OF  SOLDIERS’  MONUMENT  AS- 
SOCIATION. 

The  property  of  any  corporation  formed  pursuant  to  laws  of  eighteen 
hundred  and  sixty-six,  chapter  two  hundred  and  seventy-three,  as  amended 
by  laws  of  eighteen  hundred  and  eighty-eight,  chapter  two  hundred  and 
ninety-nine,  shall  be  exempt  from  levy  and  sale  on  execution,  and  from 
all  public  taxes,  rates  and  assessments,  and  no  street,  road,  avenue  or 


stockholder  would  be.  People  ex  rel.  Brooklyn  Traction  v.  Board  of  Assessors, 
30  N.  Y.  Supp.  488;  61  N.  Y.  St.  Rep.  480.  See  also  People  ex  rel.  Keppler  v< 
Barker,  22  App.  Div.  120,  47  N.  Y.  Supp.  958,  affd.  155  N.  Y.  661. 

26.  Exemption  of  plank  and  turnpike  roads.  Property  of  plank  and  turnpike 
road  corporations  are  exempt  from  taxation  until  the  surplus  annual  tolls 
over  necessary  repairs  and  a suitable  reserve  fund  for  repairs  or  relaying  plank 
shall  exceed  7 per  cent,  per  annum  on  the  first  cost  of  the  road.  The  first 
cost  of  the  road  means  only  such  road  as  the  company  has  and  operates  at 
the  time  of  the  assessment;  so  where  a company  constructed  the  plank  road, 
and  afterwards  abandoned  a portion  of  it,  it  was  held  that  the  first  cost  of  the 
portion  of  the  road  retained,  and  not  of  the  whole  original  road,  was  to  be 
estimated  in  determining  whether  the  property  of  the  company  was  assessable. 
People  v.  Freeman,  3 Lans.  148. 

Assessment  for  improvements  in  cities.  The  provisions  of  the  charter  of  the 
city  of  Gloversville  (L.  1899,  ch.  275,  § 105)  authorizing  the  city  to  make 
public  improvements  and  assess  the  expense  upon  the  lands  bordering  or 
touching  upon  the  improved  street,  and  against  any  plankroad  company  occupy- 
ing any  portion  thereof,  abrogate  the  exemption  from  assessment  for  public 
inprovements  conferred  upon  a plankroad  company  by  the  provisions  of  this 
section.  People  ex  rel  Cayadutta  P.  R.  Co.  v.  Cummings,  166  N.  Y.  110,  revg. 
53  App.  Div.  36,  65  N.  Y.  Supp.  581. 


488 


TAXATION. 


Tax  Law,  § 16. 

thoroughfare  shall  be  laid  through  the  lands  of  such  association  held  for 
the  purposes  aforesaid  without  the  consent  of  the  trustees  of  such  cor- 
poration, except  by  special  permission  of  the  legislature  of  the  state. 
[Membership  Corporation  Law,  § 171,  in  part;  B.  C.  & G.  Cons.  L.,  p. 
8442.] 

7a.  EXEMPTION  AND  REDUCTION  IN  ASSESSMENT  OF  LANDS  PLANTED 
WITH  TREES  FOR  FORESTRY  PURPOSES. 

Whenever  the  owner  of  lands,  to  the  extent  of  one  or  more  acres  and 
not  exceeding  one  hundred  acres,  shall  plant  the  same  for  forestry  pur- 
poses with  trees  to  the  number  of  not  less  than  eight  hundred  to  the 
acre,  and  whenever  the  owner  of  existing  forest  or  brush  lands  to  the 
extent  of  one  or  more  acres  and  not  exceeding  one  hundred  acres,  shall 
under  plant  the  same  with  trees,  to  the  number  of  not  less  than  three 
hundred  to  the  acre,  and  proof  of  that  fact  shall  be  filed  with  the  assess- 
ors of  the  tax  district  or  districts  in  which  such  lands  are  situated  as 
hereinafter  provided,  such  lands  so  forested  shall  be  exempt  from  as- 
sessment and  taxation  for  any  purpose  for  a period  of  thirty-five  years 
from  the  date  of  the  levying  of  taxes  thereon  immediately  following 
such  planting,  and  such  existing  forest  or  brush  lands  so  underplanted 
shall  be  assessed  at  the  rate  of  fifty  per  centum  of  the  assessable  valua- 
tion of  such  land  exclusive  of  any  forest  growth  thereon  for  a period  of 
thirty-five  years  from  the  date  of  the  levying  of  taxes  thereon  imme- 
diately following  such  underplanting.  The  owner  or  owners  of  lands 
forested  as  above  provided,  in  order  to  secure  the  benefits  of  this  section, 
shall  file  with  the  conservation  commission  an  affidavit  making  the  due 
proof  of  such  planting  or  underplanting  and  setting  forth  an  accurate 
description  of  such  lands,  the  town  and  county  in  which  the  same  are 
situated,  the  number  of  trees  planted  or  underplanted  to  the  acre  and 
the  number  of  acres  so  forested,  which  affidavit  shall  remain  on  file  in 
the  office  of  said  commission.  Upon  the  filing  of  such  affidavit  it  shall 
be  the  duty  of  the  conservation  commission  to  cause  an  inspection  of 
such  forested  lands  to  be  made  by  a competent  forester  or  other  em- 
ployee of  said  commission  who  shall  make  and  file  with  said  commission 
a written  report  of  such  inspection.  If  the  commission  is  satisfied  from 
the  said  affidavit  and  the  report  of  inspection  that  the  lands  have  been 
forested  as  above  provided,  in  good  faith  and  by  adequate  methods  to 
produce  a forest  plantation,  and  are  entitled  to  the  exemption  of  assess- 
ment or  to  a reduction  of  assessment  as  provided  in  this  section,  it  shall 
make  and  execute  a certificate  under  the  seal  of  its  office,  and  file  the 
same  with  the  county  treasurer  of  the  county  in  which  the  lands  so  for- 
ested are  located,  which  certificate  shall  set  forth  a description  of  the 
lands  affected  by  this  section,  the  area  and  owner  or  owners  thereof,  the 
town  or  towns  in  which  the  same  are  situated,  the  description  upon  the 
last  assessment-roll  which  included  said  lands,  the  period  of  exemption 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


488a 


Tax  Law,  § 16. 

or  of  reduction  of  assessment  to  which  such  lands  are  entitled  and  the 
date  of  the  expiration  of  such  exemption  or  reduction  of  assessment. 
Upon  the  filing  of  such  certificate  it  shall  be  the  duty  of  the  county  treas- 
urer to  file  with  the  assessors  of  the  tax  district  in  which  the  lands  de- 
scribed therein  are  located  within  ten  days  after  receipt  thereof  a certi- 
fied copy  of  such  certificate,  and  the  assessors  of  such  tax  district  shall 
place  the  lands  according  to  the  description  contained  in  said  certificate 
upon  the  next  assessment-roll  prepared  for  the  assessment  of  lands  with- 
in such  tax  district,  and  shall  exempt,  or  reduce  the  assessment  upon, 
the  lands  so  described  as  hereinbefore  provided,  and  shall  insert  upon 
the  margin  of  said  assessment-roll  opposite  the  description  of  said  lands, 
a statement  that  in  accordance  with  the  provisions  of  this  section  of  the 
tax  law  said  lands  are  exempt  from  taxation  or  that  the  assessment 
thereof  is  reduced  fifty  per  centum  as  the  case  may  be  and  insert  also 
in  the  margin  the  date  of  the  expiration  of  such  exemption  or  reduction 
of  assessment  and  such  lands  shall  continue  to  be  exempted,  assessed  and 
carried  in  such  manner  upon  the  assessment-rolls  of  such  town  until 
the  date  of  the  expiration  of  such  exemption  or  reduction  of  assessment. 
Lands  which  have  been  forested  as  above  provided  within  three  years 
prior  to  the  taking  effect  of  this  section  may  come  within  its  provisions 
if  application  therefor  is  made  to  the  conservation  commission  within 
one  year  from  the  time  when  this  section  takes  effect,  but  except  as  pro- 
vided by  this  section  the  period  of  exemption  or  reduction  as  certified 
to  by  the  conservation  commission  shall  not  exceed  the  period  of  thirty- 
five  years  from  the  date  of  the  original  planting.  Lands  situated  within 
twenty  miles  of  the  corporate  limits  of  a city  of  the  first  class,  or  within 
ten  miles  of  the  corporate  limits  of  a city  of  the  second  class,  or  with- 
in five  miles  of  the  corporate  limits  of  a city  of  the  third  class,  or  within 
one  mile  of  the  corporate  limits  of  an  incorporated  village  shall  not  be 
entitled  to  the  exemption  or  reduction  of  assessment  provided  for  by 
this  section.  In  the  event  that  lands  exempted  or  reduced  in  taxation 
as  above  provided  shall,  by  act  of  the  owner  or  otherwise,  at  any  time 
during  the  period  of  exemption  or  reduction  in  taxation  cease  to  be  used 
exclusively  as  a forest  plantation  to  the  extent  provided  by  this  section 
to  entitle  such  land  to  the  privileges  of  this  section,  the  said  exemption 
and  reduction  in  taxation  provided  for  in  this  section  shall  no  longer 
apply  and  the  assessors  having  jurisdiction  are  hereby  empowered  and 
directed  to  assess  the  said  land  at  the  value  and  in  the  manner  provided 
by  the  tax  law  for  the  general  assessment  of  land.  If  any  land  ex- 
empted under  this  section  continues  to  be  used  exclusively  for  the 
growth  of  a planted  forest  after  the  expiration  of  the  period  of  exemp- 
tion provided  hereby,  the  land  shall  be  assessed  at  its  true  value  and 
the  timber  growth  thereon  shall  be  exempt  from  taxation,  except  if  such 
timber  shall  be  cut  before  the  land  has  been  duly  assessed  and  taxes 
Tegularly  paid  for  five  consecutive  years  after  the  exemption  period  has 


488b 


TAXATION. 


Tax  Law,  § 17. 

expired,  such  timber  growth  shall  be  subject  to  a tax  of  five  per  centum 
of  the  estimated  stumpage  value  at  the  time  of  cutting,  unless  such  cut- 
tings are  thinnings  for  stimulating  growth  and  have  been  made  under 
the  supervision  of  the  conservation  commission.  Whenever  the  owner 
shall  propose  to  make  any  cutting  of  such  timber  growth  for  a purpose 
other  than  for  thinning  as  above  provided,  he  shall  give  thirty  days’ 
notice  to  the  assessors  of  the  tax  district  on  which  tfie  land  is  located, 
who  shall  forthwith  assess  the  stumpage  value  of  such  proposed  cutting, 
and  such  owner  shall  pay  to  the  collector  of  the  town  in  which  such  land 
is  situated  before  cutting  such  timber  five  per  centum  of  such  assessed 
valuation.  If  such  owner  shall  fail  to  give  such  notice  and  pay  such 
taxes  he  shall  be  liable  to  a penalty  of  three  times  the  amount  of  such 
tax,  and  the  supervisor  of  the  town  may  bring  an  action  to  recover  the 
same  for  the  benefit  of  the  town  in  any  court  of  competent  jurisdiction. 
[Tax  Law,  § 16,  as  added  by  L.  1912,  ch.  249.] 

§ 7b,  EXEMPTION  AND  REDUCTION  IN  ASSESSMENT  OF  LANDS  MAIN- 
TAINED AS  WOOD  LOTS  AND  TO  ENCOURAGE  THE  GROWTH  OF 
TREES  FOR  SUCH  PURPOSES. 

In  order  to  encourage  the  maintenance  of  wood  lots  by  private  owners 
and  the  practice  of  forestry  in  the  management  thereof,  the  owner  of 
any  tract  of  land  in  the  state,  not  exceeding  fifty  acres,  which  is  occu- 
pied by  a natural  or  planted  growth  of  trees,  or  by  both,  which  shall  not 
be  situated  within  twenty  miles  of  the  corporate  limits  of  a city  of  the 
first  class,  nor  within  ten  miles  of  the  corporate  limits  of  a city  of  the 
second  class,  nor  within  five  miles  of  the  corporate  limits  of  a city  of  the 
third  class,  nor  within  one  mile  of  the  corporate  limits  of  an  incorpo- 
rated village,  may  apply  to  the  conservation  commission  in  manner  and 
form  to  be  prescribed  by  it,  to  have  such  land  separately  classified  for 
taxation.  Application  for  such  classification  shall  be  made  in  duplicate 
and  accompanied  by  a plot  and  description  of  the  land,  and  such  other 
information  as  the  commission  may  require.  Upon  the  filing  of  such 
application  it  shall  be  the  duty  of  the  commission  to  cause  an  inspection 
of  such  land  to  be  made  by  a competent  forester  for  the  purpose  of  de- 
termining whether  or  not  it  is  of  a suitable  character  to  be  so  classified. 
If  the  commission  shall  determine  that  such  land  is  suitable  to  be  so 
classified,  it  shall  submit  to  the  owner  a plan  for  the  further  manage- 
ment of  said  land,  and  trees  and  shall  make  and  execute  a certificate 
under  the  seal  of  the  commission  and  file  the  same  with  the  county  treas- 
urer of  the  county  in  which  the  land  is  located,  which  certificate  shall 
set  forth  a description  and  plot  of  the  land  so  classified,  the  area  and 
owner  thereof,  the  town  or  towns  in  which  the  same  is  situated,  and  that 
the  land  has  been  separately  classified  for  taxation  in  accordance  with 
the  provisions  of  this  section.  Upon  the  filing  of  such  certificate  it  shall 
be  the  duty  of  the  county  treasurer  to  file  with  the  assessors  of  the  tax 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


488c 


Tax  Law,  § 17. 

district  in  which  the  land  described  therein  is  located,  within  ten  days 
after  receipt  thereof,  a certified  copy  of  such  certificate.  So  long  as  the 
land  so  classified  is  maintained  as  a wood  lot,  and  the  owner  thereof 
faithfully  complies  with  all  the  provisions  of  this  section  and  the  in- 
structions. of  the  commission,  it  shall  be  assessed  at  not  to  exceed  ten 
dollars  per  acre  and  taxed  annually  on  that  basis.  In  fixing  the  value 
of  said  lands  for  assessment,  the  assessors  shall  in  no  case  take  into  ac- 
count the  value  of  the  trees  growing  thereon,  and  said  land  shall  not  be 
assessed  at  a value  greater  than  other  similar  lands  within  the  same  tax 
district,  which  contain  no  forest  or  tree  growth,  are  assessed.  The  as- 
sessors of  each  tax  district  where  said  land  so  classified  is  located  shall 
insert  upon  the  margin  of  said  assessment  and  opposite  the  description 
of  such  land  a statement  that  said  land  is  assessed  in  accordance  with 
the  provisions  of  this  section.  In  the  event  that  land  so  classified  as 
above  prescribed  shall  at  any  time  by  act  of  the  owner  or  otherwise 
cease,  in  the  judgment  of  the  commission,  to  be  used  exclusively  as  a 
wood  lot  to  the  extent  provided  by  this  section  to  entitle  the  owner  of 
such  land  to  the  privileges  of  this  section,  the  exemption  and  valuation 
in  taxation  provided  for  in  this  section  shall  no  longer  apply  and  the 
assessors  having  jurisdiction  shall,  upon  the  direction  of  the  commis- 
sion assess  the  said  land  at  the  value  and  in  the  manner  provided  by  the 
tax  law  for  the  general  assessment  of  land.  Whenever  the  owner  shall 
propose  to  cut  any  live  trees  from  said  land,  except  for  firewood  or  build- 
ing material  for  the  domestic  use  of  said  owner  or  his  tenant,  he  shall 
give  the  commission  at  least  thirty  days’  notice  prior  to  the  time  he  de- 
sires to  begin  cutting,  who  shall  designate  for  the  owner  the  kind  and 
number  of  trees,  if  any,  most  suitable  to  be  cut  for  the  purpose  for 
which  they  are  desired,  and  the  cutting  and  removal  of  the  trees  so  des- 
ignated shall  be  in  accordance  with  the  instructions  of  said  commission. 
After  such  trees  are  cut  and  before  their  removal  from  the  land,  the 
owner  shall  make  an  accurate  measurement  or  count  of  all  of  the  trees 
cut  and  file  with  the  assessors  of  the  tax  district  a verified,  true  and  ac- 
curate return  of  such  measurement  or  count  and  of  the  variety  and 
value  of  the  trees  so  cut.  The  assessors  shall  forthwith  assess  the  stump- 
age  value  of  the  timber  so  cut,  and  such  owner  shall  pay  to  the  tax  col- 
lector of  the  town  in  which  such  land  is  situated,  before  the  removal  of 
any  such  timber,  five  per  centum  of  such  valuation.  If  such  owner 
shall  fail  to  give  such  notices  and  pay  such  taxes  he  shall  be  liable  to  a 
penalty  of  three  times  the  amount  of  such  tax,  and  the  supervisor  of  the 
town  may  bring  an  action  to  recover  the  same  for  the  benefit  of  the  town 
in  any  court  of  competent  jurisdiction.  [Tax  Law,  § 17,  as  added  by 
L.  1912,  ch.  363,  in  effect  April  15,  1912.] 


488d 


TAXATION. 


Tax  Law,  §§  5;  6. 

8.  TAXATION  OF  LANDS  SOLD  OR  LEASED  BY  THE  STATE. 

All  lands  which  have  been  sold  by  the  state,  although  not  conveyed, 
shall  be  assessed  in  the  same  manner  as  if  such  purchaser  were  the  actual 
owner.  Improvements  not  acquired  by  the  state  but  situate  on  land 
purchased  by  the  state  shall  be  assessed  to  the  owner  thereof.  Where 
land  is  leased  by  the  state  such  leasehold  interest,  except  in  cases  where 
by  the  terms  of  the  lease  the  state  is  to  pay  the  taxes  imposed  upon 
the  property  leased,  shall  be  assessed  to  the  lessee  or  occupant  in  the 
tax  district  where  the  land  is  situated.  [Tax  Law,  § 5,  as  amended 
by  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5816.] 

§ 9.  ASSESSMENT  OF  REAL  AND  PERSONAL  PROPERTY. 

All  real  and  personal  property  subject  to  taxation  shall  be 
assessed  at  the  full  value  thereof,  provided,  however,  that  the 
owner  of  personal  property  shall  be  allowed  a deduction  from 
the  full  value  of  all  his  taxable  personal  property  to  the  extent  of  the 
just  debts  owing  by  him  but  no  such  deduction  shall  be  allowed  by  rea- 
son of  the  indebtedness  of  the  owner  contracted  or  incurred  in  the  pur- 
chase of  non  taxable  property  or  securities  owned  by  him  or  held  for 
his  benefit,27  nor  for  or  on  account  of  any  direct  liability  as  surety, 

27.  Deduction  because  of  purchase  of  non-taxable  property.  The  first 
clause  of  the  above  section  to  the  effect  that  no  deduction  shall  be  made  for 
debts  or  liabilities  contracted  or  incurred  in  the  purchase  of  non-taxable 
property  applies  to  debts  incurred  in  the  purchase  of  imported  goods  not  taxable 
by  the  state.  Imported  tobacco  in  original  packages,  which  has  been  subjected 
to  the  duty  under  the  U.  S.  Revenue  Laws,  is  non-taxable  property.  The  above 
provision  is  not  confined  to  cases  where  the  debt  was  fraudulently  contracted  to 
evade  taxation.  Nor  is  it  unconstitutional  as  working  a discrimination  in  tax- 
ation. People  ex  rel.  Bijur  v.  Barker,  155  N.  Y.  330;  49  N.  E.  940.  A debt 
incurred  by  a corporation  in  the  purchase  of  the  good  will  of  the  business 
cannot  be  deducted  from  the  value  of  its  taxable  personal  property  under  the 
above  section.  People  ex  rel.  Cornell  Steamboat  Company  v.  Dederick,  161 
N.  Y.  195;  55  N.  E.  927.  Nor  in  purchase  of  a stock  exchange  seat,  which 
is  non-taxable.  People  ex  rel.  Slade  v.  Comrs.  of  Taxes,  53  Misc.  336,  104  N.  Y. 
Supp.  756.  Nor  contingent  liabilities,  such  ag  unearned  premiums  held  as 
reinsurance  reserve  by  surety  company.  People  ex  rel.  National  Surety  Co. 
v.  Feitner,  166  N.  Y.  127.  A corporation  is  entitled  to  deduct  a debt  incurred  in 
the  purchase  of  stock  of  another  domestic  corporation  taxable  on  its  capital. 
People  ex  rel.  Keppler,  etc.  v.  Barker,  22  App.  Div.  120;  47  N.  Y.  Supp.  958; 
affd.,  155  N.  Y.  661. 

The  amount  of  an  existing  indebtedness  on  bonds  and  mortgages  issued  by 
railroads  which,  by  statute,  were  merged  into  a new  company  liable  for  the 
debts  of  the  merged  railroads,  which  were  dissolved  except  for  special  purposes, 
should  be  deducted  from  the  property  of  the  new  company  liable  to  taxation. 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION.  489 

Tax  Law,  § 7. 

guarantor,  indorser  or  otherwise,  or  for  or  on  account  of  any  debt  or 
liability  contracted  or  incurred  for  the  purpose  of  evading  taxation. 
[Tax  Law,  § 6,  as  amended  by  L.  1914,  ch.  277 ; B.  C.  & Gr.  Cons.  L., 
p.  5817.] 

§ 10.  WHERE  PROPERTY  OF  NON-RESIDENTS  IS  TAXABLE. 

1.  Nonresidents  of  the  state  doing  business  in  the  state,  either  as 
principals  or  partners,  shall  be  taxed  on  the  capital  invested  in  such  busi- 
ness, as  personal  property,  at  the  place  where  such  business  is  carried  on, 
to  the  same  extent  as  if  they  were  residents  of  the  state.28 


People  ex  rel.  Metropolitan  Street  Ry.  Co.  v.  Barker,  121  App.  Div.  661,  106  N.  Y. 
Supp.  336. 

28.  Constitutionality  of  section  upheld,  Duer  v.  Small,  4 Blatchf.  263;  Brown 
v.  Houston,  114  U.  S.  633;  New  Orleans  v.  Stempel,  175  id.  309,  317. 

Intention  and  application  of  statute.  This  statute  was  intended  to  reach 
the  capital  of  non-  residents  employed  within  this  state  in  continuous  trade, 
and  not  property  sent  here  only  to  market  for  sale.  So  where  a foreign  corpora- 
tion, engaged  in  manufacturing  in  another  state,  transmitted  to  its  agent  here 
its  manufactured  product  for  sale,  the  proceeds  being  remitted  at  once,  with 
the  securities  received  for  sales  made  on  credit,  to  the  home  office  of  the  cor- 
poration, it  was  held  not  to  be  doing  business  in  this  state  within  the  meaning 
of  the  statute.  People  ex  rel.  The  Parker  Mills  v.  Commissioners  of  Taxes,  23 
N.  Y.  242.  Where  the  business  of  a foreign  corporation  carried  on  in  this  state 
is  intended  by  it  to  be  a permanent  and  continuous  business,  including  both  the 
manufacture  and  the  sale  of  goods,  the  value  of  its  merchandise  at  the  place 
designated  by  it  as  its  principal  place  of  business  in  this  state  is  properly 
assessed  for  taxation,  under  the  above  section  of  the  Tax  Law  as  being  invested 
in  its  business  in  this  state,  although  the  business  .conducted  at  that  place 
consists  wholly  of  selling,  and  while  a portion  of  the  goods  held  there  for  sale 
was  manufactured  by  the  corporation  within  this  state,  a large  portion  was 
manufactured  at  the  corporation’s  domicile  in  another  state,  to  which  the 
proceeds  of  sales  are  remitted.  People  ex  rel.  Armstrong  Cork  Co.  v.  Barker, 
157  N.  Y.  159;  51  N.  E.  1043. 

Applies  to  deposits  with  superintendent  of  insurance.  British  Com.  Life  Ins. 
Co.  v.  Comrs.  of  Taxes,  31  N.  Y.  32;  Smyth  v.  International  Life  Assurance  Co., 
35  How.  Pr.  126.  Credits  and  bills  receivable  for  goods  sold  in  the  state. 
People  ex  rel.  Burke  v.  Wells,  184  N.  Y.  275,  affg.  107  App.  Div.  15,  95  N.  Y. 
Supp.  100.  Property  of  non-resident  placed  in  a trust  company,  income  to  be 
paid  to  the  settler  and  another.  People  ex  rel  Van  Norden  Trust  Co.  v.  Wells, 
118  App.  Div.  381,  103  N.  Y.  Supp.  874.  Does  not  apply  to  property  sent  here 
only  to  market  for  sale.  People  ex  rel.  Parker  Mills  Co.  v.  Comrs.  of  Taxes,  23 
N.  Y.  242.  Nor  to  money  constantly  subject  to  draft  of  foreign  house.  People 
ex  rel.  Bank  of  Montreal  v.  Comrs.  of  Taxes,  59  N.  Y.  40.  Nor  to  the  agent  of 
a foreign  corporation.  McLean  v.  Jephson,  132  N.  Y.  142.  Nor  to  securities 
constituting  part  of  a trust  fund  where  two  of  the  three  trustees  are  non- 
residents, although  they  represent  investments  in  the  state.  People  v.  Comrs 
of  Taxes,  42  N.  Y.  St.  Rep.  449,  17  N.  Y.  Supp.  923  (1891). 


490 


TAXATION. 


Tax  Law,  § 7. 

2.  The  personal  property  of  nonresidents  of  the  state  having  an  actual 
situs  in  the  state,  and  not  forming  a part  of  capital  invested  in  business 


Where  the  evidence  shows  a plain  intent  to  establish  a continuous  busi- 
ness, the  non-resident  is  taxable.  People  ex  rel.  Carey  Mfg.  Co.  v.  Comrs.  of 
Taxes,  39  Misc.  282,  79  N.  Y.  Supp.  485.  A foreign  corporation  carrying  on  a 
merely  transitory  business  is  not  taxable  under  this  section.  People  ex  rel. 
Goetz  Silk  Mfg.  Co.  v.  Wells,  42  Misc.  86,  85  N.  Y.  Supp.  533,  affd.  93  App. 
Div.  613,  87  N.  Y.  Supp.  1144.  Money  temporarily  on  deposit  for  paying  divi- 
dends and  the  maintenance  of  an  office  for  directors’  meetings  does  not  subject 
foreign  corporation  to  taxation  under  this  section.  People  ex  rel.  Dives-Pelican 
Co.  v.  Feitner,  77  App.  Div.  189,  78  N.  Y.  Supp.  1017.  A foreign  banking  corpora- 
tion having  a large  office  in  the  city  of  New  York,  where  foreign  bills  of 
exchange  are  sold  and  drafts  are  paid,  is  in  business  in  the  state.  People  ex 
rel.  International  Banking  Corporation  v.  Raymond,  117  App.  Div.  62,  102  N.  Y. 
Supp.  85.  A non-resident  dealer  in  foreign  pictures  maintaining  a place  for 
the  sale  of  pictures  and  keeping  a bank  account  sufficient  for  current  expenses 
in  the  city  of  New  York  are  taxable  within  the  state.  People  ex  rel.  Durand- 
Ruel  v.  Wells,  41  Misc.  144,  83  N.  Y.  Supp.  936,  affd.  92  App.  Div.  622,  87  N.  Y. 
Supp.  1144.  A foreign  corporation  is  doing  business  within  the  state  and  liable 
to  taxation  under  this  section  where  it  is  continuously  engaged,  within  the  state, 
in  the  importation  and  sale  of  foreign  goods,  and  maintains  an  office  in  the  city 
of  New  York,  at  which  the  proceeds  of  the  sales  of  its  goods  are  received  and 

out  of  which  all  of  the  expenses  of  the  business  in  this  country  are  paid,  the 

surplus  only  being  remitted  to  the  home  office  at  convenient  periods.  People 
ex  rel.  Farcy  & Oppenheim  v.  Wells,  183  N.  Y.  264. 

The  value  of  notes  and  open  accounts  owing  to  the  corporation  for  mer- 
chandise sold  by  it  in  the  transaction  of  its  business  in  this  state,  is  properly 
included  in  the  assessment.  Idem.;  see,  also.  People  ex  rel.  Crane  Co.  v.  Feitner, 
49  App.  Div.  108;  62  N.  Y.  Supp.  1107;  People  ex  rel.  Yellow  Pine  Co.  v.  Barker, 
23  App.  Div.  524;  48  N.  Y.  Supp.  553;  affd.,  155  N.  Y.  665. 

The  section  has  no  application  to  goods  stored  here  for  sale,  the  proceeds  of 
which  are  to  be  remitted  to  the  foreign  principal.  People  ex  rel.  Sherwin- 
Williams  Co.  v.  Barker,  5 App.  Div.  246;  39  N.  Y.  Supp.  151;  affd.  149  N.  Y.  623. 

It  is  not  sufficient  that  a person  is  doing  business  in  this  state  as  an  agent, 

although  solely  with  the  property  of  his  principal.  To  justify  an  assessment 
under  the  above  section  it  is  indispensable  that  the  person  assessed  shall  in  fact 
have  money  invested  in  the  business  carried  on  by  him  in  this  state,  either  as 
sole  principal  or  as  partner.  McLean  v.  Jepson,  123  N.  Y.  142;  25  N.  E.  409. 
The  money  value  of  the  privilege  enjoyed  by  a non-resident  of  the  state  of  New 
York,  as  a member  of  the  New  York  Stock  Exchange,  is  capital  invested  in 
business  in  this  state,  but  it  is  not  taxable  as  personal  property  as  against  a non- 
resident. People  ex  rel.  Lemmon  v.  Feitner,  167  N.  Y.  1. 

Capital  invested  in  business.  No  hard  and  fast  rule  can  be  laid  down  for 
the  determination  as  to  what  constitutes  capital  invested  in  business  within  the 
meaning  of  this  section.  The  fundamental  element  is  the  intent  of  the  party  as 
gathered  from  the  nature  and  character  of  the  business  carried  on,  the  method  of 
its  conduct  and  the  declarations  of  the  parties  in  connection  therewith.  The 
circumstances  of  each  case  must  be  considered  in  arriving  at  a conclusion  there- 
in. People  ex  rel.  Tower  Co.  v.  Wells,  98  App.  Div.  82,  90  N.  Y.  Supp.  313  (1904), 
affd.  182  N.  Y.  553. 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION.  49 1 

Tax  Law,  § 7. 

in  the  state,  shall  he  assessed  in  the  name  of  the  owner  thereof  for  the 
purpose  of  identification  and  taxed  in  the  tax  district  where  such  property 


Place  and  manner  of  assessment.  A foreign  corporation  doing  business  in 
this  state,  and  having  a principal  office  here,  is  taxable  for  moneys  invested  in 
such  business,  as  the  personal  estate  of  a domestic  corporation  is  taxed,  in  the 
town  or  ward  of  such  office  and  the  assessment  at  such  place  must  be  exclusive, 
and  embrace  all  its  personal  property  liable  to  taxation  within  this  state.  An 
assessment  of  personal  property  of  a foreign  corporation  in  the  possession  of  an 
agent  in  a town,  other  than  that  where  such  office  is  situated,  by  the  assessors 
of  that  town  is  void.  People  ex  rel.  Bay  State,  etc.,  Co.  v.  McLean,  80  N.  Y.  254. 
Moneys  in  the  hands  of  a resident  partner,  belonging  to  a firm  whose  principal 
place  of  business  was  in  a foreign  country,  but  which  transacted  business  here, 
are  subject  to  taxation,  though  the  business  here  consisted  of  purchasing  prod- 
ucts for  sale  abroad,  and  the  moneys  were  here  only  for  that  purpose.  Matter 
of  McMahoji,  66  How.  Pr.  190. 

Where  all  the  members  are  non-residents,  it  is  not  necessary  to  insert  in  the 
roll  the  individual  names  of  the  partners.  The  assessment  may  be  made  in  the 
partnership  name.  People  ex  rel.  Dufour  v.  Wells,  85  App.  Div.  440,  83  N.  Y. 
Supp.  387,  affd.  177  N.  Y.  586. 

Assessment  of  rolling  stock  of  foreign  railroad  company  should  be  made  in 
the  tax  district  where  the  principal  office  or  place  of  business  of  said  company 
is  located.  Rept.  of  Atty.  Genl.,  July  27,  1910. 

Deduction  for  debts.  In  the  case  of  People  ex  rel.  Thurber-Whyland  Co.  v. 
Barker,  141  N.  Y.  118;  35  N.  E.  1073,  the  court  said:  “ We  are  of  the  opinion  that 
this  act  (the  above  section)  does  not  contemplate  the  deduction  of  debts  from 
the  sums  invested  in  this  state  by  non-residents.  As  the  person  is  a non-resident, 
it  is  to  be  assumed  that  he  will,  at  the  place  of  his  domicile,  have  all  of  what 
might  be  termed  his  equities  adjusted,  and  that  if  entitled  to  it  anywhere,  it 
will  be  at  such  domicile  that  he  will  claim  and  be  allowed  the  right  to  have  such 
deduction.  In  using  the  expression  t the  same  as  if  they  were  residents  of  this 
state,’  we  do  not  think  it  was  intended  that  exceptions  were  to  be  allowed  here 
the  same  as  if  the  party  were  a resident,  or  that  deductions  from  the  sum  thus 
invested  should  be  made  as  if  that  were  the  case.  It  meant,  as  it  seems  to  us, 
that  the  sum  invested  in  any  manner  in  business  in  this  state  should  be  assessed 
in  the  same  manner  and  form  as  a resident  would  be  assessed.”  But  where  a 
foreign  corporation,  doing  business  in  this  state,  has  purchased  property  in 
this  state  for  its  business  and  pays  cash  for  a portion  of  it  and  promises  to  pay 
the  balance  at  a future  time,  the  amount  due  upon  the  property  is  to  be  deducted 
in  ascertaining  the  sums  invested  in  this  state.  People  ex  rel.  Milling  Co.  v. 
Barker,  147  N.  Y.  31;  41  N.  E.  435;  see,  also,  People  ex  rel.  Bird  v.  Barker,  145 
N.  Y.  239;  39  N.  E.  1065.  In  the  case  of  People  ex  rel.  Barney  v.  Barker,  35  App. 
Div.  486;  54  N.  Y.  Supp.  848,  it  was  held  that  a non-resident  having  capital 
invested  in  a firm  doing  business  in  this  state,  is  not  entitled  to  have  deducted 
the  amount  of  his  indebtedness  to  residents  unless  it  appears  that  he  has  no 
personal  property  out  of  the  state  to  pay  such  indebtedness. 

The  relation  of  a savings  bank  to  its  depositors  is  that  of  debtor  and  creditors, 
and  in  assessing  a foreign  savings  bank,  upon  stock  of  New  York  bank,  held  by 
it,  the  amount  of  liability  to  its  depositors  shall  be  deducted  from  its  assets. 
People  ex  rel.  Bridgeport  Savings  Bank  v.  Barker,  17  Misc.  180,  40  N.  Y.  Supp. 
1001. 

Deduction  of  debts  of  foreign  corporation  not  made  where  such  debts  bear  no 
relation  to  the  assets  of  the  corporation  in  this  state.  People  ex  rel.  Dunlap’s 
Express  Co.  v.  Raymond,  54  Misc.  330,  105  N.  Y.  Supp.  1007. 


492 


TAXATION. 


Tax  Law,  § 8. 

is  situated,  unless  exempt  by  law.  This  subdivision  shall  not  apply  to 
money,  or  negotiable  collateral  securities,  deposited  by,  or  debts  owing  to, 
such  nonresidents  nor  shall  it  be  construed  as  in  any  manner  modifying 
or  changing  the  law  imposing  a tax  on  real  estate  mortgage  securities. 
[Tax  Law',  § 7;  B.  C.  & G.  Cons.  L.,  p.  5817.] 

§ 11.  PLACE  OF  TAXATION  OF  PERSONAL  PROPERTY  OF  RESI- 

DENTS; STATE  BOARD  OF  TAX  COMMISSIONERS  MAY 
DETERMINE  PLACE. 

Every  person  shall  be  taxed  in  the  tax  district  where  he  resides  when  the 
assessment  for  taxation  is  made,  for  all  personal  property  owned  by  him, 
or  under  his  control  as  agent,  trustee,  guardian,  executor  or  administrator.29 


29.  What  constitutes  residence.  For  the  purpose  of  assessment  for  personal 
property  the  residence  of  the  taxpayer  will  be  presumed  to  continue  to  be  where 
it  has  been  previously  shown  to  be  until  a change  is  affirmatively  shown. 
Matter  of  Nicholls,  54  N.  Y.  62.  The  presumption  that  when  a man  has  acquired 
a residence  in  a tax  district,  such  residence  continues  for  the  purpose  of  taxa- 
tion until  another  residence  shall  have  been  acquired,  can  be  overcome  only  by 
affirmative  and  satisfactory  evidence  that  such  place  of  business  has  been 
abandoned  by  the  party  assessed.  People  ex  rel.  Blocker  v.  Crowley,  21  App. 
Div.  304;  47  N.  Y.  Supp.  457;  see,  also,  Paddack  v.  Lewis,  59  App.  Div.  130;  69 
N.  Y.  Supp.  1.  The  declaration  of  an  intention  not  to  return  to  a domicile  or  to 
longer  reside  in  such  place  is  not  sufficient  to  effect  a change.  People  ex  rel. 
Rosa  v.  Streeter,  24  Wk.  Dig.  95;  affd.,  103  N.  Y.  652. 

The  temporary  occupation  each  year  of  an  apartment  in  New  York  does  not 
establish  residence.  People  ex  rel.  Lord  v.  Feitner,  78  App.  Div.  287,  80  N Y. 
Supp.  534  (1903). 

Where  a person  resides  in  New  York  city  during  the  winter  months  and  has 
his  place  of  business  in  such  city,  he  should  be  taxed  there,  although  he  resides 
elsewrhere  during  the  summer  months.  Bartlett  v.  Mayor,  etc.,  of  New  York,  5 
Sandf.  44;  see,  also,  Douglass  v.  Mayor,  etc.,  of  New  York,  2 Duer,  110.  But 
in  the  case  of  People  ex  rel.  Lorillard  v.  Parker,  70  Hun,  379;  24  N.  Y.  Supp.  63, 
where  it  appeared  that  the  relator  lived  in  a hired  house  in  the  city  of  New 
York  during  the  winter,  but  lived  during  the  rest  of  the  year  in  a house  owned 
by  him  without  the  city,  where  he  voted  and  was  taxed,  and  that  he  was  not  en- 
gaged in  business  in  New  York  city,  it  was  held  that  he  was  not  a resident 
of  New  York  city  and  was  not  liable  there  for  a tax  upon  his  personal  property. 
If  a person  has  two  residences,  the  place  where  his  family  lives,  where  he  stays 
the  greater  part  of  his  time,  where  he  votes  and  is  assessed  for  personal  taxes 
is  his  place  of  residence  for  the  purpose  of  taxation.  People  ex  rel.  Lawrence 
v.  Barker,  44  St.  Rep.  695,  17  N.  Y.  Supp.  788;  see,  also,  People  ex  rel.  Blocker 
v.  Crowley,  21  App.  Div.  304,  47  N.  Y.  Supp.  457.  Where  one’s  principal  place  of 
business  is  in  a city  and  he  resides  there  part  of  the  time  and  part  of  the  time 
on  a farm  in  another  town,  he  is  properly  taxable  for  his  personal  property  in 
the  city  ward  in  which  he  resides.  Bowe  v.  Jenkins,  69  Hun,  458,  23  N.  Y.  Supp. 
548;  see,  also,  People  ex  rel.  Gilbert  v.  Moore,  52  Plun,  13,  4 N.  Y.  Supp.  778. 

Where  the  plaintiff  had  removed  his  residence  from  the  town  where  he  still 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


493 


Tax  Law,  § 8. 

'Where  taxable  personal  property  is  in  the  possession  or  under  the  control 
of  two  or  more  agents,  trustees,  guardians,  executors  or  administrators 
residing  in  different  tax  districts,  each  shall  be  taxed  for  an  equal  portion 
of  the  value  of  such  property  so  held  by  them.30  Rents  reserved  in  any 


conducted  his  business,  returning  there  at  intervals  and  staying  at  a hotel, — 
held,  that  the  assessors  of  the  town  were  liable  in  damages  for  a sale  of  his 
property  to  satisfy  a tax  assessed  by  them,  though  they  were  not  aware  of  his 
change  of  residence.  Wade  v.  Matheson,  4 Lans.  158. 

Residence  is  a matter  of  intention.  Where  a person  has  a house  in  each  of 
two  towns  he  may  choose  to  reside  in  either  for  the  purpose  of  taxation.  People 
ex  rel.  Bolcher  v.  Crowley,  21  App.  Div.  304,  47  N.  Y.  Supp.  457,  affd.  155  N.  Y. 
700. 

A person,  though  domiciled  in  another  state  where  he  votes,  may  be  taxable  on 
his  personalty  as  a resident  here,  where  he  moves  to  New  York  and  hires  a 
residence  October  1st,  and  remains  for  the  following  year.  Matter  of  Austin, 
13  App.  Div.  247,  42  N.  Y.  Supp.  1097. 

Residence  at  the  time  when  assessment  is  made.  The  above  section  provides 
that  the  residence  of  a person  on  July  first  shall  be  deemed  his  residence  for  the 
purpose  of  assessment  and  taxation  during  that  year.  In  the  case  of  Bell  v. 
Pierce,  51  N.  Y.  12,  it  appeared  that  the  plaintiff  during  the  whole  of  the  year 
preceding  June  20,  resided  in  his  own  house  in  Buffalo,  where  his  only  business 
was  transacted.  He  also  owned  a house  in  West  Seneca,  where  he  passed  the 
summers  with  his  family,  attending  meantime  to  his  business  in  Buffalo,  and 
staying  there  occasionally  over  night.  The  assessors  of  West  Seneca  assessed 
him  upon  his  personal  property  and  the  tax  was  collected.  After  the  statutory 
notice  no  objection  was  made  to  the  regularity  of  the  assessment,  and  the 
assessors  were  not  aware  that  the  plaintiff  claimed  another  residence  until  the 
delivery  of  the  assessment  roll  to  the  supervisor.  It  was  held  that  since  the 
plaintiff  resided  in  West  Seneca  on  July  first,  the  assessors  had  jurisdiction  to 
assess  him  there,  and  were  not  liable  in  damages  for  their  so  doing. 

A person  taxed  as  trustee  in  New  York  city  and  county  in  1901,  claiming  a 
residence  in  the  town  of  Southampton,  Suffolk  county,  who  was  physically 
present  in  that  town  on  July  1,  1900,  and  remained  there  until  October  1,  1900, 
and  then  returned  to  New  York  city  and  resided  there  with  his  mother,  voted 
there  in  November,  1900,  and  was  still  there  on  the  second  Monday  of  January, 
1901,  when  the  annual  “ tax  record  ” was  open  for  public  inspection,  was  prop- 
erly taxed  as  a resident  in  New  York  city  and  county,  in  1901.  People  ex  rel. 
Beers  v.  Feitner,  40  Misc.  368,  82  N.  Y.  Supp.  258. 

The  words  “ when  assessment  is  made  ” relate  to  the  binding  and  conclusive 
act  of  the  assessors  which  designates  the  taxpayers  and  the  amount  of  taxable 
property  held  by  each.  This  time  must  be  the  first  day  of  July,  the  assessors 
being  required  to  complete  their  preparatory  inquiries  in  May  and  June. 
Myatt  v.  Washburn,  15  N.  Y.  316.  Residence  by  an  owner  of  property  in  a town 
during  June,  July  and  August,  gives  the  assessors  jurisdiction  for  the  purpose 
of  assessment.  Boyd  v.  Gray,  34  How.  Pr.  323. 

30.  Assessment  of  trustees,  executor,  etc.  The  above  section  does  not  au- 
thorize the  assessment  of  a tax  upon  personal  securities  belonging  to  trustees, 
two  of  whom  reside  within  this  state,  while  the  third  who  has  possession  of 
the  securities  resides  without  the  state,  and  the  beneficiaries  are  also  non- 


494 


TAXATION. 


Tax  Law,  § 8. 

lease  in  fee  or  for  one  or  more  lives  or  for  a term  more  than  twenty-one 
years  and  chargeable  upon  real  property  within  the  state,  shall  be  taxable 
to  the  person  entitled  to  receive  the  same,  as  personal  property  in  the 


residents.  People  ex  rel.  Darrow  v.  Coleman,  119  N.  Y.  137;  23  N.  E.  488.  But 
in  the  case  of  People  ex  rel.  Campbell  v.  Commissioners  of  Taxes,  38  Hun,  -536, 
it  was  held  that  the  personal  estate  of  the  testator  whose  will  was  admitted 
to  probate  in  New  York  city  is  taxable  there  although  one  of  the  executors  who 
has  actual  possession  and  control  of  the  property  resides  in  another  state,  the 
other  executors  being  residents  of,  though  temporarily  absent  from.  New  York. 
See,  also,  People  ex  rel.  Neustadt  v.  Coleman,  42  Hun,  581. 

The  term  “ trustee,”  in  § 5,  must  be  limited  in  its  application  to  a person  ex- 
pressly authorized  by  statute  to  hold  the  legal  title  to  property  in  trust  for  some 
specific  purpose.  The  treasurer  of  a county  is  not  such  a “ trustee,”  though  the 
legal  depositary  of  trust  funds,  nor  can  the  assessment  be  made  to  the  court. 
People  ex  rel.  Brodie  v.  Cox,  14  St.  Rep.  632,  Sp.  T. 

Where  the  whole  of  an  infant’s  estate  is  vested  in  executors  and  trustees,  and 
neither  of  them  resides  in  the  county,  and  the  property  is  assessed  and  pays 
taxes  in  another  county,  no  assessment  can  be  made  against  the  guardian  in  the 
former  county.  Douglass  v.  Board  of  Supervisors,  1 N.  Y.  Supp.  126,  Gen.  T. 

Upon  a proceeding  against  administrators  to  collect  a tax  assessed  upon  them 
as  such,  it  appeared  that  the  intestate,  who  had  been  a resident  of  another 
state  died  there,  leaving  personal  property  and  debts  here,  and  that,  pending- 
proceedings  before  the  surrogate,  the  assessment  had  been  made  upon  the  valua- 
tion of  the  whole  personalty  without  deducting  the  indebtedness.  It  was  held 
that  the  assessment  was  properly  made  and  that  it  was  no  defense  that  the  ad- 
ministrators did  not  know  of  the  assessment.  In  this  proceeding  the  valuation 
could  not  be  questioned  and  there  was  no  ground  for  legal  or  equitable  inter- 
ference in  behalf  of  the  administrators.  Matter  of  McMahon,  67  How.  Pr.  113. 

When  personal  property  is  held  in  trust  by  taxable  inhabitants  of  the  state, 
it  is  to  be  taxed  at  their  place  of  residence  without  regard  to  the  residence  of 
the  person  creating  the  trust,  or  that  of  the  person  benefited  by  it.  This  rule 
applies  to  the  case  of  a sinking  fund  raised  and  owned  by  a foreign  corpora- 
tion. The  cestui  que  trust  in  this  case  was  the  city  of  Albany.  People  ex  rel. 
Western  R.  R.  Co.  v.  Assessors  of  Albany,  40  N.  Y.  154. 

Where  a testator  had  resided  in  Westchester,  his  will  was  proved  there  and 
letters  testamentary  issued  to  his  sons,  who  resided  there,  as  well  as  to  other 
persons  who  resided  in  New  York  city,  and  the  other  persons  had  no  actual  pos- 
session or  control  of  the  property, — held,  that  an  assessment  of  the  personalty 
in  New  York  was  erroneous.  People  ex  rel.  Caswell  v.  Comrs.  of  Taxes,  17  Hun 
293. 

Personal  estate  in  the  hands  of  an  agent  is  properly  assessed  to  him  without 
the  addition  to  his  name  of  his  representative  character.  People  ex  rel.  Hoffman 
v.  Bug,  13  Abb.  N.  C.  169. 

Under  the  statutes  relating  to  the  city  of  Albany,  an  assessment  of  personal 
property  of  an  estate  in  the  single  name  of  one  executor  “ and  others  ” is  suffi- 
cient and  its  subsequent  amendment  in  the  official  revision  by  inserting  the 
names  of  the  four  executors  and  correcting  the  amount  assessed  is  regular. 
People  ex  rel.  McHarg  v.  Gaus,  169  N.  Y.  19;  61  N.  E.  987.  An  assessment  for 
personal  property,  levied  in  the  city  of  New  York,  against  a trustee  who  was  a 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION.  495 

Tax  Law,  § 8. 

tax  district  where  such  real  property  is  situated,  at  a principal  sum,  the 
interest  of  which  at  the  legal  rate  per  annum  shall  produce  a sum  equal 
to  such  annual  rents,  and  if  payable  in  anything  except  money,  at  the 
value  of  the  rents  in  money  to  be  ascertained  by  the  assessors,  the  value 
of  each  rent  to  be  assessed  separately,  and  for  the  purpose  of  the  taxation 
thereof  such  person  is  to  be  deemed  a resident  of  such  tax  district.31 
When  a person  shall  have  acquired  a residence  in  a tax  district,  and 
shall  have  been  taxed  therein,  such  residence  shall  be  presumed  to  con- 
tinue for  the  purpose  of  taxation  until  he  shall  have  acquired  another 
residence  in  this  state  or  shall  have  removed  from  this  state.  The  resi- 
dence of  a person  on  July  first  shall  be  deemed  his  residence  for  the 
purpose  of  assessment  and  taxation  during  that  year.  If  he  shall  have 
actually  and  in  good  faith  changed  his  residence  after  July  first,  and 
before  August  first  in  any  year,  from  one  tax  district  to  another,  and 
shall  make  proof  to  the  assessors  at  or  before  their  last  meeting  for  the 
correction  of  the  assessment-roll  of  such  change  of  residence  and  that  he 


resident  of  the  state  of  New  York,  but  not  of  the  city  of  New  York,  is  void  for 
want  of  jurisdiction,  and  it  is  not  necessary  for  the  trustee  to  apply  on  review 
day  to  have  the  assessment  cancelled.  Dale  v.  City  of  New  York,  71  App.  Div. 
227;  75  N.  Y.  Supp.  576.  See,  also,  People  ex  rel.  Moller  v.  O’Donnel,  183  N.  Y.  9. 

Personal  property  held  by  trustees  jointly.  Where  taxable  personal  prop- 
erty is  held  by  two  or  more  trustees  jointly,  each  trustee  must  be  assessed  in  the 
tax  district  in  which  he  resides  for  his  proportionate  share  of  such  trust  estate, 
and  where  taxable  personal  property  is  held  by  three  trustees,  two  of  whom  are 
residents  and  the  other  a non-resident  of  the  state,  each  resident  trustee  should 
be  assessed  for  one-third  of  all  of  the  taxable  property  of  the  trust  estate. 
People  ex  rel.  Beaman  v.  Feitner,  168  N.  Y.  360. 

One  or  two  trustees  a non-resident.  An  assessment  against  property  valued 
at  $50,000,  held  jointly  by  two  trustees,  one  of  whom  is  a non-resident,  is  illegal. 
A reduction  in  such  an  assessment  to  one-half  thereof  is  necessary  and  proper 
under  this  section.  People  ex  rel.  Kellogg  v.  Wells,  182  N.  Y.  314,  revg.  101 
App.  Div.  600,  92  N.  Y.  Supp.  5. 

Assessment  where  one  of  the  executors  is  a non-resident.  The  amount  of  an 
assessment  for  personal  property  under  the  control  of  executors  and  trustees  is 
not,  by  reason  of  the  non-residence  of  the  third  executor  and  trustee,  limited  to 
two-thirds  of  the  amount  of  the  personal  property.  In  making  an  assessment 
upon  such  property  such  executors  are  not  entitled  to  a deduction  on  account  of 
mortgages  which  were  liens  upon  parcels  of  real  estate  when  acquired  by  the 
testator,  but  which  the  testator  had  not  assumed.  People  ex  rel.  Farmers’  Loan 
& Trust  Co.  v.  Wells,  94  App.  Div.  463,  87  N.  Y.  Supp.  745,  affd.  179  N.  Y. 
566. 

31.  Rents  reserved.  Rents  not  due  on  leases  for  years  are  not  taxable  as  per- 
sonal property.  People  ex  rel.  Thompson  v.  McComber,  24  N.  Y.  St.  Rep.  902,  7 N. 
Y.  Supp.  71.  The  fact  that  relator  changed  mortgages  and  other  securities  into 
real  estate,  and  then  gave  leases  to  avoid  personal  taxation,  is  not  material  on 
the  question  of  his  liability  so  long  as  he  violated  no  law.  Id. 

Taxes  upon  rents  reserved  in  perpetual  lease  assessed  against  lessor  are  not 
payable  by  the  lessee  under  a covenant  to  pay  “ all  taxes,  etc.,  assessed  on  the 
premises,  or  the  lessors  in  respect  thereof.”  Woodruff  v.  Oswego  Starch  Factory, 
70  App.  Div.  481,  74  N.  Y.  Supp.  961,  affd.  177  N.  Y.  23. 


496 


TAXATION. 


Tax  Law,  § 9'. 

is  assessed  in  the  tax  district  to  which  he  has  removed,  his  name  and  the 
assessment  of  his  personal  property  shall  be  stricken  from  the  assessment- 
roll  of  the  tax  district  where  he  resided  on  July  first.  In  case  of  any  con- 
troversy as  to  the  proper  place  of  taxation  within  the  state  of  any  person, 
his  residence  for  purposes  of  taxation  may  be  determined  by  the  tax  commis- 
sion, subject  to  review  by  the  court.  [Tax  Law,  § 8,  as  amended  by  L. 
1914,  ch.  277,  and  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5819.] 

§ 12.  PLACE  OF  TAXATION  OF  REAL  PROPERTY. 

Beal  property  shall  be  assessed  as  of  July  first  in  the  tax  district  in 
which  it  is  situated.32  In  all  cases  the  assessment  shall  be  deemed  as  against 


32.  Jurisdiction  of  assessors.  The  only  fact  necessary  to  give  assessors  jurisdic- 
tion as  to  real  estate  is  that  it  he  situated  within  the  assessor’s  town  or  ward.  In 
making  an  assessment  upon  such  land  they  have  jurisdiction  of  the  subject  matter, 
and  while  an  error  committed  by  them  may  be  subject  to  review,  it  will  not  make 
their  proceedings  void.  Van  Rensselaer  v.  Cottrell,  7 Barb.  127.  In  the  case  of 
Tebo  v.  City  of  Brooklyn,  134  N.  Y.  341,  31  N.  E.  9'84,  a lot  of  land  under  water 
with  a pier  upon  it  extending  from  the  city  of  Brooklyn  beyond  low  water  mark, 
the  boundary  line  between  New  York  and  Kings  counties,  was  held  properly  taxable 
in  Brooklyn  where  the  owner  resided. 

Assessment  of  railroad  lands.  The  lands  of  railroad  companies  are  to  be  assessed 
the  same  as  those  of  residents  in  the  towns  in  which  they  lie  and  not  as  non-resi- 
dent lands.  People  ex  rel.  Dunkirk,  etc.,  R.  R.  Co.  v.  Cassity,  46  N.  Y.  46.  A 
railroad  corporation  is,  for  the  purpose  of  taxation  of  its  real  estate,  a resident  of 
each  town  through  which  it  passes,  and  is  properly  assessed  in  personam  therefor. 
People  ex  rel.  Buffalo  & State  Line  R.  R.  Co.  v.  Supervisors  of  Erie,  48  N.  Y.  93. 

A special  franchise  can  only  be  assessed  to  a tenant  or  an  occupant  when  the 
owner  does  not  reside  within  the  tax  district.  People  ex  rel.  Interborough  R.  T. 
Co.  v.  Tax  Comrs.,  126  App.  Div.  610,  613,  110  N.  Y.  Supp.  577. 

Contracts  for  the  sale  of  land  should  be  assessed  against  the  person  holding  them, 
and  the  land  should  be  assessed  against  the  purchaser  in  possession.  Rept.  of  Atty. 
Genl.  (1900),  241. 

Waiver  of  irregularity.  While  the  assessors  of  a town  have  no  jurisdiction  of 
the  person  of  a non-resident  so  as  to  charge  him  personally  with  a tax  on  land 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


497 


Tax  Law,  § 10. 

the  real  property  itself,  and  the  property  itself  shall  be  holden  and  liable 
to  sale  for  any  tax  levied  upon  it.33  [Tax  Law,  § 9,  as  amended  by  L.  1911, 
ch.  315,  and  L.  1916,  ch.  323.] 

§ 13.  TAXATION  OF  REAL  PROPERTY  DIVIDED  BY  LINE  OF  TAX 
DISTRICT;  WHEN  OWNERS  MAY  ELECT  IN  WHICH  DIS- 
TRICT SHALL  BE  TAXED. 

Section  10  of  the  Tax  Law,  relating  to  the  taxation  of  real  property 
divided  by  line  of  tax  district,  was  repealed  by  L.  1917,  ch.  154,  and  now 


owned  but  not  occupied  by  him,  where  the  agent  of  such  owner  had  appeared  before 
the  assessors  and  procured  a reduction,  without  protest  against  the  assessment 
against  the  owner, — held,  that  this  was  such  a waiver  as  would  bar  an  action  by 
the  owner  for  damages  for  an  illegal  assessment.  Hilton  v.  Fonda,  86  N.  Y.  348. 

Effect  of  amendments  on  decisions.  The  various  amendments  have  rendered  many 
of  the  earlier  decisions  obsolete.  The  individual  assessed  is  now  inconsequential 
as  the  assessment  is  againt  the  real  property  itself.  It  was  accordingly  held  in 
Smith  v.  Russell  (1916),  172  App.  Div.  793,  that  this  section  and  § 63  construed 
together  evince  a legislative  intent  to  place  the  burden  of  a tax  upon  the  real 
property  itself  and  to  make  the  name  of  the  person  to  whom  it  is  assessed  secon- 
dary and  merely  for  the  purpose  of  identification. 

33.  Assessment  to  occupant.  When  lands  of  a non-resident  of  a county  are  occu- 
pied by  a resident  of  a town  where  they  are  situated  they  must  be  assessed  to 
the  occupant.  An  assessment  of  them  as  non-resident  is  void.  Stewart  v.  Crisler, 
100  N.  Y.  378;  Joslyn  v.  Rockwell,  128  N.  Y.  334,  28  N.  E.  604.  An  assessment  to 
a person  who  is  neither  owner  nor  occupant  of  the  land  is  void.  Whitney  v.  Thomas, 
23  N.  Y.  281.  When  real  property  is  assessed  to  the  owner  the  name  of  the  owner 
must  be  inserted  in  the  roll;  when  assessed  to  the  occupant,  the  name  of  the  occu- 
pant should  appear.  Where  real  estate  was  assessed  in  th  name  of  one  not  the 
owner  adding  the  words  “ or  occupant,”  it  was  held  that  the  roll  was  fatally  de- 
fective and  would  not  support  process  against  property  in  the  possession  of  the  oc- 
cupant. Dubois  v.  Webster,  7 Hun  371.  The  assessors  are  not  authorized  to  name 
in  their  rolls  the  actual  or  supposed  non-resident  owners  of  lands.  The  lands  are 
to  be  assessed,  not  the  owners.  New  York  & Harlem  R.  R.  Co.  v.  Lyon,  16  Barb. 
651.  An  assessment  against  the  husband  of  the  owner  of  a house  and  not  living 
with  her  therein  is  void,  he  being  neither  owner  nor  occupant.  Loomis  v.  Semper, 
38  Misc.  567,  78  N.  Y.  Supp.  74. 


498 


TAXATION. 


Tax  Law,  § 10. 

the  portions  of  such  property  located  in  each  tax  district  is  to  be  assessed 
there.35 


Assessment  of  unoccupied  lands  as  non-resident.  Article  2 of  the  Tax  Law  re- 
ferred to  in  the  above  section  prior  to  its  amendment  in  1911,  is  made  the  subject 
of  the  following  chapter  of  this  work.  The  terms  “ unoccupied  ” and  “ non-resi- 
dent ” as  applied  to  lands  within  the  meaning  of  the  tax  laws,  are  not  synony- 
mous. Lands,  although  occupied,  may  be  assessed  as  non-resident  lands,  while  un- 
occupied lands  may  be  assessed  as  resident.  People  ex  rel.  Vander  Veer  v.  Wilson, 
125  N.  Y.  367,  26  N.  E.  454.  Non-resident  lands  are  unoccupied  lands  not  owned 
by  a person  residing  in  the  town  or  ward  in  which  such  lands  are  situated.  Hamp- 
ton v.  Hampsher,  46  Hun  147. 

An  assessment  in  the  name  of  the  husband,  living  with  his  family,  on  property 
the  title  to  which  was  in  his  wife,  is  not  void,  he  being  occupant  as  head  of  the 
family.  Powell  v.  Jenkins,  14  Misc.  83,  69  N.  Y.  St.  Rep.  582,  35  N.  Y.  Supp.  265. 

Assessment  to  occupant  need  not  indicate  that  the  lands  are  non-resident.  People 
ex  rel.  Hoffman  v.  Bug,  13  Abb.  N.  C.  169. 

35.  Repeal;  effect.  By  the  repeal  of  section  10  of  Tax  Law,  property  divided  by 
town  line  is  to  be  taxed  in  the  towns  in  which  the  property  is  located.  Former 
decisions  on  the  effect  of  the  division  on  the  jurisdiction  of  assessors  are  no  longer 
applicable. 

Forest  land.  The  section  only  applied  to  farms  and  lots  a division  of  which 
would  be  inconvenient.  It  does  not  apply  to  a large  tract  of  forest  land  lying  in 
two  districts.  People  ex  rel.  Low  v.  Wilson,  113  App.  Div.  1,  98  N.  Y.  Supp. 
1080. 

Boundary  line  between  village  and  town.  Where  a farm  is  divided  by  a boundary 
line  between  a town  and  village  incorporated  under  the  Village  Law,  the  part 
thereof  within  the  boundaries  of  the  village  is  assessable  for  village  purposes.  The 
section  did  not  apply  in  such  a case  since  such  a village  is  not  a tax  district. 
People  ex  rel.  Champlin  v.  Gray,  185  N.  Y.  196,  revg.  109  App.  Div.  116,  95  N.  Y. 
Supp.  825. 

School  districts.  The  section  did  not  apply  to  land  lying  in  more  than  one  school 
district,  as  a school  district  is  not  a tax  district.  Kept,  of  Atty.  Genl.  (19'03), 
431. 

Dwelling-houses  or  other  principal  buildings.  Where  a large  tract  of  land 
s situated  in  two  towns  and  several  dwellings  are  erected  thereon,  some  in  one 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


499 


Tax  Law,  § 11. 

§ 14.  CORPORATIONS;  PLACE  OF  TAXATION;  PERSONAL  PROP- 

ERTY TO  BE  TAXED  WHERE  PRINCIPAL  OFFICE  IS  LO- 
CATED; TAXATION  OF  TOLL  BRIDGES  AND  TURNPIKES. 

The  real  estate  of  all  incorporated  companies  liable  to  taxation,  shall 
be  assessed  in  the  tax  district  in  which  the  same  shall  lie,  in  the  same 
manner  as  the  real  estate  of  individuals.  All  the  personal  estate  of  every 
incorporated  company  liable  to  taxation  on  its  capital  shall  be  assessed 
in  the  tax  district  where  the  principal  office  or  place  for  transacting  the 
financial  concerns  of  the  company  shall  be,  or  if  such  company  have  no 
principal  office,  or  place  for  transacting  its  financial  concerns,  then  in  the 
tax  district  where  the  operations  of  such  company  shall  be  carried  on.36 
In  the  case  of  a toll  bridge,  the  company  owning  such  bridge  shall  be 
assessed  in  the  tax  district  in  which  the  tolls  are  collected;  and  where  the 
tolls  of  any  bridge,  turnpike,  or  canal  company  are  collected  in  several 
tax  districts,  the  company  shall  be  assessed  in  the  tax  district  in  which  the 
treasurer  or  other  officer  authorized  to  pay  the  last  preceding  dividend 
resides.  [Tax  Law,  § 11 ; B.  C.  & G.  Cons.  L.,  p.  5828.] 


town  and  some  in  the  other,  the  fact  that  the  larger  dwelling  is  occupied  by  a 
son  of  the  owner  who  is  in  charge  of  the  tract  does  not  make  the  land  taxable 
in  the  town  where  such  dwelling  is  erected.  Chamberlain  v.  Sherman, 
53  Misc.  477,  103  N.  Y.  Supp.  239. 

Effect  of  general  law  upon  special  act.  Special  acts  have  been  passed  from 
time  to  time  providing  for  the  payment  by  taxation  of  town  bonds  issued  for 
the  construction  of  railroads.  For  instance,  in  chapter  152  of  L.  1882,  sec. 
25,  as  amended  by  ch.  21,  of  L.  1883,  it  is  provided  that  all  real  property  within 
the  corporate  limits  of  a town  assessed  or  liable  tb  be  assessed  upon  the  assess- 
ment roll  of  such  town  at  the  time  of  issuing  bonds  by  said  town  pursuant 
to  this  act,  and  all  acts  amendatory  thereof,  shall  continue  to  be  assessed  and 
assessable  for  all  purposes  whatsoever  in  said  town  until  said  bonds  or  any 
renewals  thereof  are  fully  paid;  and  if  the  owner  of  such  real  property  does 
not  reside  within  said  town,  then  such  real  property  shall  be  assessed  as  non- 
resident land  or  to  any  occupant  of  said  real  property  actually  residing  within 
said  town.  This  statute  was  under  consideration  in  the  case  of  Casterton  v. 
Town  of  Vienna,  163  N.  Y.  268;  57  N.  E.  622,  and  it  was  held  that  the  general 
law  did  not  supersede  the  provisions  of  the  special  act  and  that  under  such  a 
statute  a change  made  in  the  residence  of  the  owner  of  a farm  situated  partly 
in  two  towns  from  the  portion  of  the  farm  in  one  town  to  that  in  the  other 
would  not  withdraw  from  taxation  the  portion  of  his  farm  within  the  town 
from  which  he  moved.  See,  also,  Wilcox  v.  Baker,  22  App.  Div.  299;  47  N.  Y. 
Supp.  900. 

36.  Place  of  taxation  of  personal  property  of  corporation.  Under  section  205 
of  the  Tax  Law  the  personal  property  of  every  corporation,  company,  association 
or  partnership  taxable  under  article  9 of  the  Tax  Law,  other  than  for  the  organi- 
zation tax,  are  exempt  from  assessment  and  taxation  upon  its  personal  property 
for  state  purposes.  Trust  companies  which  are  taxable  under  section  188  of  the 
Tax  law  upon  their  capital  stock  surplus  and  undivided  profits  are  exempt  from 
assessment  and  taxation  for  all  other  purposes. 

Manufacturing  and  mercantile  corporations  are  exempt  from  taxation  on  account 
of  personal  property  since  they  are  subject  to  an  income  tax,  a portion  of  which  is 
apportioned  to  the  town.  See  Tax  Law,  § 219j,  as  added  by  L.  1917,  ch.  726. 


500 


TAXATION. 


Tax  Law,  § 12. 

§ 15.  TAXATION  OF  CORPORATE  STOCK  OF  CORPORATIONS. 

The  capital  stock37  of  every  company  liable  to  taxation,  except  such 
part  of  it  as  shall  have  been  excepted  in  the  assessment-roll  or  shall  be 
exempt  by  law,  together  with  its  surplus  profits  or  reserve  funds  exceeding 


The  certificate  of  incorporation  naming  the  place  where  the  principal  office  of 
the  corporation  is  located  is  conclusive  as  to  its  location  for  the  purpose  of 
taxation.  Western  Trans.  Co.  v.  Scheu,  19  N.  Y.  408.  See,  also,  Union  Steam- 
boat Co.  v.  City  of  Buffalo,  82  N.  Y.  351;  Chesebrough  Mfg.  Co.  v.  Coleman,  44 
Hun,  545;  People  ex  rel.  Knickerbocker-Press  v.  Barker,  87  Hun,  341;  34 
N.  Y.  Supp.  269;  People  ex  rel.  Gen.  Electric  Co.  v.  Parker,  91  Hun,  590;  36 
N.  Y.  Supp.  844. 

In  the  case  of  Austin  v.  Hudson  River  Telephone  Co.,  73  Hun,  96;  25  N. 
Y.  Supp.  916,  it  was  held  that,  where  the  act  under  which  a corporation  was 
organized  did  not  require  that  the  article  should  state  where  the  principal 
office  of  the  corporation  should  be  established,  the  statement  that  it  was  to  be 
in  a certain  place  was  not  conclusive,  but  its  actual  principal  place  of  business 
would  determine  its  residence.  Where  the  principal  office  is  stated  by  a corpora- 
tion to  be  at  a certain  place  in  a sworn  statement  of  an  officer  filed  in  the  office 
of  the  assessor,  the  corporation  is  estopped  from  claiming  that  the  place  of 
business  for  the  purpose  of  taxation  is  at  some  other  place.  Matter  of  McLean, 
138  N.  Y.  158;  33  N.  E.  821. 

Situs  of  property.  The  personal  property  within  this  state,  of  corporations, 
whether  domestic  or  foreign,  is  taxed  at  the  place  where  its  principal  office,  within 
this  state,  is  located,  without  regard  to  the  particular  situs  of  the  property.  Peo- 
ple ex  rel.  The  Keystone  Gas  Co.  v.  The  Assessors  of  Olean,  15  N.  Y.  St.  Rep.  461. 

37.  Manufacturing  and  mercantile  corporations  are  exempted  from  tax  on  capital 
stock  by  virtue  of  § 219j  of  Tax  Law,  as  added  by  L.  1917,  ch.  726. 

Capital  stock.  The  words  “ capital  stock  ” in  the  statute  refer  to  the 
capital  of  the  company  and  not  the  shares  of  the  stockholder.  People  ex  rel. 
Union  Trust  Co.  v.  Coleman,  126  N.  Y.  433;  27  N.  E.  818.  In  taxing  corporations, 
therefore,  under  the  above  section  the  subject  of  valuation  and  assessment  is 
never  the  share  stock,  but  always  the  company’s  capital  and  surplus  which 
should  be  assessed  at  its  actual  value  when  that  is  known  or  can  be  ascer- 
tained. The  court,  in  the  case  last  cited,  in  considering  this  question  discussed 
elaborately  the  relative  significance  of  the  capital  stock  of  the  company  and 
the  capital  stock  which  is  held  in  shares  by  the  corporators.  It  was  said: 
“ The  two  things  are  neither  identical  nor  equivalent.  The  capital  stock  of  a 
company  is  one  thing;  that  of  the  stockholders  is  another  and  a different  thing. 
That  of  the  company  is  simply  its  capital,  existing  in  money  or  property,  or 
both;  while  that  of  the  shareholders  is  representative,  not  merely  of  that 
existing  and  tangible  capital,  but  also  of  surplus,  of  dividend  earning  power, 
of  franchise  and  the  good  will  of  an  established  and  prosperous  business.” 
See,  also,  People  ex  rel.  Johnson  Co.  v.  Roberts,  159  N.  Y.  70;  53  N.  E.  685; 
People  ex  rel.  Wiebusch,  etc.,  Co.  v.  Roberts,  154  N.  Y.  101,  47  N.  E.  980;  People 
ex  rel.  Singer  Mfg.  Co.  v.  Wemple,  150  N.  Y.  46;  44  N.  E.  787;  People  ex  rel. 
Jewelers  Publishing  Co.  v.  Roberts,  155  N.  Y.  1,  4;  49  N.  E.  248.  See  People  ex  rel. 
Butterick  Pub.  Co.  v.  Purely,  153  App.  Div.  665,  138  N.  Y.  Supp.  707,  mod.  in  207 
N.  Y.  771. 

What  is  included  in  capital.  The  capital  of  a corporation  is  the  actual  value 
of  all  its  tangible  property,  including  the  value  of  its  real  estate,  wherever  situated. 
People  ex  rel.  Manhattan  Rv.  Co.  v.  Barker,  146  N.  Y.  30,  40  N.  E.  Rep.  996.  66  N. 
Y.  St.  Rep.  658. 

A corporation,  having  its  entire  capital  invested  in  the  capital  stock  of  certain 
Pennsylvania  corporations  which  are  liable  to  assessment  in  Pennsylvania,  is  exempt 
from  personal  taxation  in  local  tax  districts.  Rept.  of  Atty.  Genl.,  July  26,  1910. 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


501 


Tax  Law,  § 12. 

ten  per  centum  of  its  capital,38  after  deducting  the  assessed  value  of  its 
real  estate,  and  all  shares  of  stock  in  other  corporations  actually  owned 
bv  such  company  which  are  taxable  upon  their  capital  stock  under  the 


Theory  of  taxing  corporate  stock.  The  theory  of  the  Tax  Law  is  to  prescribe 
a method  of  computation  by  which  to  ascertain  a total  valuation  of  the  taxable 
corporate  property  from  which  a deduction  of  the  assessed  value  of  its  real 
estate  may  be  made  in  order  to  determine  the  balance  which  is  properly  assess- 
able as  its  personal  property.  People  ex  rel.  Equitable  Gas-Light  Co.  v.  Barker, 
144  N.  Y.  94,  39  N.  E.  Rep.  13,  63  N.  Y.  St.  Rep.  33,  revg.  81  Hun  22,  62  N.  Y. 
St.  Rep.  563,  30  N.  Y.  Supp.  586. 

Capital  stock  of  railroad  corporation.  The  capital  stock  of  a railroad  cor- 
poration which  is  not  invested  in  its  railways,  or  other  real  estate,  is  to  be 
taxed  as  personal  property,  in  the  town  or  ward  where  the  principal  office  or 
place  for  transacting  the  financial  concerns  of  the  company  is  situated.  Mohawk 
& H.  R.  R.  Co.  v.  Clute,  4 Paige,  384.  In  fixing  the  value  of  a lease  of  railroad 
property  for  the  purpose  of  assessing  the  capital  stock  and  surplus  of  the 
lessee  corporation,  the  assessors  have  the  right  to  consider  the  nature  of  the 
estate  granted  to  the  lessee  corporation,  its  duration  and  the  profits,  if  any, 
realized  from  operating  the  leased  property,  but  should  deduct  therefrom  the 
value  of  the  leased  franchise,  as  the  lease  of  the  franchise  is  taxable  under 
another  statute.  People  ex  rel.  D.  & H.  Co.  v.  Feitner,  61  App.  Div.  129,  70 
N.  Y.  Supp.  500,  affd.  171  N.  Y.  641. 

The  capital  and  surplus  of  a railroad  corporation  cannot  be  assessed  where 
it  appears  that  its  railroad  is  leased  at  an  annual  rental  of  8 per  cent,  of  its 
capital  stock,  and  it  possesses  no  other  assets.  The  tax  commissioners  cannot 
take  into  consideration  the  earning  power  of  such  stock  in  determining  the 
value  of  its  property.  People  ex  rel.  N.  Y.  C.  & H.  R.  R.  Co.  v.  Feitner,  75 
App.  Div.  527,  78  N.  Y.  Supp.  308,  affd.  174  N.  Y.  532. 

Street  railroad.  In  determining  the  amount  of  capital  stock  of  a street  rail- 
way liable  to  taxation,  the  value  of  leases  of  other  roads  held  by  it  should  be 
included;  but  that  value  should  not  be  based  on  the  value  of  the  fee  owned  by  the 
lessor,  but  only  upon  the  actual  value  to  the  lessee  of  the  leases  as  shown  by 
evidence.  When  the  fee  value  of  the  leased  railroads  has  been  assessed  to  the 
lessor  and  the  lessee  has  paid  the  amount  as  part  of  the  rent  reserved,  it 
should  not  again  be  compelled  to  pay  taxes  on  the  fee  value,  as  that  would  be 
double  taxation.  People  ex  rel.  Metropolitan  Street  R.  Co.  v.  Barker,  121  App. 
Div.  661,  106  N.  Y.  Supp.  336. 

38.  Section  construed  as  to  exception  and  surplus  profits.  In  speaking  of 
the  provisions  of  this  section  Judge  Earl  said  in  the  case  of  People  ex  rel. 
23d  St.  R.  R.  Co.  v.  Commissioners  of  Taxes,  95  N.  Y.  554,  557:  “There  is  a 

most  extraordinary  confusion  of  ideas  in  this  section.  What  is  meant  by  the 
clause,  ‘except  such  part  of  it  (capital  stock),  as  shall  have  been  excepted  in 
the  assessment  roll?’  I know  of  no  law  which  authorizes  any  such  exception 
to  be  made  in  the  roll.  Then  the  section,  literally  read,  requires  that  the  actual 
valuation  shall  be  placed  both  upon  the  capital  and  the  surplus,  and  yet  the 
surplus  is  always  included  in  and  goes  to  make  up  the  actual  value  of  the  cap- 
ital. Notwithstanding  the  language,  it  could  not  have  been  intended  that 
capital  should  be  assessed  at  its  actual  value,  and  that  in  addiion  thereto  the 
surplus,  less  the  ten  per  cent.,  should  also  be  included  in  the  assessment  at  its 
actual  value,  thus  making  a double  assessment  of  surplus.” 


502 


TAXATION. 


Tax  Law,  § 12. 

laws  of  this  state,  shall  be  assessed  at  its  actual  value.39  [Tax  Law,  § 
12;  B.  C.  & G.  Cons.  L.,  p.  5829.] 


Deduction  of  10  per  cent,  of  capital  will  only  be  allowed  where  surplus  equals 
that  amount.  People  ex  rel.  Citizens’  Elec.  111.  Co.  v.  Neff,  26  App.  Div.  542,  50 
N.  Y.  Supp.  680.  For  what  surplus  profits  or  reserve  funds  are,  and  when 
assessable,  see  People  ex  rel.  Manhattan  Ry.  Co.  v.  Barker,  165  N.  Y.  305. 

39.  Valuation,  how  ascertained.  The  capital  stock  should  be  assessed  at  its 
real,  as  distinguished  from  its  nominal  value.  The  par  value  of  the  shares  of 
stock  is  not  material  in  determining  the  actual  value  of  the  capital  stock. 
Oswego  Starch  Factory  v.  Dolloway,  21  N.  Y.  449.  The  value  may  be  ascer- 
tained from  other  sources  as  in  valuing  real  estate.  People  ex  rel.  Pacific  Mail 
S.  S.  Co.  v.  Commissioners  of  Taxes,  46  How.  Pr.  315.  If  the  capital  of  a 
corporation  is  of  no  value  because  of  the  fact  that  its  indebtedness  exceeds  its 
assets,  it  should  not  be  assessed.  People  ex  rel.  West  Side  and  Yonkers  R.  R. 
Co.  v.  Commissioners  of  Taxes,  31  Hun,  32.  An  assessment  of  a corporation 
based  upon  the  market  value  of  its  shares  is  erroneous  since  it  is  the  corporate 
assets  that  is  the  subject  of  taxation.  People  ex  rel.  Bleecker  St.,  etc.,  R.  R. 
v.  Barker,  85  Hun,  210';  32  N.  Y.  Supp.  990. 

The  method  of  ascertaining  the  actual  value  is  left  to  the  judgment  of  the 
assessors  and  they  have  a right  to  resort  to  any  and  all  of  the  tests  and  meas- 
ures of  value  which  are  ordinarily  adopted  for  business  purposes  in  estimating 
values.  Where  the  assessors  have  so  exercised  their  judgment  it  is  subject  to  no 
review  or  correction  except  as  prescribed  by  law.  People  ex  rel.  Knickerbocker 
Fire  Insurance  Co.  v.  Coleman,  107  N.  Y.  541. 

In  ascertaining  the  amount  for  which  a corporation  is  liable  upon  its  corporate 
stock  and  surplus,  a greater  value  cannot  be  placed  upon  corporate  real  estate, 
which  constitutes  its  entire  capital  and  surplus,  than  that  placed  on  the  same 
real  estate,  when  assessed  generally  for  purposes  of  taxation.  People  ex 
rel.  Merchants’  Real  Estate  Co.  v.  Wells,  110  App.  Div.  194,  97  N.  Y.  Supp. 
47. 

Market  value  of  stock.  The  market  value  of  its  stock  may  be  taken  into 
consideration  in  determining  the  value  of  the  corporate  property.  People  ex 
rel.  Knickerbocker  Fire  Ins.  Co.  v.  Coleman,  44  Hun  410  (1887),  affd.  107  N.  Y. 
541,  14  N.  E.  Rep.  431.  But  where  the  value  of  the  assets  of  a corporation 
cannot,  owing  to  conflicting  and  insufficient  data,  be  definitely  ascertained,  the 
proper  way  to  establish  a valuation,  for  the  purposes  of  taxation,  is  to  deduct 
the  assessed  value  of  its  real  estate  from  the  market  value  of  its  stock.  People 
ex  rel.  Malcolm  Brewing  Co.  v.  Neff,  19  App.  Div.  596;  46  N.  Y.  Supp.  299. 
In  this  case  it  was  also  held  that  while  the  good  will  of  the  business  of  a 
corporation  is  not  taxable  no  deduction  from  the  actual  value  of  the  capital 
of  the  corporation  should  be  made  therefor  where  the  facts  show  that  there 
is  no  good  will  of  any  value  which  enters  into  the  market  value  of  the  shares 
of  stock.  But  it  is  erroneous  to  base  the  value  of  the  capital  upon  the  market 
value  of  the  corporate  shares,  as  it  is  the  actual  value  of  the  property  and  not 
the  selling  value  of  the  corporate  shares  which  is  assessable.  People  ex  rel. 
Bleecker  St.,  etc.,  v.  Barker,  85  Hun  210,  66  N.  Y.  St.  Rep.  474,  32  N.  Y.  Supp. 
990  (1895). 

It  has  been  held,  however,  where  the  market  value  of  the  shares  was  taken 
as  the  basis  of  the  value  of  the  capital,  the  assessment  is  not  void  and  the 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


502a 


Tax  Law,  § 219h. 

§ 15a.  INCOME  TAX  ON  MANUFACTURING  AND  MERCANTILE  COR- 
PORATIONS; RATE  OF  TAX;  DISPOSITION  OF  REVENUES 
COLLECTED  AMONG  TOWNS  AND  COUNTIES. 

Franchise  tax  on  corporations  based  on  net  income. — For  the  privilege  of 
exercising  its  franchises  in  this  state  in  a corporate  or  organized  capacity 
every  domestic  manufacturing  and  domestic  mercantile  corporation,  and 
for  the  privilege  of  doing  business  in  this  state,  every  foreign  manufacturing 
and  every  foreign  mercantile  corporation,  except  corporations  specified  in 
the  next  section,  shall  annually  pay  in  advance  for  the  year  beginning 
November  first  next  preceding  an  annual  franchise  tax,  to  be  computed  by 
the  tax  commission  upon  the  basis  of  its  net  income  for  its  fiscal  or  the 
calendar  year  next  preceding,  as  hereinafter  provided,  upon  which  income 
such  corporation  is  required  to  pay  a tax  to  the  United  States.  [Tax 
Law,  § 209-a,  as  added  by  L.  1917,  ch.  726.] 

Corporations  exempt  from  article. — Corporations  liable  to  a tax  under 
section  one  hundred  and  eighty-four  of  this  chapter,  corporations  owning 
or  operating  elevated  railroads  or  surface  railroads  not  operated  by  steam, 
or  formed  for  supplying  water  or  gas  or  for  electric  or  steam  heating,  light- 
ing or  power  purposes  and  liable  to  a tax  under  sections  one  hundred  and 
eighty-five  and  one  hundred  and  eighty-six  of  this  chapter,  shall  be  exempt 
from  the  payment  of  the  taxes  prescribed  in  this  article.  [Tax  Law,  § 210, 
as  added  by  L.  1917,  ch.  726.] 

Rate  of  tax. — The  tax  imposed  by  this  article  shall  be  at  the  rate  of  three 
per  centum  of  the  net  income  of  the  corporation  or  portion  thereof  taxable 
within  the  state,  determined  as  provided  by  this  article.  [Tax  Law,  § 215, 
as  added  by  L.  1917,  ch.  726.] 

Disposition  of  revenues  collected . — The  state  comptroller  shall  on  or 
before  the  twenty-fifth  day  of  each  month  pay  into  the  state  treasury  to  the 
credit  of  the  general  fund  all  interest  and  penalties  and  two-thirds  of  all 
taxes  received  by  him  under  this  article  during  the  preceding  month,  as 
appears  from  the  return  made  by  him  to  the  state  treasurer.  The  balance 
of  all  taxes  collected  and  received  by  him  under  this  article  from  any 
corporation,  as  appears  from  the  return  made  by  him  to  the  state  treasurer, 
shall  on  or  before  the  twenty-fifth  day  of  April,  July,  October  and  January, 
for  the  quarter  ending  with  the  last  day  of  the  preceding  month,  be  dis- 
tributed and  paid  by  him  to  the  treasurers  of  the  several  counties  of  the  state 
and  disposed  by  such  treasurers,  in  accordance  with  the  following  rules: 

1.  If  the  corporation  has  no  tangible  personal  property  within  the  state, 
such  payment  shall  be  made  to  the  county  treasurer  of  the  county  in  which 


502b 


TAXATION. 


Tax  Law,  § 219h. 

is  located  the  office  at  which  its  principal  financial  concerns  within  the  state 
.are  transacted; 

2.  If  the  corporation  has  tangible  personal  property,  as  shown  by  its 
report  pursuant  to  section  two  hundred  and  eleven,  in  but  one  city  or  town 
of  the  state,  such  payment  shall  be  made  to  the  county  treasurer  of  the 
county  in  which  such  city  or  town  is  located; 

3.  If  the  corporation  has  real  property  or  tangible  personal  property 
in  more  than  one  city  or  town  of  the  state,  as  shown  by  its  report  pursuant 
to  section  two  hundred  and  eleven,  such  payment  shall  be  made  to  the 
county  treasurers  of  the  counties  in  which  such  cities  or  towns  are  located 
in  the  proportion  that  the  average  monthly  value  of  the  tangible  personal 
property  of  such  corporation  in  the  cities  and  towns  of  such  county  bears 
to  the  average  monthly  value  of  all  its  real  property  and  tangible  personal 
property  within  the  state; 

4.  In  making  such  payment  to  a county  treasurer,  the  state  comptroller 
shall  indicate  the  portion  thereof  to  be  credited  to  any  city  or  town  within 
the  county  on  account  of  the  location  therein  of  its  principal  financial 
office  or  property  as  determined  by  the  preceding  subdivisions,  and  if 
such  principal  financial  office  or  property  is  located  in  a village  shall  indi- 
cate the  village  in  which  it  is  located;  if  such  principal  financial  office  or 
property  is  located  in  a city  or  in  a town  outside  of  a village,  the  whole 
of  such  portion  shall  be  paid  to  such  city  or  town  as  hereinafter  provided; 
if  such  principal  financial  office  or  property  is  located  in  a village,  there 
shall  be  paid  to  such  village  as  hereinafter  provided  such  a part  of  the  entire 
amount  credited  to  the  town  as  the  entire  amount  of  taxes  raised  by  said 
village,  or  portion  thereof  in  said  town,  during  the  preceding  calendar  year 
for  village  and  town  purposes  bears  to  the  aggregate  amount  so  raised  by 
the  town  and  village  during  the  preceding  calendar  year  for  town  and  village 
purposes  property  in  such  village  or  portion  thereof  in  such  town  as  appears 
by  the  last  preceding  town  assessment-roll  bears  to  twice  the  total  assessed 
valuation  of  the  real  and  personal  property  in  such  town  as  appears  by  such 
assessment-roll ; 

5.  As  to  any  county  wholly  included  within  a city  such  payment  shall 
be  made  to  the  chamberlain  or  other  chief  fiscal  officer  of  such  city  and 
be  paid  into  the  general  fund  for  city  purposes ; 

6.  As  to  any  county  not  wholly  included  within  a city  the  county  treas- 
urer shall  within  ten  days  after  the  receipt  thereof  pay  to  the  chief  fiscal 
officer  of  a city  or  to  the  chief  fiscal  officer  of  a village  or  to  the  supervisor 
of  a town  the  portion  of  money  received  by  him  from  the  state  comptroller 
to  which  such  city,  village  or  town  is  entitled,  which  shall  be  credited  by 
such  officer  to  general  city,  village  or  town  purposes.  [Tax  Law,  § 219-h, 
as  added  by  L.  1917,  ch.  726,  and  amended  by  L.  1918,  ch.  417.] 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


503 


Tax  Law,  § 13. 

§ 16.  STOCKHOLDERS  OF  BANK  TAXABLE  ON  SHARES. 

The  stockholders  of  every  bank  or  banking  association  organized  under 
the  authority  of  this  state,  or  of  the  United  States,  shall  be  assessed  and 
taxed  on  the  value  of  their  shares  of  stock  therein;  said  shares  shall  be 


amount  will  not  be  reduced,  unless  it  appears  that  the  corporation  was 
aggrieved.  People  ex  rel.  Equitable  Gas-Light  Co.  v.  Barker,  66  Hun  21,  49  N.  Y. 
St.  Rep.  428,  20  N.  Y.  Supp.  797  (1892),  affd.  137  N.  Y.  544. 

The  market  rate  of  a stock  is  a deceptive  test,  justifiable,  if  at  all,  by 
necessity  only.  People  ex  rel.  Consol.  Gas.  Co.  v.  Feitner,  38  Misc.  178,  77  N.  Y. 
Supp.  745  (1902),  modf.  78  App.  Div.  313,  79  N.  Y.  Supp.  975  (1903). 

Evidence  of  value  of  capital.  In  ascertaining  the  value  of  the  corporate 
stock  the  assessors  have  the  right  to  act  upon  evidence  outside  of  that  furnished 
by  the  corporation,  and  in  making  inquiry  and  collecting  facts  they  are  not 
bound  by  the  strict  rule  which  governs  ordinary  judicial  proceedings.  Their  de- 
cision will  be  sustained  if  they  act  in  good  faith  upon  their  best  judgment,  upon 
reasonable  grounds,  and  do  not  err  in  the  principle  of  assessment  to  the  pre- 
judice of  the  taxpayer.  People  ex  rel.  Equitable  Gas-Light  Co.  v.  Barker,  144 
N.  Y.  94,  39  N.  E.  Rep.  13.  They  may  consider  the  earnings  of  the  corporation. 
People  ex  rel.  Manhattan  Ry.  Co.  v.  Barker,  146  N.  Y.  304,  40  N.  E.  Rep.  996, 
66  N Y.  St.  Rep.  658.  Dividends  are,  in  the  absence  of  evidence  that  they  were 
declared  out  of  earnings,  an  insufficient  basis  for  an  assessment.  People  ex  rel. 
Consol.  Gas  Co.  v.  Feitner,  78  App.  Div.  313,  79  N.  Y.  Supp.  975. 

Deduction  on  account  of  real  estate.  In  assessing  the  capital  stock  of  a 
corporation,  the  assessors  are  to  ascertain  the  present  value  thereof,  and 
from  this  are  to  deduct  the  assessed  value  of  the  real  estate,  and  the  fact  that 
the  whole  capital  was  originally  invested  in  real  estate  does  not  preclude  them 
from  so  doing.  People  ex  rel.  Butchers,  etc.,  Co.  v.  Asten,  100  N.  Y.  597.  The 
rule  of  taxation  as  to  corporations  when  based  upon  the  amount  of  capital  paid 
in,  is,  after  deducting  the  amount  paid  out  for  real  estate  from  the  capi- 
tal, to  assess  the  remaining  capital  at  its  actual  value,  leaving  the  real  estate 
to  be  assessed  like  that  of  individuals  in  the  town  or  ward  where  it  is 
situated.  People  ex  rel.  Citizens’  Gas  Light  Co.  v.  Assessors,  39  N.  Y.  81; 
People  ex  rel.  American  Linen  Thread  Co.  v.  Assessors,  6 Lans.  105.  If 
the  real  estate  is  situated  in  a town  or  ward  within  the  state  its  assessed 
valuation  may  without  difficulty  be  ascertained  from  the  proper  assessment 
rolls.  But  if  the  real  property  is  situated  in  another  state  or  country  its 
assessed  valuation  may  not  be  easily  ascertained.  In  such  cases  or  in  any 
other  case  where  the  assessed  valuation  cannot  be  ascertained,  the  price  paid 
for  the  real  property,  in  the  absence  of  proof  or  of  any  other  standard  may 
be  taken  as  the  assessable  value.  People  ex  rel.  23d  St.  R.  R.  Co.  v Commis- 
sioners of  Taxes,  95  N.  Y.  554.  See,  also,  People  ex  rel.  Van  Ness  v.  Commis- 
sioners of  Taxes,  80  N.  Y.  573.  The  refusal  of  commissioners  in  taxing  the 
capital  of  a bank  to  deduct  anything  for  a building  erected  by  it  upon  leased 
land  is  erroneous  since  the  property  of  a bank  in  the  building  is  real  estate 
and  taxable  as  such.  But  to  entitle  a corporation  to  the  deduction  of  the  value 
of  its  real  estate  from  that  of  its  capital,  the  real  estate  must  have  been 
paid  for  out  of  its  capital.  People  ex  rel.  Van  Ness  v.  Commissioners  of 
Taxes,  supra.  In  the  case  of  Eden  Musee  v.  Feitner,  60  App.  Div.  282;  70  N.  Y. 


504 


TAXATION. 


Tax  Law,  § 13. 

included  in  the  valuation  of  the  personal  property  of  such  stockholders 
in  the  assessment  of  taxes  in  the  tax  district  where  such  bank  or  banking 


Supp.  120,  it  was  held  that  when  assessing  the  capital  stock  and  surplus  of  a 
corporation  whose  chief  estate  is  a building  erected  on  leased  ground,  the  com- 
missioners may  properly  estimate  the  building  at  its  actual  value,  and  then 
add  the  value  of  the  personal  property  belonging  to  the  corporation,  and  from 
this  amount  deduct  the  assessed  value  of  the  building.  In  determining  the 
value  of  the  building  the  actual  cost  of  the  erection  thereof  may  be  considered. 

If  the  real  estate  is  situated  in  another  state  the  deduction  should  be  made 
at  the  assessed  value  of  the  real  estate,  if  known,  in  the  absence  of  controlling 
evidence  showing  a different  valuation.  People  ex  rel.  Fairfield  Chemical  Co. 
v.  Coleman,  115  N.  Y.  178,  21  N.  E.  Rep.  1056,  24  N.  Y.  St.  Rep.  584.  If  neither 
the  assessed  value  or  price  paid  is  known,  the  actual  value  of  such  real  estate, 
so  far  as  ascertainable,  should  probably  be  taken  as  the  basis  of  deduction. 
People  ex  rel.  Panama  R.  R.  Co.  v.  Comrs.  of  Taxes,  104  N.  Y.  240.  Even  though 
the  real  estate  may  be  assessed  at  less  than  its  actual  value,  the  assessed  value 
is  the  proper  basis  of  deduction.  People  ex  rel.  Equitable  Gas-Light  Co.  v. 
Barker,  144  N.  Y.  94,  39  N.  E.  Rep.  13,  63  N.  Y.  St.  Rep.  33,  revg.  81  Hun  22, 
62  N.  Y.  St.  Rep.  563,  30  N.  Y.  Supp.  586. 

Deduction  when  real  estate  is  encumbered  with  a mortgage.  In  assessing 
the  capital  stock  of  a corporation  under  this  section,  where  the  real  estate  is 
encumbered  with  a mortgage  the  payment  of  which  has  not  been  assumed  by 
the  corporation,  and  the  value  of  the  equity  of  redemption  alone  has  been 
included  in  determining  the  value  of  its  capital  stock,  the  corporation  is  entitled 
to  have  deducted  from  the  valuation  only  the  value  of  the  equity,  and  not  the 
whole  assessment  value  of  its  real  estate.  People  ex  rel.  Weber  Piano  Co.  v. 
Wells,  180  N.  Y.  62,  revg.  95  App.  Div.  574,  88  N.  Y.  Supp.  1030. 

Building  on  leased  ground.  In  assessing  the  capital  stock  and  surplus  of  a 
corporation  whose  chief  asset  is  a building  erected  on  leased  ground,  the  commis- 
sioners may  properly  estimate  the  building  at  its  actual  value  and  then  add 
the  value  of  the  personal  property  and  from  this  amount  deduct  the  assessed 
value  of  the  building.  In  determining  the  value  of  the  building  the  actual 
cost  of  the  erection  thereof  must  be  considered.  People  ex  rel.  Eden  Musee  v. 
Feitner,  60  App.  Div.  282,  70  N.  Y.  Supp.  120. 

Debts  not  included.  The  assessors  should  deduct  the  debts  of  the  corporation 
— or  perhaps,  more  properly,  should  consider  them  in  fixing  the  actual  value  of 
the  capital  of  the  corporation.  People  ex  rel.  Second  Ave.,  etc.,  Co.  v.  Barker, 

141  N.  Y.  196,  36  N.  E.  Rep.  184,  56  N.  Y.  St.  Rep.  834.  Debts  should  be 

deducted  under  § 12.  People  ex  rel.  Cornell  S.  Co.  v.  Dederick,  161  N.  Y.  195; 
People  ex  rel.  Rochester  R.  Co.  v.  Pond,  37  App.  Div.  330,  57  N.  Y.  Supp. 
490;  People  ex  rel.  Trust  Co.  v.  Norton,  53  Id.  557,  65  N.  Y.  Supp.  992.  The 
actual  value  of  the  stock  is  the  basis,  and  where  it  is  of  no  value  because  of 
its  indebtedness  exceeding  its  assets  it  should  not  be  assessed.  People  ex  rel. 
West  Side  & Yonkers  R.  R.  Co.  v.  Comrs.  of  Taxes,  31  Hun  82.  The  valuation 
of  the  capital  having  been  once  fixed,  no  further  deduction  can  be  made  on 
account  of  indebtedness.  People  ex  rel.  Broadway,  etc.,  R.  R.  Co.  v.  Comrs.  of 
Taxes,  1 Th.  & C.  635;  People  ex  rel.  Butchers,  etc.,  v.  Asten,  100  N.  Y.  597. 

The  deposits  of  a savings  bank  of  another  state  are  to  be  deemed  debts.  People 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION.  505 

Tax  Law,  § 14. 

association  is  located,  and  not  elsewhere,  whether  the  said  stockholders 
reside  in  said  tax  district  or  not.”  [Tax  Law,  § 13 ; B.  C.  & G.  Cons. 
L.,  p.  5834.] 

§ 17.  PLACE  OF  TAXATION  OF  INDIVIDUAL  BANK  CAPITAL. 

Every  individual  banker  shall  be  taxable  upon  the  amount  of  capital 
invested  in  his  banking  business  in  the  tax  district  where  the  place  of  such 


ex  rel.  Groton  Savings  Bank  v.  Barker,  154  N.  Y.  122,  47  N.  E.  Rep.  1103;  People 
ex  rel.  Bridgeport  Savings  Bank  v.  Barker,  154  N.  Y.  128. 

Exempt  property  not  included.  The  assessors  should  deduct  the  capital 
invested  in  property  exempt  from  taxation  by  law.  People  ex  rel.  Edison,  etc., 
Co.  v.  Barker,  139  N.  Y.  55,  34  N.  E.  Rep.  722,  54  N.  Y.  St.  Rep.  444.  Thus,  it 
was  held  that  the  capital  of  a corporation  invested  in  United  States  patent 
rights  is  exempt.  People  ex  rel.  N.  Y.  & N.  J.  Telephone  Co.  v.  Neff,  15  App. 
Div.  8,  44  N.  Y.  Supp.  46,  affd.  156  N.  Y.  701;  People  ex  rel.  Edison  Electric 
Illuminating  Co.  v.  Neff,  156  N.  Y.  417,  affg.  19  App.  Div.  599,  46  N.  Y.  Supp. 
388. 

40.  Effect  of  assessment  of  bank  shares  under  section  24  of  the  Tax 

Law.  Section  24,  as  amended  by  L.  1916,  ch.  323,  of  the  Tax  Law,  provides  a 
complete  scheme  for  the  assessment  for  taxation  of  bank  shares  and  in  effect 
supersedes  the  provisions  of  the  above  section.  Such  section  24  requires 
the  bank  to  pay  a fixed  tax  of  one  per  centum  upon  the  value  of  the  shares  of 
stock  as  ascertained  by  adding  together  the  amount  of  the  capital  stock,  surplus  and 
undivided  profits  of  the  bank,  and  by  dividing  the  result  by  the  number  of  outstand- 
ing shares  of  such  bank.  The  decisions  under  such  section  will  be  considered  here- 
after. See  Tax  Law,  sec.  24,  post,  p.  520. 

Taxation  of  shares  of  national  bank.  By  section  5219,  U.  S.  Revised  Stat- 
utes, the  state  is  authorized  to  direct  the  manner  of  taxing  shares  of  national  bank 
stock  held  by  taxpayers. 

The  shares  of  national  bank  stock  are  subject  to  taxation  under  the  laws  of  the 
state,  though  such  tax  must  not  be  at  a greater  rate  than  upon  other  moneyed  capital 
in  the  hands  of  individuals,  nor  must  such  tax  exceed  the  rate  imposed  upon  the 
shares  of  any  of  the  banks  organized  under  the  authority  of  the  state.  People  ex 
rel.  Kennedy  v.  Commissioners  of  Taxes,  35  N.  Y.  423.  National  bank  shares  can 
be  assessed  above  par.  No  unjust  discrimination  against  national  hanks  arises 
from  the  fact  that  the  state  banks  can  divide  up  all  their  surplus1  while  national 
banks  are  required  to  accumulate  a surplus.  People  ex  rel.  Gallatin  Nat.  Bank  v. 
Commissioners  of  Taxes,  67  N.  Y.  516. 

The  restriction  in  the  U.  S.  Revised  Statutes,  sec.  5219,  as  to  taxation  of  shares 
of  stock  in  national  banks,  is  equality  of  assessment  with  other  moneyed  capital, 
not  with  other  property  generally.  Talbott  v.  Silver  Bow  County,  139  U.  S.  428; 
11  Sup.  Ct.  594;  Davenport  Nat.  Bank  v.  Board  of  Equalization,  123  U.  S.  83;  8 

Sup.  Ct.  73. 

The  rule  and  test  of  discrimination  is  to  be  found  in  the  nature  of  the  business 
in  which  the  corporation  is  engaged.  The  act  simply  prohibits  taxation  at  a greater 
rate  than  like  property  similarly  situated.  Mercantile  Bank  v.  City  of  New  York, 
121  U.  S.  138,  7 Sup.  Ct.  826. 


506 


TAXATION. 


Tax  Law,  § 15. 

business  is  located,  and  shall,  for  that  purpose,  he  deemed  a resident  of 
such  tax  district.41  [Tax  Law,  § Id ; B.  C.  & G.  Cons.  L.,  p.  5836.] 

§18.  REPORT  OF  EXEMPT  PROPERTY  BY  ASSESSORS. 

It  shall  be  the  duty  of  the  board  of  assessors  of  the  several  towns  of  this 
state,  and  the  boards  or  officials  charged  with  the  duty  of  assessing  prop- 
erty for  the  purposes  of  taxation  in  the  several  cities  of  the  state,  to 
furnish  to  the  clerks  of  the  boards  of  supervisors  of  their  respective 
counties,  or  in  the  case  of  the  city  of  New  York,  to  the  city  clerk  of  that 
city,  on  or  before  the  first  day  of  September  in  each  year,  a full  and 
complete  list  and  statement  of  all  property  situated  within  their 
respective  districts  exempt  or  partially  exempt  from  taxation  under 
the  laws  of  this  state.  Such  list  and  statement  shall  be  made  on  blanks 
furnished  by  the  tax  commission,  and  in  such  form  and  to  -contain 
and  set  forth  all  the  information  relative  to  such  property  and  the 
situation  and  value  thereof,  as  may  be  required  by  th*e  tax  commission, 
and  to  be  verified  in  the  same  manner  as  assessments  of  property  for 
the  purposes  of  taxation,  and  in  the  city  of  New  York  by  the  chief 
deputy  of  the  department  of  taxes  and'assessments.  The  tax  commission 
shall  prepare  and  transmit  to  the  clerk  of  the  board  of  supervisors  in 
each  county  and  to  the  city  clerk  of  the  city  of  New  York,  a sufficient 
number  of  such  blanks,  on  or  before  the  first  day  of  June  in  each 
year,  and  the  clerks  of  the  boards  of  supervisors  and  the  city  clerk  of 
the  city  of  New  York  shall  forthwith,  upon  the  receipt  thereof,  dis- 
tribute the  same  among  the  boards  of  assessors  for  use  in  preparing  the 
statement  herein  required.  And  it  shall  be  the  duty  of  the  clerk  of  the 
board  of  supervisors  of  each  county  and  of  the  city  clerk  of  the  city 
of  New  York,  to  transmit  such  completed  lists  or  statements  to  the 
tax  commission,  on  or  before  the  first  day  of  October  in  each  year,  and 
the  tax  commission  shall  tabulate  such  statements,  and  cause  to  be  pub- 


41.  Assessment  of  individual  banker.  Section  25  of  the  Tax  Law,  post,  p. 
524,  provides  the  manner  of  making  an  assessment  of  an  individual  banker. 

Tke  words  “ individual  banker,”  as  used  in  this  section  and  in  section  25  of 
Tax  Law,  mean  an  individual  banker  as  defined  by  section  2 of  the  Banking  Law. 
Kept,  of  Atty.  Genl.,  Aug.  25,  1910. 

The  residence  of  an  individual  banker  doing  business  under  the  Banking 
Law  is  for  the  purpose  of  taxation  of  his  banking  capital  in  the  town  or  place  speci- 
fied as  the  location  of  his  banking  office.  But  the  property  of  private  bankers,  as 
such,  follows  the  residence  of  the  owner.  Rept.  of  Atty.  Genl.,  Aug.  25,  1910. 


TAXABLE  PROPERTY  AND  PLACE  OF  TAXATION. 


507 


Tax  Law,  § 15. 

lished  in  their  annual  report  to  the  legislature,  a complete  tabulated 
statement,  based  upon  the  statement  so  transmitted  to  the  tax  commis- 
sion of  all  real  esate  in  the  several  counties  of  the  state  which  is  exempt 
or  partially  exempt  from  taxation.42  Immediately  upon  the  receipt 
of  the  completed  reports  by  the  various  clerks  of  the  boards  of  super- 
visors, and  the  city  clerk  of  the  city  of  Yew  York,  those  officials  shall 
prepare  a tabulated  statement  of  the  returns  received  and  shall  post  a 
copy  thereof  in  a conspicuous  place,  and  in  all  cities  of  the  state  cause 
a copy  thereof  to  be  published  in  the  official  paper  or  papers  of  said  city 
twice,  with  an  interval  between  publication  of  three  weeks,  except  such 
cities  which  publish  a complete  assessment-roll.  The  expense  of  such 
publication  shall  be  a city  charge  and  shall  be  audited  and  paid  in  the 
same  manner  as  charges  for  other  city  notices  are  audited  and  paid. 
[Tax  Law,  § 15,  as  amended  by  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L., 
p.  5836.] 


Location  of  bank  fixes  place  for  assessment.  Patchin  v.  Ritter,  27  Barb.  34 ; Miner 
v.  Village  of  Fredonia,  27  N.  Y.  155;  Metcalf  v.  Messenger,  46  Barb.  325. 

An  assessment  of  “ circulation;  notes  and  profits,”  held  illegal.  Bellinger  v. 
Gray,  51  N.  Y.  610. 

United  States  bonds  and  realty.  Capital  invested  in  United  States  bonds  or 
realty  should  be  deducted.  People  ex  rel.  Raplee  v.  Reddy,  43  Barb.  539. 

42.  Published  list  of  exempt  property  of  city  need  include  only  such 

property  as  is  situate  within  the  city  limits.  Rept.  of  Atty.  Genl.,  Oct.  21,  1910. 


508 


TAXATION. 


Explanatory  note. 


CHAPTER  XXXIV. 

MODE  OF  ASSESSMENT. 

EXPLANATORY  NOTE. 

Assessors  to  Ascertain  Facts  for  Assessment. 

The  three  town  assessors  should  first  divide  the  town  into  convenient 
assessment  districts,  one  for  each  assessor.  This  is  for  the  purpose  of 
permitting  each  assessor  to  take  a part  of  the  town  with  which  he  is 
most  familiar  and  ascertain  in  the  first  instance  the  values  of  real 
property  and  the  amount  of  personal  property  owned  hv  the  taxpayers 
therein.  It  must  be  remembered,  however,  that  one  assessor  cannot  make 
an  assessment.  An  assessment  to  be  binding  and  valid  must  be  the  act 
of  a majority  of  the  board.  The  law  does  not  compel  a division  of  the 
town  into  assessment  districts.  It  provides  that  the  assessors  may 
divide  the  town  into  such  districts. 

The  assessors  should  during  the  months  of  May  and  June  secure 
such  information  as  may  be  useful  and  do  all  their  preliminary  work. 
The  law  does  not  prescribe  how  the  necessary  information  shall  be 
secured.  They  may  inquire  of  whomever  they  please.  They  may  fix 
values  according  to  their  own  judgment.  They  are  not  concluded  by 
the  opinions  of  witnesses.  They  should  consult  public  records,  and 
take  notice  of  bona  fide  sales  of  land  in  the  immediate  neighborhood  of 
the  property  assessed.  If  the  party  assessed  claims  that  injustice  has 
been  done,  he  may  file  his  affidavit  and  be  heard  on  grievance  day. 

The  assessors  must  consider  and  decide  all  claims  of  exemptions. 
Having  passed  upon  such  exemptions  the  claimant  has  his  remedy  by 
certiorari . 

Preparation  of  Assessment-roll. 

After  the  completion  of  their  preliminary  inquiries,  the  assessors 
must  prepare  an  assessment-roll  in  the  form  prescribed  by  the  State 


MODE  OF  ASSESSMENT. 


509 


Explanatory  note. 


Board  of  Tax  Commissioners  as  provided  in  § 21  of  the  Tax  Law,  as 
amended  by  L.  1914,  ch.  277,  L.  1915,  ch.  218  and  L.  1916,  ch.  323. 
There  should  be  a substantial  compliance  with  the  requirements, 
although  a deviation  which  does  not  conceal  the  name  of  the  taxpayers 
and  mislead  him  as  to  property  assessed  would  not  affect  the  validity 
of  the  roll.  Care  should  be  taken  to  secure  the  correct  name  of  the 
person  assessed.  If  the  name  by  which  a person  is  known  is  included 
it  is  sufficient  although  it  is  not  his  real  name.  It  is  usual  to  assess 
decedents’  estates  under  the  name  of  the  estate,  with  the  name  of  the 
administrator  or  executor  added.  The  land  should  be  described  by 
giving  the  amount  thereof,  and  some  statement  indicating  its  character, 
e.  g.  “ farm,”  “ house  and  lot,”  “ mill,”  etc.  The  statute  does  not  now 
require  a specified  number  of  columns,  although  the  State  Board  of  Tax 
Commissioners  may  require  such  columns. 

Village,  School  Districts  and  Special  Districts. 

The  assessment-roll  must  provide  for  the  indication  thereon  of  the 
name  of  the  village,  the  number  of  the  school  district  and  of  the  special 
district,  in  which  each  parcel  of  land  is  situated.  The  roll  as  prescribed 
by  the  State  Tax  Commissioners  will  provide  for  this.  The  assessors 
must  avail  themselves  of  such  knowledge  as  they  may  have  in  locating 
in  the  proper  village  and  school  district  each  parcel  assessed  by  them. 

Determination  of  Valuation. 

The  assessors  may  use  their  own  judgment:  in  determining  the  value 
of  lands  assessed.  It' must  always  be  remembered  that  their  determina- 
tion is  subject  to  review  by  the  courts.  The  values  included  in  the 
assessment-roll  may  be  reduced  or  increased  prior  to  its  final  completion 
and  verification  by  the  assessors.  It  is  impracticable  to  lay  down  all 
the  rules  declared  by  the  courts  as  controlling  the  assessors  in  deter- 
mining values.  In  assessing  railroads  cost  of  reproduction  is  the  chief 
consideration;  that  is  the  cost  of  replacing  the  portion  of  the  property 
of  the  company  situated  within  the  town,  without  much  regard  to  the 
earning  capacity  of  the  railroad  as  a whole.  The  same  rule  controls  in 
the  assessment  of  telephone  and  telegraph  companies.  Special  provision 
is  made  by  the  Tax  Law,  § 24,  as  amended  by  L.  1916,  ch.  323,  for  the 
assessment  and  collection  of  taxes  against  banks. 

Corporations  are  required  through  their  proper  officers  (See  Tax 
Law,  § 27,  as  amended  by  L.  1916,  ch.  323)  to  make  detailed  statements 
as  to  real  property  owned  by  them  in  the  town,  and  the  amount  of  capital 
stock  paid  in  and  secured  to  be  paid  in,  excepting  the  sums  paid  for  real 
property.  The  law  specifies  how  corporations  shall  be  assessed  on  the 
assessment-roll.  See  Tax  Law,  § 32. 

Non-resident  Lands. 

The  real  property  of  non-residents  must  be  designated  in  a separate 
part  of  the  assessment-roll.  The  lands  should  be  described  by  lot-num- 
ber, if  it  be  known  by  such,  or  if  not  the  boundaries  should  be  given. 
The  quantity  and  value  of  the  land  must  be  given.  When  deemed 


510 


TAXATION. 


Explanatory  note. 

necessary  by  the  assessors,  the  supervisor  may  cause  a map  and 
survey  of  non-resident  lands  to  be  made. 

Omitted  Property. 

Assessors  may  include  in  the  assessment-roll  of  the  current  year  prop- 
erty shown  to  have  been  omitted  from  the  assessment-roll  of  the  pre- 
ceding year,  at  the  valuation  of  the  preceding  year,  or,  if  none  was  then 
made,  at  a valuation  fixed  by  them  based  upon  conditions  as  they 
existed  during  the  preceding  year.  When  omitted  property  is  included, 
the  valuation  must  be  stated  on  a separate  line  from  that  of  the  same 
property  for  the  present  year. 

Completion  of  Assessment  Roll ; Notice. 

The  assessors  must  complete  the  roll  on  or  before  August  1.  A copy 
must  be  made  and  left  with  one  of  them.  A notice  must  then  be  posted 
in  three  or  more  public  places  in  the  town  that  such  roll  has  been  com- 
pleted and  a copy  may  be  seen  and  examined  at  a place  mentioned  until 
the  third  Tuesday  of  August,  and  that  on  that  day,  and  at  the  place 
mentioned  the  assessors  will  meet  to  review  their  assessments.  Such 
notice  must  be  mailed  to  corporations  and  non-residents  who  have  re- 
quested it  on  or  before  July  15  preceding. 

Grievance  Pay. 

The  day  specified,  i.  e.,  the  third  Tuesday  in  August  is  grievance 
day.  On  this  day,  or  a day  to  which  they  adjourn,  the  assessors  must 
hear  and  determine  all  complaints  against  assessments  made  by  them. 
The  statement  containing  the  complaint  must  be  verified  and  must 
specify  in  what  respects  the  assessment  is  erronepus.  The  assessors 
may  take  testimony  and  administer  oaths  to  witnesses.  The  hearing 
should  be  conducted  in  an  orderly  manner.  The  complainants  should 
be  permitted  to  appear  by  counsel.  All  the  evidence  presented  orally 
at  the  hearing  should  be  taken  down  and  written  out  and  be  filed  in  the 
office  of  the  town  clerk. 

Verification  of  Roll. 

When  the  roll  is  finally  completed  after  grievance  day,  each  assessor 
should  verify  the  roll  by  taking  the  oath  prescribed  by  law.  (See  Tax 
Law,  § 38,  as  amended  by  L.  1916,  ch.  323.)  There  must  be  a sub- 
stantial compliance  with  the  requirements  of  the  statute  in  respect  to 
the  oath. 


MODE  OF  ASSESSMENT. 
Explanatory  note. 


511 


When  completed  and  verified,  two  copies  must  he  made.  One  to  be 
retained  by  them  and  delivered  to  their  successors,  and  the  other,  duly 
certified  by  them  to  be  a copy,  must  be  filed  in  the  office  of  the  town 
clerk,  on  or  before  September  15.  Notice  of  filing  must  be  posted  in  at 
least  three  public  places,  and  be  published  in  one  or  more  newspapers, 
if  any,  published  in  the  town.  The  original  assessment-roll  must  be 
delivered  to  the  supervisor  on  or  before  October  1.  The  dates  of  filing 
and  delivery  of  the  assessment  roll,  and  the  number  of  copies  to  be  made 
may  be  changed  by  the  board  of  supervisors. 


Section  1.  Ascertaining  facts  for  assessment. 

2.  Assessment  roll,  how  prepared. 

2a.  Assessment  of  certain  real  property  in  Suffolk  and  Herkimer  counties. 

3.  Assessment  of  state  lands  in  forest  preserve;  copy  of  assessment  roll 

to  be  filed  in  offices  of  comptroller  and  board  of  fisheries,  game 
and  forestry;  approval  of  comptroller. 

4.  Banks  to  make  report;  contents  of  report;  penalty;  list  of  stock- 

holders; forms  prescribed  by  state  tax  commissioners. 

5.  Bank  shares,  how  assessed;  deductions. 

6.  Individual  banker,  how  assessed. 

7.  Notice  of  assessment  to  bank  or  banking  association. 

8.  Statement  of  corporations  to  assessors;  contents;  mandamus  to  com- 

pel report. 

9.  Penalty  for  omission  of  corporation  to  make  statement;  how  recov- 

ered. 

10.  County  clerks  to  furnish  data  respecting  corporations. 

11.  Tax  map  in  each  tax  district. 

12.  Assesment  of  agent,  trustee,  guardian  or  executor. 

13.  Assessment  roll,  when  to  contain  assessment  of  property  omitted  in 

preceding  year. 

14.  Debts  owing  to  non-residents  of  United  States,  how  assessed. 

15.  Completion  of  assessment  roll;  notice  of  completion;  contents. 

16.  Grievance  day;  statement  of  complaints;  effect  of  failure  to  testify; 

minutes  of  examination  to  be  filed. 

17.  Application  to  county  court  for  apportionment  of  taxes  and  assess- 

ment; notice  to  assessors;  collector  to  change  assessment  roll 
upon  order  of  court. 

18.  Oath  verifying  assessment  roll. 

19.  Assessment  roll  when  completed  and  verified  to  be  open  to  inspec- 

tion; notice  thereof;  roll  to  be  delivered  to  supervisor. 

20.  Assessors  to  apportion  valuation  of  railroad,  telegraph,  telephone,. 

or  pipe  line  companies  and  of  special  franchises  among  school 
and  special  districts. 

21.  Forms  prescribed  by  tax  commissioners;  neglect  or  omission  of  duty 

by  assessors;  penalty. 

22.  Sub-division  of  lots  may  be  abandoned;  thereafter  lots  to  be  treated 

as  a single  tract. 

23.  Making  false  statement  in  reference  to  taxes. 


512 


TAXATION. 


Tax  Law,  § 20. 

§ 1.  ASCERTAINING  FACTS  FOR  ASSESSMENT. 

Tke  assessors  in  each  tax  district  shall  annually  between  January  first 
and  July  first,  ascertain  by  diligent  inquiry  all  the  property  and  the 
names  of  all  the  persons  taxable  therein.  The  comptroller  shall  on  or 
about  April  fifteenth  in  each  year  transmit  to  the  assessors  of  each  tax 
district  a statement  of  all  lands  owned  by  the  state  in  such  district,  and 
such  statement  shall  be  used  by  the  assessors  in  making  up  their  assess- 
ment-rolls and  shall  be  considered  by  them  as  their  authority  to  assess 
to  the  state  such  of  the  lands  described  thereon  as  are  legally  subject  to 
taxation.1  [Tax  Law,  § 20,  as  amended  by  L.  1911,  chs.  116,  805,  L. 
1912,  ch.  270,  and  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5838.] 


1.  Majority  of  assessors  must  act.  One  assessor  cannot  make  an  assess- 
ment. It  is  the  general  act  of  all  or  a majority  of  the  assessors  which  constitutes 
a valid  assessment.  An  assessment  made  by  one  assessor  without  the  concurrence 
of  the  others  is  irregular  and  void,  and  cannot  be  enforced.  Metcalf  v.  Messenger, 
46  Barb.  325;  People  ex  rel.  Mygatt  v.  Supervisors,  11  N.  Y.  563;  People  ex  rel. 
D.  & H.  C.  Co.  v.  Parker,  45  Hun  432.  Where  an  assessment  is  signed  by  two*  of 
three  assessors  it  is  prima  facie  evidence  that  the  third  acted  with  them.  Doughty 
v.  Hope,  3 Denio  249,  affd.  1 N.  Y.  79.  An  assessment  is  not  shown  to  be  illegal 
by  proof  that  it  was  made  up  and  notice  thereof  published  by  less  than  majority 
of  the  full  board  of  assessors.  It  must  be  proved  that  all  were  not  present,  or 
that  the  one  absent  did  not  have  notice  of  the  meeting,  or  that  a vacancy  occasioned 
by  death  had  not  been  filled.  Matter  of  Merrian,  84  N.  Y.  596. 

Cannot  employ  attorney,  where  they  are  not  instructed  by  town  board  to  de- 
fend a proceeding  to  review  an  assessment  made  by  them.  People  ex  rel.  McMillan 
v.  Vanderpoel,  35  App.  Div.  73,  54  N.  Y.  Supp.  436. 

Ascertainment  of  facts  for  assessment.  The  assessors  may  avail  themselves 
of  such  information  by  inquiry  and  otherwise  as  they  can  obtain.  If  the  party 
assessed  claims  that  injustice  has  been  done,  he  may  file  his  affidavit,  which  the  as- 
sessors may  afterwards  examine.  People  ex  rel.  Thompson  v.  McComber,  7 N.  Y. 
Supp.  71;  24  N.  Y.  St.  Pep.  902.  Where  physical  and  tangible  property  visible  to 
the  assessors  exists,  of  the  character  ordinarily  dealt  in  and  whose  value  is  a matter 
of  common  knowledge  in  the  community,  the  assessors  may  assess  it  according  to 
their  own  judgment  without  seeking  other  proof  or  sources  of  knowledge.  In  such 
a case  the  determination  of  the  assessors  will  stand  until  affirmatively  proved  to  be 
erroneous.  People  ex  rel.  Trowbridge  v.  McNamara,  18  App.  Div.  YI,  45  N.  Y.  Supp. 
458.  The  assessors  are  not  concluded  by  opinions  of  witnesses  as  to  the  value  of 
real  or  personal  property  unless  it  be  the  only  evidence  and  they  have  no  other 
information.  People  ex  rel.  Oswego  Canal  Co.  v.  City  of  Oswego,  5 Hun  117.  Tax 
assessors  are  not  free  to  capriciously  disregard  the  evidence  and  emancipate  them- 
selves from  all  restrictions  and  rules,  however  fundamental;  but  they  are  not  bound 
by  statements  that  are  contradicted  and  which  they  disbelieve,  where  good  reasons 
oxist  for  such  disbelief.  People  ex  rel.  Manhattan  Railway  v.  Barker,  146  N.  Y. 
304,  40  N.  E.  996. 


MODE  OF  ASSESSMENT. 


513 


Tax  Law,  § 21. 

§ 2.  ASSESSMENT-ROLL;  HOW  PREPARED. 

1.  The  assessors  shall  prepare  an  assessment-roll  or  rolls,  the  form 
of  which  shall  he  prescribed  or  approved  by  the  tax  commission,  so 


In  determining  the  question  of  residence  the  assessors  may  act  upon  such  facts 
as  come  to  their  notice,  and  where  real  property  is  situated  partly  in  one  town  and 
partly  in  another  the  assessors  act  judicially  in  determining  the  place  of  residence 
of  the  owner  for  the  purpose  of  taxation.  Brown  v.  Smith,  24  Barb.  419.  If  a 
person  taxed  for  personal  property  is  an  inhabitant  of  the  town  when  the  assess- 
ment is  made,  the  assessors  are  clothed  by  statute  with  jurisdiction  to  inquire 
and  determine  whether  he  is  taxable  or  not,  and  if  the  person  has  another  resi- 
dence and  a principal  place  of  business  elsewhere,  which  should  be  deemed  the  site 
of  his  personal  property  for  the  purpose  of  taxation,  he  should  inform  the  assessors. 
The  assessors  are  not  liable  for  an  error  in  assessing  him  under  such  circumstances. 
Idem.  See,  also,  Bell  v.  Pierce,  51  N.  Y.  12. 

Assessors  act  judicially  in  determining  liability  to  assessment.  Assessors  are 
quasi- judicial  officers,  when  acting  within  the  sphere  of  their  juridiction ; and  their 
assessments  when  made  become  judgments  to  be  enforced  by  a warrant  in  the  nature 
of  a special  execution,  to  be  issued  by  the  supervisors  of  the  county.  The  assessors 
are  not  subject  to  an  action  to  review,  modify,  or  reverse  their  judgments,  nor  to 
hold  them  to  personal  liability  when  acting  within  their  jurisdiction.  Western 
R.  R.  Co.  v.  Nolan,  48  N.  Y.  513.  See,  also,  Barhyte  v.  Shepherd,  35  N.  Y.  238; 
Weaver  v.  Devendorf,  3 Denio  117;  Robinson  v.  Rowland,  26  Hun  501;  Vose  v.  Wil- 
lard, 47  Barb.  320;  Matter  of  Peck,  80  Hun  122,  30  N.  Y.  Supp.  59.  An  erroneous 
assessment  overruling  a claim  of  exemption,  is  not  void ; the  assessors  in  deciding 
what  property  within  their  jurisdiction  is  taxable  and  what  is  exempt,  act  judicially. 
Foster  v.  Van  Wyck,  2 Abb.  Ct.  App.  Dec.  167.  An  action  will  not  lie  to  set  aside 
an  erroneous  assessment  where  the  assessors  have  acted  within  their  jurisdiction 
and  the  assessment  roll  was  in  due  form  and  attested  according  to  law.  The  as- 
sessors acting  in  such  instance  judicially,  their  acts  cannot  be  attacked  collaterally, 
but  the  remedy  provided  by  law  for  review  must  be  followed.  Brooklyn  Elevated 
R.  R.  Co.  v.  City  of  Brooklyn,  11  App.  Div.  127,  42  N.  Y.  Supp.  683.  In  determining 
the  value  of  taxable  property  assessors  act  judicially.  Weaver  v.  Devendorf,  3 Denio 
117.  If  the  assessors  err  in  determining  the  value  of  taxable  property  the  error  is 
a judicial  one  and  can  only  be  reviewed  upon  certiorari.  Genesee  Valley  Nat.  Bank 
v.  Supervisors,  53  Barb.  223;  Youmans  v.  Simmons,  7 Hun  466;  Williams  v.  Weaver, 
75  N.  Y.  30. 

Residence  of  the  person  assessed  within  the  assessment  district  is  essential  to 
give  jurisdiction  to  the  assessor  to  make  a valid  assessment  of  personal  property, 
and  the  fact  that  the  board  of  assessors  acts  for  the  whole  city  and  has  jurisdiction 
of  all  the  taxable  inhabitants  will  not  validate  an  assessment  made  in  a wrong 
ward  or  render  it  irregular  only.  Wilcox  v.  City  of  Rochester,  129  N.  Y.  247,  29 
N.  E.  99. 

The  legal  presumption  is  that  an  assessment  of  property  for  the  purposes  of 
taxation  is  regular  and  the  determination  of  the  taxing  officials  will  not  be  dis- 
turbed unless  it  clearly  appears  that  injustice  has  been  done.  People  ex  rel.  Have- 
meyer  v.  Purdy  (1915),  91  Misc.  610,  154  N.  Y.  Supp.  993. 

Time  of  assessment.  The  assessment  must  be  made  before  the  expiration  of 


514 


TAXATION. 


Tax  Law,  § 21. 

classified  and  arranged  with  respect  to  number  of  parts  and  number 
of  columns  in  each  part  and  with  such  entries  and  descriptions  2 as 

the  time  prescribed  in  the  above  section.  The  assessors  have  no  authority  to  make 
an  assessment  on  grievance  day  or  at  any  time  after  the  first  day  of  July  in  each 
year.  Clark  v.  Norton,  3 Lans.  484,  58  Barb.  434.  This  case  was  affirmed  by  the 
Court  of  Appeals  (49  N.  Y.  243,  246),  and  the  court  said:  “The  law  prescribes 
and  regulates  the  duties  of  assessors,  and  defines  and  limits  their  powers  with  pre- 
cision, and  by  an  adherence  to  the  statute  the  rights  of  the  taxpayers  are  protected 
and  secured.  The  assessors  have  the  months  of  May  and  June  within  which  to  make 
the  necessary  inquiries  and  to  ascertain  the  names  of  the  taxable  inhabitants  in 
their  respective  towns  and  wards,  and  the  property,  real  and  personal,  within  their 
jurisdiction  liable  to  taxation;  and  to  prepare  an  assessment  roll  containing  the 
names  of  those  liable  to  taxation,  and  the  property  to  be  taxed,  with  its  value 
arranged  in  columns,  as  directed  by  law.  The  assessment  must  be  made  by  the 
first  day  of  July,  and  of  property  and  persons  in  respect  to  the  liability  as  it  ex- 
ists on  that  day.  The  assessment  roll  must  be  completed  and  a fair  copy  made  and 
deposited  for  examination  by  those  interested,  on  or  before  the  first  day  of  August. 
An  individual  not  liable  to  taxation  on  the  first  day  of  July  could  not  be  placed 
upon  the  assessment  roll  after  that  time;  neither  could  a person  whose  name  was 
properly  on  the  assessment  roll  be  assessed  for  property  acquired  by  him  after  that 
day.”  See,  also,  People  ex  rel.  Mygatt  v.  Supervisors  of  Chenango,  11  N.  Y.  563; 
Mygatt  v.  Washburn,  15  N.  Y.  316;  Sexton  v.  Pepper,  28  Hun  31;  People  ex  rel. 
Coudert  v.  Commissioners  of  Taxes,  31  Hun  235.  Assessment  made  on  July  1st 
cannot  be  reduced  because  the  property  was  thereafter  destroyed.  Kept,  of  Atty. 
Genl.  (1902)  289. 

Failure  to  properly  arrange  column.— Under  the  law  prior  to  the  amend- 
ment of  1914,  it  was  held  that  where  the  columns  were  not  arranged  in  the  roll 
just  as  directed  by  the  statute,  but  all  the  matter  required  to  make  a good  assessment 
was  inserted  in  the  roll,  with  sufficient  certainty  so  that  there  could  be  no  mistake 
about  it,  the  validity  of  the  assessment  will  not  be  affected.  People  ex  rel.  Mohawk, 
etc.,  R.  R.  Co.  v.  Garmon,  63  App.  Div.  530,  71  N.  Y.  Supp.  826.  See,  also,  Pearsall 
v.  Brewer,  120  App.  Div.  584,  105  N.  Y.  Supp.  207.  The  improper  use  of  the  columns, 
where  there  is  nothing  misleading  in  the  assessment,  does  not  invalidate  the  assess- 
ment-roll. New  York  v.  Appleby,  168  App.  Div.  503,  154  N.  Y.  Supp.  85. 

The  omission  of  the  headings  of  the  columns  of  the  assessment-roll  does  not 
invalidate  the  assessment.  Litchfield  v.  Brooklyn,  13  Misc.  693,  69  N.  Y.  St.  Rep. 
171,  34  N.  Y.  Supp.  1090. 

The  first  column  is  the  one  containing  the  names,  although  two  columns  are 
prefixed.  Bennett  v.  Robinson,  42  App.  Div.  412,  59  N:  Y.  Supp.  197. 

2.  Name  of  taxable  persons.  Reasonable  certainty  is  all  that  is  required  in 
preparing  the  list  of  names  of  taxable  persons  for  an  assessment  roll.  Van  Voorhis 
v.  Budd,  39  Barb.  479.  If  the  name  of  a taxpayer  inserted  in  an  assessment  roll 
is  the  name  by  which  he  is  generally  known,  he  will  be  bound  thereby,  though  the 
name  is  not  his  real  one.  Idem.  The  assessment  against  heirs  of  a deceased  person 
without  naming  them  is  void.  Village  of  Sandy  Hill  v.  Akin,  77  Hun  537 ; 28  N.  Y. 
Supp.  889.  An  assessment  in  the  name  of  a lunatic  with  an  addition  of  the  name  of 
the  committee  who  had  not  yet  been  appointed  is  a valid  assessment.  People  ex  rel. 
Trust  Co.  v.  Barker,  59  N.  Y.  St.  Eep.  741;  affd.  137  N.  Y.  631. 


MODE  OF  ASSESSMENT. 


515 


Tax  Law,  § 21. 

shall  be  sufficient  to  identify  each  separately  assessed  parcel  or  portion 
of  real  estate  with  the  approximate  quantity  of  the  square  feet,  square 

Where  the  owner  to  whom  property  was  assessed  died  July  11th,  though  the  roll 
was  not  verified  till  September — held,  that  the  assessment  was  to  the  proper  owner. 
O’Donnell  v.  McIntyre,  37  Hun  615,  affd.  116  N.  Y.  663. 

In  the  case  of  Dubois  v.  Webster,  7 Hun  371,  the  tax  roll  contained  the  name  and 
description,  “Foster,  Joseph,  or  occupant.”  It  appeared  that  Foster  did  not  own 
the  property  assessed.  It  was  held  that  the  words  “ or  occupant  ” did  not  give  the 
assessment  any  validity.  The  court  said : “ The  occupant  must  be  named  or  else  the 
tax  roll  gives  no  information  to  the  collector  of  whom  he  may  require  payment. 
When  the  statute  provides  that  real  estate  may  be  assessed  to  the  owner,  the  name 
of  the  owner  must  be  inserted  in  the  assessment-roll.  It  is  the  same  with  the  word 
* occupant.’  Any  other  rule  would  lead  to  great  confusion,  uncertainty  and  injus- 
tice.” But  see  Wallach  Co.  v.  Rooney  (1917),  177  App.  Div.  640,  164  N.  Y.  Supp.  616. 

The  assessment  of  a trust  estate  against  the  name  of  one  of  the  trustees  only, 
adding  the  name  of  the  other  and  the  words  “ executor  and  trustees,”  and  making 
the  name  of  the  trustee  “ Henry  ” instead  of  “ Harry  P.,”  may  be  amended  by  the 
assessors  by  striking  out  the  word  “ executors  ” and  correcting  the  name.  People  ex 
rel.  Pike  v.  Barker,  86  Hun  283;  33  N.  Y.  Supp.  1132.  An  assessment  of  executors 
of  “ the  estate  of  Goodwin,”  when  the  testator’s  name  was  “ Godwin,”  is  not  invalid. 
People  ex  rel.  Moller  v.  O’Donnell,  106  App.  Div.  526,  94  N.  Y.  Supp.  884. 

Assessment  against  an  estate  without  additional  description  is  invalid.  Matter  of 
McCue  v.  Supervisors,  162  N.  Y.  235;  Cromwell  v.  McLean,  123  Id.  474;  Adams  v. 
Supervisors  of  Monroe,  18  App.  Div.  415,  46  N.  Y.  Supp.  48,  affd.  154  N.  Y.  619. 
But  Laws  1898,  ch.  310,  validated  such  assessments  theretofore  made.  Against 
“ Blackwell,  R.  M.,  Est.”  Trowbridge  v.  Horan,  78  N.  Y.  439. 

An  assessment  for  personal  property  against  an  executor  by  name  “ as  executor 
of  estate  of,”  etc.,  is  not  an  assessment  against  the  executor  as  such,  and  is  valid. 
McLean  v.  Horn,  42  N.  Y.  St.  Rep.  329,  17  N.  Y.  Supp.  119.  A misnomer  of  one  of 
several  administrators — held  not  to  invalidate  the  assessment.  Id. 

An  assessment  of  nonresident  land  is  not  invalid  because  the  owner  of  the  prem- 
ices  was  designated  “ Estate  George  P.  Gordon.”  The  designation  is  neither  the 
name  of  a person  nor  corporation  and  may  be  treated  as  surplusage.  Sanders  v. 
Carlev,  83  App.  Div.  193,  83  N.  Y.  Supp.  106,  affd.  178  N.  Y.  622. 

The  insertion  of  the  words  “Village  of  Medina  Water  Works  outside  the  Cor- 
poration ” under  the  heading  “ Names  of  Taxable  Persons  ” does  not  invalidate  the 
assessment,  since  the  village  of  Medina  is  thus  named  with  sufficient  certainty. 
Matter  of  the  Village  of  Medina,  52  Misc.  621,  103  N.  Y.  Supp.  1018. 

Assessment  of  partners.  In  the  case  of  People  ex  rel.  Dufour  v.  Wells,  82  N.  Y. 
Supp.  866,  40  Misc.  553,  an  assessment  was  made  against  the  firm  of  Dufour  & 


516 


TAXATION. 


Tax  Law,  § 21. 

rods  or  acres  contained  in  such  parcel  or  portion  or  a statement  of 
the  linear  dimensions  thereof ; 3 each  special  franchise  and  the  names 


Co.,  instead  of  against  the  partners  as  individuals.  Judge  Bischoff  said : “ The 
statute  requires  that  the  assessment  shall  be  made  in  such  manner  as  to  describe 
the  ‘ person  ’ taxed,  and  the  value  of  the  property  of  that  ‘ person  ’ after  deducting 
all  the  debts  owing  by  him.  In  no  possible  aspect  is  a partnership  a * person,’  nor 
is  the  aggregate  property  employed  by  the  partners  in  the  business  property  of  a 
‘ person,’  nor  is  the  firm’s  property  the  measure  of  each  partner’s  interest  for  taxa- 
tion. The  property  of  each  individual,  lessened  by  his  debts,  is  the  basis  of  the  tax. 
The  law  so  provides,  for  the  benefit  of  the  taxpayer,  and  a strict  compliance  with 
the  terms  of  the  law,  in  the  manner  of  making  the  assessments  is  essential  to  the 
legality  of  the  assessment.  Unless  the  statute  provides  to  the  contrary  an  assess- 
ment for  taxation  of  partnership  property  must  be  made  in  the  names  of  the  in- 
dividuals composing  the  firm.” 

The  owner  of  real  estate  at  the  time  of  the  completion  of  the  roll  is  liable 
for  the  tax,  although  he  conveys  before  the  tax  is  laid  by  the  board  of  supervisors. 
Rundell  v.  Lakey,  40  N.  Y.  513;  Everson  v.  City  of  Syracuse,  29  Hun  458  (1883), 
reversed  on  another  ground  in  100  N.  Y.  577. 

Waiver  of  defective  assessment.  Where  an  assessment  is  defectively  made  to 
an  estate  instead  of  to  the  owners  or  occupants  thereof,  the  defect  may  be  waived 
by  acquiescence  for  many  years  in  such  assessment  and  by  failing  to  object  to  the 
form  of  the  assessment  on  grievance  day.  Brown  v.  Otis,  98  App.  Div.  554,  90  N.  Y. 
Supp.  250,  mod.  185  N.  Y.  303. 

3.  Description  of  lands.  It  was  a sufficient  description  in  an  assessment-roll  to 
give  the  known  name  of  a tract  of  land  and  the  number  of  the  town,  range  and 
lot  therein.  Coleman  v.  Shattuck,  62  N.  Y.  348.  Where  an  assessment  was  made 
against  “the  trustees  of  the  First  Congregational  Church,”  and  the  property  as- 
sessed was  described  as  “ parsonage  ” and  the  valuation  was  entered  as  $1,600,  it 
was  held  that  this  description  did  not  mislead  the  relators;  that  the  absence  in 
the  statement  of  the  quantity  of  the  land  which  it  was  intended  to  assess  was  not 
a source  of  any  injury  to  the  relators.  People  ex  rel.  Hutchinson  v.  O’Brien,  53 
Hun  580,  6 N.  Y.  Supp.  862.  This  case  should  not  be  deemed  to  authorize  an  omis- 
sion to  specify  the  quantity  of  land  assessed  where  it  is  ascertainable.  It  would 
seem  that  the  courts  require  a strict  compliance  with  the  statute  as  to  the  form 
and  contents  of  the  assessment-roll.  May  v.  Traphagen,  139  N.  Y.  478;  People  ex 
rel.  Supervisors  v.  Fowler,  55  N.  Y.  252.  An  assessment  of  a house  and  lot  as 
“ 33  Woodbury  Street,”  does  not  state  quantity  of  real  property,  and  is  not  suffi- 
cient description.  Mclnnis  v.  City  of  New  Rochelle  (1917),  99  Misc.  388,  163 
N.  Y.  Supp.  1003.  The  commissioners  of  taxes  referred  to  in  this  subdivision  are 
the  state  board  of  tax  commissioners.  It  is  made  the  duty  of  the  state  board  to 
prepare  forms  for  reports  and  assessment-rolls  and  to  furnish  the  same  to  assessors 
and  other  officers  at  the  expenee  of  the  state.  Tax  Law,  sec.  171,  subd.  3,  post, 
p.  572. 

Where  property  consisting  of  about  twelve  acres  was  described  by  appropriate 
metes  and  bounds  in  deeds  of  conveyance  forming  the  chain  of  title,  a sale  by  the 
county  treasurer  for  unpaid  taxes  under  an  assessment  to  a certain  named  person, 
as  owner,  who  never  lived  on  or  ever  had  any  interest  in  the  property,  which  was 
simlpy  described  both  in  the  assessment-roll  and  the  certificate  of  sale  as  eleven 
and  one-quarter  acres,  no  boundary  line  being  given,  the  owner  is  entitled  to  judg- 
ment in  an  action  to  remove  the  certificate  of  sale  as  a cloud  upon  his  title. 
Nolan  v.  Phillipi  (1917),  99  Misc.  384,  163  N.  Y.  Supp.  730. 


MODE  OF  ASSESSMENT. 


517 


Tax  Law,  § 21. 

of  all  persons  and  corporations  taxable  on  personal  property,  capital 
stock  or  capital  invested  in  business  and  bank  stock.  Assessments 
of  real  property,  other  than  special  franchises,  shall  be  carried  in  a 
separate  part  of  the  roll  from  the  assessments  of  personal  property. 

2.  The  form  of  assessment-roll  prescribed  or  approved  by  the  tax 
commission  shall  provide  for  the  indication  thereon,  in  appropriate 
columns,  of  the  name  of  the  village,  if  in  a village,  the  number  of  the 
school  district  and  the  name  or  number  of  any  special  district  in  which 
a special  tax  is  levied  for  district  purposes,  in  which  each  parcel  or 
portion  of  real  property  and  each  special  franchise  described  on  such  roll 
is  situated  or  in  which  each  person  or  corporation  subject  to  taxation 
for  personal  property  in  the  tax  district  pursuant  to  this  chapter,  resides, 
carries  on  business,  has  its  principal  place  of  business  or  in  which  its 
operations  are  carried  on  or  where  the  personal  property  is  located,  as 
the  case  may  be,  and  shall  also  provide  for  the  entry  of  the  assessments 
of  real  property,  special  franchises  and  personal  property  respectively, 
made  pursuant  to  this  chapter,  and  of  the  apportionments  made  pursuant 
to  section  forty  of  this  chapter. 

3'.  In  all  cities  there  shall  be  an  additional  column  in  the  assessment- 
roll  before  the  column  in  which  is  set  down  the  value  of  real  property, 
and  in  such  additional  column  there  shall  be  set  down  the  value  of  the 


An  assessment  in  Long  Island  City  in  the  form  customary  since  the  organization 
of  such  city  and  which  had  been  recognized  by  the  Legislature,  was  held  valid,  al- 
though it  omitted  to  state  the  quantity  of  land  as  required  by  this  section.  Matter 
of  Wood,  35  App.  Div.  363,  54  N.  Y.  Supp.  978. 

Assessment  against  neither  owner  nor  occupant  void. — The  assessment  of 
a tax  oa  resident  land  in  the  name  of  one  neither  owner  nor  occupant  is  juirsdic- 
tionally  void,  and  cannot  be  made  a lien  except  by  proceedings  for  reassessment 
upon  notice  to  the  owner  or  occupant.  Hagner  v.  Hall,  10  App.  Div.  581,  42  N.  Y. 
Supp.  63,  affd.  159  N.  Y.  552;  Parsons  v.  Parker,  80  Hun  281,  61  N.  Y.  St.  Rep.  847, 
30  N.  Y.  Supp.  134;  Cottle  v.  Cary,  73  App.  Div.  54,  76  N.  Y.  Supp.  580,  affd.  173 
N.  Y.  624. 

Defective  description. — Where  the  assessment-roll  described  real  estate  as 
fronting  on  a certain  street,  but  gave  no  definite  courses  for  the  remaining  sides 
of  the  lot,  nor  other  means  of  identification,  nor  any  lines  by  which  it  could  be 


518 


TAXATION. 


Tax  Law,  § 21. 

land  exclusive  of  the  buildings  thereon.3a  The  total  assessment  only  can 
be  reviewed.4 

inclosed — held,  that  it  was  fatally  defective.  Matter  of  New  York  Central,  etc.,  R. 
R.  Co.,  90  N.  Y.  342. 

An  assessment- roll  which  does  not  describe  the  lands  assessed  or  state  the 
amount  thereof  is  defective  under  this  section  and  is  also  void  under  the  eonstitm 
tional  provisions  prohibiting  the  taking  of  property  without  due  process  of  law. 
Lawton  v.  City  of  New  Rochelle,  114  App.  Div.  883,  100  N.  Y.  Supp.  284. 

Where  a turnpike  company  does  not  own  the  fee  of  the  land  over  which  its  road 
passes,  its  property  is  not  adequately  described  in  an  assessment  as  “ upon  five  miles 
of  highway.”  Such  an  assessment  is  defective  in  that  it  does  not  indicate  that  it 
was  laid  upon  something  else  than  the  ownership  of  the  fee,  and  that  structures  or 
superstructures,  or  something  apart  from  the  franchise,  were  intended  to  be  taxed 
thereunder.  Matter  of  Albany  & Bethlehem  Turnpike  Road  v.  Selkirk,  180  N.  Y. 
401,  revg.  94  App.  Div.  509,  87  N.  Y.  Supp.  1104. 

A municipal  assessment-roll  which  merely  describes  the  property  assessed  as  a 
house  and  lot  located  upon  a certain  street  is  insufficient  to  effect  a valid  assessment. 
Noxon  v.  City  of  New  Rochelle,  63  Misc.  232,  116  N.  Y.  Supp.  822. 

Where  assessments  made  by  the  city  assessors  merely  describe  the  land  by  the 
words  “ land,”  “ plot  of  land,”  and  designate  the  location  as  “ Webster  and  Winyah 
Aves.,”  the  assessment  is  null  and  void.  French  v.  City  of  New  Rochelle,  141  App. 
Div.  8,  125  N.  Y.  Supp.  677. 

A mistake  in  the  number  of  acres  does  not  vitiate  assessment,  where  land  is  suf- 
ficiently described  to  locate  it.  Saranac  Land  & Timber  Co.  v.  Roberts,  208  N.  Y.  288. 

3-a.  Attack  upon  assessment;  comparison  with  similar  property. — Subd. 
3 of  this  section  does  not  affect  the  rule  that  a property  owner  claiming  to  be  ag- 
grieved by  inequality  in  the  assessment  of  his  real  property  is  at  liberty  to  attack 
the  assessment  by  comparing  the  gross  valuation  placed  upon  his  property  with  the 
gross  valuation  of  other  similar  property  upon  the  assessment- roll ; and  that  he  is 
also  at  liberty  to  compare  the  assessed  valuation  placed  upon  his  land  alone  with 
the  values  placed  upon  the  land  only  in  the  case  of  other  properties  of  like  charac- 
ter and  situation.  People  ex  rel.  Strong  v.  Hart  (1916),  216  N.  Y.  513,  affg.  166  App. 
Div.  907,  150  N.  Y.  Supp.  1106. 

Under  subd.  3 (former  § 21-a)  the  petitioner  may  give  testimony  as  to  an  alleged 
overvaluation  of  the  lands  and  at  the  same  time  adopt  the  figures  of  the  taxing 
officers  so  far  as  the  value  of  the  buildings  is  concerned.  People  ex  rel.  Havemeyer 
v.  Purdy  (1915),  91  Misc.  610,  154  N.  Y.  Supp.  993. 

The  cases  above  cited  were  decided  under  the  former  law  which  specifically  de- 
scribed the  columns  in  the  assessment-roll  and  the  entries  to  be  made  therein. 

4.  Valuation  of  real  property.  In  determining  the  value  of  real  estate  the 


MODE  OF  ASSESSMENT. 


510 


Tax  Law,  § 21. 

4.  When  a tax  map  has  been  approved  by  the  tax  commission,  refer- 
ence to  the  lot,  block  and  section  number  or  other  identification  numberE 
of  any  parcel  on  said  map  shall  be  deemed  a sufficient  description  of 
said  parcel  on  the  assessment-roll. 

5.  A separate  part  shall  be  provided  for  the  listing  of  property  that 
is  entirely  exempt  from  taxation.  If  the  property  is  partially  exempt 
it  shall  be  listed  with  the  taxable  property. 


assessors  are  to  be  merely  guided  and  not  controlled  by  the  evidence  as  to  value 
produced  by  the  owner  of  the  property  and  may  use  their  own  judgment.  People  ex 
rel  Trowbridge  v.  McNamara,  18  App.  Div.  17,  45  N.  Y.  Supp.  456.  In  ascertaining 
the  full  value  of  business  property  its  cost  may  be  considered,  but  the  more  control- 
ling consideration  is  its  earning  capacity.  People  ex  rel.  Albany,  etc.,  Bridge  Co.  v. 
Weaver,  34  Hun  322;  People  ex  rel.  Del.,  etc..  Canal  Co.  v.  Roosa,  2 How.  Pr.  (U.  S.) 
479. 

In  the  following  case  it  was  held  that  the  assessors  could  only,  under  the  peculiar 
circumstances,  assess  the  property  with  reference  to  its  intrinsic  value.  People  ex 
rel.  N.  Y.,  West  Shore  & B.  R.  R.  Co.  v.  Toohey,  4 N.  Y.  St.  Rep.  895. 

Assessors  are  not  bound  by  proof  produced  before  them  as  to  value,  but  must  exer- 
cise their  judgment  notwithstanding  such  proof.  People  ex  rel.  Westbrook  v.  Village 
of  Ogdensburgh,  48  N.  Y.  390. 

As  to  what  constitutes  an  assessment  of  a building  “ at  its  full  and  true  value,” 
see  People  ex  rel.  Powers  v.  Kalbfleisch,  25  App.  Div.  432,  49  N.  Y.  Supp.  546. 

Value  of  improvements  placed  upon  real  property  should  be  included.  People  ex 
rel.  Consolidated  Gas  Co.  v.  Wells,  54  Misc.  322,  105  N.  Y.  Supp.  1006,  affd.  Ill  N. 
Y.  Supp.  1135. 

The  figures  of  the  taxing  officers  are  prima  facie  evidence  of  the  valuation  of  un- 
improved property.  So  held  in  a case  involving  the  assessment  of  land  upon  which 
an  uncompleted  building  was  situated.  People  ex  rel.  Gleason  v.  Purdy  (1918), 
N.  Y.  , 119  N.  E.  249. 

Valuation  of  railroad  lands.  In  determining  the  value  of  the  real  estate  of  a 
railroad  for  the  purpose  of  taxation  the  estimation  should  include  its  original  cost 
and  the  cost  of  present  reproduction  as  well  as  its  earning  capacity.  People  ex 
rel.  D.  & H.  Co.  v.  Ganley,  8 N.  Y.  Supp.  563;  affd.  131  N.  Y.  566. 

The  exemption  of  an  Indian  reservation  from  taxation  ceases  to  the  extent  of  a 
right  granted  to  a railroad  company.  People  ex  rel.  Erie  Ry.  Co.  v.  Beardsley,  52 
Barb.  105,  affd.  41  N.  Y.  &19. 

The  rule  to  be  ordinarily  applied  in  assessing  the  value  of  the  real  estate  of  a 
railroad  company  for  local  taxation  is  the  cost  of  replacing  the  portion  of  the  road 
and  appurtenances  situated  within  the  jurisdiction  of  the  assessors  in  the  con- 
dition in  which  they  are  found  by  the  assessors  at  the  time  of  making  the  assess- 
ment. In  assessing  such  real  estate  it  is  erroneous  to  base  the  valuation  of  the 


520 


TAXATION. 


Tax  Law,  § 21. 

6.  Provision  shall  also  be  made  thereon  for  the  entry  of  the  amount 
of  tax  levied  for  state,  county,  city,  town,  highway  or  special  district 
purposes,  against  each  parcel  or  portion  of  real  property,  each  special 
franchise  and  each  person  or  corporation  for  personal  property,5  together 
with  the  date  of  payment  thereof  and  such  other  items  and  details  as 
may  be  required. 

7.  The  tax  commission  shall  adopt  regulations  and  rules  for  the 
preparation  and  use  of  the  assessment-roll  and  shall  advise  with  and 
instruct  boards  of  assessors  and  other  officers  as  to  their  duties  in  respect 
thereto.  [Tax  Law,  § 21,  as  amended  by  L.  1911,  ch.  315,  L.  1912, 
ch.  266,  L.  1914,  ch.  277,  L.  1915,  ch.  218,  and  L.  1916,  ch.  323.] 


portion  of  the  railroad  situated  within  a town  upon  the  income  or  earning  ca- 
pacity of  any  other  extensive  system  of  which  such  portion  of  railroad  forms  a 
part.  People  ex  rel.  D.,  L.  & W.  R.  R.  Co.  v.  Clapp,  152  N.  Y.  490,  46  N.  E.  842. 
In  the  case  of  Albany  & Schenectady  R.  R.  Co.  v.  Osborne,  12  Barb.  223,  it  was  held 
that  the  real  estate  of  a railroad  is  to  be  valued  in  the  same  manner  as  the  adja- 
cent lands  belonging  to  individuals,  and  without  reference  to  the  other  parts  of  the 
railroad,  without  the  town  in  which  it  is  assessed,  and  irrespective  of  whether  it  is 
profitable  to  the  stockholders  or  not.  See,  also,  Albany  & W.  Stockbridge  R.  R.  Co. 
v.  Canaan,  16  Barb.  244;  People  ex  rel.  Buffalo  & State  Line  R.  R.  Co.  v.  Barker, 
48  N.  Y.  70. 

Telegraph  and  telephone  companies. — The  proper  method  of  assessment  of 
such  real  property  is  to  take  the  cost  of  the  articles,  considering  them  land,  which 
are  in  their  nature  personal  property,  and  add  to  that  cost  the  value  of  the  interest 
in  the  land  on  which  the  poles  stand  and  the  value  of  the  right  to  erect  such  poles 
based  upon  the  cost  which  the  company  incurred  in  securing  such  right.  The  prop- 
erty is  not  to  be  regarded  as  a part  of  a whole,  nor  as  a complete  telegraph  line  in 
operation.  Its  value  for  telegraph  purposes,  and  its  position  with  its  connections, 
and  its  productive  capacity,  are  not  considerations  entering  into  the  value  of  the 
property  under  the  acts.  People  ex  rel.  W.  U.  Tel.  Co.  v.  Dolan,  126  N.  Y.  166,  37 
N.  Y.  St.  Rep.  28,  affg.  11  N.  Y.  Supp.  35. 

Where  it  is  shown  on  grievance  day,  before  a town  board  of  assessors,  that  a tele- 
phone company  possessed  no  real  property  in  the  town  other  than  that  assessed  by 
the  State  Board  of  Tax  Commissioners  and  its  poles,  wires  and  equipment  in  the 
public  highway,  an  assessment  against  it  is  illegal.  People  ex  rel.  Glen  Telephone 
Co.  v.  Hall,  57  Misc.  308,  109  N.  Y.  Supp.  402. 


MODE  OF  ASSESSMENT. 


521 


Tax  Law,  § 22. 

§ 3.  ASSESSMENT  OF  STATE  LANDS  IN  FOREST  PRESERVE;  COPY 
OF  ASSESSMENT-ROLL  TO  BE  FILED  IN  OFFICE  OF  COMP- 
TROLLER AND  BOARD  OF  FISHERIES,  GAME  AND  FOR- 
ESTRY; APPROVAL  OF  COMPTROLLER. 

All  wild  forest  land  within  the  forest  preserve  and  also  all  such  lands 
owned  by  the  state  in  the  towns  of  Altona  and  Dannemora,  county  of 
Clinton,  except  the  lands  in  the  town  of  Dannemora  upon  which  build- 
ings -and  enclosures  are  erected  and  maintained  by  the  state  for  the  use 
of  state  institutions,  together  with  said  buildings  thereon,  shall  be  as- 
sessed and  taxed  at  a like  valuation  and  rate  as  similar  lands  of  individ- 
uals within  the  counties  where  situated.  On  or  before  August  first  in 
every  year  the  assessor  of  the  town  within  which  the  lands  so  belonging 


5.  Valuation  of  personal  property.  The  assessors  are  liable  for  entering  in 
an  assessment-roll  an  assessment  of  personal  property  belonging  to  persons  who  are 
not  residents  of  the  tax  district.  Dadwin  v.  Strickland,  57  N.  Y.  492;  Mygatt  v. 
Washburn,  15  N.  Y.  316;  People  ex  rel.  Mygatt  v.  Supervisors  of  Chenango,  11  N.  Y. 
563.  But  they  are  not  liable  for  an  excessive  valuation  of  such  property.  Youmans 
v.  Simmonds,  7 Hun  466.  Where  evidence  adduced  before  assessors  as  to  personal 
property  of  a taxpayer  stands  uncontradicted,  they  cannot  disregard  it  in  fixing  the 
assessment.  People  ex  rel.  Douglas  v.  Dykes,  19  N.  Y.  Supp.  78;  45  N.  Y.  St.  Rep. 
621.  The  omission  of  property  liable  to  assessment  for  taxes  from  the  roll  does  not 
Invalidate  it  nor  support  an  action  by  a person  whose  property  is  taxed  upon  it,  to 
have  the  tax  set  aside  as  illegal,  since  the  assessors  act  judicially.  Van  Derventer 
v.  Long  Island  City,  139  N.  Y.  133;  34  N.  E.  774.  As  to  the  deduction  of  debts,  see 
People  ex  rel.  Schaeffler  v.  Barker,  87  Hun  194;  33  N.  Y.  Supp.  1042;  People  ex  rel. 
Luckemeyer  v.  Coleman,  16  N.  Y.  Supp.  330;  41  N.  Y.  St.  Rep.  160. 

Assessors  not  liable  for  erroneous  assessments  of  residents.— A town  as- 
sessor having  jurisdiction  of  the  property  and  person  of  one  assessed  is  not  liable 
for  malicious  assessment  for  erroneously  assessing  personal  property  which  the 
plaintiff  claimed  to  have  sold.  The  proper  remedy  for  the  party  illegally  assessed 
is  by  certiorari.  Hopkins  v.  Leach,  125  App.  Div.  294,  109  N.  Y.  Supp.  713. 

Assessment  of  non-resident  for  personalty.— The  determination  of  the  as- 
sessors is  not  conclusive  as  to  the  residence  of  an  owner  of  personal  property.  Pad- 
dock  v.  Guydel,  29  N.  Y.  St.  Rep.  773,  8 N.  Y.  Supp.  905. 


522 


TAXATION. 


Tax  Law,  § 23. 

to  the  state  are  situated  shall  file  in  the  office  of  the  comptroller  and  of 
the  conservation  commission,  a copy  of  the  assessment-roll  of  the  town, 
which,  in  addition  to  the  other  matter  now  required  by  law,  shall  state 
and  specify  which  and  how  much,  if  any,  of  the  lands  assessed  are  forest 
lands,  and  which  and  how  much,  if  any,  are  lands  belonging  to  the  state; 
such  statements  and  specifications  to  be  verified  by  the  oaths  of  a ma- 
jority of  the  assessors.  The  comptroller  shall  thereupon  and  before  the 
first  day  of  September  following,  and  after  hearing  the  assessors  and 
the  conservation  commission,  if  they  or  any  of  them  so  desire,  correct  or 
reduce  any  assessment  of  state  lands  which  may  be  in  his  judgment  an 
unfair  proportion  to  the  remaining  assessment  of  land  within  the  town, 
and  shall  in  other  respects  approve  the  assessment  and  communicate 
such  approval  to  the  assessors.  No  such  assessment  of  state  lands  shall 
be  valid  for  any  purpose  until  the  amount  of  assessment  is  approved  by 
the  comptroller,  and  such  approval  attached  to  and  deposited  with  the 
assessment-roll  of  the  town,  and  therewith  delivered  by  the  assessors  of 
the  town  to  the  supervisor  thereof  or  other  officer  authorized  to  receive 
the  same  from  the  assessors.  No  tax  for  the  erection  of  a schoolhouse  or 
opening  of  a road  shall  be  imposed  upon  the  state  lands  unless  such  erec- 
tion or  opening  shall  have  first  been  approved  in  writing  by  the 
conservation  commission.6  [Tax  Law,  § 22,  as  amended  by  L.  1912, 
ch.  245 ; B.  C.  & G.  Cons.  L.,  p.  5846.] 

§ 4.  BANKS  TO  MAKE  REPORTS;  CONTENTS  OF  REPORT;  PENALTY; 

LISTS  OF  STOCKHOLDERS;  FORMS  PRESCRIBED  BY  STATE 
TAX  COMMISSIONERS. 

The  chief  fiscal  officer  of  every  bank  or  banking  association  organized 
under  the  authority  of  this  state,  or  of  the  United  States,  shall,  on  or 
before  the  first  day  of  June,  in  each  year,  furnish  the  assessors  of  the  tax 
district  in  which  its  principal  office  is  located  a statement  under  oath 

6.  Purpose  and  application  of  section. — This  section  is  designed  only  to  pro- 
tect the  state  from  an  overvaluation  of  the  lands  assessed  to  it  and'  does  not  em- 
power the  comptroller  to  require  lands  assessed  to  individuals  to  be  assessed  to  the 
state.  People  ex  rel.  Town  of  Brighton  v.  Williams,  145  App.  Div.  8. 

Assessment  of  state  lands  for  school  and  highway  purposes.  Repts.  of  Attv. 
Genl.  (1898)  102,  (1899)  158. 

Lake  George  Islands  are  assessable  for  ordinary  highway  and  school  purposes. 
Kept,  of  Atty.  Genl.  (1901)  232. 

Mandamus  requiring  the  state  comptroller  to  approve  an  assessment  roll  con- 
taining assessment  of  forest  lands  against  the  state  should  be  applied  for  within 
the  third  judicial  district.  People  ex  rel.  Town  of  Brighton  v.  Williams,  145  App. 
Div.  8. 


MODE  OF  ASSESSMENT 


5223 


Tax  Law,  § 24. 

of  the  condition  of  such  bank  or  banking  association  on  the  first  day  of 
May  next  preceding,  stating  the  amount  of  its  authorized  capital  stock, 
the  number  of  shares  and  the  par  value  of  the  shares  thereof,  the  amount 
of  stock  paid  in,  the  amount  of  its  surplus  and  of  its  undivided  profits, 
if  any,  a complete  list  of  the  names  and  residences  of  its  stockholders 
and  the  number  of  shares  held  by  each.7 8  In  case  of  neglect  or  refusal  on 
the  part  of  any  bank  or  banking  association  to  report  as  herein  pre- 
scribed, or  to  make  other  or  further  reports  as  may  be  required,  such 
bank  or  banking  association  shall  forfeit  the  sum  of  one  hundred  dollars 
for  each  failure,  and  the  additional  sum  of  ten  dollars  for  each  day  such 
failure  continues,  and  an  action  therefor  shall  be  prosecuted  by  the 
county  treasurer  of  the  county  in  which  such  bank  or  banking  associa- 
tion so  neglecting  or  refusing  to  report  is  located,  in  the  city  of  Buffalo 
by  the  city  treasurer  of  said  city,  and  in  the  city  of  New  York  by  the  receiver 
of  taxes  thereof.  There  shall,  in  addition  to  such  report,  be  kept  in  the 
office  of  every  such  bank  or  banking  association  a full  and  correct  list  of  the 
names  and  residences  of  all  stockholders  therein,  and  of  the  number  of 
shares  held  by  each,  and  such  lists  shall  be  subject  to  the  inspection  of  the 
assessors  at  all  times.  The  list  of  stockholders  furnished  by  such  bank  or 
banking  association  shall  be  deemed  to  contain  the  names  of  the  owners  of 
such  shares  as  are  set  opposite  them,  respectively,  for  the  purpose  of  assess- 
ment and  taxation.  [Tax  Law,  § 23,  as  amended  by  L.  1916,  ch.  323,  and 
L.  1917,  ch.  153;  B.  C.  & Gr.  Cons.  L.,  p.  5845.] 


§ 5.  BANK  SHAEEJs,  HOW  ASSESSED;  DEDUCTIONS.** 

In  assessing  the  shares  of  stock  of  banks  or  banking  associations  or- 
ganized under  the  authority  of  this  state  or  the  United  States,  the  as- 
sessment and  taxation  shall  not  be  at  greater  rate  than  is  made  or 
assessed  upon  other  moneyed  capital  in  the  hands  of  individual  citizens 
of  this  state.  The  value  of  each  share  of  stock  of  each  bank  and  banking 

7.  For  form  of  report  to  be  made  by  bank  to  local  assessors,  see  Form  No.  38,  posl. 

8.  Constitutionality  of  the  amendment  of  1901  declared.  People  ex  rel.  Bridge- 
port Sav.  Bank  v.  Feitner,  191  N.  Y.  88,  revg.  120  App.  Div.  838,  105  N.  Y.  Supp.  993. 

Former  section  held  constitutional  in  Matter  of  Jenkins,  47  App.  Div.  394,  G2  N. 
Y.  Supp.  321,  affd.  163  N.  Y.  320,  affd.  186  U.  S.  230. 

Laws  1901,  ch.  550,  substituted  the  new  liability  for  the  old,  although  the  act 
may  not  have  taken  effect  until  after  the  final  revision  of  the  assessment  roll  under 
which  such  liability  might  arise.  First,  Nat.  Bank  v.  Binghamton,  72  App.  Div. 
354,  76  N.  Y.  Supp.  526. 


522b 


TAXATION. 


Tax  Law,  §§  24-a,  24-b. 

association,  except  such  as  are  in  liquidation,  shall  be  ascertained  and 
fixed  by  adding  together  the  amount  of  the  capital  stock,  surplus  and 
undivided  profits  of  such  bank  or  banking  association  and  by  dividing 
the  result  by  the  number  of  outstanding  shares  of  such  bank  or  banking 
association.  The  value  of  each  share  of  stock  in  each  bank  or  banking 
association  in  liquidation  shall  be  ascertained  and  fixed  by  dividing  the 
actual  assets  of  such  bank  or  banking  association  by  the  number  of  out- 
standing shares  of  such  bank  or  banking  association.  The  owners  of  the 
stock  of  banks  and  banking  associations  shall  be  entitled  to  no  deduction 
from  the  taxable  value  of  their  shares  because  of  the  personal  indebted- 
ness of  such  owners,  or  for  any  other  reason  whatsoever.9  This  section 
is  not  to  be  construed  as  an  exemption  of  the  real  estate  of  banks  or 
banking  associations  from  taxation.  ISTo  shares  of  stock  of  such  banks 
and  banking  associations,  by  whomsoever  held,  shall  be  exempt  from  the 
tax  hereby  imposed.  [Tax  Law,  § 24,  as  amended  by  L.  1916,  ch.  323 ; 
B.  C.  & G.  Cons.  L .,  p.  5846.] 

The  assessors  of  every  tax  district  shall,  within  ten  days  after  they 
have  completed  the  assessment  of  the  stock  of  a bank  or  banking  associa^ 
tion,  give  written  notice  to  such  bank  or  banking  association  of  such  as- 
sessment of  the  shares  of  its  respective  shareholders  and  no  personal  or 
other  notice  to  such  shareholders  of  such  assessment  is  required.  Com- 
plaints in  relation  to  the  assessments  of  the  shares  of  stock  of  banks  and 
banking  associations  shall  be  heard  and  determined  as  provided  in  sec- 
tion thirty-seven  of  this  chapter.  [Tax  Law,  § 24a,  as  added  by  L. 
1916,  ch.  323.] 


9.  Place  of  taxation  of  bank  shares.  Under  section  13  of  the  Tax  Law,  ante , 
p.  503,  the  shares  of  bank  stock  are  to  be  included  in  the  assessment  of  taxes  in  the 
tax  district  where  the  bank  or  banking  association  is  located  and  not  elsewhere, 
whether  the  owners  of  such  shares  reside  in  such  tax  district  or  not. 

Nonresident  owner  of  bank  stock  is  not  personally  liable,  and  § 936  of  the 
Greater  New  York  Charter  does  not  authorize  a personal  judgment  against  him  for 
the  tax.  The  property  only  is  liable.  City  of  New  York  v.  McLean,  170  N.  Y.  374. 

Assessment  of  banks  in  cities.— The  sums  assessed  and  collected  on  shares 
of  stock  of  banks  located  in  a city  should  be  paid  to  such  city  and  should  not  be 
apportioned  to  the  county.  City  of  Utica  v.  Board  of  Supervisors,  109  App.  Div. 
189,  95  N.  Y.  Supp.  839. 

By  virtue  of  this  section  the  city  of  Tonawanda  is  entitled  to  the  tax  collected 
upon  the  capital  stock  of  a bank  located  in  said  city;  the  sum  collected  does  not 
belong  to  the  county  of  Erie.  People  ex  rel.  City  of  Tonawanda  v.  Fitzhenry  (1915), 
170  App.  Div.  227,  156  N.  Y.  Supp.  70.  See  also  People  ex  rel.  Lawyer  v.  Super- 
visors (1903),  39  Misc.  162,  79  N.  Y.  Supp.  145;  City  of  Utica  v.  Supervisors  (1905), 
109  App.  Div.  189,  95  N.  Y.  Supp.  839. 

Under  section  24  of  the  Tax  Law  a city,  which  in  and  of  itself  is  a tax  district 
within  a county,  is  alone  entitled  to  the  money  collected  for  taxes  on  the  stock  of  a 
bank  located  within  said  city.  County  of  Erie  v.  Town  of  Tonawanda  (1916),  95 
Misc.  663,  159  N.  Y.  Supp.  714,  affd.  (1917),  176  App.  Div.  942,  162  N.  Y.  Supp.  994. 


MODE  OF  ASSESSMENT. 


522c 


Tax  Law,  §§  24-c,  24-d. 


The  rate  of  tax  upon  the  shares  of  stock  of  banks  and  banking  associ- 
ations shall  be  one  per  centum  upon  the  value  thereof,  as  ascertained 
and  fixed  in  the  manner  hereinbefore  provided.  [Tax  Law,  § 24b,  as 
added  by  L.  1916,  ch.  323.] 

The  said  bank  tax  shall  be  in  lieu  of  all  other  taxes  whatsoever  for 
state,  county  or  local  purposes  upon  the  said  shares  of  stock,  and  mort- 
gages, judgments  and  other  choses  in  action  and  personal  property  held 
or  owned  by  banks  or  banking  associations  the  value  of  which  enters  into 
the  value  of  said  shares  of  stock  shall  also  be  exempt  from  all  other  state, 
county  or  local  taxation.  [Tax  Law,  § 24c,  as  added  by  L.  1916, ch.  323.] 

The  bank  tax  herein  imposed  shall  be  levied  in  the  following  manner : 
The  board  of  supervisors  of  the  several  counties  shall,  on  or  before  the 
fifteenth  day  of  December  in  each  year,  ascertain  from  an  inspection 
of  the  assessment-rolls  in  their  respective  counties,  the  number  of  shares 
of  stock  of  banks  and  banking  associations  in  each  town,  city,  village, 
school  and  other  special  districts,  in  their  several  counties,  respectively, 
in  which  such  shares  of  stock  are  taxable,  the  names  of  the  banks  issuing 
the  same,  respectively,  and  the  assessed  value  of  such  shares,  as  ascer- 
tained in  the  manner  provided  in  this  article  and  entered  upon  the  said 
assessment-rolls,  and  shall  forthwith  mail  to  the  president  or  cashier  of 
each  of  said  banks  or  banking  associations  a statement  setting  forth  the 
amount  of  its  capital  stock,  surplus  and  undivided  profits,  the  number  of 
outstanding  shares  thereof,  the  value  of  each  share  of  stock  taxable  in 
said  county,  as  ascertained  in  the  manner  herein  provided,  and  the  aggre- 
gate amount  of  tax  to  be  collected  and  paid  by  such  bank  and  banking 

Neglect  to  pay  taxes  collected  to  city.  The  neglect  or  refusal  of  the  board  of 
supervisors  to  direct  the  county  treasurer  as  required  by  this  section  to  pay  over  to 
a city  the  bank  taxes  collected  is  a violation  of  statutory  duty  and  gives  the  city 
a complete  cause  of  action  to  recover  the  full  amount  of  the  taxes.  Such  action 
is  barred  by  the  Statute  of  Limitations  unless  brought  within  six  years  of 
the  first  day  of  January  succeeding  their  payment.  City  of  Buffalo  v.  County  of 
Erie  (1915),  88  Misc.  591,  151  N.  Y.  Supp.  409,  affd.  171  App.  Div.  973,  156  N.  Y. 
Supp.  73. 

Tax  on  stock  of  bank  located  in  city;  remedy  against  county  unlawfully  appro- 
priating tax;  relief  by  action  and  by  mandamus;  laches.  By  virtue  of  this  section 
the  city  of  Tonawanda  is  entitled  to  the  tax  collected  upon  the  capital  stock  of  a 
bank  located  in  said  city;  the  sum  collected  does  not  belong  to  the  county  of  Erie. 
Where  a county  has  unlawfully  appropriated  taxes  upon  bank  stock,  a city  entitled 
to  receive  the  same  may  enforce  its  right  of  action,  though,  under  some  circum- 
stances, mandamus  is  also  a proper  remedy.  But  where  there  has  been  a long  delay 
by  the  city  in  enforcing  its  right  and  the  moneys  collected  may  have  gone  into  the 
general  fund  of  the  county  and  have  been  diverted  to  other  purposes,  so  that  a 
tax  levy  may  be  necessary  to  satisfy  the  claim  of  the  city,  the  writ  of  mandamus 
should  be  denied  upon  the  ground  of  laches  and  the  city  should  be  left  to  its  remedy 
uv  action.  It  seems,  that,  in  any  event,  where  an  issue  of  fact  such  as  laches  is 
raised,  an  alternative  rather  than  a peremptory  writ  should  issue  in  cases  where 
mandamus  is  an  appropriate  remedy.  People  ex  rel.  City  of  Tonawanda  v.  Fitzhenry 
(1915),  170  App.  Div.  227,  156  N.  Y.  Supp.  70. 


522d 


TAXATION. 


Tax  Law,  § 24e. 

association,  under  the  provisions  of  this  article,  provided  that  in  the  county 
of  Erie  the  shares  of  stock  of  the  banks  located  in  the  city  of  Buffalo  shall 
not  be  included,  nor  shall  any  such  notice  be  given  by  the  hoard  of  super- 
visors of  said  county  to  the  said  officers  of  the  banks  located  in  said  city.10 
A certified  copy  of  each  of  said  statements  shall  be  sent  to  the  county 
treasurer.  Provided,  that,  in  the  city  of  New  York  the  statement  of  the 
bank  assessment  and  tax  herein  provided  for  shall  be  made  by  the  board  of 
tax  commissioners  of  said  city,  on  or  before  the  fifteenth  day  of  December 
in  each  year,  and  by  them  forthwith  mailed  to  the  respective  banks  and 
banking  associations  located  in  said  city,  and  a certified  copy  thereof  sent 
to  the  receiver  of  taxes  of  said  city.  And  further  provided  that  in  the  city 
of  Buffalo  a statement  of  the  bank  assessment  and  tax  herein  provided  for 
shall  be  made  by  the  assessors  of  said  city  on  or  before  the  fifteenth  day 
of  December  in  each  year,  and  by  them  forthwith  mailed  to  the  respective 
banks  and  banking  associations  located  in  said  city,  and  a certified  copy 
thereof  sent  to  the  city  treasurer  of  said  city.  [Tax  Law,  § 24-d,  as  added 
by  L.  1916,  ch.  323,  and  amended  by  L.  1917,  ch.  153.] 

The  board  of  supervisors  shall  issue  their  warrant  or  order  to  the  county 
treasurer  on  or  before  the  fifteenth  day  of  December  in  each  year,  setting 
forth  the  number  of  shares  of  bank  stock  taxable  in  each  town,  city, 
village,  school  and  other  tax  district  in  said  county,  in  which  said  shares 
of  stock  shall  be  taxable,  the  proportion  of  the  tax  imposed  by  this  chapter 
to  which  each  of  said  tax  districts  is  entitled,  under  the  provisions  hereof, 
and  commanding  him  to  collect  the  same,  and  to  pay  to  the  proper  officer 
in  each  of  such  districts  the  proportion  of  such  tax  to  which  it  is  entitled 
under  the  provisions  of  this  chapter,  provided  that  in  the  county  of  Erie 
the  shares  of  stock  of  banks  taxable  in  the  city  of  Buffalo  shall  be  omitted 
from  such  warrant  or  order.  The  said  county  treasurer  shall  have  the 
same  powers  to  enforce  the  collection  and  payment  of  said  tax  as  are 
possessed  by  the  officers  now  charged  by  law  with  the  collection  of  taxes, 
and  the  said  county  treasurer  shall  be  entitled  to  a commission  of  one 
per  centum  for  collecting  and  paying  out  said  moneys,  which  commission 
shall  be  deducted  from  the  gross  amount  of  said  tax  before  the  same  is 
distributed.  In  issuing  their  warrants  to  the  collectors  of  taxes,  the 


10.  For  form  of  statement  to  be  made  by  supervisors  to  president  or  cashier  of  a 
bank,  see  form  No.  39,  post. 

In  determining  the  value  of  the  shares  of  a banking  corporation  the  assessing 
officers  should  include  the  value  of  the  real  estate  owned  by  the  corporation.  Mat- 
ter of  First  Nat.  Bank  of  Ossining,  182  N.  Y.  460. 

The  fact  that  a part  of  the  surplus  or  undivided  profits  of  a bank  are  invested 
in  barge  canal  bonds  which  are  exempt  from  taxation,  does  not  authorize  the  as- 
sessors to  deduct  the  amount  of  such  bonds  from  the  amount  of  the  capital  stock, 
surplus  and  undivided  profits  of  such  bank  in  assessing  the  shares  of  stock  of 
banks  under  this  section.  Kept,  of  Atty.  Genl.  (1911),  vol.  2,  p.  565. 

The  assessed  value  of  the  stock  of  a bank  located  in  a tax  district  must  be  in- 


MODE  OF  ASSESSMENT. 


523 


Tax  Law,  §§  24f,  24 g. 

board  of  supervisors  shall  omit  therefrom  assessments  of  and  taxes  upon 
the  shares  of  stock  of  banks  and  banking  associations.  [Tax  Law,  § 24-e, 
as  added  by  L.  1916,  ch.  323,  amended  by  L.  1917,  ch.  153,  and  L.  1918, 
ch.  149] 

It  shall  be  the  duty  of  every  bank  or  banking  association  to  collect  the 
tax  due  upon  its  shares  of  stock  from  the  several  owners  of  such  shares, 
and  to  pay  the  same  to  the  treasurer  of  the  county  wherein  said  bank 
or  banking  association  is  located,  except  that  in  the  city  of  Buffalo  such  tax 
shall  be  paid  to  the  city  treasurer  of  said  city,  and  in  the  city  of  New  York 
to  the  receiver  of  taxes  thereof  on  or  before  the  thirty-first  day  of  December 
in  said  year;  and  any  bank  or  banking  association  failing  to  pay  the 
said  tax  as  herein  provided  shall  be  liable  by  way  of  penalty  for  the 
gross  amount  of  the  taxes  due  from  all  the  owners  of  the  shares  of  stock, 
and  for  an  additional  amount  of  one  hundred  dollars  for  every  day  of 
delay  in  the  payment  of  said  tax.  Every  bank  or  banking  association 
so  paying  the  taxes  due  upon  the  shares  of  its  stock  shall  have  a lien  on 
the  shares  of  stock,  and  on  all  property  of  the  several  share  owners  in  its 
hands,  or  which  may  at  any  time  come  into  its  hands,  for  reimbursement 
of  the  taxes  so  paid  on  account  of  the  several  shareholders,  with  legal 
interest;  and  such  lien  may  be  enforced  in  any  appropriate  manner.  The 
tax  shall  be  paid  by  the  respective  banks  in  the  city  of  New  York  to  the 
said  receiver  of  taxes  on  or  before  the  thirty-first  day  of  December  in 
said  year,  and  said  tax  shall  be  collected  by  the  said  reeciver  of  taxes 
and  shall  be  by  him  paid  into  the  treasury  of  said  city  to  thie  credit  of 
the  general  fund  thereof.  The  tax  shall  be  paid  by  the  respective  banks 
in  the  city  of  Buffalo  to  the  city  treasurer  of  said  city  on  or  before  the 
thirty-first  day  of  December  in  said  year,  and  said  tax  shall  be  collected 
by  the  said  treasurer  and  credited  to  the  general  fund  of  said  city.  [Tax 
Law,  § 24f,  as  added  by  L.  1916,  ch.  323,  and  amended  by  L.  1917,  ch. 
153.] 

The  bank  tax  shall  be  distributed  in  the  following  manner:  The  board 
of  supervisors  of  the  several  counties  shall  ascertain  the  aggregate  assesed 
valuation  of  taxable  pioperty  in  each  of  the  several  town,  city,  village, 
school  and  other  special  districts  in  their  counties,  respectively,  in  which 
the  shares  of  stock  of  banks  and  banking  associations  shall  be  taxable  for 
the  year  for  which  the  tax  is  imposed,  and  the  proportion  of  the  tax  on 
bank  stock  to  which  each  of  said  districts  shall  be  respectively  entitled 
shall  be  ascertained  by  taking  such  proportion  of  the  tax  upon  the  shares 
of  stock  of  banks  and  banking  associations,  taxable  in  such  districts. 


eluded  in  the  aggregate  amount  of  the  taxable  property  of  such  district  for  the  pur- 
pose of  determining  the  amount  of  tax  to  he  levied  therein.  The  tax  upon  bank 
stock  is  not  exclusively  for  the  benefit  of  the  district  wherein  the  bank  is  situated. 
People  ex  rel.  City  of  Geneva  v.  Board  of  Supervisors,  188  N.  Y.  1. 

Tax  is  property  tax,  and  not  based  on  term  of  existence  of  bank.  Taxes  levied, 
upon  the  shares  of  a banking  association  constitute  a property  tax,  and  the  asso- 


524 


TAXATION. 


Tax  Law,  §§  25,  26. 

respectively,  under  the  provisions  of  this  chapter  as  the  aggregate  assessed 
valuation  of  such  tax  district  shall  hear  to  the  aggregate  assessed  valuation 
of  all  the  town,  city,  village,  school  or  other  special  districts  in  which  said 
shares  of  stock  shall  be  taxable,  provided  that  in  the  county  of  Erie  the 
provision  of  this  section  shall  have  no  application  to  the  taxes  paid  by  the 
banks  and  banking  associations  located  in  the  city  of  Buffalo,  and  the  pro- 
visions of  this  section  shall  be  carried  out  as  if  the  city  of  Buffalo  were 
not  a part  of  said  county.* 11  The  clerks  of  the  several  cities,  villages  and 
school  districts  to  which  any  portion  of  the  tax  on  shares  of  stock  of  banks 
and  banking  associations  is  to  be  distributed  under  this  section  shall,  in 
writing  and  under  oath,  annually  report  to  the  board  of  supervisors  of  their 
respective  counties  on  or  before  October  first  of  each  year,  the  aggregate 
assessed  valuation  of  such  city,  village  and  school  district  as  shown  by  the 
last  assessment-roll  of  each  respective  city,  village,  and  school  district 
for  the  year  prior  to  the  meetings  of  each  such  board.  [Tax  Law,  § 24g, 
as  added  by  L.  1916,  ch.  323,  and  amended  by  L.  1917,  chs.  153,  494.] 

§ 6.  INDIVIDUAL  BANKER,  HOW  ASSESSED. 

Every  individual  banker  doing  business  under  the  laws  of  this  state, 
must  report  before  the  fifteenth  day  of  June  under  oath  to  the  assessors 
of  the  tax  district  in  which  any  of  the  capital  invested  in  such  banking 
is  taxable,  the  amount  of  capital  invested  in  such  banking  business  in 
such  tax  district  on  the  first  day  of  June  preceding.13  Such  capital  shall  be 
assessed  as  personal  property  to  the  banker  in  whose  name  such  business 
is  carried  on.  [Tax  Law,  § 25;  B.  C.  & G.  Cons.  L.,  p.  5850.] 

§ 7.  NOTICE  OF  ASSESSMENT  TO  BANK  OR  BANKING  ASSOCIA- 
TION. 

Tax  Law,  § 26,  repealed  by  L.  1916,  ch.  323. 


ciation  is  not  entitled  to  have  such  tax  reduced  because  it  has  only  been  in  exist- 
ence and  his  enjoyed  the  benefit  of  governmental  protection  during  a portion  of 
the  year.  People  ex  rel.  Nat.  Copper  Bk.  v.  Wells,  58  Misc.  252,  110  N.  Y.  Supp.  829. 

11.  Apportionment  of  tax  upon  bank  stock  between  town  and  village.  Where  a 
town  containing  a village,  they  being  separate  tax  districts,  has  two  tax  rates,  one 
applicable  to  the  whole  town  including  the  village  property,  the  other  an  additional 
rate  imposed  for  town  highways  as  a special  road  district  distinct  from  the  village 
under  L.  1908,  chs.  330,  339,  the  supervisors,  in  apportioning  the  tax  upon  the  stock 
of  banks  situate  in  the  village  between  the  village  and  the  town  pursuant  to  this 
section,  should  not  take  into  consideration  the  rate  assessed  for  the  care  of  roads 


MODE  OE  ASSESSMENT. 


525 


Tax  Law,  § 27. 

§ 8.  STATEMENTS  OF  CORPORATIONS  TO  ASSESSORS;  CONTENTS; 
MANDAMUS  TO  COMPEL  REPORT. 

The  president  or  other  proper  officer  of  every  moneyed  or  stock  cor- 
poration deriving  an  income  or  profit  from  its  capital  or  otherwise  shall, 
on  or  before  June  first,  deliver  to  one  of  the  assessors  of  the  tax  district 
in  which  the  company  is  liable  to  be  taxed  a written  statement  in  the 
form  prescribed  by  the  tax  commission  specifying: 


outside  the  village  in  figuring  the  ratio  payable  to  the  town.  People  ex  rel.  Village 
of  Cobleskill  v.  Supervisors,  140  App.  l)iv.  769,  126  N.  Y.  Supp.  259. 

A county  is  not  a tax  district  within  the  meaning  of  this  section,  and  is  not, 
therefore,  entitled  to  share  in  the  distribution  of  the  tax  laid  upon  bank  stock 
taxable  in  a tax  district.  People  ex  rel.  Lawyer  v.  Supervisors  of  Schoharie  County, 
39  Misc.  162.  In  this  case  the  assessors  of  the  town  of  Cobleskill  within  which  are 
located  two  banks,  made  their  assessment  against  each  stockholder  of  such  banks  in 
the  manner  required  by  law.  The  tax  so  laid  was  paid  by  the  banks  to  the  treas- 
urer of  Schoharie  county.  No  question  was  raised  as  to  the  regularity  or  amount 
of  the  assessment,  but  it  was  claimed  by  the  relator  that  an  erroneous  principle  was 
adopted  by  the  board  of  supervisors  in  distributing  or  apportioning  the  tax  among 
the  tax  districts  entitled  thereto.  The  board  apportioned  the  tax  as  follows:  To 
the  county  of  Schoharie,  $568.38;  to  the  village  of  Cobleskill,  $1,385.54;  to  the  town 
of  Cobleskill  the  sum  of  $632.24.  Judge  Chester  said:  “The  provisions  of  the  stat- 
ute require  the  tax  to  be  distributed  among  the  tax  districts  in  which  the  bank 
shares  are  taxable.  To  justify  the  distribution  of  a portion  of  the  tax  to  the  county 
required  the  board  to  regard  the  county  as  a tax  district.  This,  it  appears,  they  did, 
but  in  so  doing  I think  they  fell  into  an  error.  The  Tax  Law  (sec.  2),  defines  a 

* tax  district  ’ to  be  a ‘ political  subdivision  of  the  state  having  a board  of  assessors 
authorized  to  assess  property  therein  for  state  and  county  taxes/  While  a county, 
like  towns  and  villages,  is  a political  subdivision  of  the  state,  it  does  not  come 
within  this  statutory  definition  of  a tax  district.  I’t  was,  therefore,  unlawful  for 
the  board  to  include  the  county  in  its  apportionment  of  this  tax  and  the  whole 
of  it  should  have  been  apportioned  to  the  town  and  village  of  Cobleskill  which  was 
the  only  ‘ tax  district *  * within  which  the  bank  shares,  upon  which  this  tax  was  paid, 
were  taxable.” 

It  appeared  in  this  case  that  the  board  of  supervisors  ascertained  that  the  tax  rate 
of  the  town  of  Cobleskill  was  .0047,  and  of  the  village  of  Cobleskill  .0103,  making 
the  aggregate  tax  rates  of  both  tax  districts  .0150.  Following  the  provisions  of  the 
above  section  it  was  the  duty  of  this  board  to  apportion  the  tax  on  these  bank 
shares,  amounting  to  the  sum  of  $2,586.66,  to  the  town  and  village  of  Cobleskill, 
being  the  only  two  districts  where  the  shares  were  taxable,  and  the  court  held  that 
the  town  was  entitled  to  $827.12,  or  .0047-.0150  thereof,  and  the  village  to  $1,759.54, 
or  .0103-.0150  thereof. 

By  the  amendment  to  this  section  the  tax  on  bank  stock  is  to  be  distributed 
among  all  municipalities  formerly  entitled  to  assess  such  stock;  the  term  “tax  dis- 
trict,” as  here  used,  includes  villages  and  school  districts,  though  not  having  sep- 
arate boards  of  assessors.  People  ex  rel.  Village  of  Kinderhook  v.  Supervisors  of 
Columbia,  105  App.  Div.  3191,  93  N.  Y.  Supp.  1093,  affd.  182  N.  Y.  556. 

13.  For  form  of  report  of  individual  banker,  see  Form  No.  41,  post. 

15.  For  form  of  statement  of  a corporation  to  assessors,  see  Form  No.  43,  post. 

Effect  of  failure  to  file  statement.  Corporations  may  be  assessed  though  no 
statement  is  made  by  them  to  the  assessors  as  required  by  law.  Such  a statement 
when  made  is  not  conclusive  upon  the  assessors.  It  is  the  judgment  of  the  assessors 


TAXATION. 


526 

Tax  Law,  § 28. 

1.  The  real  property,  if  any,  owned  by  such  company,  the  tax  district 
in  which  the  same  is  situated  and,  unless  a railroad  corporation,  the 
sums  actually  paid  therefor. 

2.  The  capital  stock  actually  paid  in  and  secured  to  be  paid  in,  except- 
ing therefrom  the  sums  paid  for  real  property  and  the  amount  of  such 
capital  stock  held  by  the  state  and  by  any  incorporated  literary  or 
charitable  institution,  and 

3.  The  tax  district  in  which  the  principal  office  of  the  company  is 
situated  or  in  case  it  has  no  principal  office,  the  tax  district  in  which  its 
operations  are  carried  on. 

Such  statement  shall  be  verified  by  an  officer  of  the  corporation  making 
the  report  to  the  effect  that  it  is  in  all  respects  just  and  true.  If  such 
statement  is  not  made  within  twenty  days  after  the  first  day  of  June,  or 
is  insufficient,  evasive  or  defective,  the  assessors  may  compel  the  cor- 
poration to  make  a proper  statement  by  mandamus.15  [Tax  Law,  § 27, 
as  amended  by  L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  5850.] 

§ 9.  PENALTY  FOR  OMISSION  OF  CORPORATION  TO  MAKE  STATE- 
MENT; HOW  RECOVERED. 

In  case  of  neglect  to  furnish  such  statements  within  thirty  days  after 
the  time  above  provided,  the  company  so  neglecting  shall  forfeit  to  the 
people  of  this  state  for  each  statement  so  omitted  to  be  furnished,  the 
sum  of  two  hundred  and  fifty  dollars,  and  it  shall  be  the  duty  of  the 
attorney-general  to  prosecute  for  such  penalty  upon  information  which 
shall  be  furnished  him  by  the  tax  commission.  Upon  such  statement 
being  furnished  and  the  costs  of  the  suit  being  paid,  the  tax  commission, 

that  the  law  requires.  People  ex  rel.  Manhattan  Fire  Ins.  Co.  v.  Commissioners  of 
Taxes,  76  N.  Y.  64.  The  assessors  have  jurisdiction  to  assess  a corporation  although 
it  fails  to  make  a statement  of  its  financial  condition.  If  such  a corporation  fails  to 
appear  and  demand  a correction  of  the  preliminary  assessment  it  can  obtain  no  relief 
from  overvaluation  by  certiorari.  People  ex  rel.  Union  Telegraph  Co.  v.  Com- 
missioners of  Taxes,  99  N.  Y.  354. 

15.  Effect  of  statement.  Where  a corporation  furnishes  assessors  with  a full 
and  complete  statement  of  its  assests  and  liabilities,  together  with  its  balance  sheet 
supporting  such  statements,  the  assessors  are,  in  the  absence  of  any  other  evidence 
bound  to  make  such  statements  the  basis  of  their  assessment  against  the  corporation. 
People  ex  rel.  Seidenberg  Co.  v.  Feitner,  41  App.  Div.  571;  58  N.  Y.  Supp.  713.  The 
assessors  cannot  accept  a part  of  a statement  relating  to  the  assests  of  a corporation 
and  reject  the  part  relating  to  its  liabilities.  People  ex  rel.  Amer.  Flag  Co.  v.  Barker, 
37  N.  Y.  Supp.  106;  72  N.  Y.  St.  Rep.  152.  Assessors  are  not  justified  in  rejecting 
the  statement  of  a corporation  upon  the  sole  ground  that  it  sets  forth  values  less  than 
the  statement  of  the  preceding  year.  People  ex  rel.  Insulating  Co.  v.  Barker,  16  Misc. 
252 ; 39  N.  Y.  Supp.  88.  If  taxing  officers  do  not  require  an  examination  of  the  books 
and  officers  of  the  corporation  they  are  bound  to  assume  that  the  value  of  the  gross 
assests  was  correctly  given  in  the  verified  statement.  People  ex  rel.  Brooklyn  Union 
Cas  Co.  v.  Feitner,  82  App.  Div.  368,  81  N.  Y.  Supp.  898. 


MODE  OF  ASSESSMENT. 


527 


Tax  Law,  § 29. 

if  it  shall  be  satisfied  that  such  omission  was  not  wilful,  may,  in  its 
discretion,  discontinue  such  suit.16  [Tax  Law,  § 28,  as  amended  by  L. 
1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5851.] 

§ 10.  COUNTY  CLERKS  TO  FURNISH  DATA  RESPECTING  CORPO- 

RATIONS. 

Between  the  first  and  fifteenth  days  of  June  in  each  year  the  county 
clerk  in  each  county  of  the  state,  excepting  counties  wholly  situate  within 
the  corporate  limits  of  a city,  shall  prepare  from  the  records  in  his  office 
and  mail  to  each  of  the  city  and  town  clerks  in  his  said  county,  a certified 
statement  containing  the  names  of  every  stock  corporation,  whose  certificate 
of  incorporation  has  been  filed  with  him  since  the  last  preceding  annual 
statements  to  said  several  city  and  town  clerks,  whose  principal  business 
office  or  chief  place  of  business  is  designated  in  its  certificate  of  incorpora- 
tion as  being  in  such  city  or  town  or  in  any  village  or  hamlet  therein, 
together  with  the  fact  of  such  designation  and  the  names  and  addresses  of 
the  directors  of  each  such  corporation  so  far  as  said  county  clerk  can  discover 
the  same  from  the  certificate  of  incorporation  or  from  the  latest  certificate 
of  election  of  directors  of  such  corporation  filed  in  his  office.  Each  city  or 
town  clerk  receiving  such  statement  shall  forthwith  file  the  same  in  his  office 
and  mail  a notice  of  such  filing  to  each  of  the  assessors  of  his  city  or  town. 


In  case  of  the  failure  of  a corporation  to  deliver  the  report  required  by  this  section, 
it  will  be  presumed  that  the  assessors  ascertained  the  value  of  the  capital  and  surplus 
of  the  corporation  to  be  the  sum  stated  in  the  assessment-roll,  from  the  best  infor- 
mation available  to  them.  Matter  of  Adler  Bros.  & Co.,  76  App.  Div.  571 ; 78  N.  Y. 
Supp.  690;  affd.,  174  N.  Y.  287. 

Valuation  by  secretary  as  basis  of  assessment. — The  valuation  of  the  capital 
stock  made  by  the  secretary  of  a company  in  the  statement  to  the  assessors,  held  suffi- 
cient evidence  of  value  upon  which  to  base  the  assessment,  notwithstanding  the  com- 
pany sought  by  certiorari  to  correct  the  assessment  by  deducting  the  amount  of  debts 
owed  by  it  from  the  sum  indicated  in  the  statement,  since  the  value  of  the  franchises 
might  make  up  the  difference.  People  ex  rel.  Buffalo  Mut.  Gas-Light  Co.  v.  Steele, 
1 Buff.  Super.  Ct.  345. 

Mandamus  not  a remedy.— It  seems  that  a corporation  cannot  be  mandamused 
to  furnish  the  statement  required  by  this  section.  Matter  of  Adler  Bros.  & Co.,  76- 
App.  Div.  571,  78  N.  Y.  Supp.  690,  affd.  174  N.  Y.  287. 

16.  The  penalty  prescribed  by  this  section  is  exclusive  and  the  courts  cannot  im- 
pose any  other  punishment.  People  ex  rel.  West  Shore  R.  R.  Co.  v.  Pitman.  9 N.  Y. 
St.  Rep.  469. 


528-532 


TAXATION. 


Tax  Law,  §§  30,  33. 

[Tax  Law,  § 29,  as  amended  by  L.  1917,  ch.  38;  B.  C.  & Gr.  Cons.  L.,  p. 
5852.] 

§ 11.  TAX  MAP  IN  EACH  TAX  DISTRICT. 

A tax  district  may  prepare  or  adopt  for  the  use  of  the  assessors  a tax 
map  of  the  district,  or  of  such  portion  of  the  tax  district  as  lies  within 
an  incorporated  village,  on  which  shall  be  shown  each  separately  assessed 
parcel  of  real  property  with  its  boundaries  properly  marked.  When 
any  parcel  contains  more  than  one  acre  its  contents  in  acres  shall  be 
shown  upon  said  tax  map.  Each  separately  assessed  parcel  shall  be 
given  an  identification  number  or  numbers  upon  such  map,  and  such 
number  or  numbers  shall  not  be  changed  except  as  may  be  necessary 
when  such  parcel  is  altered  or  divided  or  merged  with  some  other 
parcel.  The  assessors  shall  make  such  changes  from  year  to  year  upon 
such  tax  map  as  may  be  necessary  to  keep  the  map  accurate.  Such 
map  shall  be  prepared  and  kept  in  accordance  with  such  rules  as  the 
tax  commission  may,  from  time  to  time,  prescribe.17  [Tax  Law,  § 30, 
as  added  by  L.  1911,  ch.  315,  and  amended  by  L.  1916,  ch.  323.] 

§ 12.  ASSESSMENT  OF  AGENT,  TRUSTEE,  GUARDIAN  OR  EXECU- 
TOR. 

If  a person  holds  taxable  property  as  agent,  trustee,  guardian,  execu- 
tor or  administrator,  he  shall  be  assessed  therefor  as  such,  with  the  addi- 
tion to  his  name  of  his  representative  character,  and  such  assessment 
shall  be  carried  out  in  a separate  line  from  his  individual  assessment.28 
[Tax  Law,  § 33 ; B.  C.  & G.  Cons.  L.,  p.  5856.] 


17.  The  necessary  expenses  incurred  by  assessors  in  preparing  tax  maps 

pursuant  to  this  section  are  charges  against  the  municipality  which  they  represent. 
Rept.  of  Atty.  Genl.  (1911),  vol.  2,  p.  639. 

28.  References.  Place  of  taxation  of  trust  property,  etc.,  see  Tax  Law,  sec.  8, 
ante,  p.  492.  All  assessments  made  to  the  “estate”  of  a decedent  prior  to  April 
9,  1898,  were  legalized  by  L.  1898,  ch.  310;  and  it  would  seem  that  such,  assess- 
ments are  deemed  to  be  valid  under  section  63  of  the  Tax  Law,  post,  p.  566. 

Assessments  to  personal  representatives.  It  has  been  repeatedly  held  that 
it  is  not  sufficient  for  assessors  to  assess  lands  or  personal  property  to  the 
“estate  of  A.  B.,”  or  to  the  “heirs  of  A.  B.,”  but  that  the  assessment  to  be 
valid,  must  specify  the  name  or  names  of  the  individuals  who  are  subject  to  the 


MODE  OF  ASSESSMENT. 


533' 


Tax  Law,  § 34. 

§ 13  ASSESSMENT-ROLL,  WHEN  TO  CONTAIN  ASSESSMENT  OI 

PROPERTY  OMITTED  IN  PRECEDING  YEAR. 

The  assessors  of  any  tax  district  shall,  npon  their  own  motion,  or  upon 
the  application  of  any  taxpayer  therein,  enter  in  the  assessment-roll  of 
the  current  year  any  property  shown  to  have  been  omitted  from  the 
assessment-roll  of  the  preceding  year,  at  the  valuation  of  that  year,  or 


tax.  Cruyer  v.  Dougherty,  43  N.  Y.  107;  Trowbridge  v.  Horan,  78  N.  Y.  430; 
Cromwell  v.  MacLean,  123  N.  Y.  474,  485;  25  N.  E.  932;  Matter  of  Ken  worthy, 
63  Hun,  165;  17  N.  Y.  Supp.  655;  Sandy  Hill  v.  Akin,  77  Hun,  537;  28  N.  Y. 
Supp.  889;  Adams  v.  Supervisors  of  Monroe,  18  App.  Div.  415,  46  N.  Y.  Supp. 
48,  affd.  154  N.  Y.  619. 

Executors  are  taxable  as  such  from  the  death  of  the  testator.  The  admission 
of  the  will  to  probate  and  the  issuance  of  letters  testamentary  are  not  conditions 
precedent  to  such  a possession  and  control  of  the  testator’s  personal  estate  as 
to  authorize  an  assessment  of  such  estate  in  the  name  of  the  executors.  People 
ex  rel.  Gould  v.  Barker,  150  N.  Y.  52;  44  N.  E.  785. 

An  assessment  to  one  of  four  executors,  with  an  addition  “ and  others 
excrs.,  of  the  est.  of  ” a specified  decedent,  followed  by  the  entry  of  the  amount 
of  personal  property,  is  sufficiently  accurate  to  lead  to  the  identification  of  the 
executors  and  is  in  proper  form  to  make  a valid  assessment.  People  ex  rel. 
McHarg  v.  Gaus,  169  N.  Y.  19. 

Executor  not  to  be  assessed  unless  property  is  received.  Assessors  have  no 
jurisdiction  to  assess  executors  for  personalty  where  they  receive  none,  nor  to 
determine  contrary  to  the  facts  that  they  have  personalty  of  the  testator  in  their 
possession.  Bowe  v.  McNab,  11  App.  Div.  386,  42  N.  Y.  Supp.  938. 

Assessment  of  trust  estates.  Where  a will  creates  three  separate  and  distinct 
trusts  in  behalf  of  three  different  beneficiaries  the  three  trust  estates  may  be 
assessed  in  solido.  The  fact  that  one  of  the  three  trustees  is  not  named  is  not 
a fatal  defect.  People  ex  rel.  Cammann  v.  Feitner,  61  App.  Div.  115,  70  N.  Y. 
Supp.  556,  affd.  168  N.  Y.  646.  See  People  ex  rel.  Beamon  v.  Feitner,  168  N.  Y. 
360,  revg.  63  App.  Div.  174,  71  N.  Y.  261. 

The  name  of  the  trustee,  or  other  person  acting  in  a representative  capacity, 
should  be  inserted,  and  there  should  be  appended  a designation  of  his  rep- 
resentative  capacity  and  a description  of  the  estate  which  he  represents,  as  “ A. 
B.  trustee  for  estate  of  J.  D.”  In  this  connection  Judge  Beekman,  in  the  case 
of  People  ex  rel.  Cadwallader  v.  Feitner,  26  Misc.  40,  43;  56  N.  Y.  Supp.  407, 
says:  “ It  is  plain  that  the  proper  construction  of  the  statute  requires  a separate 

assessment  against  a trustee  with  respect  to  each  separate  and  distinct  trust 
administered  by  him.  It  is  also  obvious  that  the  tax  commissioners  could  not, 
ruder  a single  assessment  and  a general  designation  of  the  person  assessed, 
by  the  words  “ John  L.  Cadwallader,  as  trustee,”  without  further  description, 
necessarily  include  all  the  trust  estates  represented  by  him.  Such  a method 
would  inevitably  result  in  difficulties  and  complications  in  the  determination  of 
the  proportion  of  the  tax  which  should  be  charged  against  each  estate,  and  in 
other  respects,  which  it  would  be  unreasonable  to  suppose  the  legislature  ever 
intended  to  sanction.  Separate  assessments  then  being  necessary  with  respect 
to  each  trust,  it  is  the  more  apparent  that  the  trust  itself  must,  in  each  case,  be 
particularized,  as,  otherwise,  it  would  be  impossible  to  determine  to  which  estate 
any  one  of  such  assessments  applied,  and  a condition  of  uncertainty  would  exist 


534 


TAXATION. 


Tax  Law,  § 34. 

if  not  then  value,  at  such  valuation  as  the  assessors  shall  determine  for 
the  preceding  year.  Assessments  of  special  franchises  that  were 
omitted  shall  be  entered  at  the  valuation  fixed  and  equalized  by  the  tax 
commission.29  [Tax  Law,  § 34,  as  amended  by  L.  1914,  ch.  277,  and  L. 
1916,  ch.  323';  B.  C.  & G.  Cons.  L.,  p.  5857.] 


calling  for  a construction  of  the  statute  that  would  avoid  any  such  result.  Such 
a construction,  which  is  consonant  with  reason  and  does  no  violence  to  the 
terms  of  the  statute,  is  realized  by  holding,  as  I do,  that  the  requirement  that 
the  representative  character  of  the  person  assessed  shall  be  stated,  imports  a 
specification  of  the  concrete  relation  of  such  person  to  a particular  trust.”  See, 
also.  People  ex  rel.  Pike  v.  Barker,  86  Hun,  283;  33  N.  Y.  Supp.  1132. 

Bequest  to  benevolent  corporation  in  hands  of  executor.  An  absolute  bequest 
of  a residuary  estate  to  a benevolent  or  charitable  corporation,  which  is  in- 
cluded within  the  exemption  of  a charitable  corporation,  under  § 4 of  the  Tax 
Law,  vests  at  the  death  of  the  testator  and  is  thereafter  exempt  from  taxation; 
the  fact  that  the  estate  has  not  been  settled  and  the  legatee  has  not  received 
the  property  does  not  render  its  assessment  proper  under  this  section;  such  sec- 
tion only  applies  to  property  that  is  taxable  under  other  provisions  of  the 
Tax  Law.  People  ex  rel.  Crook  v.  Wells,  179  N.  Y.  257,  revg.  93  App.  Div.  500, 
87  N.  Y.  Supp.  826. 

Deductions.  In  order  that  an  executor  may  be  entitled  to  have  just  debts 
deducted  from  the  aggregate  of  personal  property  held  by  him,  they  must  be 
legal,  valid  and  incontestable  obligations.  To  reduce  or  nullify  an  assessment, 
affirmative  proof  that  it  is  erroneous  in  whole  or  in  part  must  be  given.  People 
ex  rel.  Osgood  v.  Comm’rs  of  Taxes  and  Assessments,  99  N.  Y.  154. 

29.  Omitted  property.  Under  L.  1865,  ch.  453,  sec.  1,  from  which  the  above 
section  was  derived,  it  was  held  that  the  duties  of  the  assessors  were  merely 
ministerial,  and  that  they  could  not  include  property  omitted  from  the  assess- 
ment-roll of  the  preceding  year  unless  it  had  been  valued  either  in  that  year 
or  in  the  year  preceding.  People  ex  rel.  Oswald  v.  Goff,  52  N.  Y.  434.  But 
this  decision  is  apparently  nullified  by  the  change  made  in  the  above  section 
of  the  Tax  Law  which  seems  to  authorize  the  assessors  to  determine  the  valua- 
tion of  the  omitted  property  for  the  preceding  year  in  case  none  was  then 
made. 

Where  land  of  non-resident  is  assessed  to  “Warford,  Cyrus,  est.  G.  H.  Grafft, 
Agt.”  the  assessors  may  treat  it  as  having  been  wholly  omitted,  and  reassess 
it  the  next  year  for  the  previous  year.  Matter  of  Chadwick,  59  App.  Div.  334, 
69  N.  Y.  Supp.  853. 

A tax  against  a resident  returned  as  unpaid,  held  to  be  chargeable,  in  the 
subsequent  year,  against  the  land  assessed  only.  Jewett  v.  Lamphear,  20  N.  Y. 
Wk.  Dig.  232. 

Administrators  are  personally  liable  for  a tax  duly  imposed  on  property  of  an 
estate  in  their  hands,  and  they  are  not  relieved  because  they  subsequently  dis- 
tribute the  estate.  City  of  N.  Y.  v.  Goss,  124  App.  Div.  680,  109  N.  Y. 

Supp.  151. 

A corporation  liable  to  taxation  having  been  inadvertently  omitted  from 
assessment  for  city  and  county  purposes  for  one  year  may  be  taxed  therefor 
under  the  provisions  of  the  above  section  upon  the  roll  of  the  succeeding  year. 
People  ex  rel.  Brooklyn  City  R.  R.  Co.  v.  Assessors,  92  N.  Y.  430. 

Notice.  The  reassessment  of  omitted  taxes  cannot  be  made  without  notice. 


MODE  OF  ASSESSMENT. 


535 


Tax  law,  § 35. 

§ 14.  DEBTS  OWING  TO  NON-RESIDENTS  OF  UNITED  STATES,  HOW 
ASSESSED. 

Every  agent  in  any  county  of  the  state  of  a nonresident  creditor 
having  debts  owing  to  him,  taxable  in  any  county  of  the  state,  shall 
annually,  on  or  before  June  first,  furnish  to  the  county  treasurer  of  the 
county  where  the  debtor  resides,  a true  and  accurate  statement  verified 
by  his  oath,  of  such  debts  owing  on  the  first  day  of  May  next  preceding 
in  each  town  or  ward  in  such  county.30 

The  county  treasurer  shall,  immediately  upon  the  receipt  of  such  state- 
ment, make  out  and  transmit  to  the  assessors  of  every  tax  district  in  the 
county  in  which  any  such  debtor  resides,  a copy  of  as  much  of  such  state- 
ment as  relates  to  the  tax  district  of  such  assessors,  with  the  name  of  the 
creditor.  The  assessors  on  receipt  of  such  statement  from  the  county 
treasurer  shall,  within  the  time  in  which  they  are  required  to  complete 
the  assessment-roll,  enter  therein  the  name  of  such  nonresident  creditor, 
and  the  aggregate  amount  due  him  in  such  tax  district  on  the  first  day 
of  May  next  preceding,  in  the  same  manner  as  other  personal  property  is 
entered  on  the  roll,  adding  the  name  of  the  debtor  owing  such  debt. 
Any  agent  neglecting  or  refusing  without  good  cause  to  furnish  such 
statement  to  the  county  treasurer  shall  forfeit  to  the  county  in  which  the 
debtor  resides  the  sum  of  five  hundred  dollars,  recoverable  by  the  district 
attorney,  of  the  existence  of  such  debts  was  known  to  the  agent.31  [Tax 
Law,  § 35,  as  amended  by  L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p. 
5858.] 

§ 15.  COMPLETION  OF  ASSESSMENT-ROLL ; NOTICE  OF  COMPLETION; 

CONTENTS. 

The  assessor  shall  complete  the  assessment-roll  on  or  before  the  first 


nor  after  the  completion  of  the  roll  for  the  current  year.  Overing  v.  Foote,  65 
N.  Y.  263. 

The  provisions  of  this  section,  being  a part  of  the  general  system  of  taxation,  are 
not  subject  to  the  constitutional  objection  that  they  do  not  require  a notice  or 
hearing,  since  the  general  notice  of  the  completion  of  the  assessment  roll  is  sufficient. 
People  ex  rel.  Brooklyn  City  R.  R.  Co.  v.  Assessors  of  Brooklyn,  92  N.  Y.  430. 

This  section  does  not  provide  for  a new  assessment  or  for  a reassessment  of  an 
assessment  canceled  by  the  judgment  of  a court  of  competent  jurisdiction,  and  does 
not  authorize  an  assessment  for  taxes  without  any  notice  to  the  party  sought  to 
be  taxed.  People  ex  rel.  Glen  Head  Realty  Co.  v.  Garland.  72  "Mi - o.  413. 

30.  For  form  of  statement  of  agent  of  non-resident  creditor  having  debts  owing 
to  him,  see  Form  No.  45,  post. 

31.  Debts  due  non-residents  are  personal  property.  See  Tax  Law,  sec.  2,  sub. 
5,  ante,  p.  470.  The  term  debt  as  here  used  includes  sums  of  money  due  from  in- 
habitants of  the  state,  to  the  non-resident  mentioned,  by  certain  and  express  agree- 
ments or  judicial  sentence,  and  for  the  purchase  of  real  estate.  People  ex  rel. 
Stephens  v.  Halsey,  53  Barb.  547;  36  How.  Pr.  487;  affd.  37  N.  Y.  344;  see,  also, 
Redfleld  v.  Supervisors  of  Genesee,  Clarke’s  Ch.  42. 

Ti  e statement  furnished  by  the  agent  is  not  conclusive  upon  the  assessors;  but 
the  county  treasurer  cannot  question  the  amount  fixed  by  the  assessors.  People  ex 
rel.  Stephens  v.  Halsey,  37  N.  Y.  344. 


536 


TAXATION. 


Tax  Law,  § 36. 

day  of  August,  and  make  out  a copy  thereof,  to  be  left  with  one  of  their,  number, 
and  forthwith  cause  a notice  to  be  conspicuously  posted  in  three  or  more  public 
places  in  the  tax  district,  stating  that  they  have  completed  the  assessment-roll,  and 
that  a copy  thereof  has  been  left  with  one  of  their  number  at  a specified  place, 
where  it  may  be  seen  and  examined  by  any  person  until  the  third  Tuesday  of 
August  next  following,  and  that  on  that  day  they  will  meet  at  a time  and  place 
specified  in  the  notice  to  review  their  assessments.32  l'n  any  city  the  notice  shall 


Application  may  be  made  by  agent  of  owner,  if  in  good  faith.  If  agent  fails  to 
appear  before  board  of  assessors,  or  to  answer  material  questions  in  a blank  form 
presented  to  him,  it  is  evidence  that  application  was  not  made  in  good  faith.  The 
agent  must  have  information  as  to  the  facts  so  as  to  be  able  to  answer  questions 
submitted  to  him.  People  ex  rel.  Trojan  Realty  Corp.  v.  Purdy  (1917),  174  App 
Div.  702,  162  N.  Y.  Supp.  56. 

32.  For  form  of  notice  of  completion  of  assessment  roll,  see  Form  No.  46,  post. 

Effect  of  failure  to  give  notice.  Omission  to  give  notice  for  the  time  prescribed 
is  a judictional  defect,  and  the  assessment  is  void.  Wheeler  v.  Mills,  40  Barb.  644; 
see,  also,  Jewell  v.  Van  Steenburgh,  58  N.  Y.  85;  Metcalf  v.  Messenger,  46  Id.  325; 
Overing  v.  Foote,  65  N.  Y.  263;  People  ex  rel.  McGuinness  v.  Lewis,  127  App.  Div. 
107,  119,  111  N.  Y.  Supp.  398. 

Failure  to  publish  notice  of  final  completion  of  assessment  roll  will  relieve  a per- 
son seeking  to  correct  it  from  the  limitation  prescribed  by  section  291  of  the  Tax 
Law,  for  bringing  an  action  to  review  the  assessment.  People  v.  Adams,  125  N.  Y. 
471. 

Poll  tax  assessed  in  December  without  notice  to  persons  taxed  is  invalid.  Burger 
v.  Farrell,  50  Misc.  497,  100  N.  Y.  Supp.  638. 

Sufficiency.  If  the  assessment  made  was  valid  under  the  statute  in  force  at  the 
time,  the  fact  that  the  notice  to  the  taxpayer  incorrectly  describes  the  statute  under 
which  it  was  made  does  not  invalidate  the  assessment.  People  ex  rel.  Barney  v. 
Barker,  35  App.  Div.  486;  54  N.  Y.  Supp.  848;  affd.  159  N.  Y.  569. 

Posting  notices.  A posting  of  the  notices  of  assessors  of  taxes  of  the  completion 
of  the  assessment  roll,  by  a person  other  than  an  assessor,  under  the  assessor’s  direc- 
tion, is  a sufficient  compliance  with  the  statute.  Supervisors  v.  Betts,  25  N.  Y. 
St.  Rep.  660. 

Evidence  of  posting  notices  by  assessors,  of  the  completion  of  the  assessment 
roll  and  of  notice  of  meeting  to  hear  grievances,  coupled  with  the  presumption  that 
obtains  in  respect  to  the  action  of  officials  in  the  line  of  their  duty,  is  sufficient  to 
sustain  a finding  of  fact  in  an  action  of  ejectment  under  a tax  title,  that  such 
notices  were  given.  Supervisors  v.  Betts,  25  N.  Y.  St.  Rep.  660. 

After  completion  and  notice  roll  cannot  be  changed  as  to  persons  or  property 
assessed,  except  upon  complaint.  People  ex  rel.  Chamberlain  v.  Forrest,  96  N.  Y. 
544.  Or,  with  consent  of  person  assessed.  Overing  v.  Foote,  43  Id.  290. 

The  provision  that  the  town  board  of  assessors  shall  complete  the  assessment 
roll  on  or  before  the  first  day  of  August  is  mandatory  and  after  said  date  no  prop- 
erty can  be  legally  added  to  the  roll.  People  ex  rel.  Suburban  Investment  Co.  v. 
Miller,  73  Misc.  214. 

The  verification  of  an  assessment-roll  before  the  third  Tuesday  of  August 

and  the  omission  of  the  assessors  to  meet  on  the  third  Tuesday  of  August,  as  re- 
quired by  law,  are  mere  irregularities  and  not  jurisdictional  defects,  and  a title 
resting  upon  a sale  for  the  taxes  so  assessed  is  validated  by  L.  1885,  ch.  448.  Peo- 
ple v.  Turner,  145  N.  Y.  451,  65  N.  Y.  St.  Rep.  389;  Matter  of  Young,  26  Misc.  186, 
56  N.  Y.  Supp.  861. 

An  assessor  need  not  retain  actual  custody  of  an  assessment  roll  after  it  has 

been  left  with  him.  The  assessors  are  empowered  in  their  discretion  to  designate 
a place  which,  in  their  judgment,  will  be  most  convenient  and  accessible,  where  the 
roll  mav  be  seen  and  examined,  for  instance,  the  town  clprk’s  office.  Rept.  of  Atty. 
Genl.,  July  27,  1910. 

Compensation  of  town  clerk.  The  town  clerk  is  not  entitled  to  compensation  for 
allowing  the  assessment  rolls  of  the  town  to  be  placed  in  his  office  for  examination. 
People  ex  rel.  Gedney  v.  Sippell,  116  App.  Div.  753,  102  N.  Y.  Supp.  69. 


MODE  OF  ASSESSMENT. 


537 


Tax  Law,  § 37. 

conform  to  the  requirements  of  the  law  regulating  the  time,  place  and  manner  of 
revising  assessments  in  such  city.  During  the  time  specified  in  the  notice  the  as- 
sessor with  whom  the  roll  is  left  shall  submit  it  to  the  inspection  of  every  person 
applying  for  that  purpose.  [Tax  Law,  § 36,  as  amended  by  L.  1909,  ch.  403,  and 
L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  5859.] 

Completion  of  asessment-roll ; notice  to  nonresidents. — The  assessors  shall  be- 
tween the  first  and  fifth  day  of  August  mail  a notice  to  each  person  and  corporation 
nonresident  of  their  tax  district,  who  has  filed  with  the  city  or  town  clerk,  on  or 
before  the  fifteenth  day  of  June  preceding,  a written  demand  therefor.  Such  notice 
shall  specify  each  parcel  or  portion  of  real  property  separately  assessed  to  said 
nonresident  person  or  corporation  and  the  assessed  valuation  thereof.  Upon  appli- 
cation made  on  or  before  the  third  Tuesday  of  August  by  any  nonresident  owner 
of  real  estate,  or  by  a corporation  having  real  property  in  more  than  one  tax  dis- 
trict in  the  county,  the  assessors  shall  fix  a time  subsequent  to  the  third  Tuesday 
in  August,  but  not  later  than  the  thirty-first  day  of  August,  for  a hearing  and  to 
review  their  assessment.32a  [Tax  Law,  § 36a,  as  added  by  L.  1916,  ch.  323,  and 
amended  by  L.  1917,  ch.  489.] 

§ 16.  GRIEVANCE  DAY;  STATEMENT  OF  COMPLAINTS;  EFFECT  OF 
FAILURE  TO  TESTIFY;  MINUTES  OF  EXAMINATION  TO  BE 
FILED. 

The  assessors  shall  meet  at  the  time  and  place  specified  in  such  notice,  and  hear 
and  determine  all  complaints  in  relation  to  such  assessments  brought  before  them, 
and  for  that  purpose  they  may  adjourn  from  time  to  time.33  Such  complainants 
shall  file  with  the  assessors  a statement,  under  oath,  specifying  the  respect  in  which 
the  assessment  complained  of  is  incorrect,  which  statement  must  be  made  by 
the  person  assessed  or  whose  property  is  assessed,  or  by  some  person  author- 
ized to  make  such  statement,  and  who  has  knowledge  of  the  facts  stated  there- 
in.34  The  assessors  may  administer  oaths,  take  testimony  and  hear  proofs  in 

32a.  Protest  need  not  be  made  on  grievance  day.  A corporation  having  real  prop- 
erty in  more  than  one  tax  district  in  a county,  which  makes  application  to  review 
its  assessment,  need  not  appear  to  file  protest  on  the  regular  grievance  day,  but 
may  subsequently  make  an  application  provided  it  will  permit  the  fixing  of  a date 
not  later  than  the  thirty-first  day  of  August.  Opinion  of  Atty.  Genl.  (1916),  9 
State  Dept.  Rep.  422. 

33.  Meeting  of  assessors  to  hear  complaints.  The  assessors  are  required  by  the 
above  section  to  meet  at  the  time  and  place  specified  in  the  notice  to  hear  com- 
plaints in  respect  to  assessments  made  by  them.  The  failure  of  the  assessors  to 
meet  on  grievance  day  is  an  irregularity  and  not  a jurisdictional  defect.  Matter  of 
Young,  26  Misc.  186;  56  N.  Y.  Supp.  861;  see,  also,  People  v.  Turner,  145  N.  Y.  451; 
40  N.  E.  400. 

Time  of  making  application  for  review.  Where  it  appeared  that  the  notice  pub- 
lished by  assessors  fixed  August  18th,  the  third  Tuesday  in  August,  as  “ the  first 
day  upon  which  objections”  to  the  assessment  would  be  heard;  that  the  petitioner 
did  not  appear  on  such  day,  but  did  appear  on  August  19th;  that  all  the  members 
of  the  board  of  assessors  were  then  present  but  declined  to  hear  the  petitioner’s 
protest  on  the  ground  that  it  was  made  too  late,  and  that  on  August  18th  they 
had  adjourned  without  fixing  any  other  time  for  the  presentation  of  protests;  it 
was  held  that  in  view  of  the  provisions  of  the  above  section  relative  to  adjourn- 
ments, and  of  the  absence  of  any  provision  in  the  statute  designating  a particular 
day  for  the  presentation  of  protests,  the  assessors  had  jurisdiction  to  entertain  the 
protest  made  by  the  petitioner  on  August  19th.  Matter  of  Cathedral  of  Incarna- 
tion, 91  App.  Div.  543,  86  N.  Y.  Supp.  900. 

34.  For  form  of  application  for  the  correction  of  an  assessment,  see  Form  No. 
47,  post. 

Necessity  of  complaint.  The  assessors  are  without  jurisdiction  to  modify  an  as- 
sessment upon  grievance  day  except  upon  complaint  of  the  party  aggrieved.  People 
ex  rel.  Chamberlain  v.  Forrest,  96  N.  Y.  544.  And  assessors  cannot  at  such  time 
enter  upon  the  roll  an  assessment  for  personal  property  against  a person  whose 
name  was  not  then  on  such  roll,  even  though  the  person  so  assessed  voluntarily  ap- 
peared before  the  board  and  submitted  to  an  examination.  People  ex  rel.  Swart- 
wout  v.  Village  of  Port  Jervis,  23  Misc.  317;  52  N.  Y.  Supp.  59. 


538 


TAXATION. 


Tax  Law,  § 37. 

regard  to  any  such  complaint  and  the  assessment  to  which  it  relates.  If 
not  satisfied  that  such  assessment  is  erroneous,  they  may  require  the  person 

In  the  case  of  an  assessment  made  without  jurisdiction,  the  omission  to  file  a 
written  objection  on  the  day  fixed  by  village  assessors  for  hearing  complaints  pur- 
suant to  this  section  does  not  impair  the  right  of  the  person  or  corporation  assessed 
to  review  the  assessment  by  writ  of  certiorari.  People  ex  rel.  N.  Y.  Cent.  & H.  R. 
R.  Co.  v.  Keno,  61  Misc.  345,  114  N.  Y.  Supp.  1094. 

Who  may  make  statement.  An  attorney  or  agent  may  make  the  statement  under 
this  section.  Matter  of  Corwin  (1892),  135  N.  Y.  245,  32  N.  E.  16;  People  ex 
rel.  West  Shore  R.  R.  Co.  v.  Johnson  (189'8),  29  App.  Div.  75,  51  N.  Y.  Supp.  388; 
People  ex  rel.  Erie  R.  R.  Co.  v.  Webster  (1900),  49  App.  Div.  556,  63  N.  Y.  Supp.  574. 
But  must  have  knowledge  of  facts  stated  therein.  A corporation  which  has  no 
prior  relation  to,  or  knowledge  of,  the  property  assessed  is  not  thus  qualified. 
People  ex  rel.  Floersheimer  v.  Purdy  (1916),  174  App.  Div.  694,  162  N.  Y.  Supp.  70; 
People  ex  rel.  Trojan  Realty  Corp.  v.  Purdy  (1916),  174  App.  Div.  702,  162  N.  Y. 
Supp.  56.  The  application  for  reduction  may  be  made  by  a lay  agent.  Id. 

Sufficiency  of  statement.  The  statement  should  comply  in  all  respects  with  the 
requirements  of  the  statute.  People  v.  Supervisors  of  Westchester  County,  15  Barb. 
607 ; People  v.  Ross,  15  How.  Pr.  63. 

It  is  too  late  on  appeal  for  assessors  to  object  to  the  sufficiency  of  the  complaint 
filed  with  them  on  grievance  day.  People  ex  rel.  Congress  Hall  v.  Ouderkirk,  120 
App.  Div.  650,  105  N.  Y.  Supp.  134. 

In  specifying  a grievance,  if  the  error  complained  of  is  that  the  property  is  as- 
sessed proportionately  higher  than  any  other  property  in  the  town,  particular  in- 
stances need  not  be  given.  People  ex  rel.  Erie  R.  R.  Co.  v.  Webster,  49  App.  Div. 
556;  63  N.  Y.  Supp.  74.  In  this  case  it  was  also  held  that  the  verification  by  the 
tax  agent  of  a railroad  corporation  is  sufficient  without  giving  the  source  of  his 
information.  See,  also.  Matter  of  Corwin,  135  N.  Y.  245;  32  N.  E.  16;  People  ex 
rel.  West  Shore  R.  R.  Co.  v.  Johnson,  29  App.  Div.  75;  51  N.  Y.  Supp.  388. 

Instances  of  inequality  need  not  be  specified.  A complaint  filed  with  tax 
assessors  on  grievance  day  based  upon  the  inequality  of  assessment,  need  not  specify 
instances  of  inequality  in  order  to  become  the  basis  of-  a petition  for  certiorari  to 
review  the  assessment.  People  ex  rel.  N.  Y.  C.  & W.  R.  Co.  v.  Wakeman,  143  App. 
Div.  816. 

WThere  the  statement  filed  on  grievance  day  does  not  specify  the  instanoes  of  in- 
equality, the  courts  have  refused  to  inquire  into  the  question  of  the  inequality,  al- 
though there  is  no  such  requirement  in  this  section.  People  ex  rel.  Hermann  v. 
Kaufman,  121  App.  Div.  599,  106  N.  Y.  Supp.  305. 

Proof  of  inequality. — On  complaint  to  the  assessors  on  grievance  day  to  show 
inequality  of  assessment  as  compared  with  other  pieces  of  property  in  the  neighbor- 
hood of  the  same  general  class  and  character,  it  is  sufficient,  in  the  absence  of  contra- 
diction, to  prove  substantial  similarity  to  make  them  suitable  for  comparison.  A 
landowner  complaining  of  the  inequality  of  the  assessment  as  compared  with  other 
lands  similarly  situated  in  the  neighborhood  may  show  the  inequality  by  comparing 
either  the  gross  assessment  of  his  property  with  the  gross  assessment  of  similar 
properties  on  the  assessment-roll,  or  by  comparing  the  valuation  of  the  land  made 
by  the  assessors  and  the  values  of  other  similar  lands,  and  the  valuation  of  buildings 
made  by  the  assessors  and  the  values  of  other  similar  buildings,  and  this  is  not 
changed  by  Tax  Law,  § 21a,  added  by  Laws  1911,  ch.  117,  which  provides  for  the 
separate  listing  of  the  value  of  lands  exclusive  of  buildings,  and  “ the  total  assess- 
ment only  can  be  reviewed.”  People  ex  rel.  Strong  v.  Hart,  216  N.  Y.  513,  111  N. 
E.  56,  affirming  166  App.  Div.  907,  150  N.  Y.  Supp.  1106. 

Service  of  a notice  or  statement  as  required  by  this  section  is  not  effected  by 
the  delivery  of  said  statement  to  the  clerk,  if  the  board  of  assessors  was  not  in 
session  or  in  or  about  the  office  at  the  time.  People  ex  rel.  Suburban  Investment 
Co.  v.  Miller,  73  Misc.  214. 

Effect  of  statement  and  testimony  as  to  financial  condition  of  corpora- 
tion. Where  a corporation  has  been  assessed  upon  its  capital  and  surplus  pursuant 
to  § 12  of  the  Tax  Law,  and  makes  application  for  a correction  of  the  assessment, 
and  files  a verified  statement  as  to  its  financial  condition,  and  the  president  is  ex- 
amined under  oath  as  to  the  truth  of  such  statement,  the  tax  commissioners  are 
bound  to  accept  the  statement  and  testimony  as  true  in  the  absence  of  evidence 
impeaching  their  verity.  People  ex  rel.  Cons.  Gas  Co.  v.  Feitner,  78  App.  Div.  313, 
79  N.  Y.  Supp.  975. 


MODE  OF  ASSESSMENT. 


539 


Tax  Law,  § 37. 

assessed,  or  his  agent  or  representative,  or  any  other  person,  to  appear 
before  them  and  he  examined  concerning  such  complaint,  and  to  produce 
any  papers  relating  to  such  assessment  with  respect  to  his  property  or  his 

Effect  of  requests  for  relief  from  entire  assessment.  Where  the  relators 
had  asked  the  assessors  to  relieve  them  from  an  assessment  entirely,  whereas  it 
appeared  that  they  were  entitled  to  a reduction  only — held,  that  the  reduction 
should  have  been  granted,  though  costs  should  not  be  imposed  on  the  assessors 
on  reviewing  their  proceedings  denying  the  application,  since  it  had  not  asked  for 
the  reduction  merely.  People  ex  rel.  Western  R.  R.  Co.  v.  Assessors  of  Albany, 
40  N.  Y.  154. 

The  statement  is  not  conclusive,  but  is  to  be  considered  by  the  assessors  with 
such  other  evidence  as  they  possess.  People  ex  rel.  Buffalo  & State  Line  R.  R. 
Co.  v.  Barker,  48  N.  Y.  70.  But  if  such  statement  is  the  only  evidence  before 
the  assessors  they  cannot  disregard  it.  People  ex  rel.  Oswego  Canal  Co.  v. 
Oswego,  5 Hun,  117;  People  ex  rel.  Raplee  v.  Reddy,  43  Barb.  539;  Matter  of 
Plumb,  19  N.  Y.  Supp.  78.  A sworn  statement  showing  the  assets  and  liabilities 
of  a corporation,  which  is  unimpeached,  should  control,  and  the  valuation  should 
be  reduced  accordingly.  People  ex  rel.  Brokaw  Bros.  v.  Feitner,  44  App.  Div. 
278;  60  N.  Y.  Supp.  687. 

The  determination  of  the  correctness  of  the  assessment  is  remitted  to  the 
assessors’  judgment  and  decision  upon  all  the  facts  and  proceedings  including 
the  evidence  of  the  complainant,  and  any  other  facts  known  to  them,  and  brought 
to  their  attention,  bearing  upon  the  complaint.  People  ex  rel.  Equitable  Gas 
Light  Co.  v.  Barker,  144  N.  Y.  94,  101;  39  N.  E.  13.  But  the  judgment  of 
the  assessors  cannot  be  capriciously  or  arbitrarily  exercised,  and  when  the 
proofs  presented  on  the  application  are  full,  uncontradicted  and  credible,  and 
show  the  assessment  to  have  been  erroneous,  they  cannot  arbitrarily  refuse  to 
grant  relief.  People  ex  rel.  Edison  v.  Commissioners,  139  N.  Y.  55;  34  N.  E. 
722. 

Waiver  by  assessors.  If  the  assessors  act  upon  an  application  made  to  them 
for  a reduction  of  an  assessment,  they  thereby  waive  its  defects.  People  ex  rel. 
Eckerson  v.  Christie,  115  N.  Y.  158;  21  N.  Y.  1117. 

In  the  case  of  People  ex  rel.  Scobell  v.  Kelborn,  35  Misc.  600,  it  was  held  that 
the  failure  of  a complainant  to  file  a statement  under  oath,  as  required  by  the 
above  section,  is  waived  by  the  assessors,  where  he  appeared  before  the  assessors 
and  insisted  that  his  valuation  should  be  reduced,  and  they,  without  requiring 
the  statutory  statement,  reduced  the  assessment  to  some  extent. 

Waiver  of  defect  in  affidavit.  Where  an  affidavit  in  support  of  an  application 
for  relief  from  an  assessment  is  considered  by  the  assessors  on  the  merits,  an 
objection  that  it  is  informal,  or  insufficient  proof  of  the  facts  alleged,  not  made 
at  the  time  it  was  presented,  will  not  be  available  to  them  on  certiorari  to  review 
their  proceedings.  People  ex  rel.  Western  R.  R.  Co.  v.  Assessors  of  Albany, 
40  N.  Y.  154. 

Examination  of  claimant;  evidence.  Assessors  should  require  a personal 
examination,  on  oath,  of  all  persons  making  application  for  a reduction  of 
assessment  whenever  practicable.  Rept.  of  Atty.  Genl.  (1895)  210.  If  the 
applicant  states  that  he  cannot  remember  to  whom  the  debts  he  seeks  to  have 
deducted  from  his  assessment  are  due,  nor  the  several  amounts  thereof,  the 
assessors  should  disregard  his  evidence.  Vose  v.  Willard,  47  Barb.  320. 

Applicant  must  answer  any  pertinent  relevant  question,  else  the  assessors 
will  be  justified  in  refusing  the  application.  Rept.  of  Atty.  Genl.  (1895)  150. 

A relator  seeking  to  obtain  a reduction  of  her  personal  assessment  refused 


540 


TAXATION. 


Tax  Law,  § 37. 

residence  for  the  purpose  of  taxation.35  The  assessors  shall,  after  said 
examination,  fix  the  value  of  the  property  of  the  complainant  and  for 
that  purpose  may  increase  or  diminish  the  assessment  thereof.  If  any 
such  person,  or  his  agent  or  representative,  shall  wilfully  neglect  or 
refuse  to  attend  and  be  so  examined,  or  to  answer  any  material  question 
put  to  him,  such  person  shall  not  be  entitled  to  any  reduction  of  his 
assessments.36  Minutes  of  the  examination  of  every  person  examined 


to  answer  concerning  the  disposition  of  personal  property  formerly  owned  by 
her  when  questioned  by  the  assessors.  The  inquiry  being  justifiable  to  enable 
them  to  judge  of  the  present  amount  of  her  personality,  a refusal  by  them  to 
reduce  the  assessment  would  not  afford  ground  for  review.  People  ex  rel.  Green 
v.  Hall,  83  Hun,  375.  In  passing  upon  an  application  for  a reduction  of  an 
assessment  for  personality,  the  assessors  act  judicially  and  should  be  governed 
by  the  evidence,  though  they  may  exercise  their  knowledge  and  judgment  where 
the  value  is  to  be  ascertained  upon  an  assumed  basis  of  estimate.  Idem. 

The  evidence  produced  by  the  owner  seeking  to  correct  an  assessment,  if 
uncontradicted,  must  control.  People  ex  rel.  Amer.  Linen  Thread  Co.  v. 
Howland,  61  Barb.  273.  Where  a corporation  presents  evidence  to  the  taxing 
officers  as  to  the  value  of  its  assets,  full  and  complete,  so  as  to  establish  the  facts 
upon  which  its  claim  for  reduction  rests,  and  it  is  not  contradicted  by  facts 
within  their  knowledge,  and  no  good  reason  exists  for  questioning  its  truth, 
refusal  to  decide  in  accordance  with  such  evidence  is  legal  error.  People  ex  rel. 
German,  etc.,  Co.  v.  Barker,  75  Hun,  6. 

The  burden  of  proving  over-valuation  is  upon  the  taxpayer.  People  ex  rel. 
Fargo  v.  Murphy,  32  N.  Y.  St.  Rep.  780;  10  N.  Y.  Supp.  377. 

35.  Attendance  personally  required.  A taxpayer  who  claims  a reduction 
must  attend  upon  the  assessors  in  person,  submit  to*  an  examination  under  oath, 
and  subscribe  to  the  answers,  and  an  affidavit  taken  before  a notary  public  with- 
out such  attendance  is  not  sufficient.  People  ex  rel.  Mercer  v.  Maynard,  7 Misc. 
295,  58  N.  Y.  St.  Rep.  546,  28  N.  Y.  Supp.  141;  People  ex  rel.  Brown  v.  O’Rourke, 
31  App.  Div.  583,  52  N.  Y.  Supp.  427. 

Failure  to  appear.  In  case  a taxpayer  does  not  appear  before  the  assessors  and 
object  to  an  assessment,  the  taxpayer  loses  his  right  to  a review  of  the  assessment 
by  a certiorari.  People  ex  rel.  Horton  v.  Ferguson,  120  App.  Div.  563,  105  N.  Y. 
Supp.  388;  People  ex  rel.  West  Shore  R.  R.  Co.  v.  Adams,  125  N.  Y.  471;  26  N.  E. 
746;  People  ex  rel.  Western  Union  Tel.  Co.  v.  Dolan,  126  N.  Y.  166,  27  N.  E.  269; 
People  ex  rel.  Trojan  Realty  Corp.  v.  Purdy  (1917),  174  App.  Div.  702,  162  N.  Y. 
Supp.  56;  see,  also,  cases  cited  in  Cumming  & Webster’s  Annotated  Tax  Laws 
under  sec.  250. 

The  omission  of  a person  claiming  to  be  a non-resident  of  the  town  to  appear  be- 
fore the  assessors  and  object  to  an  assessment  of  his  personal  property  will  not 
deprive  him  of  the  right  to  review  the  action  of  the  assessors  by  certiorari.  People 
ex  rel.  Paddock  v.  Lewis,  55  Hun  521,  29  N.  Y.  St.  Rep.  606,  9 N.  Y.  Supp.  333. 
See  Mygatt  v.  Washburn,  15  N.  Y.  319;  Clark  v.  Norton,  49  Id.  247;  Westfall  v. 
Preston,  Id.  354.  This  last  case  was  followed  in  Kane  v.  City  of  Brooklyn,  15 
N.  Y.  St.  Rep.  872,  1 N.  Y.  Supp.  306  (Gen.  T.) ; People  ex  rel.  Buffalo  R.'  R.  v. 
Fredericks,  48  Barb.  176;  Clark  v.  Norton,  49  N.  Y.  247.  See  Livingston  v.  Hollen- 
beck, 4 Barb.  9. 

36.  Refusal  to  testify.  Where  a New  Jersey  corporation,  engaged  in  business 
within  this  state,  makes  application  for  a correction  of  an  assessment,  the  com- 
missioners may  take  into  consideration,  in  disposing  of  the  application,  the  wilful 
refusal  of  the  president  of  the  corporation  to  testify  in  regard  to  transactions  of 
the  company  in  the  state  of  New  Jersey.  People  ex  rel.  Claflin  Co.  v.  Feitner, 
58  App.  Div.  468;  69  N.  Y.  Supp.  410. 


MODE  OF  ASSESSMENT. 


541 


Tax  Law,  §§  297,  38. 

by  the  assessors  upon  the  hearing  of  any  such  complaint  shall  he  taken 
and  filed  in  the  office  of  the  town  or  city  clerk.  [Tax  Law,  § 37,  as 
amended  by  L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  5860.] 

§ 17.  APPLICATION  TO  COUNTY  COURT  FOR  APPORTIONMENT 
OF  TAXES  AND  ASSESSMENT;  NOTICE  TO  ASSESSORS; 
COLLECTOR  TO  CHANGE  ASSESSMENT-ROLL  UPON  ORDER 
OF  COURT. 

When  the  premises  of  one  person  shall  have  been  wrongfully  assessed 
and  taxed  in  with  the  premises  of  another,  the  person  aggrieved  thereby 
may,  upon  application  to  the  county  court  of  the  county  in  which  the 
property  is  situated,  on  petition  duly  verified,  and  on  eight  days’  notice  to 
the  assessors  of  the  town  in  which  the  premises  are  situated,  and  to  the 
party  whose  premises  are  included  in  such  wrongful  assessment,  have  such 
assessment  and  tux  apportioned  by  such  county  court.  The  county  court 
shall  take  such  evidence  as  may  be  necessary  to  determine  the  facts,  and 
shall  fix  and  specify  the  amount  of  the  assessment  and  tax  properly  charge- 
able to  the  petitioner’s  property,  and  to  the  other  party  chargeable  therewith. 
The  collector  of  the  town,  upon  receiving  a copy  of  the  order  of  the 
county  court,  shall  forthwith  change  the  assessment  roll  and  tax  to  conform 
to  such  order,  and  shall  receive  the  amount  apportioned  upon  the  premises 
of  the  petitioner  in  full  for  the  tax  upon  such  property.  [Tax  Law,  § 297 ; 
B.  C.  & G.  Cons.  L.,  p.  6050.] 

§ 18.  OATH  VERIFYING  ASSESSMENT-ROLL. 

When  the  assessors,  or  a majority  of  them,  shall  have  completed  their 
roll,  they  shall  severally  appear  before  any  officer  of  their  county,  authorized 
by  law  to  administer  oaths,  and  shall  severally  make  and  subscribe  before 
such  officer  an  oath  in  the  following  form:37  “We,  the  undersigned,  do 
severally  depose  and  swear  that  we  have  set  down  in  the  foregoing  assess- 
ment-roll all  the  real  estate  situated  in  the  tax  district  in  which  we  are 
assessors,  according  to  our  best  information ; and  that,  with  the  exception 
of  those  cases  in  which  the  value  of  the  said  real  estate  has  been  changed 


37.  References.  An  assessor  may  make  and  subscribe  the  oath  required  by 
the  above  section  before  a judge,  clerk,  deputy  clerk,  or  a special  deputy  clerk, 
of  a court,  a notary  public,  mayor,  justice  of  the  peace,  a city  magistrate  of  any  of 
the  cities  of  this  state,  or  police  justice  thereof,  surrogate,  special  county  judge, 
special  surrogate,  county  clerk,  deputy  county  clerk,  special  deputy  county  clerk, 
or  commissioner  of  deeds,  within  the  district  in  which  the  officer  is  authorized  to> 
act.  Code  Civ.  Proc.,  sec.  842,  as  amended  by  L.  1915,  ch.  146.  A false  oath  ia 
punishable  as  perjury  under  section  1620  of  the  Penal  Law. 


TAXATION. 


542 

. Tax  Law,  § 38. 

by  reason  of  proof  produced  before  us,  and  with  the  exception  of  those 
cases  in  which  the  value  of  any  special  franchise  has  been  fixed  by  the 
state  tax  commission,  we  have  estimated  the  value  of  the  said  real  estate 
at  the  sums  which  a majority  of  the  assessors  have  decided  to  be  the  full 
value  thereof ; and,  also,  that  the  said  assessment-roll  contains  a true 
statement  of  the  aggregate  amount  of  the  taxable  personal  estate  of  each 
and  every  person  38  named  in  such  roll  over  and  above  the  amount  of 
debts  due  from  such  persons,  respectively,  and  excluding  such  stocks  as 
are  otherwise  taxable,  and  such  other  property  as  is  exempt  by  law  from 
taxation,  at  the  full  value  thereof,  according  to  our  best  judgment  and 
belief/’  which  oath  shall  be  written  or  printed  on  said  roll,  signed  by  the 
assessors  and  certified  by  the  officer.39  [Tax  Law,  § 38,  as  amended  by 
L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  5864.] 

38.  “ Person  ” includes  corporation.  The  word  “ person  ” as  used  in  this 

section  in  the  form  of  oath  includes  corporation,  and  the  omission  from  the  oath 
of  the  words  “ or  corporation  ” does  not  render  the  assessment  void.  Matter 

of  Adler  Bros.  & Co.,  76  App.  Div.  571,  78  N.  Y.  Supp.  690,  affd.  174  N.  Y. 

287. 

39.  Sufficiency  of  affidavit.  An  oath  which  is  substantially  in  the  form 

prescribed  by  statute  will  be  sufficient.  Sherrill  v.  Hewitt,  13  N.  Y.  Supp.  498; 
36  N.  Y.  St.  Rep.  321;  People  ex  rel.  Parsons  Mfg.  Co.  v.  Moore,  11  N.  Y. 

St.  Rep.  859;  Buffalo  & State  Line  R.  R.  Co.  v.  Supervisors,  48  N.  Y.  93. 

But  any  material  deviation  from  the  form  prescribed  by  the  statute  will 
invalidate  the  assessment.  Shattuck  v.  Bascom,  105  N.  Y.  39;  Inmann  v.  Cole- 
man, 37  Hun,  170.  A verification  by  an  assessor  to  the  effect  “that  the  fore- 
going assessment  is  just  and  correct  to  the  best  of  his  knowledge  and  belief” 
is  fatally  lefective.  Lord  v.  Cooper,  19  App.  Div.  535;  46  N.  Y.  Supp.  519. 

Where  the  assessment-roll  was  not  signed  by  the  assessors  at  the  end  of  the 
valuation  of  the  property,  but  the  certificate  required  by  statute  (1  R.  S.,  3d 
ed.,  447,  § 26)  was  written  upon  the  roll  and  signed  by  the  assessors, — held  that 
such  signing  satisfied  the  statute.  Chamberlain  v.  Taylor,  36  Hun  24. 

The  certificate  of  the  assessors  stated  that  they  had  estimated  the  value  of 
the  real  estate  at  a sum  at  which  they  would  appraise  the  same  in  payment  of 
a just  debt  due  from  a solvent  “ creditor.”  Held,  that  the  substitution  of 
“ creditor  ” for  “ debtor,”  as  it  appeared  in  the  copy,  did  not  vitiate  the  assess- 
ment. Id. 

An  oath,  “ we  have  estimated  the  value  of  the  said  real  estate  at  the  sums 
which  a majority  of  the  assessors  have  decided  to  be  the  fair  proportionate  value 
thereof,  and  at  which,  in  the  same  ratio,  they  would  appraise  the  same  in 
payment  of  a just  debt  due  from  a solvent  debtor,” — held  to  be  fatally  defective. 
Beach  v.  Hayes,  58  How.  Pr.  17. 

An  affidavit  of  assessors  to  their  roll  stated  that  they  had  estimated  the  real 
estate  “ at  the  assessed  value  thereof  ” instead  of  “ the  full  and  true  value 
thereof,”  and  that  the  roll  contained  a true  statement  of  the  personal  property, 

“ according  to  our  best  knowledge  and  belief  ” instead  of  “ judgment  and 
belief.”  Held,  that  the  affidavit  was  fatally  defective,  and  any  tax  levied  upon 
the  roll  was  void.  Hinckley  v.  Cooper,  22  Hun  253. 


MODE  OF  ASSESSMENT. 


543 


Tax  Law,  § 39. 

§ 19.  ASSESSMENT-ROLL  WHEN  COMPLETED  AND  VERIFIED  TO 

BE  OPEN  TO  INSPECTION;  NOTICE  THEREOF,  ROLL  TO  BE 
DELIVERED  TO  SUPERVISOR. 

In  cities  the  assessment-roll  when  thus  finally  completed  and  verified 
shall  be  filed  on  or  before  September  first,  in  the  office  of  the  city  clerk, 
there  to  remain  for  fifteen  days  for  public  inspection.  The  assessors 
shall  forthwith  cause  a notice  to  be  posted  conspicuously  in  at  least  three 
public  places  in  the  tax  district  and  to  be  published  in  one  or  more  news- 
papers, if  any,  published  in  the  city,  that  such  assessment  roll  has  been 
finally  completed  and  stating  that  it  has  been  so  filed  and  will  be  open  to 


Omission  of  venue  to  assessors’  verification, — held  immaterial,  since  it  is  not 
an  affidavit,  but  an  oath  in  a prescribed  form.  Though  it  did  not  appear  that 
the  justice  before  whom  it  was  sworn  was  a justice  of  the  town,  held,  that,  in 
the  absence  of  proof  to  the  contrary,  it  would  be  presumed  that  he  was. 
Coleman  v.  Shattuck,  62  N.  Y.  348,  affd.  2 Hun  497,  5 Th.  & C.  34. 

The  oath  of  assessors  on  one  side  of  the  roll,  under  the  entry  of  assessments 
on  residents, — held  to  cover  the  assessment  of  non-resident  lands  on  the  other 
side  of  the  leaf,  in  the  absence  of  proof  that  when  sworn  to  the  roll  did  not 
contain  the  latter  entries.  Id. 

How  verified.  Where  two  assessors  verify  the  assessment-roll  it  is  not 
fatal  to  the  validity  of  the  roll,  although  they  omit  to  certify  the  name  of  the 
delinquent  assessor,  and  the  reason  for  his  not  performing  his  duties.  Coleman 
v.  Shattuck,  62  N.  Y.  348.  But  see  Bellinger  v.  Gray,  51  N.  Y.  610.  A verification 
made  at  any  time  before  the  assessment-roll  has  been  acted  upon  by  the  board 
of  supervisors  satisfies  the  statute.  Rome,  Watertown  & O.  R.  R.  Co.  v.  Smith, 
39  Hun,  332;  affd.  101  N.  Y.  684.  But  the  verification  cannot  be  made  before 
the  expiration  of  the  time  fixed  for  the  final  review  and  correction  of  the  roll. 
If  the  jurat  shows  otherwise,  the  supervisors  cannot  levy  the  tax.  Westfall  v. 
Preston,  49  N.  Y.  459;  but  see  People  v.  Turner,  145  N.  Y.  451;  40  N.  E.  400, 
where  it  was  held  that  a verification  before  the  day  of  grievance  was  a mere 
irregularity  and  not  a jurisdictional  defect.  If  the  verification  is  signed,  but  the 
assessment-roll  itself  is  not  signed,  the  defect  constitutes  a mere  irregularity 
and  is  not  jurisdictional.  Ensign  ▼.  Barse,  107  N.  Y.  329.  The  neglect  of  a justice 
of  the  peace  to  affix  his  signature  to  a jurat  of  assessors  is  at  most  an  irregularity 
and  does  not  vitiate  subsequent  proceedings  under  the  assessment.  Saranac  Land 
and  Timber  Co.  v.  Roberts,  208  N.  Y.  288. 

The  custom  is  much  too  prevalent  among  assessors  of  assessing  real  estate  at 
less  than  its  full  value  in  direct  violation  of  the  statute.  Not  only  do  assessors  in 
following  such  custom  violate  their  official  duties,  but  consciously  or  unconsciously 
swear  to  an  untruth  when  in  the  verification  of  the  ass,  ssment-ruil  they  make  oa..i 
that  they  “ have  estimated  the  value  of  the  said  real  estate  at  sums  which  a majority 
of  the  assessors  have  decided  to  be  the  full  value  thereof.”  People  ex  rel.  Congress 
Ball  v.  Ouderkirk,  120  App.  Div.  650,  105  N.  Y.  Supp.  134. 

l’he  attestation  of  the  assessment-rolls  by  the  assessors  in  the  form  prescribed  by 
law'  is  a judicial  act  of  unquestionable  verity,  which  they  will  not  be  heard  to  im- 
peach. Brooklyn  El.  R.  R.  Co.  v.  Brooklyn,  16  Misc.  416,  38  N.  Y.  Supp.  154,  affd. 
11  App.  Div.  127,  42  N.  Y.  Supp.  683. 

Roll  in  three  parts.  Assessment-roll  was  made  up  in  three  parts  and  was  in 
that  form  on  review  day,  when  the  relator  was  heard,  and  afterward  the  parts  were 
engrossed  in  a single  roll  duly  verified.  Held,  that  the  detachment  of  the  sheets 
was  not  an  irregularity  or  a departure  from  the  statute.  People  ex  rel.  D.,  L.  & 
W.  R.  R.  Co.  v.  Clapp,  64  Hun,  547,  46  N.  Y.  St.  Rep.  509,  19  N.  Y.  Supp.  531. 

Relevy  by  legislature.  Where  a tax  was  void  by  reason  of  the  omission  of  the 
assessors  to  annex  to  the  assessment-roll  the  sworn  statement  required  by  law, 
the  legislature  has  power  to  relevy  the  tax  with  interest.  People  ex  rel.  Flower 


544  ' 


TAXATION. 


Tax  Law,  §§  39,  40, 


public  inspection.  At  the  expiration  of  such  fifteen  days,  the  city  clerk 
shall  deliver  such  roll  to  a supervisor  of  the  tax  district  embraced  therein. 
In  towns,  assessors  shall  prepare  and  verify  the  assessment-roll,  and  make 
and  certify  one  copy  thereof.  When  the  assessment  roll  shall  have  been 
thus  finally  completed  and  verified  and  the  copy  thereof  certified  the 
aassessors  shall,  on  or  before  the  fifteenth  day  of  September,  file  the  said 
certified  copy  in  the  office  of  the  town  clerk,  to  remain  for  public  inspection 
until  delivered  by  the  town  clerk  to  the  supervisor  of  the  town  as  hereinafter 
provided.40  The  assessors  shall  forthwith  cause  a notice  to  be  posted  con- 
spicuously in  at  least  three  public  places  in  the  tax  district  and  to  be  pub- 
lished in  one  or  more  newspapers,  if  any,  published  in  the  town,  that  such 
assessment  roll  has  been  finally  completed  and  stating  that  such  certified 
copy  has  been  so  filed.41  The  original  assessment  roll  shall  on  or  before 
the  first  day  of  October  be  delivered  by  the  assessors  to  a supervisor  of  the 
tax  district  embraced  therein.  The  certified  copy  of  the  assessment-roll 
on  file  in  the  town  clerks’s  office,  as  heretofore  provided,  shall  on  the  first 
day  of  November  be  delivered  by  the  town  clerk  to  a supervisor  of  the  tax 
district  embraced  therein  who  shall  make  such  corrections  as  may  be  made 
in  the  original  roll  by  the  board  of  supervisors  and  shall  extend  the  tax 
thereon  so  that  such  roll  shall  be  in  all  respects  a copy  of  the  original  roll 
delivered  to  the  collector  and  said  certified  copy  shall  thereafter  be  returned 
by  the  supervisor  to  the  office  of  the  town  clerk  there  to  remain  as  a public 
record.  Notwithstanding  the  provisions  of  this  section,  the  board  of  super- 
visors of  any  county  may  require  additional  copies  of  the  assessment-rolls 
of  the  towns  of  such  county  to  be  made,  and  specify  by  whom  such  addi- 
tional copies  shall  be  made,  the  date  when  the  certified  copy  of  the  town 
assessment-roll  shall  be  filed  in  the  office  of  the  town  clerk,  and  the  date 
when  the  original  assessment  roll  shall  be  delivered  to  the  supervisor  of  the 
town.  [Tax  Law,  § 39,  as  amended  by  L.  1916,  ch.  323,  and  L.  1917,  ch. 
496,  and  L.  1918,  ch.  279;  B.  C.  & G.  Cons.  L.,  p.  5867.] 

§ 20.  ASSESSORS  TO  APPORTION  VALUATION  OF  RAILROAD, 
TELEGRAPH,  TELEPHONE,  PIPE  LINE,  WATER  OR  GAS 
COMPANIES  AND  OF  SPECIAL  FRANCHISES  AMONG 
SCHOOL  AND  SPECIAL  DISTRICTS. 

The  assessors  of  each  town  or  city  in  which  a railroad,  telegraph,  tele- 


v.  Bleckwenn,  55  Hun  1G91,  27  N.  Y.  St.  Rep.  593,  7 N.  Y.  Supp.  914,  affd.  129 
N.  Y.  637.  Followed  In  Collins  v.  Long  Island  City,  31  N.  Y.  St.  Rep.  460,  9 N.  Y. 
Supp.  866;  Vanderventer  v.  Long  Island  City,  32  N.  Y.  St.  Rep.  1054,  10  N.  Y. 
Supp.  801. 

40.  Time  of  filing.  The  requirement  that  an  assessment-roll  should  be  filed 
with  the  town  clerk  on  or  before  the  fifteenth  day  of  September,  is  directory  merely, 
and  when  the  roll  is  completed  and  verified,  a delay  in  filing  it  does  not  vitiate  the 
assessment.  People  ex  rel.  Rome,  Watertown  & O.  R.  R.  Co.  v.  Haupt,  104  N.  Y. 
377;  10  N.  E.  871. 

41.  The  provision  as  to  the  publication  of  notice  of  the  completion  and  filing  of 

the  assessment-roll  is  directory  merely,  its  purpose  being  to  set  running  the  fifteen 
days  within  which  to  sue  out  a writ  of  certiorari.  People  ex  rel.  Sweet  v.  Blake, 
72  Misc.  646. 

For  form  of  notice  of  filing  completed  assessment-roll  with  clerk,  see  Form  No. 
48.  post. 


MODE  OF  ASSESSMENT. 


545 


Tax  Law,  § 41. 

phone,  water  pipe  line,  or  gas  company,  including  a company  engaged  in 
the  business  of  supplying  natural  gas,  is  assessed  by  them  or  by  tiie  tax 
commission  upon  property  lying  in  more  than  one  school  district  or  in 
one  or  more  special  districts  in  which  a tax  is  levied  for  district  pur- 
poses shall  after  the  time  fixed  for  hearing  complaints  and  action  thereon 
and  prior  to  the  final  completion  of  the  roll,  pursuant  to  section  thirty- 
nine  of  this  chapter,  apportion  the  assessed  valuation  of  the  property  of 
each  of  such  corporations  so  made  by  them  or  by  the  tax  commission  among 
such  school  and  special  districts.  Such  apportionments  shall  be  entered 
by  the  assessors  in  the  appropriate  column  of  the  assessment-roll  and  a cer- 
tificate thereof  signed  by  the  assessors  or  a majority  of  them  shall  be  filed 
with  the  town  or  city  clerk  within  five  days  thereafter,  and  thereupon  the 
valuations  so  apportioned  shall  become  the  valuations  of  such  property  in 
such  districts  for  the  purpose  of  taxation  for  the  ensuing  year.  The  town 
clerk  shall  furnish  the  trustees  of  school  districts  a certified  statement  of 
the  valuations  apportioned  to  their  respective  districts. 

In  case  of  the  failure  of  the  assessors  to  act,  a supervisor  of  the  town 
or  city  shall  make  such  apportionment  on  request  of  either  the  trustee 
of  any  school  district  or  the  officers  of  any  special  district  or  the  corpora- 
tion assessed.  In  case  of  any  alteration  in  any  school  district  affecting  the 
valuation  of  such  property,  the  officer  making  the  same  shall  fix  and  deter- 
mine the  valuations  in  the  districts  affected  for  the  current  year..  [Tax 
Law,  § 40,  as  amended  by  L.  1912,  ch.  271,  L.  1913,  ch.  556,  and  L.  1916, 
chs.  134,  323;  B.  C.  & G.  Cons.  L.,  p.  5868.] 

§21.  FORMS  PRESCRIBED  BY  TAX  COMMISSIONERS;  NEGLECT 
OR  OMISSION  OF  DUTY  BY  ASSESSORS;  PENALTY. 

The  assessors,  in  the  execution  of  their  duties,  shall  use  the  forms  and 
follow  the  instructions  and  orders  transmitted  to  them,  from  time  to 
time,  by  the  tax  commission.  If  any  assessor  shall  neglect  or  omit  to 
perform  any  duty,  the  other  assessors  shall  perform  such  duty  and  shall 
certify  upon  the  assessment  roll  the  name  of  the  delinquent  assessor, 


If  the  notice  is  not  given  as  prescribed  in  the  above  section  the  time  for 
the  application  for  the  writ  of  certiorari  is  unlimited.  People  ex  rel.  Swartwout 
v.  Village  of  Port  Jervis,  23  Mise.  317;  52  N.  Y.  Supp.  59. 

41a.  Time  of  filing  certificate  of  apportionment. — The  provision  of  this 
section  regulating  the  time  within  which  a certificate  of  apportionment  must  be  filed, 
is  directory  merely.  People  ex  rel.  Troy  Gas  Co.  v.  Hall,  143  App.  Div.  756. 

42.  Apportionment  should  not  be  indicated  on  town  roll.  It  seems,  that 
Laws  1867,  ch.  694,  from  which  the  above  section  was  originally  revised,  was  intended 
to  regulate  valuation  in  towns  of  railroad  property  for  purposes  of  school 
district  taxation  only,  and  that  the  statute  does  not  contemplate  that  the  appor- 
tionment therein  provided  to  be  made  should  be  indicated  on  the  town  assess- 
ment-roll, but  by  certificate  of  the  assessors  to  be  prepared  and  filed  in  the  office 
of  the  town  clerk  after  the  roll  is  completed.  People  v.  Adams,  125  N.  Y.  St. 
471,  36  N.  Y.  St.  Rep.  166. 

For  form  of  apportionment,  see  Form  No.  49,  post. 


546 


TAXATION 


Tax  Law,  § 42;  Penal  Law,  § 2321. 

stating  therein  the  cause  of  such  omission,  and  the  assessment  roll,  when 
otherwise  made  and  completed  in  accordance  with  the  requirements  of 
or  under  this  chapter  shall  be  deemed  to  be  the  assessment  roll  of  the 
tax  district.43  If  the  assessors  shall  neglect  to  meet  for  the  purpose  of 
hearing  grievances  any  person  aggrieved  by  the  assessment  may  appeal 
to  the  board  of  supervisors  at  its  next  meeting,  which  shall  have  the  same 
power  to  review  and  correct  such  assessment  as  the  assessors  have  under 
this  article.  If  any  assessor  shall  refuse  or  neglect  to  perform  any  duty 
or  do  any  act  required  of  him  by  this  chapter,  he  shall  forfeit  to  the  tax 
district  the  sum  of  fifty  dollars,  to  be  recovered  by  the  tax  commission. 
[Tax  Law,  § 41,  as  amended  by  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L., 
p.  5868.] 

§ 22.  SUBDIVISION  OF  LOTS  MAY  BE  ABANDONED;  THEREAFTER 
LOTS  TO  BE  TREATED  AS  A SINGLE  TRACT. 

Whenever  more  than  ten  years  shall  have  elapsed  after  the  subdivision 
of  any  tract  of  land  into  lots,  plots  or  sites,  with  or  without  proposed 
streets,  the  owner  of  such  tract,  or  of  any  part  thereof  composed  of  two  or 
more  contiguous  lots  may,  by  an  instrument  in  writing,  duly  executed  and 
acknowledged  and  describing  such  land,  disclaim  and  abandon  such  sub- 
division including  any  streets  not  opened,  accepted  or  used  by  the  public 
and  which  are  not  necessary  for  the  use  of  an  owner  or  occupant  of  any 
part  of  said  tract ; and  thereupon  said  subdivision,  as  to  the  lands  de- 
scribed in  such  instrument,  shall  be  deemed  abandoned  and  of  no  effect ; 
and  thereafter  the  lands  described  therein  shall,  for  the  purpose  of  taxa- 
tion, be  regarded  as  a single  tract.  If  a map  of  such  subdivision  has 
been  filed  in  the  office  of  the  county  clerk  or  register  of  deeds,  such  in- 
strument may  be  recorded  in  said  office,  and  a notice  of  such  record  shall 
thereupon  be  indorsed  by  the  clerk  or  register  upon  such  map.  This 
section  shall  not  apply  to  a county  embracing  a portion  of  the  forest 
preserve.  [Tax  Law,  § 42 ; B.  C.  & G.  Cons.  L.,  p.  5869.] 

§ 23.  MAKING  FALSE  STATEMENT  IN  REFERENCE  TO  TAXES. 

A person,  who,  in  making  any  statement,  oral  or  written,  which  is 
required  or  authorized  by  law  to  be  made  as  the  basis  of  imposing  any 
tax  or  assessment,  or  of  an  application  to  reduce  any  tax  or  assessment, 
wilfully  makes,  as  to  any  material  matter,  any  statement  which  he  knows 
to  be  false,  is  guilty  of  a misdemeanor.  [Penal  Law,  § 2321 ; B.  C.  & 
G.  Cons.  L.,  p.  4106.] 

43.  For  form  of  certificate  of  neglect  or  omission  of  duty  of  one  of  the  as- 
sessors, see  Form  No.  50,  post. 

An  assessment  roll  is’  not  invalid  which  is  signed  by  two  assessors,  because  of 
the  failure  to  make  the  certificate  required  by  the  above  section.  Coleman 
v.  Shattuck,  62  N.  Y.  348. 


ASSESSMENT  OF  SPECIAL  FRANCHISES. 


547 


Explanatory  note. 


CHAPTER  XXXY. 

ASSESSMENT  OF  SPECIAL  FRANCHISES. 

EXPLANATORY  NOTE. 


Special  Franchises. 

A special  franchise  has  been  defined  as  the  right  granted  to  a cor- 
poration to  construct,  maintain  or  operate  in  a public  highway  some 
structure  intended  for  a public  use,  which  except  for  the  grant  would 
he  a trespass.  (People  ex  rel.  Metropolitan  St.  Ry.  Co.  v.  Tax  Com- 
missioners, 174  X.  Y.  417,  affd.  199  U.  S.  1.) 

Chapter  712  of  the  Laws  of  1899,  known  as  the  Special  Franchise 
Act,  amended  the  Tax  Law  by  declaring  that  the  right,  authority  or 
permission  to  construct,  maintain  or  operate  any  structure  intended  for 
public  use,  “ in,  under,  above,  on  or  through  streets,  highways  or  public 
places/’  such  as  railroads,  gas  pipes,  water  mains  poles  and  wires  for 
electric,  telephone  and  telegraph  lines,  and  the  like,  is  a special  fran- 
chise. This  act  was  consolidated  as  a part  of  the  present  Tax  Law,  and 
is  included  in  this  chapter. 

Prior  to  the  enactment  of  the  Act  of  1899  special  franchises  were 
never  lawfully  assessed  as  either  real  or  personal  property  by  state  or 
local  authority.  For  the  first  time  in  the  history  of  the  state  this  act 
authorized  the  assessment  or  valuation  for  the  purpose  of  general  taxa- 
tion of  all  special  franchises  by  a state  board  of  tax  commissioners  ap- 
pointed by  the  governor.  For  the  purpose  of  such  taxation  a special 
franchise  is  made  real  estate  and  is  “ deemed  to  include  the  value  of  the 
tangible  property  of  a person,  copartnership,  association  or  corporation 
situated  in,  upon,  under  or  above  any  street,  highway,  public  place  or 
public  waters  in  connection  with  the  special  franchise,”  and  taxed  as  a 
part  thereof. 


548 


TAXATION. 


Explanatory  note. 

A special  franchise  includes  nothing  hut  what  is  in  the  street,  directly 
or  indirectly,  and  excludes  power  houses,  depots  and  all  structures  with- 
out the  lines  of  the  street.  The  taxes  thus  imposed  are  for  general  pur- 
poses, are  collected  in  the  same  way,  and  used  for  the  same  objects  as 
other  taxes  upon  the  general  assessment-roll. 

This  act  has  been  attacked  upon  the  ground  that  it  is  unconstitutional 
since  it  deprives  the  local  assessing  officers  of  their  rightful  jurisdiction 
over  local  assessments,  but  its  validity  has  been  fully  sustained  by  the 
Court  of  Appeals.  (People  ex  rel.  Metropolitan  St.  Ry.  Co.  v.  Tax 
Commissioners,  Supra. ) 

Assessment  by  State  Tax  Commissioners. 

The  town  assessors  have  no  duties  to  perform  in  respect  to  determining 
the  values  of  special  franchises.  The  state  board  of  tax  commissioners 
are  required  to  determine  the  values  of  such  franchises  in  each  town, 
and  file  a statement  thereof  with  the  town  clerk  within  thirty  days  pre- 
ceding the  first  day  of  July  in  each  year. 

Duties  of  Assessors. 

The  town  clerk  must,  within  five  days  after  the  receipt  of  such  state- 
ment, deliver  a certified  copy  thereof  to  the  assessors.  The  assessors 
must  then  enter  the  valuation  of  each  special  franchise  as  determined 
by  the  state  board  in  the  proper  column  of  the  assessment-roll,  opposite 
the  name  of  the  owner  of  such  franchise.  The  assessors  must  apportion 
the  valuation  of  such  special  franchise  among  the  several  school  dis- 
tricts of  the  town  in  the  same  manner  as  railroad,  telegraph  and  tele- 
phone property  is  apportioned. 


Section  1.  Report  to  state  board  of  tax  commissioners. 

2.  Special  franchise;  full  valuation  and  equalization  by  tax  commissioners. 

3.  Hearing  on  special  franchise  valuations;  notice. 

4.  Certiorari  to  review  assessment. 

5.  Tax  commissioners  to  appear  by  counsel;  employment  of  experts. 

6.  Deduction  from  special  franchise  tax  for  local  purposes. 

7.  Special  franchise  tax  not  to  affect  otner  tax. 


ASSESSMENT  OF  SPECIAL  FRANCHISES. 


549-55:1 


Tax  Law,  § 44. 

§ 1.  SPECIAL  FRANCHISE  REPORT  TO  TAX  COMMISSION.! 

Every  person,  copartnership,  association  or  corporation  subject  to 
taxation  on  a special  franchise,  shall,  within  thirty  days  after  such 
special  franchise  is  acquired,  make  a written  report  to  the  tax  commis- 
sion containing  a full  description  of  every  special  franchise  possessed 
or  enjoyed  by  such  person,  copartnership,  association  or  corporation,  a 
copy  of  the  special  law,  grant,  ordinance  or  contract  under  which  the 
same  is  held,  or  if  possessed  or  enjoyed  under  a general  law,  a reference 
to  such  law,  a statement  of  any  condition,  obligation  or  burden  imposed 
upon  such  special  franchise,  or  under  which  the  same  is  enjoyed,  together 
with  any  other  information  relating  to  the  value  of  such  special  fran- 
chise, required  by  the  tax  commission.  The  tax  commission  may  re- 
quire an  annual  report  and  from  time  to  time  a further  or  supplemental 
report  from  any  such  person,  copartnership,  association  or  corporation 
containing  information  and  data  upon  such  matters  as  it  may  specify. 
Every  report  required  by  this  section  shall  have  annexed  thereto  the 
affidavit  of  the  president,  vice-president,  secretary  or  treasurer  of  the 
association  or  corporation,  or  one  of  the  persons  or  one  of  the  members 
of  the  copartnership  making  the  same,  to  the  effect  that  the  statements 

1.  Constitutionality  of  special  franchise  tax.  The  fact  that  the  special 
franchise  tax  act  confers  upon  state  officers  the  right  to  assess  such  franchises,  and 
especially  the  right  to  assess  the  tangible  property  annexed  thereto  and  included, 
therein  by  the  act,  which  -was  formerly  assessed  by  local  boards  of  assessors  does 
not  violate  the  principle  of  home  rule  embodied  in  the  constitution  for  the  following 
reasons:  (1)  Because  it  creates  a new  system  of  taxation  and  brings  within  its 

range  a new  character  of  property,  which  requires  new  methods  of  valuation  and 
the  exercise  of  functions  which  never  belonged  to  local  assessors  and  must  neces- 
sarily have  been  committed  to  state  officers  with  new  functions  whose  sole  duty  re- 
lated to  the  subject  of  taxation  in  all  its  phases  throughout  the  entire  state,  and 
who,  with  wider  experience  and  greater  opportunities  for  observation  than  local' 
assessors,  would  be  able  to  grasp  the  new  scheme  of  taxation  as  a whole  and  whose 
action  would  be  free  from  all  local  prejudice  or  color  and  uniform  in  its  result.  (2) 
Because  the  tangible  property  formerly  assessed  by  local  assessors  is  an  inseparable 
part  of  the  special  franchises  mentioned  in  the  statute,  constituting  with  them  a 
new  entity,  which  in  a going  concern  can  neither  be  assessed  nor  sold  to  advantage 
except  as  one  thing,  single  and  entire,  and  the  function  of  assessing  such  entity  is 
not  essentially  local  in  character,  never  belonged  to  localities,  never  was  and  never 
could  be  exercised  with  the  requisite  justice  and  uniformity  by  their  officers,  and, 
therefore,  was  of  necessity  conferred  upon  state  officers,  expert  tax  officials,  having 
a jurisdiction  co-extensive  with  the  limits  of  the  state.  Property,  therefore,  created 
by  the  legislature  and  never  intrusted  by  it  to  local  assessors  cannot  with  propriety 
be  said  to  have  been  taken  away  from  them.  People  ex  rel.  Met.  St.  Ry.  Co.  v.  Tax 
Commissioners,  174  N.  Y.  417. 


552 


TAXATION. 


Tax  Law,  § 45. 

contained  therein  are  true.  Such  commission  may  prepare  blanks  to 
be  used  in  making  the  reports  required  by  this  section.  Every  person, 
copartnership,  association  or  corporation  failing  to  make  the  report 
required  by  this  section,  or  failing  to  make  any  special  report  required 
by  the  tax  commission  within  a reasonable  time  specified  by  it,  shall 
forfeit  to  the  people  of  the  state  the  sum  of  one  hundred  dollars  for 
every  such  failure  and  the  additional  sum  of  ten  dollars  for  each  day 
that  such  failure  continues,  and  shall  not  be  entitled  to  review  the  assess- 
ment by  certiorari,  as  provided  by  section  forty-six  of  this  chapter.2 
Acknowledgment  of  receipt  of  blank  reports  which  contain  the  penalty 
provisions  of  this  section  shall  be  deemed  sufficient  notice  of  such  penal- 
ties. [Tax  Law,  § 44,  as  amended  by  L.  1916,  ch.  334;  B.  C.  & G. 
Cons.  L.,  p.  5872.] 

§ 2.  SPECIAL  FRANCHISE;  FULL  VALUATION  AND  EQUALIZATION 
BY  TAX  COMMISSION. 

The  tax  commission  shall  annually  fix  and  determine  the  full  and 
actual  valuation  of  each  special  franchise  subject  to  assessment  in  each 
city,  town  or  village;  shall  inquire  into  and  ascertain  as  near  as  may 
be  the  percentage  of  the  full  and  actual  value  at  which  other  real  prop- 
erty in  the  city,  town  or  village  for  which  such  full  valuation  has  been 
made,  is  being  assessed,  and  by  the  rate  of  equalization  so  established 
fix  and  determine  the  equalized  valuation  of  each  special  franchise  sub- 
ject to  assessment.  [Tax  Law,  § 45,  as  added  by  L.  1916,  ch.  334.] 


2.  References.  A person  who  makes  a false  statement  in  reference  to  taxes 
is  guilty  of  a misdemeanor.  Penal  Law,  § 2321. 

The  refusal  to  make  a report  required  by  law  is  also  a misdemeanor.  Penal 
Law,  § 665. 

A failure  to  make  a report  as  provided  in  this  section  within  thirty  days  after 
the  franchise  is  acquired  does  not  forfeit  the  right  to  review  the  assessment  by 
certiorari  as  provided  by  section  46.  But  the  report  may  be  made  subject 
to  the  pecuniary  penalty  imposed,  at  any  time  before  a final  assessment. 
People  ex  rel.  N.  Y.  & Queens  County  R.  R.  Co.  v.  Tax  Commissioners,  55  App.  Div. 
218;  67  N.  Y.  Supp.  69. 

An  injunction  will  not  lie'  to  restrain  the  board  of  tax  commissioners  from  allow- 
ing any  inspection  or  disclosure  of  reports  made  under  this  section,  because  this 
question  should  be  determined  by  them  in  the  proper  discharge  of  their 
public  duty.  Am.  Dist.  Telegraph  Co.  v.  Woodbury,  127  App.  Div.  455,  457,. 
112  N.  Y.  Supp.  165. 


ASSESSMENT  OF  SPECIAL  FRANCHISES. 


553 


Tax  Law,  §§  45-a,  45-b,  45-c. 


§ 3.  HEARING  ON  SPECIAL  FRANCHISE  VALUATIONS;  NOTICE. 

On  determining  the  full  and  actual  valuation  of  a special  franchise 
and  the  rate  of  equalization  thereof  the  tax  commission  shall  immedi- 
ately give  notice  in  writing  to  the  person,  copartnership,  association  or 
corporation  affected,  and  to  each  city,  town  or  village  in  which  such 
special  franchise  is  subject  to  assessment,  stating  in  substance  that  such 
determinations  have  been  made  and  the  total  full  and  actual  valuation 
and  the  rate  of  equalization  thereof  in  each  city,  town  and  village,  and 
that  the  commission  will  meet  at  its  office  in  the  city  of  Albany  on  a day 
specified  in  such  notice,  to  hear  and  determine  any  complaint  concerning 
such  full  valuation  and  the  rate  of  equalization.  Such  notice  must  be 
served  at  least  ten  days  before  the  day  fixed  for  the  hearing;  and  it 
may  be  served  on  a copartnership,  association  or  corporation  by  mailing 
a copy  thereof  to  it  at  its  principal  office  or  place  of  business  and  on  a 
person,  either  personally  or  by  mailing  it  to  him  at  his  place  of  business 
or  last  known  place  of  residence.  In  a town  said  statement  shall 
specify  the  total  amount  of  the  assessment  of  such  special  franchise, 
and  the  amount  thereof  in  any  village  or  villages  therein.  Section 
thirty-seven  of  this  chapter  applies  so  far  as  practicable  to  a hearing 
by  the  tax  commission  under  this  section.  [Tax  Law,  § 45a,  as  added 
by  L.  1916,  ch.  334.] 

Determination  of  final  full  and  equalized  valuation.  After  hearing 
complaints  as  to  such  valuation  and  rate  of  equalization  of  the  special 
franchise  the  commission  shall  fix  and  determine  the  final  full  value 
of  each  special  franchise  and  ascertain  the  final  rate  of  equalization  and 
equalize  the  final  full  value  of  each  special  franchise  to  such  an  amount 
as  in  its  judgment  will  place  the  special  franchise  on  the  same  basis  as 
the  assessment  of  other  real  property  in  the  city,  town  or  village  in 
which  the  special  franchise  is  located.  In  ascertaining  the  basis  of 
assessment  of  other  real  property  or  determining  the  final  full  and  actual 
valuation  of  a special  franchise,  the  tax  commission  may,  in  its  discre- 
tion, take  testimony  and  hear  proof,  under  oath  or  otherwise,  and  may 
avail  itself  of  all  information  on  the  subject  appearing  of  record  in  its 
office  and  all  information  which  it  may  acquire  in  the  discharge  of  its 
duties,  and  may  employ  its  experts,  agents  or  other  persons  in  procuring 
any  information  it  may  require  for  such  purpose.  [Tax  Law,  § 45b,  as 
added  by  L.  1916,  ch.  334.] 

Certificate  of  special  franchise  valuation ss  filed  with  localities.  After 
determining  the  final  full  and  equalized  valuation  of  a special  franchise 


TAXATION. 


554 


Tax  Law,  § 45d. 

the  tax  commission  shall  file  with  the  clerk  of  the  city,  town  or  village  in 
which  such  special  franchise  is  subject  to  assessment,  a written  statement 
duly  certified  by  the  secretary  of  the  commission  of  the  valuation  of  each 
special  franchise  assessed  therein  as  finally  fixed  and  equalized.  In  a 
town  said  statement  shall  specify  the  total  amount  of  the  assessment  of 
each  special  franchise,  and  the  amount  thereof  in  any  village  or  villages 
therein.  In  the  city  of  New  York  said  statement  shall  be  filed  with  the 
department  of  taxes  and  assessments.  Such  statement  shall  be  filed  with 
the  clerk  of  the  village  not  later  than  the  first  day  of  October  and  with  the 
clerk  of  the  city,  or  the  department  of  taxes  and  assessments  in  the  city  of 
New  York,  not  later  than  thirty  days  before  the  final  completion,  verifica- 
tion and  filing  of  the  assessment-roll.  The  statement  of  special  franchise 
valuations  in  towns  shall  be  made  in  duplicate,  one  copy  to  be  filed  with  the 
town  clerk  not  later  than  August  first,  and  the  other  copy  with  the  clerk 
of  the  board  of  supervisors  of  the  county  not  later  than  September  first. 

It  shall  be  the  duty  of  city,  town  and  village  clerks  within  five  days  after 
the  final  completion  and  filing  of  the  assessment-roll,  and  the  first  posting 
or  publication  of  the  notice  thereof  as  required  by  law  in  their  respective 
municipal  corporations  and  of  the  clreks  of  the  boards  of  supervisors  in 
each  county  within  five  days  after  the  final  revision  of  the  assessment-roll 
and  the  annexation  of  the  warrant  thereto  to  furnish  the  tax  commission 
with  said  date  or  dates. 

Each  city  clerk  shall,  within  five  days  after  the  receipt  by  him  of  the 
statement  of  the  equalized  valuations  of  a special  franchise  as  fixed  by  the 
tax  commission,  deliver  a copy  of  such  statement  certified  by  him  to  the 
assessors  or  other  officers  charged  with  the  duty  of  making  local  assess- 
ments in  said  city.  Each  town  clerk  shall,  within  five  days  after  the  receipt 
by  him  of  the  statement  of  equalized  valuations,  deliver  copies  of  such 
statement  certified  by  him  to  the  supervisor  of  the  town,  and  to  the  assessors 
of  the  town  for  which  the  assessments  have  been  made.  Each  village  clerk, 
shall,  within  five  days  after  the  receipt  by  him  of  the  statement  of  equalized 
valuations,  deliver  copies  of  such  statement  certified  by  him  to  the  assessors, 
if  any,  and  if  not,  to  the  trustees  of  the  village  for  which  the  assessments 
have  been  made. 

The  final  equalized  valuation  of  every  special  franchise  in  a city,  town 
or  village  as  so  fixed  and  determined  by  the  tax  commission  shall  be  entered 
by  the  assessors  or  other  officers  thereof  in  the  proper  part  of  the  assess- 
ment-roll before  the  final  revision  and  certification  of  such  roll  by  them  and 
become  a part  thereof  with  the  same  force  and  effect  as  if  such  assessment 
had  been  originally  made  by  such  assessors.  [Tax  Law,  § 45c,  as  added 
by  L.  1916,  ch.  334,  and  amended  by  L.  1917,  ch.  488.] 

Certification  of  final  valuations  to  owners. — The  tax  commission,  on  filing 
said  statement  of  the  final  equalized  valuation  of  a special  franchise,  shall 
give  to  the  person,  copartnership,  association  or  corporation  affected  written 
notice  thereof,  which  notice  shall  contain  a statement  of  the  full  and  actual 
value  of  such  special  franchise  as  finally  fixed  and  determined  and  the 
amount  to  which  it  has  been  equalized.  In  a town  said  statement  shall 


ASSESSMENT  OF  SPECIAL  FRANCHISES. 


554a 


Tax  Law,  §§  45e,  45f,  46. 


specify  the  total  amount  of  the  assessment  of  each  special  franchise*  and 
the  amount  thereof  in  any  village  or  villages  therein.  Such  notice  may  be 
served  on  a copartnership,  association  or  corporation  affected  by  mailing  a 
copy  thereof  to  it  at  its  principal  office  or  place  of  business,  and  on  a per- 
son either  personally  or  by  mailing  it  to  him  at  his  place  of  business  or 
last  known  place  of  residence.  [Tax  Law,  § 45d,  as  added  by  L.  1916, 
ch.  334.] 

Special  franchise  assessments  subject  to  all  taxes. — The  final  equalized 
valuation  of  every  special  franchise  as  fixed  and  determined  by  the  tax 
commission  shall  be  the  assessed  valuation  on  which  all  taxes,  based  on 
such  special  franchise  for  state,  county,  city,  town,  village,  school,  high- 
way or  other  district  purposes  shall  be  levied  for  the  ensuing  year.  [Tax 
Law,  § 45e,  as  added  by  L.  1916,  ch.  334.] 

Information  by  local  officers. — The  assessors  or  other  taxing  officers  or 
other  local  officers  in  any  city,  town  or  village  or  district,  or  any  state  or 
county  officer,  shall  on  demand  furnish  to  the  tax  commission  any  informa- 
tion required  by  them  for  the  purpose  of  determining  the  full  and  equal- 
ized value  of  a special  franchise. 

It  shall  be  the  duty  of  city,  town,  and  village  clerks  within  twenty  days 
after  the  taking  effect  of  any  law  changing  the  boundaries  of  their  respect- 
ive municipal  corporations  to  furnish  the  tax  commission  with  a statement 
giving  the  details  of  and  clearly  showing  said  changes.  Upon  the  granting 
of  any  franchise  to  use  the  streets,  highways,  public  places  or  public  waters 
by  the  proper  officers  of  any  city,  town  or  village,  it  shall  be  the  duty  of  the 
respective  clerks  of  said  municipalities  to  furnish  a copy  of  same  to  the 
tax  .commission.  [Tax  Law,  § 45f,  as  added  by  L.  1916,  ch.  334,  and 
amended  by  L.  1917,  ch.  37.] 

§ 4.  CERTIORARI  TO  REVIEW  ASSESSMENT. 

An  assessment  of  a special  franchise  by  the  tax  commission  may  be  re- 
viewed in  the  manner  prescribed  by  article  thirteen  of  this  chapter,  and 
that  article  applies  so  far  as  practicable  to  such  an  assessment,  in  the  same 
manner  and  with  the  same  force  and  effect  as  if  the  assessment  had  been 
made  by  local  assessors;  a petition  for  a writ  of  certiorari  to  review  the 
assessment  must  be  presented  within  thirty  days  after  the  final  completion 
and  filing  of  the  assessment-roll,  and  the  first  posting  or  publication  of  the 
notice  thereof  as  required  by  law.  Such  writ  must  run  to  and  be  answered 
by  said  tax  commission  and  no  writ  of  certiorari  to  review  any  assessment 
of  a special  franchise  shall  run  to  any  other  board  or  officer  unless  other- 
wise directed  by  the  court  or  judge  granting  the  writ.  In  cities  a copy  of 
said  writ  and  the  petition  for  same  shall  be  furnished  to  the  corporation 
counsel  or  other  law  officer.  An  adjudication  made  in  the  proceeding  in- 
stituted by  such  writ  of  certiorari  shall  be  binding  upon  the  local  assessors 
and  any  ministerial  officer  who  performs  any  duty  in  the  collection  of  the 
taxes  levied  upon  said  assessment  in  the  same  manner  as  though  said  local 
assessors  or  officers  had  been  parties  to  the  proceeding.  [Tax  Law,  § 46, 
as  amended  by  L.  1911,  ch.  804,  L.  1916,  ch.  334,  and  L.  1918,  ch.  278; 
B.  C.  & G.  Cons.  L.,  p.  5874.] 


554b 


TAXATION. 


Tax  Law,  §§  47,  48. 

§ 5.  TAX  COMMISSION  TO  APPEAR  BY  COUNSEL;  EMPLOYMENT 
OF  EXPERTS. 

In  any  proceeding  for  the  review  of  an  assessment  of  a special  fran- 
chise made  by  the  state  board  of  tax  commissioners  or  the  tax  commis- 
sion, said  tax  commission  is  authorized  to  appear  by  counsel  to  be  desig- 
nated by  the  attorney-general.  The  attorney-general  or  such  counsel 
may  employ  experts  and  the  compensation  of  such  counsel  and  experts 
and  their  necessary  and  proper  expenses  and  disbursements,  incurred  or 
made  in  such  proceeding,  and  upon  any  appeal  therein,  shall  when 
audited  and  allowed  as  are  other  charges  against  such  tax  district,  be  a 
charge  upon  the  tax  district  upon  whose  rolls  appears  the  assessment 
sought  to  be  reviewed.  Where,  in  one  proceeding,  there  is  reviewed  the 
assessment  of  a special  franchise  in  more  than  one  tax  district,  separate 
accounts  shall  be  rendered  for  said  costs,  expenses  and  disbursements  to 
the  proper  officer  of  each  of  said  tax  districts  and  audited  and  allowed 
by  him  as  aforesaid.  For  the  purposes  of  this  section,  the  city  of  New 
York  shall  be  deemed  one  tax  district.  If  provision  shall  not  have  been 
made  for  the  payment  of  such  expense  in  any  year,  then  the  officers  who 
are  empowered  by  law  to  make  such  provisions  in  any  county,  city,  town 
or  other  political  subdivision  of  the  state,  are  hereby  authorized  and 
directed  to  raise  money  to  such  an  amount  as  may  be  necessary,  in  any 
manner  provided  by  law  for  meeting  expenses  in  anticipation  of  the 
collection  of  taxes  and  to  pay  such  expense  therefrom.  The  amount  so 
raised  shall  be  included  in  the  amount  to  be  raised  by  tax  in  the  ensuing 
year.  [Tax  Law,  § 47,  as  amended  by  L.  1911,  ch.  471,  L.  1913,  ch. 
134,  and  L.  1916,  ch.  334;  B.  C.  & G.  Cons.  L.,  p.  5875.] 

§ 6.  DEDUCTION  FROM  SPECIAL  FRANCHISE  TAX  FOR  LOCAL 
PURPOSES. 

If,  when  the  tax  assessed  on  any  special  franchise  is  due  and  payable 
under  the  provisions  of  law  applicable  to  the  city,  town  or  village  in 
which  the  tangible  property  is  located,  it  shall  appear  that  the  person, 
copartnership,  association  or  corporation  affected  has  paid  to  such  city, 
town  or  village  for  its  exclusive  use  within  the  next  preceding  year, 
under  any  agreement  therefor,  or  under  any  statute  requiring  the  same, 
any  sum  based  upon  a percentage  of  gross  earnings,  or  any  other  income, 
or  any  license  fee,  or  any  sum  of  money  on  account  of  such  special  fran- 
chise, granted  to  or  possessed  by  such  person,  copartnership,  association 
or  corporation,  which  payment  was  in  the  nature  of  a tax,  all  amounts 


ASSESSMENT  OF  SPECIAL  FRANCHISES. 


Tax  Law,  § 49. 

so  paid  for  the  exclusive  use  of  such  city,  town  or  village  except  money 
paid  or  expended  for  paving  or  repairing  of  pavement  of  any  street, 
highway  or  public  place,  and  except  in  a city  of  the  first  class  car  license 
fees  or  tolls  paid  for  the  privilege  of  crossing  a bridge  owned  by  the 
city,  shall  be  deducted  from  any  tax  based  on  the  assessment  made  by 
the  state  tax  commission  for  city,  town  or  village  purposes,  but  not  other- 
wise; and  the  remainder  shall  be  the  tax  on  such  special  franchise  payable 
for  city,  town  or  village  purposes.  The  chamberlain  or  treasurer  of  a city, 
the  treasurer  of  a village,  the  supervisor  of  a town,  or  other  officer  to  whom 
any  sum  is  paid  for  which  a person,  copartnership,  association  or  corpora- 
tion is  entitled  to  credit  as  provided  in  this  section,  shall,  not  less  than  five 
nor  more  than  twenty  days  before  a tax  on  a special  franchise  is  payable, 
make  and  deliver  to  the  collector  or  receiver  of  taxes  or  other  officer  author- 
ized to  receive  taxes  for  such  city,  town  or  village,  his  certificate  showing 
the  several  amounts  which  have  been  paid  during  the  year  ending  on  the 
day  of  the  date  of  the  certificate.  On  the  receipt  of  the  certificate  the 
collector,  receiver  or  other  officer  shall  immediately  credit  on  the  tax-roll 
to  the  person,  copartnership,  association  or  corporation  affected  the  amount 
stated  in  such  certificate,  on  any  tax  levied  against  such  person,  copartner- 
ship, association  or  corporation  on  an  assessment  of  a special  franchise 
for  city,  town  or  village  purposes  only,  but  no  credit  shall  be  given  on  ac- 
count of  such  payment  or  certificate  in  any  other  year,  nor  for  a greater 
sum  than  the  amount  of  the  special  franchise  tax  for  city,  town  or  village 
purposes,  for  the  current  year ; and  he  shall  collect  and  receive  the  balance, 
if  any,  of  such  tax  as  required  by  law.  [Tax  Law,  § 48,  as  amended  by  L. 
1916,  ch.  581,  and  L.  1917,  ch.  39;  B.  C.  & G.  Cons.  L.,  p,  5875.] 

§ 7.  TAX  ON  SPECIAL  FRANCHISE  NOT  TO  AFFECT  OTHER  TAXES. 

The  imposition  or  payment  of  a tax  on  a special  franchise  as  provided 
in  this  chapter  shall  not  relieve  any  association,  copartnership  or  corpo- 
ration from  the  payment  of  any  organization  tax  or  franchise  tax  or  any 
other  tax  otherwise  imposed  by  article  nine  of  this  chapter,  or  by  any 
other  provision  of  law;  but  tangible  property  situated  in,  upon,  under 
or  above  any  street,  highway,  public  place  or  public  waters,  subject  to 
tax  as  special  franchise  as  described  in  subdivision  six  of  section  two, 
shall  not  be  taxable  except  upon  the  assessment  made  as  herein  provided 
by  the  tax  commission.  [Tax  Law,  § 49,  as  amended  by  L.  1916,  ch. 
334;  B.  C.  & G.  Cons.  L.,  p.  5877.] 


556 


TAXATION. 


Explanatory  note. 


CHAPTER  XXXVI. 

DUTIES  OF  BOARDS  OF  SUPERVISORS  AS  TO  ASSESSMENTS  AND 
TAXATION;  EQUALIZATION  OF  ASSESSMENTS. 

EXPLANATORY  NOTE. 

Equalization  of  Assessments  by  Board  of  Supervisors. 

The  board  of  supervisors  must,  at  its  annual  meeting,  examine  the 
assessment-rolls  of  the  towns  and  cities  in  the  county.  If  in  their 
opinion  the  valuation  in  one  town  or  city  bears  an  unjust  relation  to  the 
valuations  in  the  other  towns  or  cities,  they  may  increase  or  diminish 
such  valuation  by  adding  or  deducting  a certain  sum  on  each  one  hun- 
dred dollars  of  valuation.  The  duty  to  equalize  is  an  important  one, 
and  causes  frequent  controversy  between  towns.  The  board  should  act 
fairly  and  after  a due  consideration  of  all  attendant  facts.  An  arbi- 
trary or  unreasonable  modification  of  valuations  will  be  set  aside  on 
appeals  to  the  state  board  of  tax  commissioners. 

The  board  may  delegate  its  powers  of  equalization  to  three  commis- 
sioners of  equalization,  who,  when  appointed  must  equalize  valuations 
and  report  to  the  board.  Such  report  is  binding  upon  the  board  and 
must  be  adopted  by  them. 

Correction  of  Errors  in  Assessment-roll. 

A board  of  supervisors  is  empowered  to  correct  errors  in  assessment- 
rolls,  upon  petition  of  the  town  assessors.  The  petition  must  be  verified 
by  the  assessors.  It  must  appear  that  the  errors  are  in  (1)  copying  the 
roll,  (2)  omitting  taxable  property  from  the  assessment-roll  of  the  pre- 
ceding year,  or  the  current  year.  A copy  of  the  petition  and  notice  of 
its  presentation  must  be  served  personally  on  the  person  alleged  to  be 
liable  to  taxation,  and  such  person  must  be  given  an  opportunity  to  be 
heard  before  the  board  of  supervisors.  The  provisions  of  § 56  of  the 


DUTIES  OF  SUPERVISORS  AS  TO  TAXATION. 


Explanatory  note. 


QO  i 


Tax  Law,  as  amended  by  L.  1916,  ch.  323,  as  to  correction  of  errors  on 
petition  of  assessors  must  be  complied  with,  and  it  is  only  in  the  cases 
mentioned  in  that  section  that  the  board  has  authority  to  act  on  such  a 
petition. 

The  board  may  correct  any  manifest  clerical  error  in  an  assessment- 
roll.  If  a tax  has  been  erroneously  paid,  the  board  may  cause  the  same 
to  be  refunded.  It  must  refund  a tax  illegally  paid  when  ordered  so  to 
do  by  the  county  court.  When  a refund  is  made,  the  board  must  provide 
for  raising  the  necessary  funds  by  tax  levy. 

If  property  has  been  declared  by  the  courts  to  have  been  illegally  as- 
sessed, and  thereby  the  property  has  not  been  assessed  at  all,  the  board 
may,  upon  proper  notice  and  after  an  opportunity  to  be  heard,  reassess 
the  property  at  a proper  valuation  upon  the  assessment-roll  of  the  cur- 
rent year. 


Levy  of  Taxes. 

The  board  of  supervisors,  after  equalization  and  correction,  must 
levy  all  state  county  and  town  taxes,  by  setting  down  in  a separate 
column  in  the  assessment  roll  the  sum  to  be  paid  as  a tax  on  the  prop- 
erty assessed.  The  assessment-roll  as  so  extended,  with  the  warrant 
annexed  thereto  becomes  the  tax-roll  of  the  town. 

Tax- roll  and  Warrant. 

The  tax-roll  must  have  attached  thereto  a warrant  under  the  seal  of 
the  county,  signed  by  the  chairman  and  clerk  of  the  board.  Such  war- 
rant is  directed  to  the  collector,  and  is  his  authority  for  collecting  the 
tax  imposed  by  the  tax-roll.  The  warrant  also  directs  the  collector  to 
pay  the  sums  specified  to  the  persons  therein  named. 


Section  1.  Board  of  supervisors  to  examine  assessment-roll;  equalization  of 
valuations. 

2.  Board  of  supervisors  mry  appoint  commissioners  of  equalization; 

county  judge  to  appoint  in  case  of  disagreement;  terms  of  office; 
compensation. 

3.  Examination  of  assessment-rolls  by  commissioners;  equalization  of 

valuations;  vacancy  in  office  of  commissioners. 

4.  Commissioners’  report  of  equalized  valuations. 

I.  Board  of  supervisors  may  change  descriptions  of  real  property. 

6.  Review  of  assessment  against  non-resident  owners  of  rents  reserved  by 
board  of  supervisors. 


558 


TAXATION. 


Tax  Law,  § 50. 

Section  7.  Correction  of  errors  by  board  of  supervisors;  petition  of  assessors 

for  correction;  petition  to  be  served  on  owner. 

8.  Board  of  supervisors  may  correct  manifest  errors,  and  cause  moneys 

illegally  collected  to  be  refunded. 

9.  Certain  errors  in  roll  to  be  corrected. 

10.  Re-assessment  of  property  illegally  assessed. 

11.  Levy  of  taxes  by  board  of  supervisors. 

12.  Tax  roll,  collector’s  warrant  to  be  attached  to;  contents  of  warrant. 

13.  Statement  of  taxes  upon  certain  corporations  by  clerk  of  supervisors. 

14.  Statement  of  equalized  valuation  to  be  forwarded  to  the  state  board 

of  tax  commissioners  by  clerk  of  board  of  supervisors. 

15.  Clerk  of  board  of  supervisors  to  furnish  county  treasurer  with  ab- 

stract of  tax-rolls. 

§ 1.  BOARD  OF  SUPERVISORS  TO  EXAMINE  ASSESSMENT-ROLL; 
EQUALIZATION  OF  VALUATIONS. 

1.  The  board  of  supervisors  of  each  county  in  this  state,  at  its  annual  meeting, 
shall  examine  the  assessment  rolls  of  the  several  tax  districts  in  the  county,  for  the 
purpose  of  ascertaining  whether  the  valuations  in  one  tax  district  bear  a just  re- 
lation to  the  valuations  in  all  the  tax  districts  in  the  county;  and  the  board  may 
increase  or  diminish  the  aggregate  valuations  of  real  estate  in  any  tax  district,  in 
accordance  with  the  following  equalization  rule.  First,  the  ratio  or  percentage 
which  the  assessed  value  of  the  real  property  in  each  district  bears  to  its  full  value 
shall  be  established  by  the  board  upon  proper  inquiry  and  investigation  conducted 
by  it  and  shall  be  stated  in  a resolution  by  the  board  after  such  inquiry  and  in- 
vestigation. Second,  from  such  ratio  or  percentage  values,  the  board  shall  then 
determine  the  aggregate  full  value  of  all  real  property  of  each  tax  district  by  divid- 
ing the  assessed  value  thereof  by  the  ratio  or  percentage  value  as  ascertained  and 
fixed  for  that  district.  Third,  the  average  rate  of  assessment  of  the  real  property 
in  the  county  shall  then  be  determined  by  .dividing  the  aggregate  assessed  value  of 
the  real  property  in  all  the  tax  districts  by  the  aggregate  full  value  thereof  as  as- 
certained in  the  manner  aforesaid.  Fourth,  the  true  equalized  value  for  each  tax 
district  shall  then  be  determined  by  multiplying  the  full  value  of  such  real  property 
in  that  tax  district  by  the  average  rate  of  assessment  for  the  county.  Fifth,  deduct 
from  or  add  to  the  assessed  value  of  the  several  tax  districts  the  difference  between, 
the  assessed  value  and  the  equalized  value  as  so  ascertained  so  that  the  amount 
which  the  respective  tax  districts  are  increased  or  diminished  from  the  assessed, 
value  will  be  shown,  and  the  total  assessed  value  for  the  county,  except  as  provided 
in  subdivision  two  of  this  section,  will  not  be  increased  or  diminished.  Any  written 
or  documentary  evidence  upon  which  the  percentages  for  the  several  tax  districts 
are  determined  by  the  board  shall  be  preserved  and  an  abstract  of  the  same  pub- 
lished with  the  table  of  rates  in  the  proceedings  of  the  board  of  supervisors.  The 
table  of  such  percentages,  employed  in  making  the  equalization,  shall  be  furnished 
by  the  clerk  of  said  board  to  the  tax  commission  and  shall  also  be  published  in  the 
report  of  the  tax  commission.! 


1.  The  annual  meeting  of  boards  of  supervisors  is  held  at  such  time  and 
place  as  may  be  fixed  by  them.  County  Law,  sec.  10,  ante. 

Duty  of  board  judicial.  The  duty  of  the  board  of  supervisors  is  of  a judicial 
character,  and  if  they  have  acquired  jurisdiction  any  error  in  their  judgment  or 
mistake  in  their  conclusions  can  be  asserted  only  in  some  direct  proceeding  for  a 
review.  Mayor,  etc.,  of  N.  Y.  v.  Davenport,  92  N.  Y.  604;  Bellinger  v.  Gray,  51 
Id.  610. 


DUTIES  OF  SUPERVISORS  AS  TO  TAXATION. 


559 


Tax  Law,  §§  50a,  51. 


2.  The  board  of  supervisors  in  any  county  of  the  state  shall  when  examining  the 
assessment-rolls  of  the  several  tax  districts  of  the  county,  as  above  provided,  ex- 
clude from  the  tax  rolls  of  said  districts,  to  be  prepared  by  said  board,  such  parcels 
of  real  property  as  have  been  struck  down  to  the  county  at  a tax  sale  and  not  re- 
deemed as  provided  in  section  one  hundred  and  fifty-two  of  this  chapter.  The 
county  treasurer  shall  annually  between  the  date  of  the  tax  sale  and  the  first  day 
of  December  next  succeeding,  prepare  and  submit  to  the  board  of  supervisors  a list 
of  all  such  lands  so  struck  down  to  the  county  in  any  year  and  still  remaining  un- 
redeemed. No  such  properties  shall  be  so  excluded  from  said  tax  rolls  except  by  a 
resolution  of  said  board  adopted  at  an  annual  meeting  by  a vote  of  a majority  of 
the  members  thereof.  Whenever  such  real  property  is  so  excluded  from  the  tax  rolls 
by  the  board,  the  total  of  the  assessed  valuations  of  the  real  estate  of  the  several 
tax  districts,  as  the  same  appear  on  the  completed  tax  rolls,  shall  be  the  aggregate 
valuation  of  the  taxable  real  estate  in  the  county.  [Tax  Law,  § 50,  as  amended  by 
L.  1911,  ch.  801,  L.  1914,  eh.  397,  and  L.  1916,  eh.  323;  B.  C.  & G.  Cons.  L.,  p.  5877.] 
Exclusive  of  shares  of  stock  of  hanks  and  hanking  associations.  In  fixing  the  ag- 
gregate valuation  of  a tax  district  for  the  purpose  of  equalizing  the  valuations  be- 
tween the  several  tax  districts  within  a county,  the  board  of  supervisors  or  commis- 
sioners of  equalization  of  such  county  shall  not  include  the  shares  of  stock  of  banks 
or  banking  associations  assessed  in  such  tax  district  pursuant  to  article  two  of  this 
chapter.  [Tax  Law,  § 50-a,  as  added  by  L.  1916,  ch.  249.] 


§ 2.  BOARD  OF  SUPERVISORS  MAY  APPOINT  COMMISSIONERS  OF 
EQUALIZATION;  COUNTY  JUDGE  TO  APPOINT  IN  CASE  OF 
DISAGREEMENT;  TERMS  OF  OFFICE;  COMPENSATION. 

The  board  of  supervisors  of  any  county  of  the  state  may  by  the  concurring  vote  of 
a majority  of  all  the  supervisors  elected  to  such  board,  resolve  to  appoint  three 
persons  to  be  commissioners  of  equalization  of  such  county.  They  shall  thereupon 
appoint  such  commissioners,  two  of  whom  shall  be  residents  of  such  county  and  not 
members  of  the  board  of  supervisors,  and  the  third  commissioner  shall  not  be  a 
resident  of  or  a taxpayer  in  such  county,  but  shall  reside  in  the  judicial  district  in 
which  such  county  is  situated.  If  there  be  one  or  more  cities  in  such  county  one  of 
such  commissioners  shall  be  a resident  of  such  city  or  cities  and  one  shall  be  a resi- 
dent of  the  towns  in  such  county  outside  of  such  city  or  cities.  The  commissioner 
appointed  from  such  city  or  cities  shall  be  named  by  the  supervisors  representing 
such  city  or  cities,  and  the  commissioner  appointed  from  the  towns  outside  of  such 
city  or  cities  shall  be  named  by  the  supervisors  representing  such  towns.  Both  such 
commissioners,  including  the  third  commissioner  appointed  from  the  judicial  district 
outside  of  such  county,  shall  be  confirmed  by  a two-thirds  vote  of  all  the  members 
of  the  board  of  supervisors.  If  after  such  board  has  resolved  to  appoint  such  com- 
missioners of  equalization,  they  are  unable  to  agree  upon  the  commissioners  to  be  ap- 
pointed as  provided  by  this  section,  and  such  commissioners  are  not  appointed  before 
the  first  day  of  July,  succeeding  the  time  when  such  resolution  was  adopted,  the 
clerk  of  such  board  shall  apply  to  the  county  judge  of  such  county  certifying  to  him 
the  fact  that  such  resolution  was  adopted  and  such  commissioners  have  not  been  ap- 
pointed pursuant  thejeto,  and  such  county  judge  shall  appoint  the  commissioners  sub- 
ject to  the  provisions  of  this  section  relating  to  their  places  of  residence. 
The  term  of  office  of  each  such  commissioner  shall  be  three  years.  Not  more 
than  one  commissioner  shall  reside  in  the  same  town  or  city,  and  if  a com- 
missioner remove  to  a town  or  city  in  which  another  commissioner 
resides,  the  office  of  the  commissioner  so  removing  shall  thereon 


Application.  The  rules  for  equalization  contained  in  this  section  do  not  apply 
to  equalization  by  commissioners  appointed  as  provided  in  § 51  of  the  Tax  Law 
(see  next  section).  Rept.  of  Atty.  Genl.  (1912),  vol.  2,  p.  497. 

Notice.  Notice  of  the  time  and  place  of  meeting  of  the  board  of  supervisors  as 
a board  of  equalization  need  not  be  given.  The  taxpayer  or  person  aggrieved  is  pre- 
sumed to  have  knowledge  of  the  provisions  of  the  statute.  People  v.  Turner,  117  N. 
Y.  227,  22  N.  E.  1022. 


560 


TAXATION. 


Tax  Law,  §§  52,  53. 

become  vacant.  Such  appointments  shall  be  so  made  that  not  more  than  a 
majority  of  the  commissioners  belong  to  the  same  political  party,  and  the 
other  commissioner  shall  be  chosen  from  the  other  political  party  polling 
in  such  county  at  the  last  general  election  either  the  highest  or  the  next 
highest  number  of  votes.  If  the  office  of  any  commissioner  become  vacant 
before  the  expiration  of  his  term,  such  vacancy  shall  be  filled,  for  the  unex- 
pired term,  by  the  appointment  of  a person  of  the  same  political  faith  as 
his  predecessor  at  the  time  of  his  appointment.  Each  commissioner  shall 
be  paid  by  the  county  for  his  services,  a sum  to  be  fixed  by  the  board  of 
supervisors,  not  exceeding,  excepting  in  the  county  of  Onondaga,  the  rate 
of  four  dollars  per  day,  for  the  time  necessarily  and  actually  occupied  in 
the  performance  of  his  duties,  and  his  necessary  and  reasonable  expenses 
incurred  while  absent  from  his  home  in  the  discharge  of  his  duties,  but  the 
total  amount  paid  to  any  commissioner  for  his  services  and  expenses  in  any 
one  year  shall  not  exceed  five  hundred  dollars  in  Onondaga  county  nor  three 
hundred  dollars  in  any  other  county.  [Tax  Law,  § 51,  as  amended  by  L. 
1918,  ch.  287;  B.  C.  & G.  Cons.  L.,  p.  5878.] 

§ 3.  EXAMINATION  OF  ASSESSMENT-ROLLS  BY  COMMISSIONERS; 

EQUALIZATION  OF  VALUATIONS;  VACANCY  IN  OFFICE  OF 

COMMISSIONERS. 

Between  the  first  day  of  September  and  the  time  of  the  annual  meeting 
of  the  board  of  supervisors  in  each  year,  the  commissioners  shall  examine 
the  assessment-rolls  of  the  several  towns  in  their  county  and  shall  visit 
each  town  therein  once  in  each  alternate  year  between  such  dates,  or  once 
in  each  year  when  deemed  necessary  by  them,  for  the  purpose  of  ascertain- 
ing whether  the  valuations  in  one  town  or  ward  bear  a just  relation  to  the 
valuations  in  all  the  towns  and  wards  in  the  county,  and  they  may  in- 
crease or  diminish  the  aggregate  valuations  of  real  estate  in  any  town  or 
ward  by  adding  or  deducting  such  sum  upon  the  hundred  in  accordance 
with  the  rule  of  equalization  specified  in  section  fifty  of  this  chapter,  as 
may,  in  their  opinion,  be  necessary  to  produce  a just  relation  between 
all  " the  valuations  of  real  estate  in  the  county,  but  they  shall  in  no  in- 
stance reduce  the  aggregate  valuations  of  all  the  towns  and  wards  below 
the  aggregate  valuations  thereof  as  made  by  the  assessors.  [Tax  Law,  § 52, 
as  amended  by  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5879.] 

§ 4.  COMMISSIONERS*  REPORT  OF  EQUALIZED  VALUATIONS. 

On  or  before  the  tenth  day  of  the  annual  meeting  of  the  board  of 
supervisors  in  each  year  the  commissioners  shall  file  with  the  clerk  of 
such  board  of  supervisors  their  report  of  the  equalized  valuations  of  real 
estate,  signed  by  a majority  of  such  commissioners,  and  the  same  shall 
be  binding  and  conclusive  on  such  board  of  supervisors  as  an  equalization 
of  the  assessments  of  real  estate  for  such  year. 

The  table  of  percentages  and  an  abstract  of  the  evidence  upon  which 
the  percentages  are  determined  shall  be  published  in  the  proceedings  of 


DUTIES  OF  SUPERVISORS  AS  TO  TAXATION. 


561 


Tax  Law,  §§  54,  55,  56. 

the  board  of  supervisors  and  a certified  copy  of  the  percentages  and  evidence 
furnished  the  tax  commission.  [Tax  Law,  § 53,  as  amended  by  L.  1916, 
ch.  323,  and  L.  1917,  ch.  92;  B.  C.  & G.  Cons.  L.,  p.  5880.] 

§ 5.  BOARD  OF  SUPERVISORS  MAY  CHANGE  DESCRIPTIONS  OF 
REAL  PROPERTY. 

The  hoard  of  supervisors  of  each  county,  at  its  annual  meeting,  shall 
examine  the  assessment-rolls  of  the  several  tax  districts,  and  shall  make 
such  changes  in  the  descriptions  of  the  real  property  as  may  be  neces- 
sary to  render  such  descriptions  sufficiently  definite  for  the  purposes  of 
collection  of  taxes  by  sale  thereof.2  If  a sufficiently  definite  description 
cannot  be  obtained  during  the  session,  the  board  shall  cause  the  same  to 
be  obtained  for  the  next  annual  session,  and  the  property  shall  not  be 
taxed  until  such  description  is  obtained,  and  shall  then  be  taxed  for  the 
year  so  omitted,  in  the  manner  provided  for  taxing  omitted  lands.  [Tax 
Law,  § 54,  as  amended  by  L.  1911,  ch.  315 ; B.  C.  & G.  Cons.  L.,  p. 
5880.] 

§ 6.  REVIEW  OF  ASSESSMENT  AGAINST  NON-RESIDENT  OWNERS 
OF  RENTS  RESERVED  BY  BOARD  OF  SUPERVISORS. 

If  an  assessment  of  taxable  rents  shall  have  been  made  against  any 
person  in  any  tax  district  of  which  he  is  not  an  actual  resident,  the  board 
of  supervisors  of  the  county  shall  have  the  same  power  and  authority  in 
all  respects,  and  it  shall  be  its  duty  to  correct  such  assessments  as  to  the 
valuation  of  such  rents  and  as  to  the  gross  amount  for  which  such  persons 
shall  be  assessed  therefor,  as  the  assessors  of  a tax  district  have  as  to  the 
assessment  of  personal  property  of  an  actual  resident  of  such  tax  district. 
The  board  may  reduce  the  amount  of  any  such  assessment,  if  necessary, 
to  make  such  assessment  just  when  compared  with  the  other  assess- 
ments of  property  upon  such  roll.3  [Tax  Law,  § 55 ; B.  C.  & G.  Cons. 
L.,  p.  5880.] 

§ 7.  CORRECTION  OF  ERRORS  BY  BOARD  OF  SUPERVISORS;  PE- 
TITION OF  ASSESSORS  FOR  CORRECTION;  PETITION  TO  BE 
SERVED  ON  OWNER. 

If  it  shall  be  made  to  appear  to  the  board  of  supervisors  of  any  county, 
upon  the  verified  petition  of  the  assessors  of  any  tax  district : 

First.  That  any  property  taxable  therein  has,  by  any  mistake  in  trans- 
scribing  or  copying  the  assessment-roll  of  the  preceding  year,  been  placed 
on  the  assessment-roll  delivered  to  the  supervisor  at  a valuation  less 

2.  References.  As  to  the  assessment  of  real  property  of  non-residents,  see 
Tax  Law,  sec.  30,  ante,  p.  527. 

As  to  the  survey  and  maps  of  non-resident  real  property  made  by  assessors,  see 
Tax  Law,  sec.  31,  ante,  p.  518. 

As  to  the  assessment  of  omitted  property,  see  Tax  Law,  sec.  34,  ante,  p.  533. 

3.  As  to  the  taxation  of  rents  reserved,  see  Tax  Law,  sec.  8,  ante,  p.  492. 
Such  taxable  rents  reserve  are  included  in  the  fifth  column  of  the  assessment-roll. 
See  Tax  Law,  sec.  21,  sub.  5,  ante,  p.  518. 

Power  same  as  assessors.  The  power  of  correction  conferred  upon  the  board 


562 


TAXATION. 


Tax  Law,  § 56. 


than  that  actually  appearing  upon  the  original  roll  signed  by  the  as- 
sessors, such  board  shall  insert  in  the  assessment-roll  of  the  current  year 
an  assessment  of  the  property  upon  the  valuation  equal  to  the  difference 
between  the  actual  valuation  made  by  the  assessors  and  the  amount  at 
which,  by  such  mistake,  the  property  was  placed  upon  the  roll  of  the 
preceding  year,  and  tax  the  same  at  the  rate  per  centum  imposed  upon 
property  in  such  tax  district  in  the  year  in  which  the  mistake  occurred. 

Second.  That  any  taxable  property  therein  has  been  omitted  from  the 
assessment-roll  of  the  preceding  year,  such  board  shall  place  the  same  on 
the  roll  of  the  current  year  at  its  valuation  for  the  preceding  year,  to  be 
fixed  by  the  assessors  in  their  petition,  and  shall  tax  the  same  at  the 
rate  per  centum  of  the  preceding  year. 

Third.  That  taxable  property  has  been  omitted  from  the  assessment- 
roll  for  the  current  year,  such  board  shall  place  the  same  thereon  at  a 
valuation  to  be  fixed  by  the  assessors  in  their  petition,  and  shall  tax  the 
same  at  the  rate  per  centum  of  the  current  year.4 

Fourth.  That  an  assessment  of  the  shares  of  stock  of  a bank  or  bank- 
ing association,  as  provided  in  article  two  of  the  tax  law,  has  been 
omitted  or  erroneously  made  for  the  current  year,  such  board  shall  place 
the  same  thereon  at  a valuation  to  be  fixed  by  the  assessors  in  their 
petition  and  shall  tax  the  same  at  the  rate  provided  in  article  two. 

A copy  of  the  petition  under  the  second,  third  or  fourth  subdivision 
of  this  section,  with  a notice  of  the  presentation  thereof  to  the  board  of 
supervisors,  shall  be  served  personally  on  the  person  or  corporation 
alleged  to  be  liable  to  taxation  for  the  property  omitted  from  the  assess- 
ment-roll, at  least  ten  days  before  the  meeting  of  the  board  of  super- 
visors ; and  the  board  of  supervisors  shall  take  no  action  on  such  petition, 
unless  proof  of  the  personal  service  of  such  petition  and  notice  be  made 
to  them  by  affidavit.  The  board  of  supervisors  shall  give  to  the  person 
alleged  to  be  liable  to  taxation  for  such  property  an  opportunity  to  be 
heard,  and  on  such  hearing  and  review  the  board  of  supervisors  shall 
have,  as  to  such  omitted  property,  all  the  powers  of  the  assessors  of  a 


of  supervisors  by  Laws  1858,  eh.  357,  § 1,  from  which  this  section  was  originally 
revised,  in  the  case  of  a non-resident  taxpayer  assessed  upon  rents  reserved,  is  the 
same  wdiich  the  assessors  have  in  the  case  of  a resident  of  the  town,  and  no  other 
or  greater.  People  ex  rel.  Youmans  v.  Supervisors  of  Delaware,  60  N.  Y.  381. 

Failure  to  specify  amount  reserved.  An  assessment  upon  rents  reserved  by 
various  leases  upon  the  whole  of  a patent  of  land  without  specifying  the  amount 
reserved  upon  each  lease,  or  any  of  the  leases,  and  against  “ John  Kortright  and 
other  legal  heirs  of  the  late  John  Kortright,  deceased,  or  their  heirs  or  assigns,” 
the  John  Kortright  first  named  being  also  dead  at  the  time  of  the  assessment, — 
held  void,  being  defective  in  not  specifying  the  persons  assessed,  a3  in  the  case  of 
any  personal  estate,  and  in  not  specifying  each  rent  assessed.  Idem. 

Valid  assessment.  Where  rents  accruing  under  perpetual  leases  had  been 
assessed  to  a person  not  the  owner,  and  upon  petition  the  same  property  was  put 
upon  the  roll  of  the  following  year,  assessed  to  the  owner,  and  a tax  levied  for 
the  preceding  year. — held,  that  such  assessment  was  legal  and  valid.  Overing  v. 
Foote,  43  N.  Y.  290. 

4.  For  form  of  petition  by  assessors  under  this  section,  see  Form  No.  51,  post. 


DUTIES  OF  SUPERVISORS  AS  TO  TAXATION. 


563 


Tax  Law,  § 56-a;  County  Law,  § 16. 


tax  district  in  reviewing  and  correcting  the  assessment-roll.5  The  whole 
amount  of  tax  levied  upon  the  land  or  property  omitted  in  the  tax  levy 
of  the  preceding  year  shall  be  deducted  from  the  aggregate  of  taxation 
to  be  levied  on  the  tax  district  for  the  current  year  before  such  tax  is 
levied.  [Tax  Law,  § 56,  as  amended  by  L.  1916,  ch.  323  ; B.  C.  & G. 
Cons.  L.,  p.  5881.] 

Correction  of  assessments,  and  returning  and  refunding  of  erroneous 
taxes.  The  board  of  supervisors  of  any  county  may  correct  any  mani- 
fest clerical  or  other  error  in  any  assessment  or  returns  made  by  any 
one  or  more  town  officers  to  such  board,  or  which  may,  or  shall  have 
properly  come  before  such  board  for  its  action,  confirmation  or  review ; 
and  cause  to  be  refunded  to  any  person  the  amount  collected  from  him 
of  any  tax  erroneously  or  improperly  assessed  or  levied,  and  upon  the 
order  of  the  county  court,  it  shall  refund  any  such  tax.  In  raising  the 
amount  so  refunded,  or  necessary  to  supply  the  deficiency  caused  by  the 
correction  of  any  error  in  such  assessment,  such  board  shall,  in  the  same 
or  next  ensuing  tax-levy,  adjust  and  apportion  such  amount  upon  the 
property  of  the  several  towns  and  wards  of  the  county  as  shall  be  just, 
taking  into  consideration  the  portion  of  the  state,  county,  town  and  ward 
included  therein,  and  the  extent  to  which  such  town  or  ward  has  been 
benefited  thereby.  Such  board  shall  ascertain,  fix  and  determine  the 
amount  which  any  person  or  corporation  is  equitably  entitled  to  receive 
back  from  any  town  for  taxes  paid  while  the  boundary  line  between 
towns  was  in  dispute  and  cause  the  same  to  be  levied  and  collected.  [Tax 
Law,  § 56a,  as  added  by  L.  1916,  ch.  323.] 

§ 8.  BOARD  OF  SUPERVISORS  MAY  CORRECT  MANIFEST  ERRORS, 
AND  CAUSE  MONEYS  ILLEGALLY  COLLECTED  TO  BE  RE- 
FUNDED. 

Any  such  board  may  correct  any  manifest  clerical  or  other  error  in  any 
assessment  or  returns  made  by  any  one  or  more  town  officers  to  such 
board,  or  which  may,  or  shall  have  properly  come  before  such  board  for  its 
action,  confirmation  or  review ; and  cause  to  be  refunded  to  any  person  the 
amount  collected  from  him  of  any  tax  illegally  or  improperly  assessed  or 
levied,  and  upon  the  order  of  the  county  court,  it  shall  refund  any  such 
tax.6  In  raising  the  ahount  so  refunded,  or  necessary  to  supply  the  de- 

5.  Assessment  of  omitted  property.  Boards  of  supervisors,  in  including  in 
the  assessment  roll  of  a town  omitted  property,  must  give  the  owner  of  such  prop- 
erty an  opportunity  to  be  heard.  In  including  in  the  assessment  of  such  property 
the  board  is  to  be  governed  by  the  provisions  of  sections  34-38  of  the  Tax  Law,  ante, 
pp.  533-542,  relating  to  the  correction  of  assessment-rolls  by  assessors. 

Powers  of  supervisors  as  to  assessments.  The  supervisors  have  no  author- 
ity to  add  to  the  asssessment-roll,  at  the  suggestion  of  the  assessors,  the  name  of 
a person  whom  they  had  previously  omitted  as  not  liable  to  assessment.  Where 
the  supervisors  add  a tax  which  they  have  no  jurisdiction  to  place  upon  the  roll,  the 
supervisor  of  a town  who  delivers  the  roll  to  the  collector  is  liable  in  damages  for  a 
sale  thereunder.  Marsh  v.  Bowen,  12  Abb.  N.  C.  1;  see,  also,  Overing  v.  Foote, 
43  N.  T.  290. 

6.  References.  This  section  should  be  considered  in  connection  with  sec.  56 
of  the  Tax  Law,  as  amended  by  L.  1916,  ch.  323.  Section  296,  ante,  of  the  Tax  Law 
provides  for  the  auditing  and  allowing  by  the  board  of  supervisors  of  the  amount 
paid  under  an  assessment  which  has  been  declared  illegal,  erroneous  or  unequal  in 


564 


TAXATION. 


Count}'  Law,  § 16. 


ficiencj  caused  by  the  correction  of  any  error  in  such  assessment,  sucb 
board  shall,  in  the  same  or  next  ensuing  tax-levy,  adjust  and  apportion 


proceedings  instituted  to  review  the  assessment  made  by  the  assessors  pursuant  to 
the  provisions  of  secs.  290-295,  ante,  of  the  Tax  Law. 

This  section  contemplates  a presentation  of  the  matter  to  the  board  of  super- 
visors in  the  first  instance  before  application  shall  be  made  to  the  County 
Court,  and  if  power  exists  and  the  facts  justify  it  that  court  may  direct  the  tax 
to  be  refunded,  whether  the  conclusion  of  the  board  shall  have  been  favorable 
to  the  claimant  of  not.  Matter  of  Trustees  of  Village  of  Delhi,  139  App.  Div. 
412,  124  N.  Y.  Supp.  487,  affd.  201  N.  Y.  408. 

A legal  remedy  is  provided  by  this  section  if  a general  tax  for  county  and 
town  purposes  has  been  levied  without  authority  or  contrary  to  law.  People 
ex  rel.  Toms  v.  Board  of  Supervisors,  199  N.  Y.  150. 

Distinction  between  erroneous  and  an  illegal  assessment.  There  is  a clear 
distinction  between  a case  of  erroneous  or  over-assessment  and  a case  of  an 
assessment  made  under  an  unconstitutional  law,  or  without  authority  of  any 
law.  For  instance,  a tax  warrant,  regular  on  its  face,  issued  for  the  collection 
of  a tax  levied  under  an  erroneous  assessment,  would  afford  protection  to  the 
officer  serving  it,  while  a tax  warrant  issued  for  the  collection  of  a tax  levied 
unde.r  an  unconstitutional  law,  or  without  authority  of  law,  would  afford  no 
protection  whatever.  Norris  v.  Jones,  81  Hun,  304,  310,  27  N.  Y.  Supp.  209. 
See,  also,  Weaver  v.  Devendorf,  3 Denio,  117;  Nat.  Bank  of  Chemung  v.  City 
of  Elmira,  53  N.  Y.  49;  Matter  of  Ulster  Co.  Sav.  Bank,  20  Hun,  481;  People 
ex  rel.  Ithaca  Sav.  Bank  v.  Beers,  67  How.  Pr.  219,  226;  Harris  v.  Supervisors 
of  Niagara  Co.,  33  Hun,  279,  s.  c.,  16  Abb.  N.  C.  284;  Williams  v.  Board  of  Super- 
visors, 78  N.  Y.  561. 

Errors  which  may  be  corrected.  Only  such  errors  can  be  corrected  by  the 
board  of  supervisors  or  the  County  Court  as  are  manifest  from  an  inspection  of 
the  roll  itself  without  argument  or  evidence.  Matter  of  Trustees  of  Village  of 
Delhi,  139  App.  Div.  412,  129  N.  Y.  Supp.  487. 

This  section  dees  not  subject  all  assesments  to  review,  or  permit  a correc- 
tion of  all  errors,  but  simply  of  those  which  are  apparent  by  an  examination 
of  the  assessment-roll  or  return,  without  extrinsic  evidence  to  make  them  clear; 
the  errors  of  the  assessors  in  making  assessments  and  substantial  errors  of 
judgment  or  of  law  are  not  subject  to  correction.  Hermance  v!  Supervisors  of 
Ulster,  71  N.  Y.  481.  See,  also.  Matter  of  Young,  26  Misc.  186,  56  N.  Y.  Supp. 
861.  Nor  does  this  section  authorize  the  correction  of  an  assessment  because 
of  its  being  excessive.  Matter  of  Baumgarent,  39  App.  Div.  174,  57  N.  Y.  Supp. 
284.  This  section  has  reference  merely  to  clerical  corrections  and  the  perform- 
ance of  ministerial  duties  in  reference  thereto,  ^nd  does  not  empower  the  super- 
visors to  make  assessments  to  pay  claims  disallowed  by  a town  board.  Arm- 
strong v.  Fitch,  126  App.  Div.  527,  110  N.  Y.  Supp.  736. 

Where  assessors  and  collector  have  jurisdiction  of  the  person  and  property, 
the  presumption  is  that  the  tax  was  legally  assessed  and  collected,  and  the 
burden  is  on  the  petitioner  to  show  the  contrary.  Matter  of  Peek,  80  Hun,  122, 
61  St.  Rep.  802,  30  N.  Y.  Supp.  59. 

Where  assessment  has  been  made  in  name  of  the  wrong  person,  it  is  within 
this  section,  and  taxes  paid  thereon,  even  though  by  the  actual  owner,  are  re- 
coverable; owner  need  not  object  to  a valid  assessment,  nor  do  successive, 
voluntary  payments  of  taxes  waive  the  illegality.  Matter  of  Reid,  31  Misc 
156,  64  N.  Y.  Supp.  1121. 

The  statute  was  designed  to  relieve  from  taxes  not  legally  chargeable  to  the 
person, — taxes  which  he  should  not  be  required  in  any  manner  to  pay;  the 
terms  illegal  or  improper  assessment  or  levy  of  tax  had  reference  to  the  tax 
itself  rather  than  to  the  method  of  making  the  assessment  or  levy — to  an  illegal 
tax  rather  than  to  the  erroneous  assessment  or  levy  of  a legal  one.  Harris  v. 
Supervisors  of  Niagara  Co.,  33  Hun,  279,  16  Abb.  N.  C.  282. 

Where  assessors  have  not  acquired  jurisdiction  to  assess  a tax,  the  acts  of 
the  board  of  supervisors  in  levying  it  are  void.  Matter  of  Douglas,  48  Hun,  318, 
1 N.  Y.  Supp.  126. 

Dispute  as  to  boundary.  Where  same  property  is  assessed  and  tax  paid  in 


DUTIES  OF  SUPERVISORS  AS  TO  TAXATION.  565 

County  Law,  § 16. 

such  amount  upon  the  property  of  the  several  towns  and  wards  of  the 

two  towns,  because  of  a dispute  as  to  boundary,  and  the  board  of  supervisors 
refuse  to  ascertain  the  amount  to  be  refunded,  the  statute  may  be  invoked, 
whether  an  action  will  be  against  the  assesors  and  collector  or  not.  People 
ex  sel.  Witherbee  v.  Supervisors,  85  N.  Y.  612. 

Refund  upon  order  of  county  court.  The  board  of  supervisors  under  this  sec- 
tion is  required  to  refund  any  tax  erroneously  paid,  upon  the  order  of  the 
County  Court.  The  power  of  the  court  is  limited  to  directing  the  refunding 
of  an  illegal  tax  that  has  been  paid.  It  cannot  order  the  board  to  cancel  a tax 
illegally  imposed.  Matter  of  Buffalo  Mut.  Gas  Light  Co.,  144  N.  Y.  228;  39  N.  E. 
86.  The  court  in  this  case,  in  speaking  of  the  power  of  the  County  Court  said: 
“ The  legislature  anticipated  the  possibility  that  the  board  might  negiect  or 
refuse  to  refund  an  illegal  tax  to  the  person  who  had  paid  it.  In  such  cases 
the  board  is  required  by  the  statute  to  cause  it  to  be  refunded  upon  the  order 
of  the  county  judge,  and  this  is  the  only  power  which  the  statute  has  conferred 
upon  that  officer.  The  power  to  refund  a tax  once  paid,  conferred  by  statute 
upon  a board  or  officer  of  special  and  unlimited  jurisdiction,  does  not  carry  with 
it  by  implication  the  power  to  cancel  the  tax  before  payment,  or  to  restrain 
its  collection.”  This  case  overrules  in  effect  the  case  of  Matter  of  Douglas,  48 
Hun,  318. 

Where  part  of  the  water  works  of  a village  were  situated  outside  its  limits 
in  the  adjoining  town  and  the  town  levied  an  assessment  against  the  village  for 
“ Water  works,  45  acres,  valuation  $14,000,”  and  the  village,  without  taking  any 
proceedings  to  correct  the  roll,  paid  the  tax  and  then  applied  to  the  super- 
visors for  a refund  on  the  ground  that  only  eight  acres  of  the  water  works 
were  outside  the  limits  of  the  village,  which  application  was  denied,  the  County 
Court  has  no  jurisdiction  to  apportion  ihe  tax  and  remit  a portion  of  it.  Matter 
of  Trustees  of  Village  of  Delhi,  139  App.  Div.  412,  124  N.  Y.  Supp.  489,  affd. 
201  N.  Y.  408. 

Where  exempt  property  has  been  assessed,  and  the  tax  paid  under  protest, 
the  County  Court  may  direct  the  board  to  refund  the  amount  paid.  Williams 
v.  Board  of  Supervisors,  78  N.  Y.  561;  Matter  of  New  York  Catholic  Protectory, 
77  N.  Y.  342. 

The  section  only  authorizes  a refund  in  case  a tax  has  been  collected  under 
compulsion  of  law.  It  does  not  authorize  the  refund  of  a tax  voluntarily  paid 
without  any  effort  having  been  made  to  collect  it.  Matter  of  McCue  v.  Super- 
visors, 162  N.  Y.  235,  56  N.  E.  627.  See,  also,  Matter  of  Reid,  52  App.  Div.  243, 
65  N.  Y.  Supp.  373.  Payments  made  under  a mistake  of  law  are  not  recover- 
able. Van  Hise  v.  Board  of  Supervisors,  21  Misc.  572,  48  N.  Y.  Supp.  874.  See, 
also  Matter  of  Eckerson,  25  Misc.  645,  56  N.  Y.  Supp.  373.  But  see  Matter  of 
Edison  Elec.  111.  Co.,  22  App.  Div.  371,  48  N.  Y.  Supp.  99,  where  it  is  held  that 
a corporation  which  paid  a local  tax  on  its  personal  property,  without  knowl- 
edge of  an  exemption,  was  entitled  to  a refund. 

County  Court  has  no  jurisdiction  until  application  has  been  made  to  the  board 
of  supervisors  to  refund  the  tax  illegally  collected.  In  re  Gilloren,  38  N.  Y. 
Supp.  954. 

See  generally  as  to  power  of  court  to  order  a refund,  Matter  of  Buffalo  Mut. 
Gas-Light  Co.,  144  N.  Y.  228;  Matter  of  Peck,  80  Hun,  122,  126,  30  N.  Y.  Supp.  59; 
Matter  of  Gilloren,  16  Misc.  130,  38  N.  Y.  Supp.  954;  Matter  of  Ulster  Co.  Sav. 
Bank,  20  Hun,  481. 

Voluntary  payment  cannot  be  recovered. — Where  an  assessment  is  void  on  its 
face  and  a person  without  duress  in  fact  pays  the  tax  levied  upon  such  assess- 
ment, it  is  a voluntary  payment  and  cannot  be  recovered  under  this  section. 
So,  where  an  assessment  although  valid  on  its  face,  but  in  fact  illegal  and  void, 
is  paid  by  a person  with  knowledge  of  the  facts  which  render  the  assessment 
void  and  without  duress  in  fact  it  is  a voluntary  payment.  Matter  of  Village 
of  Delhi,  201  N.  Y.  408,  414. 

Proceeding  to  compel  refund.  In  such  a proceeding  affidavits  of  an  assessor 
will  not  be  received  to  show  that  in  making  the  assessment  the  assessors 
included  other  property  than  the  property  upon  the  assessment  roll;  neither 
can  the  court  determine  whether  the  assessment  was  illegal  and  improper,  since 
the  court  can  do  nothing  except  what  the  board  of  supervisors  may  have  done 
in  the  first  instance.  Matter  of  Village  of  Medina,  52  Misc.  621,  103  N.  Y.  Supp. 


TAXATION. 


566 


Tax  Law,  §§  55-a,  57. 

county  as  shall  be  just,  taking  into  consideration  the  portion  of  the 
state,  county,  town  and  ward  included  therein,  and  the  extent  to  which 
such  town  or  ward  has  been  benefited  thereby. 

Such  board  shall  ascertain,  fix  and  determine  the  amount  which  any 
person  or  corporation  is  equitably  entitled  to  receive  back  from  any 
town,  for  taxes  paid  while  the  boundary  line  between  towns  was  in  dis- 
pute and  cause  the  same  to  be  levied  and  collected.  [County  Law,  § 16  ; 
B.  C.  & G.  Cons.  L.,  p.  717.] 

§ 9.  CERTAIN  ERRORS  IN  ROLL  TO  BE  CORRECTED. 

An  error  in  the  description  of  a parcel  or  portion  of  real  property 
shall  not  invalidate  the  assessment  against  such  parcel  or  portion,  if 
such  description  is  sufficiently  accurate  to  identify  the  parcel  or  portion. 
The  entry  of  the  name  of  the  owner,  last  known  owner  or  reputed  owner 
of  a separate  parcel  or  portion  of  real  property  shall  not  be  regarded  as 
part  of  such  assessment,  but  merely  as  an  aid  to  identify  such  parcel 

upon  the  roll.6a  [Tax  Law,  § 55a,  as  renumbered  and  amended  by  L.  1916, 
ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5885.] 

§ 10.  REASSESSMENT  OF  PROPERTY  ILLEGALLY  ASSESSED. 

Whenever,  by  the  final  judgment  of  a court  of  competent  jurisdiction, 
it  appears  to  the  board  of  supervisors  that  any  property  liable  to  taxation 
in  any  year  was  erroneously  or  illegally  assessed,  and  that  by  reason  of 
such  erroneous  or  illegal  assessment,  such  property  did  not  become  subject 
to  taxation  for  such  year,  the  board  shall  place  the  same  on  the  roll  of  the 
current  year  at  the  valuation  thereof,  if  any,  fixed  by  the  assessors  for  such 
preceding  year;  and  in  case  no  valuation  was  fixed  by  the  assessors,  such 
property  shall  be  assessed  by  the  board  at  such  valuation  as  they  may  de- 
termine for  the  preceding  year.  Before  fixing  such  valuation,  the  board 
of  supervisors  shall  give  to  the  owners  of  such  property,  at  the  time  of  the 
assessment  by  the  board,  a notice  of  at  least  five  days  and  an  opportunity 
to  be  heard,  and  on  such  hearing,  the  board  shall  have,  as  to  such  property, 
all  the  powers  of  the  assessors  of  a tax  district  in  reviewing  and  correcting 
an  assessment-roll.  Such  property  shall  be  taxed  at  the  rate  per  centum 
of  such  preceding  year.  The  whole  amount  of  tax  on  property  levied 
in  pursuance  of  this  section  shall  be  deducted  from  the  aggregate  of  taxa- 

1018.  The  application  of  the  taxpayer  is  informal  and  not  governed  by  any  estab- 
lished rules  of  procedure.  Matter  of  Adams  v.  Supervisors,  154  N.  Y.  619. 

6a.  Error  in  name  of  owners.  Though,  in  the  assessment  of  real  estate  for  taxes, 
the  use  of  the  name  of  only  one  of  several  tenants  in  common  in  connection  with 
the  equivalent  term  “ and  others  ” is  an  error  in  the  name  of  the  owners  it  does  not 
affect  the  validity  of  the  assessment,  that  contingency  being  provided  for  by  sec- 
tion 63  (now  § 55a)  of  the  Tax  Law,  section  9 of  which  declares  that  the  assess- 
ment “ shall  be  deemed  as  against  the  real  property  itself  ” and  that  it  “ shall  be 
holden  and  liable  to  sale  for  any  tax  levied  upon  it.”  Where  property  known  as 
210  North  Clinton  street  and  listed  on  a well-known,  duly  authenticated  map  in 
general  use  and  filed  in  the  county  clerk’s  office  as  block  147  was  conveyed  as 
block  146,  reference  being  had  to  another  map,  and  the  assessors  in  using  the  term 
“ block  147,  No.  210  North  Clinton  street”  did  not  refer  to  any  map,  the  assessment 
is  valid  even  though  the  names  of  the  owners,  all  of  whom  were  nonresidents,  did 
not  appear  on  the  assessment-roll.  Sheldon  v.  Russell  (1915),  91  Misc.  278,  154 
N.  Y.  Supp.  632,  affd.  (1916),  172  App.  Div.  793,  159  N.  Y.  Supp.  169. 


DUTIES  OF  SUPERVISORS  AS  TO  TAXATION.  5^ 

Tax  Law,  § 58. 

tion  to  be  levied  on  the  tax  district  for  the  current  year,  before  such  tax 
is  levied.7  [Tax  Law,  § 57 ; B.  C.  & G.  Cons.  L.,  p.  5882.] 

§11.  LEVY  OF  TAXES  BY  BOARD  OF  SUPERVISORS. 

The  board  of  supervisors  of  each  county  shall,  at  its  annual  meeting, 
levy  the  taxes  for  the  county,  including  the  state  tax,  upon  the  valuations 
as  equalized  by  it  and  estimate  and  set  down  in  a separate  column  in  the 
assessment-roll  of  each  tax  district  therein,  opposite  to  the  sums  set  down 
as  the  valuation  of  real  and  personal  property  the  sum  to  be  paid  as  a tax 
thereon,  including  the  state  tax,  as  fixed  by  the  comptroller.8  Such  assess- 


7.  Reassessment.  The  evident  purpose  of  this  section,  which  was  new  in  the 
Tax  Law  of  1896,  is  to  permit  the  board  of  supervisors  to  re-asses  property 
which  has  been  declared  by  a court  of  competent  jurisdiction,  in  proceedings 
brought  for  the  review  of  the  original  assessment,  to  have  been  erroneously  or 
illegally  assessed.  Proceedings  for  the  review  of  assessment  are  authorized  by 
sections  290-296,  ante,  of  the  Tax  Law.  ii  in  such  proceedings  an  assessment  is  de- 
clared illegal  or  erroneous,  the  effect  of  the  judgment  is  to  render  invalid  the  assess- 
ment for  that  year,  and  except  for  the  provisions  of  the  above  section,  no  authority 
would  be  imposed  upon  any  person  or  board  to  reassess  such  property  for  the  year 
in  which  it  was  declared  to  have  been  illegally  assessed. 

This  section  does  not  apply  to  village  assessors.  People  ex  rel.  Glen  Head 
Realty  Co.  v.  Garland,  72  Misc.  413. 

8.  County  charges  to  be  levied  upon  taxable  property.  The  moneys  neces- 
sary to  defray  the  county  charges  of  each  county  shall  be  levied  on  the  taxable 
property  in  the  several  towns  therein,  in  the  manner  prescribed  in  the  general 
laws  relating  to  taxes;  and  in  order  to  enable  'die  county  treasurer  to  pay  such 
•expenses  as  may  become  payable  from  time  to  time,  the  board  of  supervisors 
shall  annually  cause  such  sum  to  be  raised  in  addition  to  their  county,  as  they 
may  deem  necessary  for  such  purpose.  County  Law,  sec.  242. 

As  to  what  constitute  county  charges,  see  County  Law,  sec.  240,  ante , p.  37. 

Town  charges  to  be  levied  upon  taxable  property.  It  is  provided  in  section 
170  of  the  Town  Law  {ante,  p.  388),  that  “ all  town  charges  specified  in  this  sec- 
tion shall  be  presented  to  the  town  board  for  audit,  and  the  moneys  necessary 
to  defray  such  charges  shall  be  levied  on  the  taxable  property  in  such  town  by 
the  board  of  supervisors.”  It  is  also  provided  by  County  Law,  sec.  12,  sub.  3, 
that  the  board  of  supervisors  shall  “ annually  direct  the  raising  of  such  sums 
in  each  town  as  shall  be  necessary  to  pay  its  town  charges.” 

Manner  of  levying  tax.  The  board  is  required  to  estimate  and  set  down  in  a 
fifth  (now  eighth)  column,  opposite  to  the  valuations,  the  respective  sums  in 
dollars  and  cents,  rejecting  the  fractions  of  a cent,  to  be  paid  as  a tax  thereon. 
Newman  v.  Supervisors  of  Livingston,  1 Lans.  476,  affd.  45  N.  Y.  676;  People 
v.  Hagadorn,  104  Id.  516. 

Affidavit  of  assessors  must  be  attached  to  roll,  in  order  to  give  supervisors 
jurisdiction  to  levy  tax.  Bradley  v.  Ward,  58  N.  Y.  401 ; Van  Rensselaer  v.  Whit- 
beck,  7 id.  517;  Westfall  v.  Preston,  49  Id.  349. 


TAXATION. 


5 68 


Tax  Law,  § 59. 


ment-roll  shall,  when  the  warrant  is  annexed  thereto,  become  the  tax-roll 
of  the  tax  district,  and  a copy  thereof  shall  be  delivered  to  the  proper 
supervisor,  who  shall  deliver  it  to  the  clerk  of  the  proper  city  or  town  to 
be  kept  by  him  for  its  use.  [Tax  Law,  § 58,  as  amended  by  L.  1916, 
ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5882.] 

§ 12.  TAX-ROLL  COLLECTOR’S  WARRANT  TO  BE  ATTACHED  TO- 
CONTENTS  OF  WARRANT. 

On  or  before  December  fifteenth  in  each  year,  or  such  date  as  may  be 
designated  by  a resolution  of  the  board  of  supervisors  of  any  county,  not 
embracing  a portion  of  the  forest  preserve,  not  later,  however,  than  the 
first  day  of  February  in  each  year,  the  board  of  supervisors  shall  annex 
to  the  tax-roll  a warrant  under  the  seal  of  the  county,  signed  by  the  chair- 
man and  clerk  of  the  board,  commanding  the  collector  of  each  tax  district 
to  whom  the  same  is  directed  to  collect  from  the  several  persons  named 
in  said  tax  roll  the  several  sums  mentioned  in  the  last  column  thereof,  op- 
posite their  respective  names,  except  taxes  upon  the  shares  of  stock  of 
banks  and  banking  associations,  on  or  before  the  first  day  of  the  following 
February,  where  the  same  is  annexed  on  or  before  the  fifteerth  of  De- 
cember, in  each  year,  as  above  provided.  But  where,  however,  the  time  of 
annexing  the  same  and  performing  the  several  duties  herein  imposed  is 
deferred  to  a later  date  by  resolution  as  aforesaid,  then  on  or  before  the 
first  day  of  May,  following  the  said  later  date,  and  further  commanding 
him  to  pay  over  on  or  before  the  said  first  day  of  February  or  first  day  of 
May,  as  the  case  may  be,  if  he  be  a collector  of  a city  or  a division  thereof, 
all  moneys  so  collected  appearing  on  said  roll  to  the  treasurer  of  the  county, 
or  if  he  be  a collector  of  a town : 


Roll  incomplete  until  tax  is  entered.  Bellinger  v.  Gray,  51  N.  Y.  610;  People 
v.  Hagadorn,  104  N.  Y.  516;  Nehasane  Park  Assoc,  v.  Lloyd,  7 App.  Div.  359,  40 
N.  Y.  Supp.  58;  Village  of  Upper  Nyack  v.  Jewett,  86  Id.  254,  83  N.  Y.  Supp.  838, 
affd.  181  N.  Y.  514. 

Copying  assessment-roll.  In  each  county  it  is  usually  the  custom  for  the  super- 
visor of  each  town  to  copy  the  assessment-roll  for  his  town.  Under  section  23  of 
the  County  Law  {ante,  p.  17),  the  board  of  supervisors  is  authorized  to  allow  to 
each  member  of  the  board  for  his  services  in  making  a copy  of  the  assessment-roll, 
three  cents  for  each  written  line  for  the  first  one  hundred  lines;  two  cents  per  line 
for  the  second  hundred  written  lines;  and  one  cent  per  line  for  all  written  lines  in 
excess  of  two  hundred,  and  one  cent  for  each  line  of  the  tax  roll  actually  extended 
by  him.  A line  means  a straight  row  of  words  and  figures  between  the  margins  of 
the  page,  and  does  not  include  additions  to  the  assessment-roll,  such  as  totals  of 
columns,  recapitulations  and  totals  of  items.  Smith  v.  Hedges  (1918),  — N.  Y.  — , 
119  N.  E.  396. 

Expense  of  copy  of  tax-roll.  Preparation  of  a copy  of  the  tax-roll  for  delivery  to 
the  collector  of  taxes,  if  the  supervisors  do  not  use  the  original  tax-roll  for  such  pur- 
pose, may  be  paid  for  at  “ one-half  the  compensation  authorized  for  making  a 
copy  of  the  assesment  and  tax  rolls,”  as  provided  by  section  23  of  the  County  Law. 
Opinion  of  Atty.  Genl.  (1916),  9 State  Dept.  Rep.  428. 

Extending  line.  The  process  of  ascertaining  the  amount  of  the  tax  by  multi- 
plying the  assesed  value  by  the  rate  and  setting  it  down  in  the  column,  is  the 


DUTIES  OF  SUPERVISORS  AS  TO  TAXATION. 


569 


Tax  Law,  § 59. 

1.  To  the  supervisor  of  the  town,  all  the  moneys  levied  therein  for 
the  support  of  highways  and  bridges,  moneys  to  be  expended  by  over- 
seers of  the  poor  for  the  support  of  the  poor  and  moneys  to  defray  any 
other  town  expenses  or  charges. 

2.  To  the  treasurer  of  the  county,  the  residue  of  the  money  so  to  he 
collected.10 

If  the  law  shall  direct  the  taxes  levied  for  any  locality  for  special 
purpose  in  a city  or  town  to  be  paid  to  any  person  or  officer  other  than 
those  named  in  this  section,  the  warrant  shall  be  varied  so  as  to  conform 
to  such  direction.  The  warrant  shall  authorize  the  collector  to  levy  such 
taxes  by  distress  and  sale,  in  case  of  non-payment.  The  corrected 
assessment-roll,  or  a fair  copy  thereof,  shall  be  delivered  by  the  board  of 
supervisors  to  the  collector  of  the  tax  district  on  or  before  December 

extending  of  the  line  mentioned  in  § 23  of  the  County  Law.  Pearsall  v.  Brower,  120 
App.  Div.  584,  105  N.  Y.  Supp.  207. 

9.  By  the  Highway  Law,  it  is  provided  in  section  104  that  the  moneys  levied  and 
collected  for  highway  purposes  shall  be  paid  to  the  supervisor,  who  is  the  custodian 
thereof  and  accountable  therefor. 

10.  For  form  of  collector’s  warrant,  see  Form  No.  52,  post. 

The  mere  omission  of  the  dollar  mark  in  stating  the  value  of  the  property 
and  the  amount  of  the  tax,  in  a tax  warrant,  does  not  render  the  warrant  irregular 
or  invalid,  for  the  law  supplies  the  omission  in  support  of  the  manifest  intent. 
American  Tool  Co.  v.  Smith,  32  Hun  121 ; 14  Abb.  N.  C.  378,  affd.  96  N.  Y.  670. 
A defect  in  the  warrant  in  not  specifying  the  return  day,  rs  cured  by  the  statute 
authorizing  the  extension  of  the  time  for  the  collection  of  taxes  in  that  county. 
Bradley  v.  Ward,  58  N.  Y.  401.  The  warrant  is  not  void  because  the  persons  who 
signed  it  did  not  attach  to  their  signature  their  official  description  or  designation. 
Sheldon  v.  Van  Buskirk,  2 N.  Y.  473. 

The  warrant  and  the  assessment-roll  constitute  one  process.  Johnson  v. 
Learn,  30  Barb.  616,  618. 

A warrant  issued  to  a collector  directing  him  to  collect  from  persons  “named 
in  the  assessment-roll,  to  which  this  warrant  is  annexed,  the  several  sums  men- 
tioned in  the  last  column  thereof,  to  wit,  the  fifth  column,  and  set  opposite  to  the 
names  of  such  persons  respectively,  together  with  your  fees  thereon,”  and  which 
further  provides  that  “ it  is  the  duty  of  the  collector  to  demand  payment  of  taxes 
charged  to  him  on  his  property;  and  in  case  any  person  or  persons  named  in  said 
assessment-roll  shall  refuse  or  neglect  to  pay  the  tax  imposed  on  him  or  them, 
you  will  levy  the  same  by  distress  and  sale  of  the  goods  and  chattels  of  the  person 
or  persons  who  ought  to  pay  the  same,”  when  construed  in  connection  with  tlie 
assessment-roll  is  sufficient  to  authorize  the  collection  of  the  general  tax  stated  in 
the  fifth  column  of  the  roll,  and  also  the  highway  tax  stated  separately  in  the  sixth 
column.  Bennett  v.  Robinson,  42  App.  Div.  412;  59  N.  Y.  Supp.  197. 

In  issuing  a warrant  for  the  collection  of  taxes  the  action  of  the  board  of 
supervisors  is  not  the  act  of  the  several  members,  as  supervisors  of  the  towns  re- 
spectively, but  the  corporate  act  of  the  county.  Newman  v.  Supervisors,  45  N.  Y.  676. 


570 


TAXATION. 


Tax  Law,  §§  60,  61. 


fifteenth,  in  each  year,  unless  another  date  is  designated  by  the  board  of 
supervisors  in  the  manner  above  specified,  then  in  that  event,  on  or  be- 
for  such  date  so  designated.11 

3.  In  Suffolk  county,  to  the  county  treasurer  also  the  amounts  raised 
by  separate  items  in  the  warrant  for  the  requirements  of  the  several  school 
districts  within  the  town.  The  county  treasurer  shall  pay,  on  or  before 
February  fifteenth,  or  as  soon  thereafter  as  sufficient  funds  have  been  paid 
in  by  the  collector  for  such  purpose,  to  the  treasurers  of  the  respective 
school  districts  at  least  one-half  of  the  amount  so  raised.  The  balance 
due  the  district  shall  be  paid  by  the  county  treasurer  as  soon  as  the  funds 
become  available.  [Tax  Law,  § 59,  as  amended  by  L.  1916,  ch.  323,  and 
bv  L.  1918,  ch.  291;  B.  C.  & G.  Cons.  L.,  p.  2883;  subd.  3,  added  by  L. 
1918,  ch.  519.] 

§ 13.  STATEMENT  OF  TAXES  UPON  CERTAIN  CORPORATIONS  BY 
CLERK  OF  SUPERVISORS. 

The  clerk  of  each  board  of  supervisors  shall,  within  five  days  after  the 
tax  warrant  is  completed,  deliver  to  the  county  treasurer  a statement  show- 
ing the  names,  valuation  of  property  and  the  amount  of  tax  of  every  rail- 
road corporation  and  telegraph,  telephone  and  electric  light  line  and  gas 
company  including  a company  engaged  in  the  business  of  supplying  natural 
gas  in  each  tax  district  in  the  county,  and  on  refusal  or  neglect  so  to  do, 
shall  forfeit  to  the  county  the  sum  of  one  hundred  dollars,  to  be  sued 
for  by  the  district  or  county  attorney  in  the  name  of  the  county.12  [Tax 
Law,  § 60,  as  amended  by  L.  1913,  ch.  556,  and  L.  1916,  ch.  323;  B.  C. 
& G.  Cons.  L.,  p.  5884.] 

§ 14.  STATEMENT  OF  EQUALIZED  VALUATION  TO  BE  FOR- 
WARDED TO  THE  TAX  COMMISSION  BY  CLERK  OF  BOARD 
OF  SUPERVISORS. 

The  clerk  of  each  board  of  supervisors  and  in  the  city  of  New  York  the 
department  of  taxes  and  assessments,  shall,  on  or  before  the  second  Mon- 
day in  December,  transmit  to  the  tax  commission  in  the  form  to  be  pre- 

11.  Time  of  delivery.  The  provision  requiring  the  assessment-roll  and  warrant 
to  be  delivered  to  the  collector  by  the  fifteenth  (now  first)  day  of  December  is 
directory  merely;  a delay  does  not  invalidate  the  warrant.  Bradley  v.  Ward,  58 
N.  Y.  401;  Supervisors  of  Oswego  v.  Betts,  6 N.  Y.  Supp.  934.  But  the  delivery  to 
the  receiver  of  taxes  of  a town  of  a warrant  for  the  collection  of  taxes,  after  the 
return  day  of  the  warrant  has  passed,  vests  in  him  no  power  to  enforce  payment  of 
the  tax.  Matter  of  Long,  40  App.  Div.  152,  57  N.  Y.  Supp.  929. 

Quasi-judicial  duties  of  board  in  relation  to  the  completion  and  delivery  of  the 
roll  and  warrant  cannot  be  delegated,  but  merely  clerical  duties  may.  Colman  v. 
Shattuck,  62  Td.  348;  First  Nat.  Bank  v.  Waters,  7 Fed.  Rep.  152;  Nehasane  Park 
Assoc,  v.  Lloyd,  7 App.  Div.  359r,  40  N.  Y.  Supp.  58;  Village  of  Upper  Nyack  v. 
Jewett,  86  Id.  254,  83  N.  Y.  Supp.  838,  affd.  181  N.  Y.  514. 

The  board  cannot  issue  a warrant  for  the  collection  of  taxes  in  blank  authorizing 
some  person  to  fill  in  the  proper  amounts  to  be  collected.  People  v.  Hagadorn,  36 
Hun  610;  affd.,  104  N.  Y.  516. 

The  rolls  must  be  completed  before  the  warrants  for  the  collection  of  the  tax  are 
annexed  thereto.  The  insertion  of  the  necssary  figures  in  the  assessment-  roll  to 
complete  it  after  the  valuations  have  been  determined  is  clerical.  Bellinger  v.  Gray, 
51  N.  Y.  610;  Bradley  v.  Ward,  58  N.  Y.  401. 

12.  For  form  of  statement  of  taxes  upon  certain  corporations,  see  form  No.  53, 
post . 

References.  Provisions  similar  to  those  contained  in  the  above  section  were  also 
contained  in  section  3 of  the  County  Law. 


DUTIES  OF  SUPERVISORS  AS  TO  TAXATION. 


571 


Tax  Law,  § 62. 


scribed  by  it  a certificate  or  return  showing: 

3.  The  aggregate  assessed  and  equalized  valuation  of  the  real  estate  in 
each  tax  district  as  corrected  by  such  board. 

2.  The  aggregate  assessed  valuation  of  the  personal  estate  in  each  tax 
district  as  corrected  by  such  board. 

3.  The  amount  of  tax  assessed  on  such  corrected  values  for  special 
district,  highway,  town,  city,  county  and  state  purposes. 

4.  The  aggregate  assessed  value  of  bank  stock. 

5.  The  tax  rate  in  each  tax  district  for  all  purposes  except  for  special 
district  taxes  and  school  taxes  in  districts  where  the  same  is  not  included 
in  the  general  tax. 

6.  The  name  and  post-office  address  of  each  incorporated  company  both 
domestic  and  foreign  in  each  tax  district  in  the  county,  and,  except  in  the 
city  of  New  York,  the  assessed  valuation  of  the  real  and  personal  property 
of  such  corporations. 

7.  The  rates  of  equalization  of  all  the  cities  and  towns  in  the  county, 
adopted  by  the  board  of  supervisors  in  equalizing  real  estate  assessments 
under  section  fifty  of  the  tax  law. 

The  tax  commission  shall  certify  to  the  comptroller,  on  his  request,  be- 
fore the  thirty-first  of  December  in  each  year,  such  extracts  or  items,  from 
the  returns  above  mentioned  as  he  may  desire.  [Tax  Law,  § 61,  as 
amended  by  L.  1911,  ch.  118,  L.  1916,  ch.  323,  and  L.  1918,  ch.  277;  B.  C. 
& G.  Cons.  L.,  p.  5885.] 

§ 15.  CLERK  OF  BOARD  OF  SUPERVISORS  TO  FURNISH  COUNTY 
TREASURER  WITH  ABSTRACT  OF  TAX-ROLLS. 

On  or  before  the  first  day  of  December  in  each  year,  the  clerk  of  the 
board  of  supervisors  shall  transmit  to  the  treasurer  of  the  county  an  ab- 
stract of  the  tax-rolls,  stating  the  names  of  the  collectors,  the  amount  of 
money  which  each  is  to  collect,  the  purpose  for  which  it  is  to  be  collected, 
and  the  persons  to  whom  and  the  time  when  it  is  to  be  paid.  The  county 
treasurer,  on  receiving  such  account,  shall  charge  to  each  collector  the 
amount  to  be  collected  by  him.13  [Tax  Law,  § 62,  as  amended  by  L.  1916, 
ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5885.] 

13.  For  form  of  abstract  of  tax  rolls  to  be  furnished  to  county  treasurer  under 
this  section,  see  Form  No.  54,  post. 


£72 


TAXATION. 


Tax  Law,  § 170. 


CHAPTER  XXXVII. 

STATE  TAX  DEPARTMENT;  EQUALIZATION  BY  STATE  BOARD;  APPEALS 

FROM  SUPERVISORS. 

Section  1.  State  tax  department. 

2.  General  powers  and  duties  of  state  tax  commission. 

3.  Official  seal. 

4.  Tax  commissioners  to  visit  counties. 

4a.  Reassessment  by  commission;  procedure. 

5.  State  board  of  equalization;  powers  and  duties. 

6.  Supervisor  may  appeal  from  equalization  of  board  of  supervisors;  con* 

sent  of  town  board;  appeal,  how  brought. 

7.  Form  of  petition;  rules  of  state  board;  time  and  place  of  hearing 

appeal. 

8.  Board  of  tax  commissioners,  determination  of;  how  made  and  what  to 

contain. 

9.  Costs  on  appeal  to  be  fixed  by  state  board;  limitation  of  amount. 


§ 1.  STATE  TAX  DEPARTMENT. 

There  is  hereby  created  a state  tax  department  the  head  of  which  shall 
be  the  state  tax  commission.  The  commission  shall  consist  of  three  com- 
missioners appointed  by  the  governor  by  and  with  the  advice  and  con- 
sent of  the  senate,  one  of  whom  shall  be  designated  by  the  governor  as 
president  of  the  commission.  Upon  the  appointment  of  a successor  to 
the  president  of  the  commission  the  governor  shall  designate  such  suc- 
cessor or  another  member  of  the  commission  as  president.  The  com- 
missioners first  appointed  shall  hold  office  for  one,  two  and  three  years 
from  January  first,  nineteen  hundred  and  fifteen.  Their  successors 
shall  be  appointed  for  full  terms  of  three  years  from  the  expiration  of 
the  terms  of  their  predecessors  in  office.  If  a vacancy  shall  occur  other- 
wise than  by  expiration  of  term  it  shall  be  filled  by  appointment  for 
the  unexpired  term.  Each  commissioner  shall  devote  his  entire  time  to 
the  duties  of  his  office.  Any  commissioner  may,  after  notice  and  an 
opportunity  to  be  heard,  be  removed  by  the  governor  for  inefficiency, 
neglect  of  duty  or  misconduct  in  office. 

The  president  of  the  commission  shall  receive  an  annual  salary  of  six 
thousand  five  hundred  dollars,  and  each  of  the  other  commissioners  shall 
receive  an  annual  salary  of  six  thousand  dollars.  [Tax  Law,  § 170,  as 
amended  by  L.  1913,  ch.  502,  and  L.  1915,  ch.  317 ; B.  C.  & G.  Cons.  L., 
p.  5938.] 


STATE  TAX  COMMISSION. 


573 


Tax  Law,  §§  170-a,  170-b,  170-c,  171. 

Subordinates.  The  commission  shall  appoint  and  may  remove  a 
secretary,  and  shall  fix  his  annual  salary  at  a sum  not  to  exceed  foui 
thousand  dollars.  The  commission  may  also  appoint  such  deputy  tax 
commissioners,  tax  assistants,  agents,  statisticians,  experts  or  other 
assistants  or  employees  as  may  he  necessaary  for  the  exercise  of  its 
powers  and  the  performance  of  its  duties  under  this  chapter,  all  of 
whom  shall  be  in  the  classified  civil  service;  and  the  commission  shall 
prescribe  their  duties  and  fix  their  compensation,  which  shall  not  exceed 
in  the  aggregate  the  amount  annually  appropriated  by  the  legislature  for 
that  purpose.  [Tax  Law,  § 170a,  as  added  by  L.  1915,  ch.  317,] 

Bureaus . There  shall  be  in  the  tax  department  such  bureaus  as  the 

tax  commission  may  deem  necessary  within  the  appropriations  therefor. 
Each  bureau  in  the  department  shall  be  in  charge  of  a deputy  tax  com- 
missioner subject  to  the  supervision  and  direction  of  the  commission, 
and  in  addition  to  their  respective  duties  as  prescribed  in  this  chapter, 
each  bureau  and  the  persons  in  charge  thereof  shall  perform  such  other 
duties  as  may  be  assigned  to  them  by  the  commission.  [Tax  Law,  § 
170b,  as  added  by  L.  1915,  ch.  317.] 

Expenses.  The  commissioners,  the  deputy  tax  commissioners,  the 
secretary,  agents,  experts,  statisticians,  tax  assistants  and  other  em- 
ployees of  the  commission  shall  be  entitled  to  receive  from  the  state  their 
actual  and  necessary  expenses  while  engaged,  outside  the  city  of  Albany, 
in  the  performance  of  their  duties.  Detailed  statements  of  such  ex- 
penses, duly  verified,  shall  be  submitted  bearing  the  approval  of  the 
president  of  the  commission,  except  those  rendered  by  the  commissioners 
need  not  be  approved  by  the  president.  [Tax  Law,  § 170c,  as  added  by 
L.  1915,  ch.  317,  and  amended  by  L.  1916,  ch.  323.] 

§ 2.  GENERAL  POWERS  AND  DUTIES  OF  STATE  TAX  COMMISSION. 

The  state  tax  commission  shall : 

First.  Investigate  and  examine,  from  time  to  time,  as  to  the  methods 
of  assessment  within  the  state,  and  confer  with,  advise,  assist  and  direct 
assessors  and  other  officials  charged  by  the  statutes  of  this  state  with 
duties  relating  to  the  assessment  of  property  for  taxation. 

Second.  Furnish  local  assessors  with  such  information  and  instruc- 
tions as  may  be  necessary  or  proper  to  aid  them  in  making  assessments. 
Assessors  shall  comply  with  such  instructions  and  their  compliance  may 
be  enforced  by  the  commission. 


574 


TAXATION. 


Tax  Law,  § 171. 

Third.  Make  such  reasonable  rules  and  regulations,  not  inconsistent 
with  law,  as  may  be  necessary  for  the  exercise  of  its  powers  and  the 
performance  of  its  duties  under  this  chapter,  and  prescribe  the  form  of 
blanks,  reports,  assessihent-rolls,  and  other  records  relating  to  the  assess- 
ment of  property  for  taxation,  and  furnish  such  forms  to  assessors  and 
other  officers  at  the  expense  of  the  state.  Local  assessors  shall  follow  the 
forms  so  prescribed  and  the  commission  shall  enforce  their  use. 

Fourth.  On  and  after  April  fifteenth,  nineteen  hundred  and  fifteen, 
assess,  determine,  revise,  readjust  and  impose  the  corporation  taxes 
under  article  nine  of  this  chapter. 

Fifth.  As  provided  in  article  two  of  this  chapter  fix  and  determine 
the  full  value  of  special  franchises  and  equalize  the  same  with  other  real 
property  in  the  town,  city  or  village  in  which  the  special  franchises  are 
situated. 

Sixth.  Administer,  supervise  and  enforce  the  tax  on  mortgages  as 
provided  in  article  eleven  of  this  chapter. 

Seventh.  Take  testimony  and  proofs,  under  oath,  with  reference  to 
any  matter  within  the  line  of  its  official  duty.  Any  member  of  such 
commission  may  be  designated  for  that  purpose. 

Eighth.  Require  from  all  state  and  local  officers  such  information  as 
may  he  necessary  for  the  proper  discharge  of  its  duties. 

Hinth.  Hold  meetings  at  an  office  to  he  assigned  it  in  one  of  the  state 
buildings  at  Albany,  at  such  times  as  may  be  fixed  by  the  president  or  a 
majority  of  the  commission  or  hv  adjournment  thereof,  or  at  such  other 
places  as  it  may  designate. 

Tenth.  Compile  and  publish  statistics  relating  to  state  and  local  taxa- 
tion and  assessments  therefor. 

Eleventh.  Have  general  supervision  of  the  assessment  of  property  for 
taxation  throughout  the  state,  make  investigations  thereof  and  of  the 
general  system  of  state  taxation  from  time  to  time. 

Twelfth.  To  inquire  into  the  provisions  of  the  laws  of  other  states  and 
jurisdictions;  to  confer  with  tax  commissioners  of  other  states  regarding 
the  most  effectual  and  equitable  methods  of  assessment  and  taxation,  and 
particularly  regarding  the  best  methods  of  reaching  all  property  and 
avoiding  conflicts  and  duplication  of  taxation  of  the  same  property,  and 
to  recommend  to  the  legislature  such  measures  as  will  bring  about  uni- 
formity of  methods  of  assessment  and  harmony  and  co-operation  between 
the  different  states  and  jurisdictions  in  matters  of  taxation. 


STATE  TAX  COMMISSION. 


Tax  Law,  §§  171-a,  171-b. 


Thirteenth.  Perform  the  other  powers  and  duties  conferred  upon  it 
by  law. 

Fourteenth.  Prepare  an  annual  report  to  the  legislature  and  recom- 
mend such  changes  or  amendments  to  the  tax  laws  as  it  may  deem 
advisable.  [Tax  Law,  § 171,  as  amended  by  L.  1915,  ch.  317,  and 
L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  5939.] 

Administer  oaths  and  compel  testimony.  The  members  of  the  tax 
commission,  their  deputies,  secretary  or  other  officer  or  employee  duly 
designated  and  authorized  by  the  commission  for  that  purpose  shall  have 
power  to  administer  oaths  and  take  affidavits  in  relation  to  any  matter 
or  proceeding  in  the  exercise  of  the  powers  or  duties  of  the  commission 
under  this  article.  The  commission  shall  have  power  to  subpoena  and 
require  the  attendance  of  witnesses  and  the  production  of  books,  papers 
and  documents  pertinent  to  the  investigations  and  inquiries  which  it  is 
authorized  to  conduct,  and  to  examine  them  in  relation  to  any  matter 
which  it  has  power  to  investigate  and  to  issue  commissions  for  the 
examination  of  witnesses  who  are  out  of  the  state  or  unable  to  attend 
before  the  tax  commission  or  excused  from  attendance. 

A justice  of  the  supreme  court  either  in  court  or  at  chambers  shall 
have  power  summarily  to  enforce  by  proper  proceedings  the  attendance 
and  testimony  of  witnesses  and  the  production  and  examination  of  books, 
papers  and  documents  called  for  by  the  commission’s  subpoenas. 

Any  person  who  shall  testify  falsely  in  any  material  matter  pending 
before  the  commission  shall  be  guilty  of  and  punishable  for  perjury. 

The  officers  who  serve  the  commission’s  summons  or  subpoenas  and 
witnesses  attending  in  response  thereto  shall  be  entitled  to  the  same  fees 
as  are  allowed  to  officers  and  witnesses  in  civil  cases  in  courts  of  record. 
[Tax  Law,  § 171a,  as  added  by  L.  1915,  ch.  317,  and  amended  by  L. 
1916,  ch.  323.] 

Conference  of  local  assessors.  The  commission  may  request  the  local 
assessors  of  every  tax  district  in  the  state  to  meet  with  the  commission 
once  in  two  years,  upon  a day  and  at  a place  designated,  for  the  purpose 
of  considering  matters  relating  to  taxation,  securing  more  uniformity  of 
valuation  throughout  the  state,  and  discussing  and  formulating  desirable 
changes  in  the  laws  relating  to  taxation  and  method  of  assessment.  The 
traveling  and  other  necessary  expenses  incurred  by  the  local  assessors 
in  attending  such  meeting  shall  be  a charge  against  the  county  within 


576 


TAXATION. 


Tax  Law,  §§  172,  173. 

which  the  district  which  they  represent  is  located.  In  counties  wholly 
within  a city  such  expenses  shall  be  a charge  against  said  city.  [Tax 
Law,  § 171b,  as  added  by  L.  1915,  ch.  317,  and  amended  by  L.  1916, 
ch.  323.] 

§ 3.  OFFICIAL  SEAL. 

The  state  tax  commission  shall  have  and  use  an  official  seal ; and  the 
records,  its  proceedings  and  copies  of  all  papers  and  documents  in  its 
possession  and  custody  may  be  authenticated  in  the  usual  form,  under 
such  seal  and  the  signature  of  any  one  of  the  tax  commissioners,  deputy 
commissioner  or  the  secretary,  and  shall  be  received  in  evidence  in  the 
same  manner  and  with  like  effect  as  deeds  regularly  acknowledged  or 
proven.  [Tax  Law,  § 172,  as  amended  by  L.  1915,  ch.  317,  and  L. 
1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5939.] 

§ 4.  TAX  COMMISSIONERS  TO  VISIT  COUNTIES. 

The  tax  commission  shall  cause  an  official  visit  to  be  made  in  every 
county  in  the  state  at  least  once  in  two  years,  and  inquire  into  the 
methods  of  assessment  and  taxation,  and  ascertain  wffiether  the  assessors 
faithfully  discharge  their  duties  and  particularly  as  to  their  compliance 
with  the  provisions  of  this  chapter  requiring  the  assessment  of  all  prop- 
erty not  exempt  from  taxation  at  its  full  value.  The  members  of  the 
board  of  supervisors  of  the  county  and  the  assessors  of  the  cities,  towns 
and  villages  within  the  county  shall  meet  at  the  place  or  places  within 
the  county  designated  by  the  commission.  Supervisors  in  addition  to 
the  compensation  provided  by  section  twenty-three  of  the  county  law, 
and  assessors,  shall  be  entitled  to  receive  compensation  at  the  rate  of  four 
dollars  per  day  for  each  calendar  day  actually  and  necessarily  spent  in 
attending  a meeting  wdthin  the  county  held  for  the  purpose  of  conference 
with  the  state  tax  commission  or  a member  of  such  commission  and 
mileage  at  the  rate  of  eight  cents  per  mile  by  the  most  direct  route  from 
his  residence,  in  going  to  and  returning  from  the  place  wdthin  the  county 
where  such  meeting  is  held.  Such  compensation  and  mileage  shall  be  a 
county  charge  in  reference  to  the  town  officials  and  a village  charge  for 
the  village  assessors.  [Town  Law,  § 173,  as  amended  by  L.  1911,  ch. 
120,  L.  1915,  ch.  317,  and  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p. 
5940.] 


STATE  TAX  COMMISSION. 


577 


Tax  Law,  § 173a. 

§ 4a.  REASSESSMENT  BY  COMMISSION;  PROCEDURE. 

At  any  time  within  thirty  days  after  the  completion  of  posting  and  pub- 
lishing notice  of  final  completion  of  the  assessment-roll  by  the  assessors  of 
any  tax  district,  if  the  commission  shall  have  reason  to  believe  from  in- 
formation furnished  by  any  taxpayer  or  otherwise  that  such  assessment-roll 
shows  undervaluations,  inequalities,  omissions  or  irregularities,  sufficient 
to  make  it  inequitable  as  between  owners  of  real  property  taxable  within 
the  tax  district  or  as  between  the  tax  district  and  other  tax  districts  in  a 
county  or  in  a city  comprising  more  than  one  county,  it  may  apply  to  any 
justice  of  the  supreme  court  of  the  judicial  district  within  which  such  tax  dis- 
trict is  wholly  or  partly  located,  for  an  order  directed  to  the  assessor  or  board 
of  assessors  of  such  tax  district,  requiring  such  assessor  or  board  to  show 
cause  at  a time  and  place  specified  therein,  why  such'  assessment-roll  should 
not  he  corrected.  Service  of  a copy  of  said  order  and  the  affidavit  upon 
which  the  same  was  granted  on  one  assessor  shall  be  deemed  sufficient  serv- 
ice. Such  order  shall  be  returnable  before  the  justice  issuing  it,  on  a day 
not  later  than  ten  days  from  the  date  of  the  issue  thereof.  If  it  shall  ap- 
pear upon  the  return  day  of  such  order  that  such  assessment-roll  shall  not 
have  been  prepared  and  completed  in  accordance  with  the  provisions  of  this 
chapter,  such  justice  acting  summarily  may  by  order  direct  such  assessor 
or  board  to  correct  such  inequalities,  irregularities,  omissions  and  under- 
valuations, and  in  his  discretion,  may  cancel  such  roll  and  direct  that  a new 
assessment-roll  for  such  tax  district  be  made  by  such  assessor  or  board  and 
in  either  case  shall  fix  and  determine  the  date  on  which  such  new  or  cor- 
rected assessment-roll  shall  be  completed,  the  date  on  which  application  for 
review  of  the  new  or  corrected  assessment  shall  be  heard,  and  the  date  on 
which  the  new  or  corrected  roll  shall  be  filed  and  delivered  to  the  super- 
visors or  other  lawful  authority. 

Notice  of  such  hearing  for  review  shall  be  given  one  week  in  advance 
in  the  same  manner  as  the  notice  of  the  first  completion  of  the  assessment- 
roll  so  corrected  or  cancelled.  After  the  determination  of  complaints  the 
assessor  or  board  shall  attach  a certificate  to  the  new  or  corrected  assess- 
ment-roll that  such  roll  has  been  completed  in  conformity  with  the  provi- 
sions of  the  order  of  the  justice,  and  such  roll  shall  be  the  assessment-roll 
of  such  tax  district  in  place  of  the  assessment-roll  cancelled  or  corrected 
by  order  of  such  justice.  If  such  new  or  corrected  assessment-roll  cannot 
be  completed  in  time  to  take  the  place  of  the  original  assessment-roll  in 
such  district  for  the  levy  and  collection  of  taxes  for  the  current  year,  said 
taxes  shall  be  levied  and  collected  upon  the  basis  of  the  original  assessment- 
roll  and  when  the  new  or  corrected  assessment-roll  is  completed  the  in- 


578 


TAXATION. 


Tax  Law,  § 174. 

equalities  in  the  taxes  levied  on  the  basis  of  the  original  assessment-roll 
shall  be  remedied  and  compensated  in  the  levy  and  collection  of  taxes  in 
such  district  for  the  year  next  following  the  completion  of  the  new  or  cor- 
rected assessment-roll  by  crediting  the  taxes  levied  in  excess  of  what  they 
would  have  been  had  the  reassessment  been  made  in  time,  or  charging  in 
addition  the  difference  between  the  amounts  levied  on  the  basis  of  the  orig- 
inal assessment-roll  and  the  amounts  which  would  have  been  levied  on  the 
basis  of  the  new  or  corrected  assessment-roll,  as  the  case  may  be. 

In  cities  the  mayor  or  a borough  president  and  in  towns  a supervisor 
and  in  villages  the  president  or  a trustee  may  apply  to  the  tax  commis- 
sion on  behalf  of  the  tax  district  which  he  wholly  or  in  part  represents, 
for  a hearing  and  determination  of  the  question  of  inequalities  or  under- 
valuations in  the  assessment  of  property  as  between  such  tax  district  and 
other  tax  districts  in  the  county  or  in  a city  where  said  city  comprises  more 
than  one  county.  After  such  application  a hearing  shall  be  held  and  upon 
a determination  that  sufficient  inequalities  or  undervaluations  exist  there- 
for, the  commission  shall  apply  to  a justice  of  the  supreme  court  as  in  this 
section  provided,  for  the  correction  of  the  assessment-roll  of  the  tax  dis- 
trict, or  tax  districts  complained  of.  For  the  purposes  of  this  section  an 
incorporated  village  shall  be  deemed  a tax  district.  [Tax  Law,  § 173a,  as 
added  by  L.  1915,  ch.  317,  and  amended  by  L.  1916,  ch.  323,  and  L.  1917, 
ch.  94.] 

§ 5.  STATE  BOARD  OF  EQUALIZATION;  POWERS  AND  DUTIES. 

The  commissioners  of  the  land  office  and  the  members  of  the  tax  com- 
mission shall  constitute  the  state  board  of  equalization.  The  state  board 
of  equalization  shall  meet  in  the  city  of  Albany  on  the  first  Tuesday  in 
September  in  each  year,  for  the  purpose  of  examining  and  revising  the 
valuations  of  real  and  personal  property  of  the  several  counties  as 
returned  to  the  state  tax  commission,  and  shall  in  accordance  with  the 
rules  of  equalization  set  forth  in  section  fifty  of  this  chapter  so  far  as 
applicable  fix  the  aggregate  amount  of  assessment  for  each  county,  upon 
which  the  comptroller  shall  compute  the  state  tax.  In  so  fixing  such 
aggregate  amount  of  assessment  for  a county  the  state  board  of  equaliza- 
tion shall  not  include  the  shares  of  stock  of  banks  or  banking  associa- 
tions assessed  pursuant  to  article  two  of  this  chapter.  The  board  may 
increase  or  diminish  the  aggregate  valuations  of  real  property  in  any 
county  by  adding  or  deducting  such  sum  as  in  its  opinion  may  be  just 
and  necessary  to  produce  a just  relation  between  the  valuations  of  real 
property  in  the  state.  But  it  shall,  in  no  instance,  reduce  the  aggregate 


STATE  TAX  COMMISSION. 


578a 


Tax  Law,  § 175. 

valuations  of  all  the  counties  below  the  aggregate  valuations  thereof  as 
so  returned.  The  comptroller  shall  immediately  ascertain  from  this 
assessment,  a copy  of  which  shall  be  transmitted  to  him,  the  proportion 
of  state  tax  each  county  shall  pay,  and  mail  a statement  of  the  amount 
to  the  county  clerk,  and  to  the  chairman  and  clerk  of  the  board  of  super- 
visors of  each  county.1  [Tax  Law,  § 174,  as  amended  by  L.  1915,  ch. 
317,  and  L.  1916,  chs.  249,  323 ; B.  C.  & G.  Cons.  L.,  p.  5940.] 

§ 6.  SUPERVISORS  MAY  APPEAL  FROM  EQUALIZATION  OF  BOARD 
OF  SUPERVISORS;  CONSENT  OF  TOWN  BOARD;  APPEAL, 
HOW  BROUGHT. 

The  mayor  of  a city  in  behalf  of  said  city,  a borough  president  in 
behalf  of  his  borough,  any  supervisor  in  behalf  of  a city  or  town  which 
he  wholly  or  in  part  represents,  may  appeal  to  the  tax  commission,  from 
any  act  or  decision  of  the  board  of  supervisors,  in  the  equalization  of 
assessments  and  the  correction  of  the  assessment-rolls.  If  such  appeal 
is  brought  in  behalf  of  a town,  a majority  of  the  town  board  of  such 
town,  if  in  behalf  of  a city,  a majority  of  the  common  council  or  board 
of  estimate  of  such  city,  shall  first  consent  to  and  approve  the  bringing 
of  such  appeal.  Such  appeal  shall  be  brought  within  ten  days  after  the 
delivery  of  the  assessment-roll  to  the  collector  by  filing  in  the  office  of 
the  county  clerk  a notice  thereof,  with  such  consent  endorsed  thereon  or 
annexed  thereto,  together  with  the  affidavit  of  the  mayor  or  supervisor 
so  appealing,  that  in  his  opinion  injustice  has  been  done  to  such  city  or 
town  by  the  act  or  decision  from  which  the  appeal  is  taken ; and  also 
within  such  time,  by  serving  personally  or  by  mail,  a duplicate  or  copy 
of  such  notice,  consent  and  affidavit  on  the  chairman  or  clerk  of  the  board 
of  supervisors,  and  by  mailing  such  a copy  or  duplicate  to  the  tax  com- 
mission.2 [Tax  Law,  § 175,  as  amended  by  L.  1915,  ch.  317,  and  L. 
1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5940.] 


1.  Action  of  board  is  judicial.  The  action  of  the  state  board  of  equalization 
in  the  discharge  of  the  duty  imposed  upon  it  in  examining  the  valuations  of  the 
property  of  the  several  counties  is  judicial  in  its  character,  and  when  it  has  ac- 
quired jurisdiction,  any  error  in  its  judgment  or  mistake  in  its  conclusions  can 
be  asserted  only  in  some  direct  proceeding  for  review.  Mayor,  etc.,  of  New  York  v. 
Davenport,  92  N.  Y.  604. 

2.  Duties  of  commissioners  on  appeal.  Upon  the  appeal  of  a town  the  duty 

of  the  state  assessors  is  to  receive  evidence  and  determimne:  1.  Whether  in- 

justice has  been  done  to  the  appellant;  2.  What  deductions,  if  any,  should  be 
made  in  the  valuations;  3.  To  what  towns  the  deductions  should  be  added. 


578b 


TAXATION. 


Tax  Law,  § 176. 

§ 7.  FORM  OF  PETITION;  RULES  OF  STATE  BOARD;  TIME  AND 
PLACE  OF  HEARING  APPEAL. 

The  tax  commission  may  prepare  a form  of  petition  and  notice  of 
appeal  from  decisions  of  the  board  of  supervisors  in  the  equalization  of 
assessments  and  rules  and  regulations  in  relation  to  bringing  such 
appeals  to  hearing  or  trial.  Such  rules  shall  provide  for  a hearing  on 
the  papers  and  proofs  submitted  to  the  board  of  supervisors  on  making 
the  equalization,  and  also  for  the  taking  of  additional  evidence  offered  by 
either  party.  The  commission  may,  by  its  deputies,  agents  or  other 
assistants,  examine  and  inquire  into  the  equalization  appealed  from, 
and  may  receive  in  evidence  at  such  hearing  the  testimony  of  its  ex- 
amining deputies,  agents  or  other  assistants.  The  appeal  shall  be  heard 
in  the  county  in  which  it  originated.  Such  hearing  shall  be  had  at  a 
time  and  place  to  be  fixed  by  the  commission  upon  notice  of  at  least 
twenty  days  by  mail  to  the  party  appealing  and  to  the  clerk  of  the  board 
of  supervisors  of  the  county  in  which  the  appeal  is  taken.3  If  the  appel- 
lant or  his  successor  fails  to  appear  at  the  time  and  place  appointed  or 
upon  any  day  to  which  such  hearing  and  trial  shall  be  adjourned,  the 
commission  shall  make  an  order  dismissing  the  appeal,  which  shall  have 
the  same  effect  as  if  the  appeal  had  not  been  sustained  after  a hearing  on 
the  merits.  [Tax  Law,  § 176,  as  amended  by  L.  1915,  ch.  317 ; B.  C. 
& G.  Cons.  L.,  p.  5942.] 

For  this  purpose  they  should  take  into  consideration  the  valuation  of  all  the 
towns  separately  in  the  county.  People  ex  rel.  Supervisors  of  Westchester  v. 
Hadley,  76  N.  Y.  337,  revg.  16  Hun  113. 

Upon  a certiorari  to  review  the  action  of  the  state  assessors,  it  was  held  that 
the  admission  in  evidence  of  records  of  deeds,  the  considerations  expressed  in 
which  were  claimed  to  be  evidence  of  the  value  of  the  property,  was  not  the 
violation  of  “ any  rule  of  law,  affecting  the  rights  of  the  ” relators  under  Code 
Civil  Procedure,  § 2140,  subd.  3.  People  ex  rel.  Schabacker  v.  State  Assessors,  47 
Hun  450. 

The  participation  of  a member  of  the  state  board  who  was  absent  from  the 
hearing,  in  the  decision — held  not  to  vitiate  the  proceeding.  People  ex  rel.  Supervisors 
of  Westchester  v.  Hadley,  14  Hun  183. 

Secret  session  of  board  of  equalization  no  ground  for  charge  of  misconduct, 
where  party  complaining  had  been  fully  heard,  nor  neglect  of  the  assistance  of 
such  party  in  arriving  at  result.  People  ex  rel.  Mayor,  etc.,  of  New  York  v.  McCarthy, 
102  N.  Y.  630. 

The  fact  that  the  board,  after  a short  secret  session,  adopted  a schedule  of 
equalization  prepared  by  one  of  the  assessors — held  not  to  affect  the  validity  of 
the  decision  arrived  at.  Id.;  Mayor,  etc.,  of  New  York  v.  Davenport,  92  N.  Y.  604. 

3.  Conduct  of  hearing.  The  fact  that  the  state  board  of  equalization,  after 
giving  a county  full  opportunity  to  present  proof,  information  and  augument. 


STATE  TAX  COMMISSION. 


578c 


Tax  Law,  § 176-a. 

Commission  s review  of  equalization  by  board  of  supervisors.  The 
tax  commission  shall  have  power  on  complaint  to  review  the  equalization 
fixed  by  the  board  of  supervisors  of  any  county  or  other  lawfully  con- 
stituted authority.  Due  notice  of  the  hearing  on  such  review  shall 
be  given  by  the  commission  to  the  clerk  of  the  board  of  supervisors  of 
the  county,  whose  duty  it  shall  be  to  transmit  a copy  of  such  notice  to 
the  mayor  of  cities  in  such  county  and  to  each  supervisor  of  the  county. 
In  the  city  of  New  York  such  notice  shall  be  given  to  the  secretary  of 
the  board  of  taxes  and  assessments.  [Tax  Law,  § 176a,  as  added  by  L. 
1915,  ch.  317,  and  amended  by  L.  1916,  ch.  323.] 

went  into  secret  session  when  deliberating  upon  the  equalization  of  assessments, 
excluding  the  representatives  of  the  county  from  participation  therein,  and  de- 
clined their  assistance  and  advice  in  making  such  equalization,  does  not  justify 
a charge  of  misconduct  against  the  board.  People  ex  rel.  Mayor,  etc.  v.  McCarthy, 
102  N.  Y.  630;  see,  also,  Mayor,  etc.,  of  New  York  v.  Davenport,  92  N.  Y. 
604. 

The  state  board  has  power  to  control  the  manner  of  the  hearing  and  to  de- 
termine what  proofs  shall  be  presented.  They  are  not  confined  to  the  reception 
of  purely  legal  evidence,  but  may  receive  affidavits.  People  ex  rel.  Hunt  v. 
Priest,  90  App.  Div.  520,  85  N.  Y.  Supp.  481,  affd.  180  N.  Y.  532. 

It  was  held  in  the  case  of  People  ex  rel.  Supervisors  v.  City  Assessors,  22  Wk. 

Dig.  453,  that  the  rulings  of  the  state  board  on  questions  of  evidence  cannot  be 

reviewed  by  certiorari. 

In  the  case  of  People  ex  rel.  Schvacker  v.  State  Assessors,  47  Hun,  450,  it 

was  held  that  a technical  error  by  the  state  board  in  the  admission  of  evi- 

dence does  not  invalidate  its  decision.  In  the  case  last  cited  the  court  sustains 
the  proposition  that  the  state  board  is  governed  and  controlled  by  statutory  pro- 
visions and  by  the  rules  and  regulations  made  by  it  in  pursuance  of  authority 
conferred  by  statute;  and  that  while  it  has  not  full  power  to  render  a decision 
of  its  own  volition  and  without  evidence,  yet  it  is  to  some  extent  vested  with  a 
discretionary  power  to  take  action  without  restricting  its  proceedings  to  strict 
technical  rules. 

Evidence  as  to  valuation.  The  state  board  is  confined  in  making  its  equaliza- 
tion to  the  valuation  of  real  estate,  and  it  cannot  be  required  to  hear  testimony 
aa  to  the  amount  of  personal  property.  People  ex  rel.  Supervisors  v.  Hadley,  76 
N.  Y.  337. 

The  price  stated  in  a conveyance  to  have  been  paid  on  a private  sale  of 
real  estate,  is  not  competent  evidence  of  value,  and  a comparison  of  the  differ- 
ence between  the  consideration  stated  in  transfers  of  real  estate,  and  the  as- 
sessed valuation  of  such  real  estate,  in  two  counties  of  the  state,  is  not  conclusive 
evidence  to  show  that  the  assessed  valuation  in  one  county  is  nearer  the  real 
value  than  in  the  other  county.  People  ex  rel.  Mayor  v.  McCarthy,  102  N.  Y. 
630;  see,  also,  People  ex  rel.  Carter  v.  Williams,  20  N.  Y.  Supp.  350. 

The  supervisors  have  no  authority  to  consider,  for  the  purposes  of  equaliza- 
tion, property  upon  which  no  valuation  has  been  fixed  by  the  local  assessors, 


578(1 


TAXATION. 


Tax  Law,  § 177. 

§ 8.  TAX  COMMISSION,  DETERMINATION  OF;  HOW  MADE  AND 
WHAT  TO  CONTAIN. 

On  appeal  by  any  town,  city,  or  borough  from  the  board  of  supervisors7 
or  other  lawful  authority’s  equalization  or  on  review  thereof  by  the  com- 
mission of  its  own  motion  or  on  complaint  the  commission  shall  review 
the  equalization  made  by  the  board  of  supervisors  of  the  county  or  other 
lawful  authority  and  shall  determine  whether  any,  and  if  any,  what 
deductions  or  additions  ought  to  be  made  from  or  to  the  aggregate  cor- 
rected value  of  the  real  and  personal  property  of  any  tax  district  as  made 
and  to  what  tax  district  or  districts  in  such  county  the  amount  of  such 
deductions  or  additions,  if  any,  shall  be  added  or  subtracted ; and  shall 
certify  their  determination,  in  writing,  to  such  board  of  supervisors  or 
other  lawful  authority  and  forward  the  same  by  mail  within  ten  days 
thereafter  to  the  clerk  of  the  board,  directed  to  him  at  his  post-office 
address,  and  forward  a copy  thereof  to  the  supervisor  or  borough  presi- 
dent appealing,  if  any.  Such  determination  shall  have  the  same  force 
and  effect  as  an  original  equalization  made  by  the  board  of  supervisors 
or  other  lawful  authority  within  the  time  prescribed  by  law  and  shall 
be  carried  into  effect  by  such  board  or  other  lawful  authority.* * * 4  In  the 

and  the  state  board  has  no  original  jurisdiction  in  that  respect,  but  merely  an 

appellate  power  to  review  the  action  of  the  supervisors.  They  cannot  take  into 

consideration  the  question  whether  personal  property  was  assessed  below  its  true 
value,  or  erroneously  exempted.  People  ex  rel.  Supervisors  v.  Hadley,  1 Abb. 
N.  C.  441. 

4.  Determination  by  state  board.  It  is  the  duty  of  the  state  board,  upon  an 
appeal  by  a town,  to  determine : ( 1 ) Whether  the  town  appealing  has  suffered 

injustice,  as  compared,  with  other  towns  in  the  county;  (2)  whether  such  town 
shall  have  a deduction  from  its  valuation,  and  the  amount  thereof;  (3)  upon  what 
other  town  or  towns  such  deduction  shall  be  placed,  and  the  portion  thereof  which 
shall  be  placed  on  each.  The  comparison  is  not  between  the  town  appealing  and 
the  residue  of  the  county  as  an  entirety,  but  between  such  town  and  the  other  towns 
as  distinct  and  separate  organizations.  If,  in  considering  the  value  of  all  the  towns 
of  the  county,  separately,  they  find  that  an  excessive  valuation  has  been  placed  upon 
the  appealing  town  as  compared  -with  some  towns  in  the  county,  they  may  remedy 
the  injustice  by  imposing  the  excess  upon  such  towhs.  People  ex  rel.  Supervisors 
v.  Hadley,  76  N.  Y.  337. 

Opinion  of  witnesses.  Where  state  assessors  relied  upon  the  opinion  of  wit- 
nesses as  to  value  rather  than  the  consideration  shown  to  be  paid  upon  sales  of 
real  estate  as  shown  by  the  records,  decision  of  assessors  was  affirmed.  People  v. 
Williams,  48  N.  Y.  St.  Rep.  207,  20  N.  Y.  Supp.  350. 

Evidence  as  to  personalty  assessed.  Section  3 of  Laws  1876,  ch.  49,  does  not 
limit  the  subjects  upon  which  the  evidence  may  be  taken  by  the  state  assessors, 
nor  exclude  evidence  of  the  real  estate  aliunde  the  assessors’  valuation,  nor  any 
inquiry  into  the  value  of  personalty,  though  the  action  of  the  board  may  ulti- 


STATE  TAX  COMMISSION. 


57  Se 


Tax  Law,  §§  IV 7a,  178. 

city  of  New  York  for  the  purpose  of  equalization  appeals,  reassessment 
or  reviews  each  borough  shall  be  deemed  a tax  district.  [Tax  Law,  § 
177 , as  amended  by  L.  1915,  ch.  317,  and  L.  1916,  ch.  323;  B.  C.  & G. 
Cons.  L.,  p.  5942.] 

Method  of  carrying  out  commission’s  equalization . If  any  such 

equalization  by  the  tax  commission  cannot  be  completed  in  time  to  take 
the  place  of  the  original  equalization  by  the  board  of  supervisors  or 
other  lawful  authority,  the  commission  shall  determine  the  amount  of 
state  and  county  taxes  paid  or  payable  by  any  town,  city  or  borough  in 
the  county  under  the  original  equalization,  in  excess  of  or  less  than  that 
which  such  town,  city  or  borough  would  have  paid  under  the  equalization 
as  made  by  the  commission.  Any  excess  so  determined  shall  be  sub- 
tracted with  interest,  and  any  deficiency  shall  be  added,  with  a propor- 
tionate part  of  such  interest  allowance,  from  or  to  the  amount  of  county 
and  state  taxes  charged  in  the  next  succeeding  year  to  each  such  town, 
city  or  borough.  [Tax  Law,  § 1 77a,  -as  added  by  L.  1915,  ch.  317,  and 
amended  by  L.  1916,  ch.  323.] 

§ 9.  COSTS  ON  APPEAL  TO  BE  FIXED  BY  TAX  COMMISSION;  LIMI- 
TATION OF  AMOUNT. 

The  tax  commission  shall  certify  the  reasonable  expense  on  every 
appeal  from  an  equalization  by  the  county  board  of  supervisors,  or  other 
lawful  authority,  not  exceeding  the  sum  of  two  thousand  dollars  for 
services  of  counsel  and  one  thousand  dollars  for  all  other  expenses,  in- 
cluding the  compensation  and  expense  of  the  stenographer.  If  such 
appeal  is  not  sustained,  the  costs  and  expenses  thereof  so  certified  shall 
be  a charge  upon  the  tax  district  or  districts  taking  such  appeal  and  shall 
be  levied  thereon  by  the  board  of  supervisors.* * * * 5  If  the  appeal  is  sus- 

mately  be  based  upon  questions  concerning  the  real  estate  only.  People  ex  rel. 

Supervisors  of  Chenango  v.  State  Assessors,  22  N.  Y.  Wk.  Dig.  453,  distinquish- 
ing  People  ex  rel.  Supervisors  of  Westchester  v.  Hadley,  76  N.  Y.  337  (1879), 
on  the  ground  that  in  the  latter  case  there  was  evidence  tending  to  show  there 
was  personal  property  not  assessed,  while  here  the  evidence  related  to  personal 
property  which  had.  been  assessed. 

Mandamus.  A decision  certified  and  forwarded  by  mail,  within  ten  days  af- 

ter it  was  made,  but  not  until  after  the  commencement  of  the  next  annual  session — 
held  sufficient  to  support  a mandamus  for  its  execution.  People  ex  rel.  Robinson 
v.  Supervisors  of  Ontario,  85  N.  Y.  323,  revg.  17  Hun,  501. 

5.  Costs  upon  dismissal  of  appeal.  Where  an  appeal  to  the  state  board  is 
dismissed,  the  costs  and  expenses  incurred  by  the  board  of  supervisors  may  be 
audited  by  the  board  and  charged  against  the  city  or  town  appealing,  and  in- 
cluded in  the  amount  of  tax  to  be  levied  upon  such  city  or  town;  and  in  case 


578f 


TAXATION. 


Tax  Law,  § 178. 

tained,  the  amount  of  such  costs  and  expenses  so  certified  shall  be  levied 
by  the  board  of  supervisors  upon,  and  collected  from,  the  county  in  the 
assessment  and  collection  of  taxes  for  the  current  year,  except  the  tax 
district  or  tax  districts  whose  appeal  is  sustained.521  If  there  shall  be 
appeals  by  more  than  one  tax  district  in  the  county,  some  of  which  are 
sustained  and  some  dismissed,  the  commission  shall  decide  what  portion 
of  such  costs  and  expenses  shall  be  borne  by  any  tax  district  whose  appeal 
is  dismissed.  Where  no  hearing  is  had  on  an  appeal  the  costs  and 
expenses  shall  be  in  the  discretion  of  the  tax  commission  but  in  no 
event  shall  exceed  the  amounts  previously  set  forth  in  this  section. 
[Tax  Law,  § 178,  as  amended  by  L.  1915,  ch.  317,  and  L.  1916,  ch.  323 ; 
B.  C.  & G.  Cons.  L.,  p.  5943.] 


of  a city  where  such  tax  is  raised  by  action  of  the  common  council,  its  levy 
and  collection  may  be  enforced  by  mandamus.  People  ex  rel.  Supervisors  v.  Common 
Council  of  Kingston,  101  N.  Y.  82. 

The  words  “ costs  and  expenses,”  as  used  in  this  section,  are  not  given  the 
same  meaning  as  when  used  in  reference  to  actions;  they  are  intended  to  afford 
an  indemnity  and  protection  against  all  costs  and  expenses  of  whatever  nature 
which  may  be  incurred  by  the  Board  in  taking  an  appeal.  People  ex  rel.  Bur- 
hans  v.  Supervisors,  32  Hun,  607. 

5a.  Costs;  when  county  charge.  The  reasonable  costs  and  expenses  incurred 
by  certain  supervisors  on  an  appeal  from  the  decision  of  a board  of  supervisors 
equalizing  assessments  are  a proper  charge  against  the  county,  but  the  bills  for 
counsel  fees  must  be  audited  by  the  board  of  supervisors  before  they  are  paid  by  the 
county  treasurer.  Opinion  of  A tty.  Genl.,  Feb.  17,  1913. 


COLLECTION  OF  TAXES. 


Explanatory  note. 


579* 


CHAPTER  XXXVm. 

COLLECTION  OF  TAXES. 

EXPLANATORY  NOTE. 

Notice  of  Receipt  of  Tax-roll  and  Warrant. 

When  the  collector  receives  the  tax-roll  and  warrant  his  first  duty  is 
to  post  notices  in  five  conspicuous  public  places  in  the  town,  specifying 
one  or  more  convenient  places  where  he  will  attend  for  at  least  three 
days  in  each  week  for  thirty  days  from  the  date  of  posting  the  notices, 
to  receive  taxes.  It  is  proper  for  the  collector  to  publish  the  notice  in 
one  or  more  newspapers  published  in  the  town,  but  the  law  does  not 
require  it.  A non-resident  is  entitled  to  notice  by  mail  if  he  demands 
it  and  pays  the  collector  a fee  of  twenty-five  cents.  A non-resident, 
either  a person  or  corporation,  may  file  with  the  town  clerk  a statement 
containing  a description  of  the  premises  assessed,  and  his  name,  resi- 
dence and  post-office  address,  which  operates  as  a request  to  mail  notices 
of  taxes  due.  The  town  clerk  must  notify  the  collector  of  the  filing  of 
such  statement,  and  the  collector  must  mail  such  notices  or  lose  his  five 
per  cent,  fee  if  the  tax  is  not  paid  within  30  days.  The  collector  must 
attend  at  the  time  and  place  specified  to  receive  taxes. 

Collection  of  Taxes  not  Paid  Within  Thirty  Days. 

The  collector  must  call  upon  each  person,  who  does  not  pay  within 
thirty  days,  at  least  once,  and  demand  the  tax.  If  the  tax  is  not  paid 
the  collector  may  levy  on  any  personal  property  belonging  to  the  person 
taxed,  found  within  the  county.  He  may  cause  the  property  levied  upon 
to  be  sold  at  public  auction,  and  take  from  the  proceeds  of  the  sale  the 
tax,  his  fees  and  the  expenses  of  the  sale,  paying  over  to  the  owner  any 
surplus.  The  law  provides  for  the  trial  of  conflicting  claims  to  such 
surplus.  [See  Tax  Law,  § 71,  as  amended  by  L.  1916,  ch.  323,  § 307.] 


580 


TAXATION. 


Explanatory  note. 

Payment  of  Tax  by  Certain  Corporations. 

A railroad,  telegraph,  telephone  or  electric  light  or  gas  company  may 
pay  its  tax,  with  one  per  centum  fees,  to  the  county  .treasurer,  within 
thirty  days  after  notice  received  by  the  county  treasurer  from  the  clerk 
of  the  board  of  supervisors.  The  fees  belong  to  the  collector.  If  the 
tax  is  not  paid  within  thirty  days,  the  county  treasurer  must  notify  the 
collector,  who  must  then  collect  the  tax  under  his  warrant.  School 
taxes  may  be  paid  by  railroad  companies  to  the  county  treasurer,  who 
is  required  to  return  the  amount  paid  to  the  several  school  districts. 
[See  Education  Law,  §§  427-431,  as  amended  by  L.  1913,  ch.  216.] 

Collection  of  taxes  against  telegraph,  telephone  and  electric  light 
companies  may  he  enforced  by  the  collector  by  sale  of  instruments, 
wires,  etc. 

Removal  of  Person  Taxed  from  County. 

Where  a person  against  whom  a tax  is  levied  has  removed  from  the 
county  so  that  collection  of  the  tax  may  not  be  enforced,  the  collector 
may  apply  to  the  county  court  for  an  order,  directed  to  the  sheriff  of 
the  county  where  the  person  taxed  may  be,  requiring  him  to  collect  such 
tax  out  of  the  personal  property  belonging  to  such  person,  found  in  his 
county.  Such  order  has  the  force  of  an  execution  on  a judgment  and 
should  be  executed  in  the  same  manner.  The  sheriff  makes  his  return  to 
the  county  treasurer  of  the  county  from  which  the  order  was  issued  and 
the  amount  collected  is  credited  to  the  proper  town. 

Supplementary  Proceedings. 

If  a collector  returns  a tax  as  unpaid  for  want  of  personal  property 
out  of  which  to  collect  the  tax,  the  county  treasurer  or  supervisor  of  the 
town  may  apply  to  the  court  for  the  institution  of  supplementary  pro- 
ceedings. Such  proceedings  are  to  be  prosecuted  in  the  same  manner 
as  proceedings  supplementary  to  execution. 

Fees  of  Collector. 

The  law  gives  the  collector  a fee  of  one  per  cent,  on  all  taxes  col- 
lected within  the  period  of  thirty  days  from  the  date  of  the  notice  that 
he  has  received  the  assessment-roll,  unless  the  aggregate  amount  of  taxes 
to  be  collected  is  $2000  or  less,  in  which  case  he  is  entitled  to  two  per 
cent.  After  the  period  of  thirty  days  he  is  entitled  to  five  per  cent. 
Such  fees  are  added  to  the  taxes,  to  be  paid  by  the  person  assessed.  The 


COLLECTION  OF  TAXES. 


581 


Explanatory  note. 

collector  is  entitled  to  two  per  cent,  on  all  taxes  returnd  as  unpaid,  pay- 
able by  the  county  treasurer. 

Return  of  Unpaid  Taxes. 

The  collector  is  credited  by  the  county  treasurer  with  the  amount  of 
taxes  returned  as  unpaid.  Such  return  must  be  accompanied  by  an 
affidavit  to  the  effect  that  he  has  not  been  able,  upon  diligent  inquiry, 
to  find  any  personal  property  upon  which  he  could  make  a levy.  The 
eollector  may  add  five  per  cent,  to  the  taxes  returned  as  unpaid. 

The  return  is  attached  to  the  assessment-roll,  and  is  to  be  in  the  form 
prescribed  by  the  State  Board  of  Tax  Commissioners.  If  a stay  or  in- 
junction has  been  issued,  the  time  for  making  the  return  is  extended 
for  a period  of  thirty  days  beyond  the  termination  of  the  stay. 

Payments  by  Collector. 

The  collector  must  pay  over  to  the  officers  named  in  the  warrant  the 
taxes  collected  by  him,  within  one  week  after  the  time  prescribed 
therein.  Such  officers  are  to  deliver  to  the  collector  duplicate  receipts, 
one  of  which  should  be  kept  by  the  collector  and  the  other  delivered  to 
the  county  treasurer,  to  be  filed  by  him  as  evidence  that  the  collector  is 
discharged  from  liability,  to  the  extent  of  such  receipts.  If  the  collector 
fails  to  pay  over  the  County  Court  must  make  an  order,  on  the  applica- 
tion of  the  County  Treasurer,  directing  the  sheriff  to  levy  on  the  prop- 
erty of  the  collector.  If  after  such  a levy  there  is  a deficiency  still  un- 
accounted for,  the  supervisor  must  sue  on  the  undertaking  of  the  col- 
lector. 

Extension  of  Time  to  Collect  Taxes. 

The  county  treasurer,  upon  the  application  of  the  supervisor  of  a 
town,  may  extend  the  time  for  the  collection  of  taxes  by  a collector  to  a 
day  not  later  than  April  1. 

Vacancies  in  Office  of  Collector. 

The  town  board  is  required  to  fill  a vacancy  in  the  office  of  collector. 
Upon  giving  the  same  bond  as  required  of  a collector  he  succeeds  to 
the  powers  of  the  former  collector,  and  is  entitled  to  the  same  fees 
on  all  moneys  collected  by  him.  The  original  warrant  is  delivered  to 
the  new  collector.  If  it  has  been  lost  or  destroyed  a new  one  is  to  be 
issued  by  the  chairman  and  clerk  of  the  board  of  supervisors. 


582 


TAXATION. 


Explanatory  note. 

Satisfaction  of  Collectors  Bond. 

Upon  the  settlement  of  the  accounts  of  a collector  by  a county 
treasurer,  he  must  give  to  the  Collector  or  his  sureties,  a written  certi- 
ficate of  such  settlement.  When  such  certificate  is  filed  in  the  office  of 
the  county  clerk,  the  undertaking  is  satisfied,  and  the  collector  and 
his  sureties  are  released  from  all  further  liability. 


Section  1.  Collector  to  give  notice  of  receipt  of  tax  roll  and  warrant;  con- 
tents of  notice;  how  posted;  notice  to  non-residents. 

2.  Notice  to  non-residents;  notice  of  residence  of  non-residents  to  be 

filed  with  town  clerk;  duty  of  town  clerk. 

3.  Collector  to  call  upon  taxpayers  after  expiration  of  thirty  days; 

levy  on  personal  property  because  of  failure  to  pay;  sale  of  per- 
sonal property;  disposition  of  proceeds. 

4.  Settlement  of  conflicting  claims  to  surplus  of  tax  sale;  action  by 

claimant  to  recover  amount  of  surplus. 

5.  Collection  of  taxes  assessed  against  stocks  in  banks  and  banking 

associations;  collector  may  levy  on  stock. 

6.  Railroad,  telegraph,  telephone  and  electric  light  corporations  may 

pay  tax  to  county  treasurer;  duties  of  county  treasurer. 

7.  Payment  of  school  tax  by  railroad  company  to  county  treasurer. 

8.  Railroads  in  towns  bonded  for  the  construction  thereof,  to  pay  tax 

to  county  treasurer;  investment  of  money  by  county  treasurer. 

9.  Tax  against  telegraph,  telephone  and  electric  light  lines;  collectors 

may  levy  on  instruments;  return  of  unpaid  taxes  to  county 
treasurer;  county  treasurer  may  sell  lines. 

10.  Sequestration  of  property  of  corporations  for  failure  to  pay  taxes. 

11.  Taxes  on  rents  reserved;  collector  may  levy  on  personal  property 

of  owner  found  in  county;  when  tenant  may  be  compelled  to  pay. 

12.  Collector  to  return  unpaid  taxes  on  debts  owing  to  non-residents  of 

the  United  States  to  county  treasurer;  county  treasurer  to  issue 
a warrant  to  sheriff  to  collect  amount  of  tax. 

13.  Sheriff  to  return  warrant  for  collection  of  taxes  on  debts  owing  to 

non-residents;  neglect  to  make  return;  proceedings,  if  warrant  is 
returned  unsatisfied. 

14.  Application  to  County  Court  for  order  directing  sheriff  to  collect 

tax  when  person  taxed  has  removed  from  county;  certified  copy 
of  order  to  be  delivered  to  sheriff  or  constable  of  county  to  which 
person  has  removed. 

15.  Supervisor  or  county  treasurer  may  institute  supplementary  pro- 

ceedings for  collection  of  unpaid  taxes. 

16.  Dismissal  of  suits  or  proceedings. 

17.  Cancellation  of  personal  tax  void  for  want  of  jurisdiction. 

18.  When  tax  is  paid  by  tenant  he  may  retain  amount  from  rental. 

19.  Payment  of  taxes  on  part  of  lot. 

20.  Payment  of  taxes  on  state  lands  in  forest  preserve. 

21.  Fees  of  collector. 


COLLECTION  OF  TAXES. 


583 


Tax  Law,  § 69. 

Action  22  Return  by  collector  of  unpaid  taxes;  contents  of  return;  form 
prescribed  by  tax  commissioners. 

23.  Stay  by  injunction  or  otherwise  of  collection  of  taxes,  to  operate  as 

an  extension  of  time  for  making  return  of  taxes  affected. 

24.  Payment  by  collector  of  taxes  collected;  officers  to  give  collector 

duplicate  receipts;  receipts  to  be  filed. 

25.  Collector  failing  to  make  payments;  County  Court  to  order  sheriff 

to  levy  on  property  of  collector;  return  of  sheriff. 

26.  County  treasurer  to  make  payments  to  proper  officers  out  of  moneys 

collected. 

27.  Supervisors  to  prosecute  collector’s  undertaking  for  deficiency. 

28.  County  treasurer  may  extend  time  for  collection  of  taxes;  new  bond 

of  collector. 

29.  Filling  vacancy  in  office  of  collector;  notice  of  appointment  to 

county  treasurer;  warrant  to  be  delivered  to  new  collector. 

30.  Sheriff  to  collect  taxes  in  case  of  collector’s  failure  to  execute  bond, 

unless  vacancy  be  filled;  duties  of  sheriff  thereunder. 

31.  Collector’s  bond,  satisfaction  of,  by  county  treasurer;  form  of  satisfac- 

tion ; filing  thereof. 

31a.  Reassessment  of  taxes  levied  on  imperfectly  described  real  property. 

32.  Reassessment  of  unpaid  taxes  on  resident  real  property;  supervisor 

to  include  in  tax  roll;  rate  of  interest  on  unpaid  taxes;  to  be 
regarded  as  non-resident  thereafter. 

33.  County  treasurer  to  pay  money  to  creditors  of  county. 

34.  County  treasurer  to  be  charged  with  amount  of  state  tax;  when 

state  tax  is  to  be  paid  over;  county  treasurer  may  borrow  money 
for  payment  of  state  tax;  interest  on  amount  withheld. 

35.  State  comptroller  to  state  accounts  with  county  treasurer;  to  in- 

stitute proceedings  against  county  treasurer  for  failure  to  pay 
over. 

36.  Losses  by  default  of  collector  or  treasurer,  how  borne. 

37.  Collector  to  give  receipts  to  each  person  paying  a tax;  form  of  re- 

ceipts; to  be  provided  by  board  of  supervisors. 

38.  Obstructing  officer  in  collecting  taxes. 

§ 1.  COLLECTOR  TO  GIVE  NOTICE  OF  RECEIPT  OF  TAX-ROLL 

AND  WARRANT;  CONTENTS  OF  NOTICE;  HOW  POSTED; 
NOTICE  TO  NON-RESIDENTS. 

Every  collector,  upon  receiving  a tax-roll  and  warrant,  shall  forthwith 
cause  notice  of  the  reception  thereof  to  be  posted  in  five  conspicuous  public 
places  in  the  tax  district,  specifying  one  or  more  convenient  places  in  such 
tax  district,  where  he  will  attend  from  nine  o’clock  in  the  forenoon  until 
four  o’clock  in  the  afternoon,  at  least  three  days,  and  if  in  a city,  at 
least  five  days,  in  each  week  for  thirty  days  from  the  date  of  the  notice, 
which  shall  be  the  date  of  the  posting  or  first  publication  thereof,  which 
days  shall  be  specified  in  such  notice,  for  the  purpose  of  receiving  the 
taxes  assessed  upon  such  roll.1  The  collector  shall  attend  accordingly, 


1.  For  form  of  notice  of  collector  of  receipt  of  tax  roll  and  warrant,  see  Form 
No.  55,  post. 


581 


TAXATION. 


Tax  Law,  §§  69-a,  70. 

and  any  person  may  pay  his  taxes  to  such  collector  at  the  time  and 
place  so  designated,  or  at  any  other  time  or  place.* 2  In  a city,  the 
notice  in  addition  to  being  posted  shall  be  published  once  in  each  week, 
for  two  weeks  successively,  in  a newspaper  published  in  such  city.  [Tax 
Law,  § 69,  as  amended  by  L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p. 
5886.] 

Nonresidents ; statement  of  taxes.  On  the  written  demand  of  a non- 
resident owner  of  real  property  included  in  such  tax-roll,  and  the  pay- 
ment by  such  owner  to  the  collector  of  the  sum  of  twenty-five  cents,  the 
collector  shall  within  twenty-four  hours  after  the  receipt  of  such  demand 
mail  in  a postpaid  envelope  directed  to  such  nonresident  owner,  to  the 
address  to  be  furnished  in  such  demand,  a statement  of  the  amount  of 
taxes  assessed  against  such  property  with  a notice  of  the  dates  and  places 
fixed  by  him  for  receiving  taxes.  [Tax  Law,  § 69a,  as  added  by  L. 
1916,  ch.  323.] 

§ 2.  NOTICE  BY  COLLECTOR  TO  NON-RESIDENTS  IN  TOWNS;  NO- 
TICE OF  RESIDENCE  OF  NON-RESIDENTS  TO  BE  FILED 
WITH  TOWN  CLERK;  DUTY  OF  TOWN  CLERK. 

A person  or  corporation  who  is  the  owner  of,  or  liable  to  assessment 
for,  an  interest  in  real  property  situated  and  liable  to  assessment  and 
taxation  in  a town  in  which  he  or  it  is  not  actually  a resident  may  file 
with  the  town  clerk  of  such  town  a notice  stating  his  name,  residence  and 
post  office  address,  or  in  case  of  a corporation,  its  principal  office,  a 
description  of  the  property  sufficient  to  identify  the  same,  and  if  situated 
in  a village  or  school  district,  the  name  of  each  such  village  and  number 
and  designation  of  each  such  school  district.  Such  notice  shall  be 
valid  and  continue  in  effect  *until  canceled  by  such  person  or  corporation. 
The  town  clerk  shall,  within  five  days  after  the  delivery  of  the  warrants 
for  the  collection  of  taxes  in  such  tax  districts,  furnish  to  the  collectors 
of  the  town,  and  the  collector  of  each  village  and  school  district  in  which 
such  real  property  is  situated,  and  such  collectors  shall  within  such 
time  apply  for,  a transcript  of  all  notices  so  filed,  and  each  of  such 
collectors  shall  within  five  days  after  the  receipt  of  such  transcripts 
mail  to  each  person  or  corporation  filing  such  notice,  at  the  postoffice 
address  stated  therein,  a statement  of  the  amount  of  taxes  due  on  said 
property  and  the  times  and  places  at  which  the  same  may  be  paid.  In 
case  said  statement  shall  not  be  furnished  as  herein  provided,  such 
person  or  corporation  shall  not  be  liable  for  fees  for  collection  in  excess 
of  one  per  centum.  Upon  the  filing  of  such  notice  the  town  clerk  shall 
be  entitled  to  receive  a fee  of  one  dollar  from  the  person  or  corporation 
offering  such  notice,  which  shall  be  in  full  for  all  services  rendered 
hereunder.  [Tax  Law,  § 70,  as  amended  by  L.  1909,  ch.  207,  and  L. 
1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  5888.] 

References.  The  form  and  contents  of  the  collector’s  warrant  are  prescribed  by 
section  59  of  the  Tax  Law,  ante;  for  form  of  tax  warrant,  see  Form  No.  52,  post. 

Section  70,  as  amended  by  L.  1909,  ch.  207,  and  L.  1916,  ch.  323,  of  the  Tax  Law, 
provides  for  the  serving  of  notice  of  the  receipt  of  a tax  warrant  upon  non-residents ; 
see  next  section. 

2.  Payment  on  Sunday.  Where  last  day  provided  in  notice  falls  on  Sunday, 
taxes  may  be  paid  on  Monday.  Kept,  of  Atty.  Genl.  (1902)  152. 


COLLECTION  OF  TAXES. 


585 


Tax  Law,  §§  70-a,  71. 

Notice  by  collector ; nonresidents  in  cities.  A person  or  corporation 
who  is  the  owner  of,  or  liable  to  assessment  for,  an  interest  in  real 
property  situated  and  liable  to  assessment  and  taxation  in  any  city  of 
this  state  in  which  he  or  it  is  not  actually  a resident,  may  file  with  the 
city  clerk  of  such  city  a notice  stating  his  name,  residence  and  post  office 
address,  or  in  case  of  a corporation,  its  principal  office,  and  a descrip- 
tion of  the  property  sufficient  to  identify  the  same.  Such  notice  shall 
be  valid  and  continue  in  effect  until  canceled  by  such  person  or  corpora- 
tion. The  city  clerk  shall,  within  five  days  after  the  delivery  of  the 
warrants  for  the  collection  of  any  tax  in  any  such  tax  district,  furnish 
to  the  collector  or  to  the  person  by  whatever  name  of  office  charged  with 
the  collection  of  such  taxes,  and  such  collector,  or  other  person,  shall 
within  such  time  apply  for  a transcript  of  all  notices  so  filed  and  each 
such  collector  or  other  person,  within  five  days  after  the  receipt  of 
such  transcripts,  shall  mail  to  each  person  or  corporation  filing  such 
notice,  at  the  post  office  address  stated  therein,  a statement  of  the 
amount  of  taxes  due  on  such  property  and  the  times  and  places  at  which 
the  same  may  be  paid.  In  case  said  statement  shall  not  be  furnished 
as  herein  provided,  such  person  or  corporation  shall  not  be  liable  for 
fees  for  collection  in  excess  of  one  per  centum  and  in  all  cases  where, 
by  the  provisions  of  any  special  law,  no  fee  is  charged  where  such  tax 
is  paid  within  thirty  days  or  more  after  the  delivery  of  such  tax-roll 
and  warrant  and  the  publication  of  such  notice,  no  fee  shall  be  charged 
or  collected  by  such  collector  for  the  collection  of  such  tax  within  the 
time  limited  by  such  special  law  for  the  payment  of  such  tax.  Upon 
the  filing  of  such  notice,  the  city  clerk  shall  be  entitled  to  receive  a 
fee  of  one  dollar  from  the  person  or  corporation  offering  such  notice, 
which  shall  be  in  full  for  all  services  rendered  herein.  [Tax  Law, 
§ 70a,  as  added  by  L.  1915,  ch.  485,  and  amended  by  L.  1916,  ch.  323.] 

§ 3.  COLLECTOR  TO  CALL  UPON  TAXPAYERS  AFTER  EXPIRATION 
OF  THIRTY  DAYS;  LEVY  ON  PERSONAL  PROPERTY  BE- 
CAUSE OF  FAILURE  TO  PAY;  SALE  OF  PERSONAL  PROP- 
ERTY; DISPOSITION  OF  PROCEEDS. 

After  the  expiration  of  notice  period  of  thirty  days,  as  provided  in  section  sixty- 
nine  of  this  chapter,  the  collector  shall  call,  at  least  once,  on  every  person  taxed  upon 
such  roll  whose  taxes  are  unpaid,  at  his  usual  place  of  residence,  if  he  is  an  actual 
inhabitant  of  such  tax  district,  and  demand  payment  of  the  taxes  charged  to  him 
on  his  property. 3 If  the  owner  of  a parcel  or  portion  of  real  property  is  a resident 
of  the  tax  district  in  which  such  parcel  or  portion  of  real  property  is  assessed,  and 
his  name  is  correctly  entered  on  the  assessment-roll,  he  shall  be  personally  liable  for 
the  tax  assessed  against  such  parcel  or  portion  of  real  property.  If  any  person  shall 
neglect  or  refuse  to  pay  any  tax  imposed  on  him,  the  collector  shall  levy  upon  any 
personal  property  in  the  county  belonging  to  or  in  the  possession  of  any  person  who 
ought  to  pay  the  tax,  and  cause  the  same  to  be  sold  at  public  auction  for  the 
payment  of  such  tax,  and  the  fees  and  expenses  of  collection;  and  no  claim 

3.  The  tax  roll  and  warrant  constitute  one  process.  If  each  is  regular 
upon  its  face,  the  process  will  fully  protect  the  collector  in  forcing  a collection  of 
the  tax.  Bennett  v.  Robinson,  42  App.  I)iv.  412;  50  N.  Y.  Supp.  107;  Chegaray  v. 
Jenkins,  5 N.  Y.  376;  Van  Rensselaer  v.  Witbock,  7 N.  Y.  517;  Patchin  v.  Ritter.  27 
Barb.  34;  Johnson  v.  Learn,  30  Barb.  616. 

Tn  the  case  of  Bradley  v.  Ward.  58  N.  Y.  401,  it  was  hold  that  when  a copy  of 
the  assessment-roll  with  the  warrant  attached,  is  delivered  to  the  town  collector, 
it  is  not  necessary  to  attach  the  affidavit  of  the  assessors  or  a copy  of  it  in  order  to 
protect  the  collector. 


586 


TAXATION 


Tax  Law,  § 71. 

of  property  to  be  made  thereto  by  any  other  person  shall  be  available  to  pre- 
vent such  sale.4  The  collector  shall  be  entitled  to  a fee  of  one  dollar  for  mak- 

The  fact  that  the  roll  did  not  show  in  express  terms  that  the  amount  assessed  was 
a valuation  of  capital  stock,  but  it  was  placed  under  a column  headed  “ Valuation 
of  Personal  Property,”  is  not  such  an  indication  of  error  on  the  part  of  the  as- 
sessors as  to  destroy  the  protection  of  the  warrant.  Niagara  Elevating  Co.  v.  Mc- 
Namara, 50  N.  Y.  653. 

Liability  of  collector.  The  authority  conferred  upon  a tax  collector  by  his 
warrant  is  special  and  exceptional,  and  must  be  pursued  according  to  its  terms. 
First  Nat.  Bank  of  Sandy  Hill  v.  Fancher,  48  N.  Y.  524. 

In  Hendrickson  v.  Brown,  1 Caines  Cas.  92  (1803),  a theatre  had  been  assessed 
as  a dwelling-house,  but  as  the  assessor  had  jurisdiction  to  assess  it  in  some  form, 
the  warrant  was  held  a justification  to  the  collector. 

A warrant  issued  by  supervisors  of  a county  for  the  collection  of  taxes  is  valid, 
so  as  to  protect  the  collector,  although  the  persons  signing  are  not  described  in  it 
as  supervisors,  nor  designated  as  such  in  connection  with  their  signatures.  Sheldon 
v.  Van  Buskirk,  2 N.  Y.  473. 

Where  a warrant  for  the  collection  of  a poor  tax  was  regular  on  its  face,  it  being 
the  duty  of  the  overseer  collecting  the  tax  not  to  act  without  his  colleague’s  consent — 
held,  that  it  was  to  be  presumed  that  he  acted  by  authority.  Downing  v.  Ruger, 
21  Wend.  178. 

Where  the  warrant  is  regular  on  its  face,  is  issued  by  authorities  having  juris- 
diction, and  is  directed  against  the  owner  and  his  property,  the  collector  is 
protected.  Strong  v.  Walton,  47  App.  Div.  114,  62  N.  Y.  Supp.  353;  Hulder  v. 
Golden,  36  N.  Y.  446;  Bullis  v.  Montgomery,  50  Id.  352;  Troy  & L.  R.  R.  Co.  v. 
Kane,  72  Id.  614. 

If  the  warrant  issued  to  the  collector  is  regular  on  its  face,  he  is  not  bound  to 
inquire  whether  the  taxes  were  legally  assessed.  Wollsey  v.  Morris,  96  N.  Y.  311; 
and  this  is  so  even  though  the  collector  knew  of  facts  which  would  invalidate  the 
assessment.  Thomas  v.  Clapp,  20  Barb.  165.  But  where  the  illegality  of  a tax 
appears  on  the  face  of  the  warrant  the  collector  who  levies  under  it  is  liable  to  tres- 
pass. Bank  of  Utica  v.  City  of  Utica,  4 Paige,  399;  Clark  v.  Hallock,  16  Wend.  607; 
Franklin  v.  Pearsall,  21  J.  & S.  271.  Where  it  appears  that  the  tax  roll  was  verified 
before  the  third  Tuesday  in  August,  the  time  fixed  for  its  final  review  and  correction, 
it  is  a nullity,  and  the  defect  being  apparent  upon  the  face  of  the  process,  the  col- 
lector is  not  thereby  protected.  Westfall  v.  Preston,  49  N.  Y.  349. 

A warrant  to  collect  tax  “ in  the  fifth  column,”  justifies  the  collection  of  a 
highway  tax  in  a sixth  column.  Bennett  v.  Robinson,  42  App.  Div.  412,  59  N.  Y. 
Supp.  197. 

Execution  of  warrant  after  return  day.  Where  a warrant  is  executed  after 
the  return  day,  the  officer  issuing  it  is  not  liable  though  it  be  otherwise  invalid. 
Nor  will  the  receipt  of  the  money  collected  make  him  liable  in  damages  for  its 
execution,  unless  he  had  notice  that  it  was  collected  after  the  return  day.  Van 
Rensselaer  v.  Kidd,  6 N.  Y.  331. 

Payment  of  tax  by  third  persons.  Mortgagees  may  pay  tax  and  add  the 
amount  to  the  mortgage  debt.  Sidenberg  v.  Ely,  90  N.  Y.  257.  The  mortgagee  can- 
not compel  an  assignee  for  the  benefit  of  creditors  to  pay  taxes  on  the  property  mort- 
gaged. Matter  of  Lewis,  81  N.  Y.  421.  Unpaid  taxes  upon  real  estate  of  the  testa- 
tor must  be  paid  by  his  executor  out  of  the  personalty  of  the  testator.  Smith  v. 
Cornell,  111  N.  Y.  554. 

A referee  selling  real  property  under  a judgment  rendered  in  an  action  to  fore- 
close a mortgage,  or  for  partition  or  dower,  must  pay  all  taxes  assessed  out  of  the 
proceeds  of  the  sale.  Code  Civ.  Proc.,  sec.  1676. 

Supplementary  proceedings  for  the  collection  of  taxes  may  be  instituted  by 
the  supervisor  or  county  treasurer.  Tax  Law,  sec.  299,  post. 

4.  Levy  on  personal  property.  The  authority  to  proceed  by  distress  and  sale 
to  collect  a tax  is  permissive  and  not  mandatory.  United  States  Trust  Co.  v.  Mayor, 
77  Hun  182,  190;  28  N.  Y.  Supp.  344. 

The  statute  authorizes  a levy  upon  any  personal  property  in  the  possession  of 
any  person  who  ought  to  pay  the  tax.  The  possession  referred  to  means  an 
actual,  physical,  and  not  merely  a legal  or  constructive  possession,  and  an  actual 
possession  by  the  consent  of  the  owner,  although  unaccompanied  by  an  owner- 
ship in  the  possessor,  is  a possession  within  the  meaning  of  the  statute.  Hersee 
v.  Porter,  100  N.  Y.  403.  In  this  case  the  constitutionality  of  such  provision  was 
attacked.  The  court  in  declaring  the  statute  to  be  constitutional  said : “ The 


COLLECTION  OF  TAXES. 


587 


Tax  Law,  § 71. 


ing  such  levy  in  addition  to  any  other  fees  and  expenses  of  collection  if  such 
tax  is  paid  before  the  day  of  sale  and  to  a fee  of  one  dollar  for  making  such 
levy  and  one  dollar  for  conducting  the  sale  in  addition  to  any  other  fees 
and  expenses  of  collection,  if  such  tax  is  not  paid  before  the  day  of  sale. 
Public  notice  of  the  time  and  place  of  sale  of  the  property  to  be  sold 
shall  be  given  by  posting  the  same  in  at  least  three  public  places  in  the  tax 

authority  to  seize  and  sell  any  property  in  the  possession  of  a person  taxed  for  the 
payment  of  the  tax  has  been  a part  of  the  statute  law  of  the  state  since  1801. 
. . . In  view  of  this  long  and  continued  acquiescence  by  the  executive,  legisla- 

tive and  judicial  departments  of  the  government  in  the  legislation  now  in  question, 
the  court  would  not,  we  think,  be  justified  in  departing  from  the  common  under- 
standing that  the  statutory  authority  to  seize  any  property  in  the  possession  of 
the  person  taxed,  for  the  payment  of  the  tax,  justifies  the  seizure  and  sale  of  the 
property  of  a third  person  so  situated.  Each  individual  in  the  community  has 
notice  of  the  law,  and  is  presumed  to  understand  that  if  his  chattels  are  by  his 
consent  or  permission  in  the  possession  of  another,  they  can  be  taken  for  a tax 
against  the  person  in  possession.  The  law  was  probably  framed  to  prevent  fraud 
and  collusion  and  disputes  as  to  title,  and  each  individual  in  the  community  may 
be  assumed  to  have  consented  that  his  property  shall  be  subject  to  the  right  of  the 
state  in  this  way  to  enforce  the  power  of  taxation.” 

The  statute  refers  to  actual  physical  possession,  and  not  to  mere  legal  or  con- 
structive possession;  and  an  actual  possession  by  the  consent  of  the  owner,  though 
unaccompanied  with  any  ownership  in  the  possessor,  is  a possession  within  the 
meaning  of  the  statute.  Personal  property  mortgaged,  and  after  default  still  in 
the  possession  of  the  mortgagor,  is  liable  to  distress  and  sale  for  his  taxes.  Hersee 
v.  Porter,  100  N.  Y.  403. 

The  collector  is  not  authorized  to  seize  a chair  belonging  to  the  husband  for  a 
tax  due  from  the  wife,  even  though  occupied  by  the  wife  at  the  time  of  levy.  The 
chair  is  not  deemed  within  her  possession  sufficient  to  justify  such  levy.  Hubbell 
v.  Abbott,  21  Misc.  780,  47  N.  Y.  Supp.  1129. 

A town  collector  may  seize  not  only  goods  and  chattels  belonging  to  the  person 
taxed,  but  any  goods  and  chattels  in  his  possession.  Sheldon  v.  Van  Buskirk,  2 
N.  Y.  473;  Strong  v.  Walton,  47  App.  Div.  114,  62  N.  Y.  Supp.  353. 

The  possession  of  a boarder  in  a house  or  hotel  of  the  furniture  in  the  rooms 
occupied  by  him  is  not  such  as  authorizes  seizure  for  taxes  assessed  against 
such  boarder.  Denton  v.  Carroll,  4 App.  Div.  532;  40  N.  Y.  Supp.  19.  And 
possession  of  the  goods  by  a firm  of  which  the  person  taxed  is  a member,  would 
not  bring  the  case  within  the  statute.  Stockwell  v.  Vietch,  38  Barb.  650; 
15  Abb.  Pr.  412. 

The  statute  does  not  apply  to  property  belonging  to  another  person  in  no 
way  liable  for  the  tax  which  is  transiently  upon  the  lands  assessed,  but  in 
the  possession  of  the  owner  for  his  own  purposes.  Lake  Shore  & Mich.  S.  R.  R. 
Co.  v.  Roach,  80  N.  Y.  339. 

Property  in  the  possession  of  a person  taxed  which  was  purchased  with 
pension  money  is  exempted  from  levy  under  this  section.  Strong  v.  Walton, 
47  App.  Div.  114;  62  N.  Y.  Supp.  353.  But  the  fact  that  the  personal  property  in 
the  possession  of  the  taxpayer  is  in  his  possession  under  an  agreement  that  the 
title  is  not  to  pass  to  him  until  its  purchase  price  is  paid  does  not  affect  the 
right  of  the  collector  to  levy  on  such  property.  Pauly  v.  Wahle,  29  Hun,  116. 

Where  the  owner  of  the  real  estate  assessed  resided  on  the  land  with  a 
tenant  who  was  working  it  on  shares,  it  was  held  that  the  occupancy  and 
possession  of  the  tenant  was  that  of  the  owner  for  the  purpose  of  taxation, 
and  that  the  tenant’s  possession  of  goods  liable  to  distress  for  taxes,  was  the 
possession  of  the  owner.  Coie  v.  Carl,  82  Hun,  360;  31  N.  Y.  Supp.  565. 

The  statute  requires  that  land  of  a non-resident  shall  be  assessed  without 


588 


TAXATION. 


Tax  Law,  § 71. 

district  where  the  sale  is  to  be  made,  at  least  six  days  previous  thereto.6  If 
the  proceeds  of  such  sale  shall  be  more  than  the  amount  of  such  tax,  the  fees 
of  the  collection  and  the  expenses  of  the  sale,  the  surplus  shall  be  paid  to 
the  person  against  whom  the  tax  was  assessed.  If  any  other  person  shall 
claim  the  surplus,  on  the  ground  that  the  property  sold  belonged  to  him, 
and  such  claim  be  admitted  by  the  person  for  the  payment  of  whose  tax 
the  sale  was  made,  such  surplus  shall  be  paid  to  such  other  person.  If 
such  claim  be  contested  by  the  person  for  the  payment  of  whose  tax  the 
property  was  sold,  such  surplus  shall  be  paid  over  by  the  collector  to  the 
supervisor  of  the  town,  who  shall  retain  the  same  until  the  rights  of  the 
parties  thereto  shall  be  determined  by  due  course  of  law,  or  by  agreement 


naming  the  owner  in  the  roll;  the  collector,  therefore,  cannot  levy  a tax  upon 
the  personal  property  of  the  non-resident.  The  warrant  does  not  authorize 
the  seizure  and  sale  of  the  property  of  persons  not  named,  or  whose  names  it  is 
apparent  the  assessors  had  no  right  to  set  down.  N.  Y.  & Harlem  R.  R. 
Co.  v.  Lyon,  16  Barb.  651. 

Possession  by  husband  or  wife.  A levy  upon  property  owned  by  the  plain- 
tiff to  satisfy  a tax  assessed  against  plaintiff’s  husband  for  a farm  owned  in 
fact  by  her, — held  to  be  void,  and  the  warrant  to  be  no  justification  to  the 
collector.  Hallock  v.  Rumsey,  22  Hun,  89. 

Where  a married  woman  is  in  possession  of  a farm  under  contract  of  sale,  the 
horses  belonging  to  and  used  by  her  on  the  farm  are  not  subject  to  levy  under 
a warrant  issued  for  the  collection  of  a tax  upon  the  farm,  assessed  by  the 
assessors  of  the  town  in  which  it  is  situated,  against  the  husband.  Van 
Nostrand  v.  Hubbard,  35  App.  Div.  201,  54  N.  Y.  Supp.  739. 

The  interest  of  a tenant  in  common  of  personalty  may  be  levied  upon. 
Dinehart  v.  Wilson,  15  Barb.  595. 

Rolling  stock  of  a railroad  is  liable  to  seizure  and  sale  to  satisfy  a tax 
against  the  company.  Randall  v.  Elwell,  52  N.  Y.  521. 

Bank  money.  Assessments  were  made  against  resident  stockholders  in  a 
bank  of  the  town,  upon  their  bank  stock,  and  the  collector  levied  upon  money 
of  the  bank  to  satisfy  the  taxes.  Held,  that  he  was  not  justified  in  so  doing, 
although  the  bank  held  funds  with  which  the  tax,  if  its  validity  was  not  con- 
tested, would  have  been  paid.  First  Nat.  Bank,  of  Sandy  Hill  v.  Fancher,  48 
N.  Y.  524. 

The  personal  property  of  the  vendee  of  land  assessed  before  its  conveyance 
to  him  is  not  liable  to  seizure  to  satisfy  the  tax.  Everson  v.  City  of  Syracuse, 
29  Hun,  485,  reversed  on  another  ground,  100  N.  Y.  577. 

Taxes  levied  prior  to  the  death  of  a testator  upon  real  property  in  which 
a trust  is  created  by  the  testator’s  will  are  not  a charge  against  the  trust 
estate,  but  are  payable  out  of  the  testator’s  general  estate.  Matter  of  Doheny, 
70  App.  Div.  370,  75  N.  Y.  Supp.  24,  affd.  171  N.  Y.  691. 

Tender  of  part  of  tax.  Where  taxes  are  levied  on  both  real  and  personal 
estate  belonging  to  a taxpayer,  tender  of  an  amount  equal  to  the  tax  against 
the  real  estate  must  be  accepted  by  the  collector.  Rept.  of  Atty.  Genl.  (1894) 
326. 

5.  For  form  of  notice  of  tax  sale  by  collector,  see  Form  No.  56,  post. 


COLLECTION  OF  TAXES. 


589 


Tax  Law,  §§  307,  72. 

in  writing  made  by  them  and  filed  with  the  supervisor.  The  collector 
upon  payment  of  the  taxes  shall  state  in  the  column  of  the  tax-roll  pro- 
vided therefor,  the  date  of  such  payment,  and  shall  write  his  name  after 
such  date.  [Tax  Law,  § 71,  as  amended  by  L.  1916,  ch.  323,  and  L.  1917, 
ch.  356;  B.  C.  & G.  Cons.  L.,  p.  5888.] 

§ 4.  SETTLEMENT  OF  CONFLICTING  CLAIMS  TO  SURPLUS  OF 
TAX  SALE;  ACTION  BY  CLAIMANT  TO  RECOVER  AMOUNT 
OF  SURPLUS. 

Whenever  a surplus  from  the  sale  of  any  property  for  unpaid  taxes  in 
the  hands  of  the  supervisor  of  a town  shall  be  claimed  by  any  person 
other  than  the  person  for  whose  tax  such  property  was  sold,  and  such 
claim  shall  not  be  settled  by  a stipulation  filed  with  the  supervisor,  as 
provided  by  this  chapter,  such  claimant  may  maintain  an  action  against 
such  person,  or  such  person  may  maintain  an  action  against  such  claimant, 
to  recover  such  money  and,  for  the  purposes  of  such  action,  the  defendant 
shall  be  deemed  to  be  in  possession  of  the  surplus  in  the  hands  of  the 
supervisor.6  TJpon  the  production  of  a certified  copy  of  a final  judgment, 
rendered  in  favor  of  either  party,  the  supervisor  shall  pay  such  surplus 
to  the  party  recovering  the  same.  No  other  cause  of  action  shall  be  joined, 
nor  any  set-off  or  counterclaim  be  allowed  in  an  action  brought  pursuant 
to  this  section,  and  if  an  execution  issue  on  a judgment  rendered  in  such 
action,  it  shall  direct  that  the  costs  only  of  such  judgment  be  levied  there- 
on. [Tax  Law,  § 307 ; B.  C.  & G.  Cons.  L.,  p.  6055.] 


§ 5.  COLLECTION  OF  TAXES  ASSESSED  AGAINST  STOCKS  IN 
BANKS  AND  BANKING  ASSOCIATIONS;  COLLECTOR  MAY 
LEVY  ON  STOCK. 

Every  bank  or  banking  association  shall  retain  any  dividend  until  the 
delivery  to  the  collector  of  the  tax-roll  and  warrant  of  the  current  year, 
and  within  ten  days  after  such  delivery  shall  pay  to  such  collector  so 
much  of  such  dividend  as  may  be  necessary  to  pay  any  unpaid  taxes  assessed 
on  the  stock  upon  which  such  dividend  is  declared.  In  case  the  owner 
of  such  stock  resides  in  a place  other  than  where  the  bank  or  banking 
association  is  located,  the  same  power  may  be  exercised  in  collecting  the 


6.  Duty  of  supervisor  as  to  surplus  moneys.  Section  71  of  the  Tax  Law, 
ante,  requires  the  collector  to  pay  over  to  the  supervisor  of  the  town  the 
surplus  remaining  after  the  payment  of  the  tax  for  which  the  property  was 
sold  as  provided  in  that  section,  in  case  there  is  any  controversy  as  to 
the  ownership  of  such  property.  The  supervisor  under  the  above  section 
is  to  retain  such  money  until  the  rights  of  the  contesting  parties  are 
determined. 


590 


TAXATION. 


Tax  Law,  § 73. 

tax  so  assessed  as  is  given  in  case  a person  has  removed  from  a tax  district 
in  which  the  assessment  was  made.  The  tax  so  assessed  shall  be  and  remain 
a lien  on  the  shares  of  stock  against  which  it  is  assessed  till  the  payment 
of  such  tax,  and  if  the  stock  is  transferred  it  shall  be  subject  to  such  lien. 
The  collector  or  county  treasurer  may  foreclose  such  lien  in  any  court  of 
record,  and  collect  from  the  avails  of  the  sale  of  the  stock  the  tax  assessed 
against  the  same.  In  addition  thereto,  the  same  remedy  may  be  had  for 
the  collection  of  the  tax  on  such  shares  as  is  now  provided  by  law  for 
enforcing  payment  of  personal  tax  against  residents.7  [Tax  Law,  § 72 ; 
B.  C.  & G.  Cons.  L.,  p.  5891.] 

§ 6.  RAILROAD,  TELEGRAPH,  TELEPHONE,  ELECTRIC  LIGHT  OR  GAS 

CORPORATIONS  MAT  PAY  TAX  TO  COUNTY  TREASURER; 

DUTIES  OF  COUNTY  TREASURER. 

Any  railroad,  telegraph,  telephone,  electric-light  or  gas  company  in- 
cluding a company  engaged  in  the  business  of  supplying  natural  gas, 
may,  within  thirty  days  after  receipt  of  notice  by  the  county  treasurer 
from  the  clerk  of  the  board  of  supervisors,  pay  its  tax,  with  one  per 
centum  fees,  to  the  county  treasurer,  who  shall  credit  the  same  with 
such  fees  to  the  collector  of  the  tax  district,  unless  otherwise  required  by 
law.  If  not  so  paid  the  county  treasurer  shall  notify  the  collector  of  the 
tax  district  where  it  is  due,  and  he  shall  then  proceed  to  collect  under 
his  warrant.  Until  such  notice  from  the  treasurer  the  collector  shall  not 
enforce  payment  of  such  taxes,  but  may  receive  the  same,  with  the  fees 
allowed  by  law,  at  any  time.8  [Tax  Law,  § 73,  as  amended  by  L.  1912, 
ch.  221 ; B.  C.  & G.  Cons.  L.,  p.  5892.] 


7.  Section  24  of  the  Tax  Law  (ante),  relating  to  the  assessment  and  taxa- 
tion of  shares  of  banks  and  banking  associations,  provides  that  the  tax 
assessed  unon  such  shares  shall  be  paid  by  the  bank  or  banking  association 
to  the  treasurer  of  the  county  wherein  it  is  located.  Such  section  contains 
a complete  scheme  for  the  assessment,  taxation  and  payment  of  taxes  by  banks 
and  banking  associations,  and  probably  supersedes  the  provisions  of  the  above 
section. 

8.  References.  The  clerk  of  the  board  of  supervisors  is  required  to 
deliver  a statement  to  the  county  treasurer,  showing  the  names,  valuations 
and  amount  of  tax,  as  appearing  upon  the  assessment-roll  of  the  several  tax 
districts,  of  each  railroad,  telegraph,  telephone  and  electric  light  corpora- 
tion therein.  Tax  Law,  sec.  60,  ante. 

If  a town  or  city  has  unpaid  bonds  outstanding,  issued  to  aid  in  the  con- 
struction of  a railroad,  the  tax  collected  on  account  of  such  railroad  in  such 
town  or  city  is  to  be  paid  to  the  treasurer  of  the  county,  to  be  applied  in 
the  purchase  of  such  bonds.  General  Municipal  Law,  sec.  13,  post. 

T1  3 demand  is  a condition  precedent  to  a right  of  action,  and  the  bringing 
of  such  action  is  not  a demand.  McLean,  as  Receiver,  v.  The  Manhattan 
Medicine  Co.,  22  J.  & S.  371  (1887,  Gen.  T.),  revg.  3 N.  Y.  St.  Rep.  550. 


COLLECTION  OF  TAXES. 


591 


Education  Law,  §§  427,  428,  429. 

§ 7.  PAYMENT  OF  SCHOOL  TAX  BY  RAILROAD,  TELEGRAPH,  TELE- 
PHONE, ELECTRIC  LIGHT  AND  GAS  COMPANIES  TO  COUNTY 
TREASURER. 

Notice  to  railroad  companies  and  certain  other  corporations  of  assess- 
ment and  tax. — 1.  It  shall  be  the  duty  of  the  school  collector  in  each 
school  district  in  this  state,  within  five  days  after  the  receipt  by  such 
collector  of  any  and  every  tax  or  assessment-roll  of  his  district,  to  pre- 
pare and  deliver  to  the  county  treasurer  of  the  county  in  which  such 
district,  or  the  greater  part  thereof,  is  situated,  a statement  showing 
the  name  of  each  railroad,  telegraph,  telephone,  electric  light  or  gas 
company,  including  a company  engaged  in  the  business  of  supplying 
natural  gas,  appearing  in  said  roll,  the  assessment  against  each  of  said 
companies  for  real  and  personal  property  respectively,  and  the  tax 
against  each  of  said  companies. 

2.  It  shall  thereupon  be  the  duty  of  such  county  treasurer,  imme- 
diately after  the  receipt  by  him  of  such  statement  from  such  school 
collector,  to  notify  the  ticket  agent  or  manager  of  any  such  railroad, 
telegraph,  telephone,  electric  light  or  gas  company,  including  a company 
engaged  in  the  business  of  supplying  natural  gas  assessed  for  taxes  at 
the  station  or  office  nearest  to  the  office  of  such  county  treasurer  or  to 
notify  the  company  at  its  principal  office  within  this  state  personally 
or  by  mail,  of  the  fact  that  such  statement  has  been  filed  with  him  by 
such  collector,  at  the  same  time  specifying  the  amount  of  tax  to  be  paid 
by  such  company.  [Education  Law,  § 427,  as  amended  by  L.  1913, 
ch.  216;  B.  C.  & G.  Cons.  L.,  p.  1216.] 

Payment  within  thirty  days. — Any  railroad  company  heretofore 
organized,  or  which  may  hereafter  be  organized,  under  the  laws  of  this 
state,  and  any  telegraph,  telephone,  electric  light  or  gas  company  in- 
cluding a company  engaged  in  the  business  of  supplying  natural  gas 
may  within  thirty  days  after  the  receipt  of  such  statement  by  such 
county  treasurer,  pay  the  amount  of  tax  so  levied  or  assessed  against  it 
in  such  a district  and  in  such  statement  mentioned  and  contained  with 
one  per  centum  fees  thereon,  to  such  county  treasurer,  who  is  hereby 
authorized  and  directed  to  receive  such  amount  and  to  give  proper 
receipt  therefor.  [Education  Law,  § 428,  as  amended  by  L.  1913,  ch. 
216 ; B.  C.  & G.  Cons.  L.,  p.  1216.] 

Collection  if  not  so  paid. — In  case  any  railroad  company  and  any 
telegraph,  telephone,  electric  light  or  gas  company  including  a company 
engaged  in  the  business  of  supplying  natural  gas  shall  fail  to  pay  such 
tax  within  said  thirty  days,  it  shall  be  the  duty  of  such  county  treasurer 
to  notify  the  collector  of  the  school  'district  in  which  such  delinquent 
railroad  company  is  assessed,  of  its  failure  to  pay  said  tax,  and  upon 
receipt  of  such  notice  it  shall  be  the  duty  of  such  collector  to  collect  such 
unpaid  tax  in  the  manner  now  provided  by  law  together  with  five  per 
centum  fees  thereon ; but  no  school  collector  shall  collect  by  distress  and 
sale  any  tax  levied  or  assessed  in  his  district  upon  the  property  of  any 
such  company  until  the  receipt  by  him  of  such  notice  from  the  county 
treasurer.  [Education  Law,  § 429,  as  amended  by  L.  1913,  ch.  216; 
B.  C.  & G.  Cons.  L.,  p.  1217.] 


£92 


TAXATION. 


Education  Law,  § 431;  General  Municipal  Law,  5 13. 

Amount  to  be  paid  over  to  collector  of  district. — The  several  amounts 
of  tax  received  by  any  county  treasurer  in  this  state,  under  the  pro- 
visions of  the  last  three  sections,  of  and  from  such  companies,  shall  be 
by  such  county  treasurer  placed  to  the  credit  of  the  school  district  for  or 
on  account  of  which  the  same  was  levied  or  assessed,  and  on  demand 
paid  over  to  the  school  collector  thereof,  and  one  per  centum  fees  received 
therewith  shall  be  placed  to  the  credit  of,  and  on  demand  paid  to,  the 
school  collector  of  such  school  district.  [Education  Law,  § 430,  as 
amended  by  L.  1913,  ch.  216;  B.  C.  & G.  Cons.  L.,  p.  1217.] 

Companies  may  pay  collector. — Nothing  in  the  last  four  sections  con- 
tained shall  be  construed  to  hinder,  prevent  or  prohibit  any  railroad 
company  or  telegraph,  telephone,  electric  light  or  gas  company  includ- 
ing a company  engaged  in  the  business  of  supplying  natural  gas  from 
paying  its  school  tax  to  the  school  collector  direct,  as  provided  by  law. 
[Education  Law,  § 431,  as  amended  by  L.  1913,  cb.  216;  B.  C.  & G. 
Cons.  L.,  p.  1217.] 

§ 8.  RAILROADS  IN  TOWNS  BONDED  FOR  THE  CONSTRUCTION  THERE- 
OF, TO  PAY  TO  COUNTY  TREASURER;  INVESTMENT  OF  MONEY 
BY  COUNTY  TREASURER. 

If  a town,  village  or  city  has  outstanding  unpaid  bonds,  issued  or  sub- 
stituted for  bonds  issued,  to  aid  in  the  construction  of  a railroad  therein, 
so  much  of  all  taxes  as  shall  be  necessary  to  take  up  such  bonds,  except 
school  districts  and  highway  taxes,  collected  on  the  assessed  valuation  of 
such  railroad  in  such  municipal  corporation,  shall  be  paid  over  to  the  treas- 
urer of  the  county  in  which  the  municipal  corporation  is  located.  Such 
treasurer  shall  purchase  with  such  moneys  of  any  town, village  or  city,  such 
bonds,  when  they  can  be  purchased  at  or  below  par,  and  shall  immediately 
cancel  them  in  the  presence  of  the  county  judge.9  If  such  bonds  cannot 

9.  By  L.  1899,  cli.  336,  jurisdiction  was  conferred  upon  the  court  of  claims 
to  hear,  audit  and  determine  the  claim  of  any  county  where  state  taxes  collected  of 
a railroad  corporation  in  towns  aiding  in  the  construction  of  the  railroad  hafcl  been 
paid  by  the  county  treasurer  to  the  state  treasurer. 

In  the  case  of  County  of  Ulster  v.  State  of  New  York,  79  App.  Div.  277,  the 
determination  of  the  court  of  claims,  in  a case  brought  under  this  act,  that  the  state 
was  not  liable  to  repay  to  the  counties  the  amount  of  tax  so  paid  by  county  treasurers 
to  the  state  treasurer  was  reversed.  The  court  in  this  case  held  that  ch.  907,  L. 
1869,  as  amended  by  ch.  283,  L.  1871,  from  which  the  above  section  of  the  General 
Municipal  Law  was  derived,  was  enacted  for  the  purpose  of  relieving  the  county 
from  the  payment  of  the  state  tax  upon  the  property  of  a railroad  in  a town  bonded 
for  its  construction. 

Application  of  taxes  on  railroad  bonds.  County  treasurers  are  authorized  to 
retain  any  portion  of  the  taxes  due  from  their  counties  to  the  state  to  apply  on 
railroad  bonds,  but  the  proper  method  fpr  securing  such  taxes  is  by  application  to 
the  comptroller  for  repayment  of  the  same.  Such  application  should  contain  a 
statement  sufficient  to  satisfy  the  comptroller  that  the  amount  of  money  claimed  is 
really  due  to  the  county  treasurer.  Rept.  of  Atty.  Genl.,  Feb.  15,  1909. 

Application  of  section;  duties  of  officers.  The  provisions  of  the  above  section 
are  applicable  to  any  municipality  having  outstanding  bonds  issued  in  aid  of  the 
construction  of  any  railroad.  The  assessors  and  boards  of  supervisors  should  ascer- 
tain the  amount  required  to  be  paid  under  the  provisions  of  such  section  to  the 
county  treasurer  and  should  specify  such  amount  in  the  tax  roll  and  warrant.  If 
such  amount  has  been  so  specified,  the  collector  may  make  the  proper  deduction  of 


COLLECTION  OF  TAXES. 


593 


General  Municipal  Law,  § IS. 

be  purchased  at  or  below  par,  such  treasurer  shall  invest  such  moneys  in 
the  bonds  of  the  United  States,  of  the  state  of  New  York,  or  of  any  town 

or  village  or  city  of  such  state,  issued  pursuant  to  law;  and  shall  hold  such 

bonds  as  a sinking  fund  for  the  redemption  and  payment  of  such  outstand- 
ing railroad  aid  bonds.  If  a county  treasurer  shall  unreasonably  neglect 
to  comply  with  this  section,  any  taxpayer  of  the  town,  village  or  city 

having  so  issued  its  bonds  may  apply  to  the  county  judge  of  the  county 
in  which  such  municipal  corporation  is  situated,  for  an  order  compelling 
such  treasurer  to  execute  the  provisions  of  this  section.  Upon  application 

school  and  road  taxes  and  pay  the  balance  to  the  county  treasurer.  If  the  duty  of 
making  the  separation  has  not  been  discharged  before  payment  to  the  county  treas- 
urer, it  devolves  upon  him  to  make  the  separation  and  invest  the  proper  amount  as 
directed  by  the  statute.  Matter  of  Clark  v.  Sheldon,  106  N.  Y.  104. 

If  the  county  treasurer  neglects  to  comply  with  the  provisions  of  this 

section  and  pays  the  amount  that  should  be  apportioned  to  the  discharge  of 
railroad  aid  bonds  in  payment  of  county  and  * state  taxes  an  action  may 
be  maintained  by  the  town  against  the  county  to  recover  the  money  so 
misappropriated.  Strough  v.  Board  of  Supervisors,  119  N.  Y.  212;  23  N.  E. 
552;  see,  also,  Pierson  v.  Supervisors  of  Wayne  County,  155  N.  Y.  105;  49 
N.  E.  766.  The  supervisors  have  no  jurisdiction  over  the  fund  and  cannot 
legislate  concerning  it,  nor  direct  nor  control  the  act  of  the  county  treasurer 
with  reference  to  it.  Nor  can  a town  meeting  by  its  vote  authorize  the 
application  of  such  fund  for  any  other  purpose  than  the  payment  of  such 
bonds.  In  the  hands  of  the  county  treasurer  it  is  a trust  fund  upon  which 
the  law  has  impressed  a distinct  purpose  and  any  action  that  diverts  it 
from  that  purpose  is  illegal.  Clark  v.  Sheldon  134  N.  Y.  333;  32  N.  E.  23. 
As  to  the  right  of  a town  to  compel  a proper  application  of  this  fund, 
see  Kilbourne  v.  Board  of  Supervisors,  137  N.  Y.  170;  33  N.  E.  159;  Woods 
v.  Supervisors,  136  N.  Y.  403;  39  N.  E.  1011;  People  ex  rel.  McMillan  v.  Super- 
visors, 136  N.  Y.  281;  32  N.  E.  854;  Ackerman  v.  Board  of  Supervisors,  72 
Hun,  616;  25  N.  Y.  Supp.  196. 

Effect  where  taxes  have  been  paid  into  general  fund  of  county.  Where 
the  taxes  have  been  paid  by  the  county  treasurer  into  the  general  fund  of 
the  county,  and  are  not  identifiable,  but  the  general  fund  had  always 
exceeded  the  amount  of  such  taxes,  an  order  requiring  their  investment  as 
prescribed  by  the  statute  was  proper.  Spalding  v.  Arnold,  125  N.  Y.  194. 

Illegal  payment  to  treasurer.  A town  may  recover  moneys  paid  by  railroad 
company  on  account  of  taxes  assessed  in  such  town  to  the  county  treasurer, 
when  it  appears  that  he  paid  such  moneys  to  the  supervisor  instead  of 
applying  them  to  the  redemption  of  outstanding  bonds  issued  to  aid  in  the 
construction  of  such  railroad.  Town  of  Walton  v.  Adair,  111  App.  Div.  817, 
97  N.  Y.  Supp.  868,  affd.  191  N.  Y.  509. 

Enforcement  of  judgment  requiring  supervisors  to  invest  railroad  taxes. 
A judgment  directing  a board  of  supervisors  to  deposit  with  the  county 
treasurer  for  the  benefit  of  a town,  to  be  invested  by  him  in  pursuance  of  the 
above  section,  the  taxes  levied  and  collected  on  the  assessed  valuation  of  certain 
railroad  property  in  such  town,  is  not  complied  with  by  merely  levying  and 
collecting  the  sum  specified  without  giving  any  direction  for  the  use  of  the 
money  as  a sinking  fund  for  the  benefit  of  such  town.  The  town  may  enforce 
the  judgment  by  a writ  of  peremptory  mandamus  to  compel  the  board  of 
supervisors  to  again  levy  and  collect  the  sum  and  pay  it  over  to  the  county 
treasurer  for  the  benefit  of  the  town.  People  ex  rel.  Town  of  Walton  v. 
Board  of  Supervisors,  173  N.  Y.  297,  reversing  75  App.  Div.  184,  77  N.  Y. 
Supp.  676. 


594 


TAXATION. 


Tax  Law,  § 74. 

of  the  town  board  of  any  town,  the  board  of  supervisors  of  the  county  in 
which  said  town  is  situated  may  authorize  payment  by  the  county  treasurer 
of  all  moneys  thus  paid  to  him  in  any  year  by  the  railroads  mentioned  in 
this  section,  to  the  supervisor  of  such  town,  for  its  use  and  benefit;  to  be 
applied  either  to  the  purchase  of  outstanding  railroad  aid  bonds  or  the 
payment  of  interest  thereon,  and  any  payment  heretofore  made  in  good 
faith  by  the  treasurer  of  any  county  to  any  town  or  to  the  supervisor 
thereof,  of  the  taxes  received,  in  any  year  by  such  treasurer,  from  railroad 
corporations  in  that  town  is  hereby  validated.951  The  county  treasurer  of 
any  county  in  which  one  or  more  towns  therein  shall  have  issued  bonds 
for  railroad  purposes,  shall  when  directed  by  the  board  of  supervisors  or 
county  judge  of  the  county,  execute  and  file  in  the  office  of  the  clerk  of  the 
county  an  undertaking  with  not  less  than  two  sureties,  approved  by  such 
board  or  judge,  to  the  effect  that  he  will  faithfully  perform  his  duties 
pursuant  to  this  section.  The  annual  report  of  a county  treasurer  shall 
fully  state,  under  the  head  of  “ railroad  sinking  fund  ”,  the  name  and 
character  of  all  such  investments  made  by  him  or  his  predecessors,  and  the 
condition  of  such  fund.  [General  Municipal  Law,  § 13;  B.  C.  & G.  Cons. 
L.,  p.  2115.] 

§ 9.  TAX  AGAINST  TELEGRAPH,  TELEPHONE  AND  ELECTRIC 

LIGHT  LINES;  COLLECTORS  MAY  LEVY  ON  INSTRUMENTS; 

RETURN  OF  UNPAID  TAXES  TO  COUNTY  TREASURER; 

COUTY  TREASURER  MAY  SELL  LINES. 

Collection  of  tax  against  a telegraph,  telephone  or  electric  light  line 
may  be  enforced  by  sale  of  the  instruments  and  batteries  connected  with 
such  line,  and  in  case  there  is  not  sufficient  personal  property,  together 
with  such  instruments  and  batteries,  to  pay  such  tax  and  the  per  centage 
due  the  collector,  he  shall  return  a statement  thereof  to  the  county  treas- 
urer as  other  unpaid  taxes  are  returned,  and  the  county  treasurer  shall 
proceed  to  sell  such  part  of  the  line  in  the  tax  district  where  the  tax  was 
levied  as  may  be  necessary  to  satisfy  the  unpaid  taxes  and  per  centage,  in 
the  manner  now  provided  by  law  for  the  sale  of  lands  on  execution,  and 
upon  such  sale  shall  execute  to  the  purchaser  a conveyance  of  such  part 
of  said  line,  and  the  purchaser  shall  thereupon  become  the  owner  thereof. 


9a.  Constitutionality.  The  act  from  which  the  above  section  was  derived  has 
been  declared  constitutional.  Matter  of  Clark  v.  Sheldon,  106  N.  Y.  104. 

The  part  of  this  section  which  provides:  “Any  payment  heretofore  made 

in  good  faith  by  the  treasurer  of  any  county  to  any  town,  or  to  the  super- 
visor thereof,  of  the  taxes  received  in  any  year  by  such  treasurer  from  rail- 
road corporations  in  that  town  is  hereby  validated,”  is  unconstitutional  so 
far  as  it  attempts  to  take  from  a town  an  existing  cause  of  action.  Town  of 
Walton  v.  Adair,  96  App.  Div.  75,  89  N.  Y.  Supp.  23. 


COLLECTION  OF  Tx\XES. 


595 


Tax  Law,  §§  306,  75. 


Nothing  herein  contained  shall  he  construed  to  prevent  collection  of  such 
taxes  by  any  procedure  now  provided  by  law.  [Tax  Law,  § 74 ; B.  C.  & 
G.  Cons.  L.,  p.  5892.] 

10.  SEQUESTRATION  OF  PROPERTY  OF  CORPORATIONS  FOR 
FAILURE  TO  PAY  TAXES. 

It  shall  be  the  duty  of  the  attorney-general,  on  being  informed  by  the 
comptroller,  tax  commission  or  by  the  county  treasurer  of  any  county 
that  -any  incorporated  company  refuses  or  neglects  to  pay  the  taxes 
imposed  upon  it,  pursuant  to  articles  one  and  two  of  this  chapter,  to 
bring  an  action  in  the  supreme  court  for  the  sequestration  of  the  prop- 
erty of  such  corporation,  and  the  court  may  so  sequestrate  the  property 
of  such  corporation  for  the  purpose  of  satisfying  taxes  in  arrears,  with 
the  costs  of  prosecution,  and  may,  also,  in  its  discretion,  enjoin  such 
corporation  and  further  proceedings  under  its  charter  until  such  tax  and 
the  costs  incurred  in  the  action  shall  be  paid.  The  attorney-general  may 
recover  such  tax  with  costs  from  such  delinquent  corporation  by  action 
in  any  court  of  record.  [Tax  Law,  § 306,  as  amended  by  L.  1916,  ch. 
323;  B.  C.  & G.  Cons.  L.,  p.  6054.] 

§ 11.  TAXES  ON  RENTS  RESERVED;  COLLECTOR  MAY  LEVY  ON 

PERSONAL  PROPERTY  OF  OWNER  FOUND  IN  COUNTY; 
WHEN  TENANT  MAY  BE  COMPELLED  TO  PAY. 

If  any  tax  upon  any  such  tax-roll  upon  rents  reserved  is  not  paid,  the 
collector  shall  collect  the  same  by  levy  and  sale  of  the  personal  property 
of  the  persons  against  whom  the  tax  is  levied,  which  may  be  found  within 
the  county.  If  no  sufficient  personal  property  belonging  to  such  person 
can  be  found  in  the  county,  the  collector  shall  collect  such  tax  of  the  tenant 
or  lessee  in  possession  of  the  premises,  on  which  the  rent  is  reserved,  in 
the  same  manner  as  if  such  tax  had  been  assessed  against  such  tenant  or 
lessee.  Every  such  tenant  or  lessee  paying  any  such  tax,  or  of  whom  any 
such  tax  shall  be  collected,  shall  be  entitled  to  have  the  amount  thereof, 
with  interest,  deducted  from  the  amount  of  rent  reserved  upon  such  prem- 
ises, which  may  be  due  or  may  ftiereafter  become  due  thereon,  or  may 
maintain  an  action  to  recover  the  same.10  [Tax  Law,  § 75;  B.  C.  & G. 
Cons.  L.,  p.  5893.] 


10.  The  value  of  taxable  rents  reserved  is  included  in  the  fifth  column 
of  the  assessment-roll,  and  if  the  name  of  the  person  entitled  to  receive  the 
rent  cannot  be  ascertained  by  the  assessors  the  tax  is  to  he  assessed  against 
the  tenant  in  possession  of  the  real  property.  See  Tax  Law,  sec.  21,  sub. 
5,  ante. 


596 


TAXATION. 


Tax  Law,  § 76. 

§ 12.  COLLECTOR  TO  RETURN  UNPAID  TAXES  ON  DEBTS  OWING 
TO  NON-RESIDENTS  OF  THE  UNITED  STATES  TO  COUNTY 
TREASURER;  COUNTY  TREASURER;  TO  ISSUE  A WAR- 
RANT TO  SHERIFF  TO  COLLECT  AMOUNT  OF  TAX. 

If  it  shall  appear  by  the  return  of  any  collector  that  a tax  imposed 
upon  a debt  owing  to  a person  residing  out  of  the  United  States  remains 
unpaid,  the  county  treasurer  shall,  after  the  expiration  of  twenty  day& 
from  such  return,  issue  his  warrant  to  the  sheriff  of  any  county  in  this 
state  where  any  debtor  of  any  such  non-resident  creditor  may  reside,  com- 
manding him  to  make11  of  the  real  and  personal  property  of  such  non- 
resident the  amount  of  such  tax,  to  be  specified  in  a schedule  annexed  to 
the  warrant,  with  his  fees  and  the  sum  of  one  dollar  for  the  expense  of 
issuing  such  warrant,  and  to  return  the  warrant  to  the  treasurer  issuing 
the  same,  and  to  pay  over  to  him  the  money  which  shall  be  collected  by 
virtue  thereof,  except  the  sheriff’s  fees,  by  a day  therein  to  he  specified 
within  sixty  days  from  the  date  thereof.  The  taxes  upon  several  debts 
owing  to  a non-resident  shall  he  included  in  one  warrant.  The  taxes  upon 
several  debts  owing  to  different  non-residents  may  be  included  in  the 
same  warrant,  and  the  sheriff  shall  be  directed  to  levy  the  sum  specified 
in  the  schedule  annexed,  upon  the  real  and  personal  property  of  the  non- 
residents, respectively,  opposite  to  whose  names,  respectively,  such  sums 
shall  be  written,  with  fifty  cents  for  the  expenses  of  the  warrant.  Such 
warrant  shall  be  a lien  upon  and  shall  bind  the  real  and  personal  property 
of  the  non-residents  against  whom  issued  from  the  time  an  actual  levy 
shall  be  made  upon  any  property  by  virtue  thereof,  and  the  sheriff  to 
whom  the  warrant  shall  be  directed  shall  proceed  upon  the  same,  in  all 
respects,  with  like  effect,  and  in  the  same  manner,  as  prescribed  by  law 
in  respect  to  execution  against  property  issued  upon  judgment  rendered 
in  the  supreme  court,  and  shall  be  entitled  to  the  same  fees  for  his  ser- 
vices in  executing  the  same,  to  be  collected  in  the  same  manner.12  [Tax 
Law,  § 76,  as  amended  by  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p. 
5893.] 

§ 13.  SHERIFF  TO  RETURN  WARRANT  FOR  COLLECTION  OF  TAXES 
ON  DEBTS  OWING  TO  NON-RESIDENTS;  NEGLECT  TO  MAKE 
RETURN;  PROCEEDINGS  IF  WARRANT  IS  RETURNED  UN- 
SATISFIED. 

If  any  sheriff  shall  neglect  to  return  any  such  warrant  as  directed 

11.  The  use  of  the  word  “ make  ” in  this  sentence  is  apparently  an  error. 
It  probably  was  intended  for  the  word  “ take.”  The  same  language  was  used  in  sec. 
6 of  L.  1851,  ch.  371,  and  was  retained  in  the  revision  of  1896. 

12.  As  to  assessment  of  debts  owing  to  non-residents  of  the  United  States, 
see  Tax  Law,  sec.  31,  ante. 


COLLECTION  OF  TAXES. 


597 


Tax  Law,  §§  77,  298. 


therein,  or  to  pay  over  any  money  collected  by  him  in  pursuance  thereof, 
he  shall  be  proceeded  against  in  the  supreme  court  by  attachment  in 
the  same  manner,  and  with  like  effect,  as  for  a simitar  neglect  in  refer- 
ence to  an  execution  issued  out  of  the  supreme  court  in  a similar  action, 
and  the  proceedings  therein  shall  be  the  same  in  all  respects.  If  any 
such  warrant  shall  be  returned  unsatisfied,  wholly  or  partly,  the  county 
treasurer  may  obtain  an  order  from  a judge  of  the  supreme  court  of  the 
district,  or  a county  judge  of  the  county,  of  such  treasurer  issuing  the 
warrant,  requiring  such  non-resident  or  any  person  having  property  of 
such  non-resident  or  indebted  to  him,  to  appear  and  answer  concerning 
the  property  of  such  nonresident.  The  same  remedies  and  proceedings 
may  be  had  in  the  name  of  such  county  treasurer  or  comptroller  before 
the  officer  granting  such  order,  and  with  a like  effect,  as  are  provided  by 
law  in  proceedings  against  a judgment  debtor  supplementary  to  execu- 
tion against  him,  returned  wholly  or  in  part  unsatisfied.  The  expenses 
of  a county  treasurer,  and  such  compensation  as  the  board  of  supervisors 
may  allow  him  for  his  services  under  this  section,  and  for  making  and 
transmitting  to  the  assessors  of  the  several  towns  of  his  county  an  abstract 
or  copy  of  the  statements  of  the  agents  of  non-resident  creditors,  shall  be 
a county  charge.  [Tax  Law,  § 77,  as  amended  by  L.  1916,  ch.  323; 
B.  C.  & G.  Cons.  L.,  p.  5894.] 

§ 14.  APPLICATION  TO  COUNTY  COURT  FOR  ORDER  DIRECTING 
SHERIFF  TO  COLLECT  TAX  WHEN  PERSON  HAS  REMOVED 
FROM  COUNTY;  CERTIFIED  COPY  OF  ORDER  TO  RE  DE- 
LIVERED TO  SHERIFF  OR  CONSTABLE  OF  COUNTY  TO 
WHICH  PERSON  HAS  REMOVED. 

If  it  shall  satisfactorily  appear  by  affidavit  to  the  county  court  of  any 
county  that  a tax  legally  levied  therein  cannot  be  collected  because  of  the 
removal  of  the  person  taxed  to  any  other  county  of  the  state,  such  court 
shall,  upon  application  of  the  collector  of  any  tax  district  or  of  the  county 
treasurer  of  the  county,  grant  an  order,  directed  to  the  sheriff  of  the 
county  where  such  person  may  be,  to  collect  the  same  out  of  his  personal 
property  with  interest  at  the  rate  of  eight  per  centum  per  annum  from 
the  date  of  said  order.  Such  order  shall  be  filed  in  the  office  of  the  clerk 
of  the  county  in  which  it  is  granted,  and  a certified  copy  thereof  delivered 
to  the  constable  or  sheriff  of  the  county  where  the  person  liable  for  the 
tax  may  be,  and  such  constable  or  sheriff,  on  receiving  the  same  shall 
execute  it,  and  make  a like  return,  and  be  entitled  to  the  same  fees  and 
subject  to  the  same  liabilities  and  penalties  for  neglect  as  upon  execution 
from  any  court  of  record.  The  sheriff  receiving  such  moneys  shall  pay 


598 


TAXATION. 


Tax  Law,  § 299. 

the  same  to  the  county  treasurer  of  the  county  where  it  was  levied,  to  the 
credit  of  the  town  in  which  it  was  assessed.  [Tax  Law,  § 298,  as 
amended  by  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  6051.] 

§ 15.  SUPERVISOR  OR  COUNTY  TREASURER  MAY  INSTITUTE 
SUPPLEMENTARY  PROCEEDINGS  FOR  COLLECTION  OF 
UNPAID  TAXES. 

If  a tax  exceeding  ten  dollars  in  amount  levied  against  a person  or 
corporation  is  returned  by  the  proper  collector  uncollected  for  want  of 
personal  property  out  of  which  to  collect  the  same,  the  supervisor  of  the 
town  or  ward,  or  the  county  treasurer  or  the  president  of  the  village,  if  it 
is  a village  tax,  within  one  year  thereafter,  apply  to  the  court  for  the 
institution  of  proceedings  supplementary  to  execution,  as  upon  a judgment 
docketed  in  such  county,  for  the  purpose  of  collecting  such  tax  and  fees, 
with  interest  thereon  from  the  fifteenth  day  of  February  after  the  levy 
thereof.  Such  proceedings  may  be  taken  against  a corporation,  and  the 
same  proceedings  may  thereupon  be  had  in  all  respects  for  the  collection 
of  such  tax  as  for  the  collection  of  a judgment  by  proceedings  supplemen- 
tary to  execution  thereon  against  a natural  person,  and  the  same  costs  and 
disbursements  may  be  allowed  against  the  person  or  corporation  examined 
as  in  such  supplementary  proceedings,  but  none  shall  be  allowed  in  his 
or  its  favor.13  The  tax,  if  collected  in  such  proceeding,  shall  be  paid  to 


13.  Supplementary  proceedings.  The  proceedings  authorized  by  this  section  for 
the  collection  of  unpaid  taxes  are  the  same  as  those  provided  for  the  collection  of 
a judgment  by  proceedings  supplementary  to  execution  as  contained  in  sections 
2432-2463  of  the  Code  of  Civil  Procedure.  Under  section  2463  of  the  code  corpo- 
rations are  not  subject  to  supplementary  proceedings  “ except  in  those  actions  or 
special  proceedings  brought  by  or  against  the  people  of  the  state.”  But  by  the 
above  provision  corporations  may  be  proceeded  against  in  the  same  manner  as  a 
natural  person. 

Section  applies  to  a foreign  corporation  licensed  to  do  business  in  this  state. 
Matter  of  Bruerg  (1916),  174  App.  Div.  298,  160  N.  Y.  Supp.  96. 

The  jurisdiction  to  issue  the  order  does  not  rest  upon  a corporation’s  failure  to 
appear  before  the  assessors,  but  upon  the  fact  that  a tax  has  been  returned  by  the 
collector  uncollected  for  want  of  personal  property  out  of  which  to  enforce  it. 
Matter  of  Maltbie  (1917),  179  App.  Div.  395,  165  N.  Y.  Supp.  550. 

In  general.  A dissolution  of  an  order  for  examination  in  supplementary  pro- 
ceedings may  be  moved  for  on  the  ground  that  the  order  was  improvidently 
granted.  Bassett  v.  Wheeler,  84  N.  Y.  466. 

Upon  an  appeal  from  a motion  to  set  aside  supplementary  proceedings,  the 
question  whether  the  person  proceeded  against  was  a resident  will  not  be  viewed 
in  the  court  of  appeals  if  the  evidence  is  conflicting.  Id. 

A payment  made  as  directed  in  supplementary  proceedings, — held  a voluntary 
one,  in  an  action  against  the  assessors  for  lack  of  jurisdiction,  the  order  itself  not 
authorizing  seizure.  Drake  v.  Shurtliff,  24  Hun  422. 

The  fact  of  ownership  of  sufficient  personal  property  out  of  which  the  collector 
could  have  taken  the  tax  is  not  a defense  to  supplementary  proceedings  for  its 
collection.  Matter  of  Hartshorn,  44  N.  Y.  St.  Rep.  16,  17  N.  Y.  Supp.  567. 

The  provisions  of  this  section  exempting  a county  treasurer  from  the 


COLLECTION  OF  TAXES. 


599 


Tax  Law,  § 301. 

the  county  treasurer  or  to  the  supervisor  of  the  town,  and  if  a village  tax, 
to  the  treasurer  of  the  village.  The  costs  and  disbursements  collected  shall 
belong  to  the  party  instituting  the  proceedings,  and  shall  be  applied  to  the 
payment  of  the  expense  of  such  proceedings.  The  president  of  a village 
and  a county  treasurer  shall  have  no  compensation  for  any  such  proceeding. 
A supervisor  shall  have  no  other  compensation  except  his  per  diem  pay  for 
time  necessarily  spent  in  the  proceeding.14  [Tax  Law,  § 299 ; B.  C.  & G. 
Cons.  L.,  p.  6051.] 

§ 16.  DISMISSAL  OF  SUITS  OR  PROCEEDINGS. 

Where  the  person  or  corporation  against  whom  a proceeding  or  suit  is 
brought  to  collect  a personal  tax  in  arrears  is  unable  for  want  of  property 
to  pay  the  tax  in  whole  or  in  part,  or  where  for  other  reasons  upon  the 
facts  as  they  existed  either  before  or  after  the  assessment  was  made  it 
appears  to  the  court  just  that  said  tax  should  not  be  paid,  the  court  may 
dismiss  such  suit  or  proceeding  absolutely,  without  costs,  or  on  payment 
of  such  part  of  the  tax  as  may  be  just  or  on  payment  of  costs,  and  may 
direct  the  cancellation  or  reduction  of  the  tax.15  [Tax  Law,  § 301,  as 
amended  by  L.,  1909,  ch.  374;  B.  C.  & G.  Cons.  L.,  p.  6052.] 

§ 17.  CANCELLATION  OF  PERSONAL  TAX  VOID  FOR  WANT  OF 
JURISDICTION. 

If  a personal  tax,  levied  against  a person  or  corporation,  or  the  property 
of  a person  or  corporation,  is  void  for  want  of  jurisdiction  of  such  person 


payment  of  costs  do  not  apply  to  an  unsuccessful  appeal  by  him  from  an  order 
dismissing  the  proceeding.  Matter  of  Pryor,  67  App.  Div.  316,  73  N.  Y. 
Supp.  961. 

Sufficiency  of  application.  The  application  need  only  allege  the  facts 
stated  in  the  above  section  and  need  not  allege  facts  sufficient  to  show  that 
the  assessors  and  board  of  supervisors  had  jurisdiction  to  impose  the  tax 
in  question.  Matter  of  Conklin,  36  Hun,  588. 

When  order  cannot  be  vacated.  An  order  under  this  section  directed  to  the 
treasurer  of  a corporation  cannot  be  vacated  on  the  ground  that  tax  was  excessive, 
where  no  objection  was  presented  to  assessors;  nor  for  immaterial  error  in 
the  warrant.  Matter  of  Adler  & Co.,  174  N.  Y.  287,  affg.  76  App.  Div.  571,  78 
N.  Y.  Supp.  690. 

14.  Punishment  for  non-payment  of  tax.  Neglect  or  refusal  to  pay  any 
tax  shall  not  be  punishable  as  a contempt  or  as  misconduct;  and  no  fine 
shall  be  imposed  for  such  non-payment  nor  shall  any  person  be  imprisoned 
or  otherwise  punishable  on  account  of  non-payment  of  any  tax  or  of  any 
fine  imposed  for  refusal  or  neglect  to  pay  such  tax.  This  section  shall  not 
apply  to  proceedings  supplementary  to  execution  upon  judgments  recovered 
for  taxes.  Tax  Law,  § 300. 

15.  In  City  of  New  York  v.  Assurance  Co.  of  America,  129  App.  Div.  904, 


600 


TAXATION. 


Tax  Law,  §§  78,  79. 

or  corporation  and  has  been  returned  by  the  proper  collector  uncollectible 
for  want  of  personal  property  out  of  which  to  collect  the  same,  the  person 
or  corporation  against  whom  or  against  whose  property  the  said  tax  was 
levied  may  then  apply  to  the  supreme  or  county  court  in  the  county  in 
which  is  located  the  tax  district  where  said  tax  was  levied,  for  an  order 
cancelling  the  said  tax,  and  upon  notice  to  the  president  of  the  village, 
county  treasurer,  supervisor  of  the  town  or,  in  the  case  of  a city,  upon  notice 
to  its  attorney  or  to  the  corporation  counsel,  and  upon  satisfactory  proof  by 
affidavit,  the  court  shall  make  an  order  directing  the  cancellation  of  said 
tax  from  the  assessment-roll  by  the  county  treasurer,  comptroller,  or  other 
officer  in  whose  custody  and  control  the  said  roll  may  be.16  [Tax  Law, 
§ 302,  as  amended  by  L.  1916,  ch.  323,  and  L.  1918,  ch.  530;  B.  C.  & G. 
Cons.  L.,  p.  6053.] 

§18.  WHEN  TAX  IS  PAID  BY  TENANT  HE  MAY  RETAIN  AMOUNT 
FROM  RENTAL. 

If  a tax  upon  real  property  shall  have  been  collected  of  any  occupant 
or  tenant,  and  any  other  person,  by  agreement  or  otherwise,  ought  to 
pay  such  tax,  or  any  part  thereof,  such  occupant  or  tenant  shall  be  en- 
titled to  recover,  by  action,  the  amount  which  such  person  ought  to  have 
paid ; or  to  retain  the  same  from  any  rent  due  or  accruing  from  him  to 
such  person  for  the  land  so  taxed.  [Tax  Law,  § 78 ; B.  C.  & G.  Cons. 
L.,  p.  5894.] 

§ 19.  PAYMENT  OF  TAXES  ON  PART  OF  PROPERTY. 

The  collector  shall  receive  the  tax  on  personal  property,  or  on  part  of 
any  lot,  piece  or  parcel  of  land  charged  with  taxes,  provided  the  person 
paying  such  tax  shall  furnish  such  particular  specification  of  such  part, 
and  in  case  the  tax  on  the  remainder  thereof  shall  remain  unpaid  the 
collector  shall  enter  such  specification  on  his  return  to  the  county  treas- 
urer, clearly  showing  the  part  on  which  the  tax  remains  unpaid,  and  if 
the  part  on  which  the  tax  shall  he  so  paid  shall  be  an  undivided  share, 
the  person  paying  the  same  shall  state  to  the  collector  who  is  the  owner 
of  such  share,  and  the  collector  shall  enter  the  name  of  such  owner  on 
his  account  of  arrears  of  taxes,  and  such  share  shall  he  excepted  in  case 

115  N.  Y.  Supp.  1115,  affirming  opinion  of  Bischoff,  J.,  it  was  held  that  the  statute 
was  not  intended  to  cover  a case  in  which  proceedings  to  review  by  certiorari  had 
not  been  instituted  in  time. 

16.  A tax  on  personal  estate  levied  against  a non-resident  is  not  a tax  against 
the  person  but  upon  the  property  within  the  state,  and  it  cannot  be  canceled  upon 
proof  that  the  tax  has  been  found  uncollectible  for  want  of  personal  property.  Mat- 
ter of  Adams,  60  Misc.  333,  113  N.  Y.  Supp.  293. 


COLLECTION  OF  TAXES. 


601 


Tax  Law,  §§  80,  81,  82. 

of  a sale  for  the  tax  on  the  remainder.  [Tax  Law,  § 79,  as  amended 
by  L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  5894.] 

§ 20.  PAYMENT  OF  TAXES  ON  STATE  LANDS  IN  FOREST  PRE- 
SERVE. 

The  treasurer  of  the  state,  upon  the  certificate  of  the  comptroller  as 
to  the  correct  amount  of  such  tax,  shall  pay  the  tax  levied  upon  state 
lands  in  the  forest  preserve,  by  crediting  to  the  treasurer  of  the  county 
in  which  such  lands  may  be  situated,  such  taxes,  upon  the  amount  pay- 
able by  such  county  treasurer  to  the  state  for  state  tax.  No  fees  shall 
be  allowed  by  the  comptroller  to  the  county  treasurer  for  such  portion 
of  the  state  tax  as  is  so  paid.  [Tax  Law,  § 80;  B.  C.  & G.  Cons.  L., 
p.  5895.] 

§ 21.  FEES  OF  COLLECTOR. 

On  all  taxes  paid  within  thirty  days  from  the  date  of  notice  that  he 
has  received  the  roll,  the  collector  shall  be  entitled  to  receive,  if  the 
aggregate  amount  shall  not  exceed  two  thousand  dollars,  two  per  centum, 
and  otherwise  one  per  centum,  in  addition  thereto.  On  all  taxes  col- 
lected after  the  expiration  of  such  period  of  thirty  days,  the  collector 
shall  be  entitled  to  receive  five  per  centum  in  addition  thereto.  The 
collector  shall  be  entitled  to  receive  from  the  county  treasurer  two  per 
centum  as  fees  for  all  taxes  returned  to  the  county  treasury  as  unpaid. 
In  Suffolk  county  no  fees  shall  be  paid  by  the  county  treasurer  on 
return  taxes.  [Tax  Law,  § 81,  as  amended  by  L.  1909,  ch.  240,  and 
L.  1916,  ch.  332 ; B.  C.  & G.  Cons.  L.,  p.  5895.] 

§ 22.  RETURN  BY  COLLECTOR  OF  UNPAID  TAXES;  CONTENTS  OF 
RETURN;  FORM  PRESCRIBED  BY  TAX  COMMISSIONERS. 

Each  collector  shall  immediately  upon  the  expiration  of  his  warrant 
make  and  deliver  to  the  county  treasurer  an  account  of  unpaid  taxes, 
upon  the  tax-roll  annexed  to  his  warrant,  which  he  shall  not  have  been 
able  to  collect,  verified  by  his  affidavit,  that  the  sums  mentioned  therein 
remain  unpaid,  and  that  he  has  not,  upon  diligent  inquiry,  been  able 
to  discover  any  personal  property  out  of  which  the  same  could  be  col- 
lected by  levy  and  sale,  and  upon  the  verification  of  the  said  account 
by  the  county  treasurer  he  shall  be  credited  by  the  county  treasurer 
with  the  amount  of  such  account.17  In  making  such  return  of  unpaid 

17.  For  form  of  affidavit  to  be  attached  to  a collector’s  return  of  unpaid  taxes, 
see  Form  No.  57,  post. 

Tlie  form  of  the  return  of  the  collector  is  prescribed  by  the  state  board  of 
tax  commissioners. 

A return  by  a collector,  the  affidavit  to  which  has  no  venue,  is  a nullity.  A 
return  which  does  not  state  that  the  account  is  a transcript  of  the  assessment-roll, 
nor  that  the  figures  were  taken  from  the  assessment-roll,  nor  that  the  sums  claimed 
to  be  due  were  for  the  taxes  assessed  against  the  property,  is  insufficient.  Where 


602 


TAXATION. 


Tax  Law,  §§  82,  83. 

taxes,  the  collector  shall  add  thereto  five  per  centum  of  the  amount  thereof.is  In 
case  such  tax  is  uncollected  upon  lands  assessed  to  a resident  he  shall  also  state 
the  reason  why  the  same  was  not  collected.  In  the  county  of  Suffolk  such  return 
shall  consist  of  the  tax-roll  and  warrant  together  with  the  affidavit  of  the  collector 
known  also  as  the  receiver  of  taxes  that  the  taxes  therein  appearing,  not  marked 
paid,  remain  unpaid  and  that  he  has  not  upon  diligent  inquiry  been  able  to  dis- 
cover any  personal  property  out  of  which  the  same  could  be  collected  by  levy  and 
sale,  together  with  a statement  of  the  total  amount  of  such  unpaid  taxes,  and  that 
he  has  in  an  appropriate  column  in  said  tax-roll  opposite  the  tax  levied  upon  each 
separate  parcel,  or  person  therein  named  or  described,  inserted  five  per  centum  of 
the  amount  of  the  unpaid  tax,  and  no  separate  copy  or  account  of  such  unpaid 
taxes  shall  be  made  or  required  of  collectors,  or  receivers  in  such  county.  Any 
collector  who  has  heretofore  failed  in  making  such  return  of  unpaid  taxes,  may 
make  such  return,  whether  his  term  of  office  has  expired  or  not,  verified  by  his  af- 
fidavit, to  the  county  treasurer  any  time  within  eight  years  after  such  failure  and 
before  the  lands  against  which  said  taxes  are  assessed  are  advertised  for  sale  pur- 
suant to  this  chapter,  and  in  case  any  collector  shall  heretofore  or  hereafter  fail  to 
add  said  five  per  centum  the  county  treasurer  shall  add  the  same.  Such  return 
shall  be  indorsed  upon  or  attached  to  said  roll,  and  shall,  subject  to  the  provisions 
of  this  section,  be  in  the  form  to  be  prescribed  by  the  state  tax  commission.  Such 
tax  and  percentage  may  be  paid  to  the  county  treasurer  at  any  time  before  a re- 
turn is  made  to  the  comptroller,  or  in  the  county  of  Suffolk  such  tax,  percentage 
and  interest  at  the  rate  of  ten  per  centum  per  annum  computed  from  the  first 
day  of  February  after  the  same  was  levied  may  be  paid  to  the  county  treasurer  at 
any  time  before  the  first  day  of  August  succeeding  the  date  of  the  warrant  and 
thereafter  at  any  time  before  the  sale  of  the  land  for  such  unpaid  tax,  upon  the 
payment  of  such  tax,  percentage  and  interest  at  the  rate  of  ten  per  centum  per 
annum,  computed  from  the  first  day  of  February  after  the  same  was  levied  and 
the  cost  of  advertising  the  land  for  sale  for  such  unpaid  taxes  as  apportioned 
by  the  county  treasurer  among  the  several  parcels  liable  to  be  sold.  The  county 
treasurer  in  counties  in  which  lands  are  sold  by  him  for  the  nonpayment  of  taxes, 
is  hereby  authorized  to  incur  and  pay  for  such  expenses  as  he  may  deem  necessary 
for  the  examination  of  collector’s  returns  and  descriptions  of  property  to  be  sold 
pursuant  to  this  chapter,  and  the  procurement  of  proper  collector’s  returns  and  the 
examinations  and  procurement  of  matters  and  facts  as  he  may  deem  necessary  to 
make  a valid  tax  sale  hereunder,  but  such  expense  shall  not  exceed  the  amount  of 
the  five  per  centum  added  as  aforesaid.  [Tax  Law,  § 82,  as  amended  by  L.  1916, 
chs.  323,  332,  and  L.  1917,  ch.  39;  B.  C.  & G.  Cons.  L.,  p.  5859.] 

§ 33.  STAY  BY  INJUNCTION  OR  OTHERWISE  OF  COLLECTION  OF 
TAXES,  TO  OPERATE  AS  AN  EXTENSION  OF  TIME  FOR 
MAKING  RETURN  OF  TAXES  AFFECTED. 

Any  stay,  lawfully  granted  by  any  court  of  record  by  injunction  or  other  order  or 
proceeding,  of  the  collection  of  any  tax  existing  at  the  expiration  of  the  period  for 
the  collection  of  the  tax  under  any  warrant  or  process  in  the  hands  of  the  collector 
or  other  officer  for  the  collection  thereof,  or  existing  at  the  time  of  the  expiration 
of  the  term  of  office  of  the  collector  or  officer  holding  such  warrant,  shall  operate 
as  an  extension  of  the  time  within  which  such  collector  or  other  officer  may  collect 

there  was  nothing  in  the  return  of  the  collector  or  in  the  return  of  the  county 
treasurer  showing  that  the  taxes  unpaid  were  assessed  upon  non-resident  lands,  they 
did  not  lay  a foundation  for  a sale  by  the  comptroller.  Thompson  v.  Burhans,  61 
N.  Y.  52. 

Sufficient  statement.  A collector  of  taxes  sufficiently  states  the  reason  why  the 
tax  was  not  collected  where  he  states  that  he  has  not  been  able  with  diligent  in- 
quiry to  discover  any  personal  property  out  of  which  the  tax  could  be  collected 
by  levy  and  sale.  Smith  v.  Russell  (1916),  172  App.  Div.  793,  159  N.  Y.  Supp.  169. 

18.  The  addition  of  five  per  cent,  to  the  amount  of  unpaid  taxes  by  the  collector 
in  making  his  return  of  unpaid  taxes  on  nonresident  lands  is  no  error;  the  section 
applies  to  nonresident  as  well  as  other  lands.  Coleman  v.  Shattuek,  62  N.  Y.  348. 
It  was  also  held  in  this  case  that  it  was  immaterial  whether  the  percentage  was 
made  a separate  item  or  added  to  the  tax  and  the  sum  total  returned. 


COLLECTION  OF  TAXES. 


603 


Tax  Law,  § 84. 

such  tax  until  such  stay  is  terminated  and  for  the  period  of  thirty  days  thereafter. 
As  to  all  other  taxes  to  be  collected  under  any  such  warrant  or  process  the  col- 
lector or  officer  holding  the  warrant  or  process  shall  make  a return  thereof  within 
the  time  prescribed  by  law.  [Tax  Law,  § 83;  B.  C.  & Gr.  Cons.  L.,  p.  5896.] 

§ 24.  PAYMENT  BY  COLLECTOR  OF  TAXES  COLLECTED;  OFFICERS 
TO  GIVE  COLLECTOR  DUPLICATE  RECEIPTS;  RECEIPTS 
TO  BE  FILED. 

Every  collector  shall,  within  one  week  after  the  time  prescribed  in  his 
warrant  for  the  payment  of  the  moneys  directed  therein  to  be  paid,  pay 
to  the  officers  and  persons  specified  therein,  the  snms  required  in  such 
warrant  to  be  paid  to  them  respectively.19  The  officers  and  persons  other 
than  the  county  treasurer,  to  whom  any  such  money  shall  be  paid,  shall 
deliver  to  the  collector  duplicate  receipts  therefor,  one  of  which  duplicates 
shall  be  filed  by  the  collector  with  the  county  treasurer  and  shall  entitle 
him  to  a credit  in  the  books  of  the  county  treasurer  for  the  amount  therein 
stated  to  have  been  received,  and  no  other  evidence  of  such  payment 
shall  be  received  by  the  county  treasurer.  If  any  greater  amount  of  taxes 
shall  be  levied  in  any  town  than  the  town  charges  thereof,  and  its  pro- 
portionate share  of  the  state  taxes  and  county  charges,  the  surplus  shall 
be  paid  by  the  collector  to  the  county  treasurer,  who  shall  place  it  to  the 
credit  of  such  town,  and  it  shall  go  to  the  reduction  of  the  tax  upon  the 
town  for  the  succeeding  year.  [Tax  Law,  § 84;  B.  C.  & G.  Cons.  L.,  p. 
5897.] 


19.  Payments  by  collector.  The  collector  cannot  pay  claims  against  the 
county  and  credit  himself  with  the  amount  thereof.  Matter  of  Boyce,  2 Cow. 
444.  The  statute  requires  that  the  warrant  should  direct  the  payments 
to  be  made  to  the  commissioner  of  highways  of  such  moneys  as  are  raised 
for  highway  purposes,  and  to  the  overseer  of  the  poor  such  as  are  raised 
for  the  support  of  the  poor.  Notwithstanding  the  warrant  directs  a payment 
to  be  made  contrary  to  the  provisions  of  the  statute,  the  collector  must 
pay  the  money  raised  for  such  purposes  to  the  highway  commissioner 
and  to  the  overseer  of  the  poor  respectively.  People  v Pennock,  60  N.  Y. 
421.  Section  104  of  the  Highway  Law  makes  the  supervisor  the  custodian  of 
highway  moneys,  and  directs  all  such  moneys  to  be  paid  to  him. 

The  presumption  is  that  taxes  received  by  the  collector  are  paid  over  to 
persons  to  whom  they  are  directed  to  be  paid  by  law.  Bank  of  Commonwealth 
v.  Mayor,  43  N.  Y.  184. 

Moneys  collected  under  L.  1874,  ch.  296,  appropriating  the  amount  of  county 
taxes  on  a railroad  to  the  payment  of  bonds, — held,  that  the  taxes  should 
be  paid  to  the  railroad  commissioners  direct  and  not  to  the  county  treasurer. 
Bridges  v.  Supervisors  of  Sullivan,  92  N.  Y.  570. 

Duties  of  supervisor.  Under  section  98  of  the  Town  Law,  ante , the  super- 
visor of  each  town  is  to  receive  and  pay  over  all  moneys  raised  therein  for 
defraying  town  charges,  except  those  raised  for  the  support  of  highways  and 
bridges,  and  of  the  poor. 


604 


TAXATION. 


Tax  Law,  §§  303,  304. 

§ 25.  COLLECTOR  FAILING  TO  MAKE  PAYMENTS;  COUNTY  COURT 
TO  ORDER  SHERIFF  TO  LEVY  ON  PROPERTY  OF  COLLEC- 
TOR; RETURN  OF  SHERIFF. 

If  any  collector  shall  neglect  or  refuse  to  pay  over  the  moneys  collected 
by  him,  to  any  of  the  persons  to  whom  he  is  required  to  pay  the  same  by 
his  warrant,  or  to  account  for  the  same  as  unpaid,  the  County  Court,  on 
proof  of  such  fact  by  affidavit,  on  application  of  the  county  treasurer,  shall 
make  an  order  directed  to  the  sheriff  of  the  county,  commanding  him  to 
levy  such  sum  as  shall  remain  unpaid  by  such  collector  out  of  his  property, 
personal  and  real,  and  pay  the  same  to  the  county  treasurer,  within  sixty 
days  from  the  date  of  such  order.  The  sheriff  shall  cause  the  same  to  be 
executed,  and  pay  to  the  county  treasurer  the  money  levied  by  virtue 
thereof,  deducting  for  his  fees  the  same  compensation  that  the  collector 
would  have  been  entitled  to  retain.  If  the  whole  sum  due  from  the  collec- 
tor, or  if  a part  only,  or  if  no  part  thereof,  shall  be  collected,  the  sheriff 
shall  state  the  fact  in  his  return,  which  shall  be  made  as  in  case  of  an 
execution,  and  the  county  treasurer  shall  give  notice  to  the  supervisor  of 
the  town,  city  or  division  thereof,  of  any  amount  which  may  remain  due 
from  such  collector.  If  the  sheriff  shall  neglect  to  execute  the  order,  or  to 
pay  over  the  money  collected  thereon,  within  the  time  limited  thereby,  he 
shall  be  liable  therefor  as  in  case  of  an  execution,  and  the  county  treasurer 
shall  immediately  prosecute  such  sheriff  and  his  sureties  for  the  sum 
due  from  him,  which  sum  when  collected  shall  be  paid  into  the  county 
treasury.20  [Tax  Law,  § 303 ; B.  C.  & G-.  Cons.  L.,  p.  6053.] 


§ 26.  COUNTY  TREASURER  TO  MAKE  PAYMENTS  TO  PROPER 
OFFICERS  OUT  OF  MONEYS  COLLECTED. 

The  county  treasurer  shall  pay  over  the  moneys  received  from  the  sheriff 
upon  such  order  in  the  manner  directed  by  the  warrant  to  the  collector. 
If  the  whole  amount  of  moneys  due  from  the  collector  shall  not  be  col- 
lected on  such  warrant,  or  otherwise,  the  county  treasurer  shall  first  retain 
the  amount  which  ought  to  have  been  paid  to  him  before  making  any 
payment  to  the  town  officers.  [Tax  Law,  § 304;  B.  C.  & G-.  Cons.  L.,  p. 
6054.] 

§ 27.  SUPERVISORS  TO  PROSECUTE  COLLECTOR’S  UNDERTAK- 
ING FOR  DEFICIENCY. 

If  it  appears  that  the  whole  or  any  part  of  the  moneys  due  from  the 


20.  A warrant  issued  by  the  county  treasurer  against  a delinquent  town 
collector  after  the  time  specified  in  the  statute  is  valid,  since  the  provision  is 
merely  directory.  Looney  v.  Hughes,  26  N.  Y.  514. 


COLLECTION  OF  TAXES. 


605 


Tax  Law,  §§  305,  85. 

-collector  has  not  been  thus  collected,  the  county  treasurer  shall  forthwith 
give  notice  to  the  supervisor  of  the  town  or  ward  of  the  amount  still  due 
from  such  collector.  The  supervisor  shall  forthwith  cause  the  under- 
taking of  the  collector  to  be  prosecuted,  and  shall  be  entitled  to  recover 
thereon  the  sum  due  from  the  collector  with  costs  of  the  action.  The 
moneys  received  shall  be  applied  and  paid  by  the  supervisor  in  the  same 
manner  as  they  should  have  been  by  the  collector.  [Tax  Law,  § 305 ; 
B.  C.  & G.  Cons.  L.,  p.  6054.] 

§ 28.  COUNTY  TREASURER  MAY  EXTEND  TIME  FOR  COLLECTION 
OF  TAXES;  NEW  BOND  OF  COLLECTOR. 

The  county  treasurer,  upon  application  of  the  supervisor  of  any  town 
or  common  council  of  any  city  in  his  county,  may  extend  the  time  for 
collection  of  taxes  remaining  unpaid  to  a day  not  later  than  April  first, 
following,  in  case  the  collector  shall  pay  over  all  moneys  collected  by 
him,  and  renew  his  bond  in  a penalty  twice  the  amount  of  the  taxes  re- 
maining uncollected,  approved  by  the  proper  officer  upon  filing  the  same, 
as  the  original  bond  is  required  to  be  filed,  and  delivering  a certified  copy 
thereof  to  such  treasurer.  Collectors  and  receivers  of  taxes  who  have 
filed  a bond  as  required  by  statute,  shall  not  be  required  to  renew  their 
bonds.  This  section  shall  not  affect  any  special  law  relating  to  the 
extension  of  time  for  the  collection  of  taxes,  nor  be  construed  to  extend 
the  time  for  the  payment  of  the  state  tax  by  the  county  treasurer,  as 
required  by  this  chapter.21  [Tax  Lawr,  § 85,  as  amended  by  L.  1910, 
ch.  332,  and  L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  5897.] 


Provision  does  not  apply  to  city  or  village  collectors  unless  specially  so 
provided.  Village  of  Warren  v.  Phillips,  30  Barb.  646. 

21.  Provision  of  County  Law,  applicable  to  extensions.  The  following 
section  of  the  County  Law  (sec.  150)  covers  the  same  ground  as  the  above 
section  of  the  Tax  Law.  The  Tax  Law  is  a later  enactment  and  will  control 
if  inconsistent  with  the  provisions  of  such  section  of  the  County  Law: 
“ The  county  treasurer  may  extend  the  time  for  the  collection  of  taxes  in 
any  town  or  ward,  but  no  extension  shall  be  permitted  until  the  collector  of 
taxes  of  the  town,  city  or  ward  in  which  such  extension  shall  be  asked  shall 
nay  over  to  the  county  treasurer  all  the  taxes  collected  by  him,  and  renew 
his  undertaking  as  the  supervisor  of  his  town  shall  approve,  and  furnish 
evidence  by  his  oath,  and  other  competent  testimony,  if  any,  as  such  treasurer 
shall  require,  that  he  has  been  unable,  for  cause  stated,  to  collect  all  the 
taxes  within  the  time  required  by  his  warrant;  but  such  extension  shall  not 
in  any  case  be  made  beyond  the  first  day  of  April  in  any  year,  unless  ninety 
per  cent,  of  such  taxes  shall  have  been  collected  and  paid  over  to  him.” 
(County  Law,  sec.  150.) 

For  form  of  application  of  supervisor  for  extension  of  time  for  collection 


606 


TAXATION. 


Tax  Law,  §§  86,  87. 

§ 29.  FILLING  VACANCY  IN  OFFICE  OF  COLLECTOR;  NOTICE  OF 
APPOINTMENT  TO  COUNTY  TREASURER;  WARRANT  TO 
BE  DELIVERED  TO  NEW  COLLECTOR. 

If  a person  chosen  to  the  office  of  collector  of  a town  shall  refuse  to 
serve  or  he  disabled  from  entering  upon  or  completing  the  duties  of  his 
office  from  any  cause,  the  town  hoard  shall  forthwith  appoint  a collector 
for  the  remainder  of  the  year,  who  shall  give  the  same  undertaking,  be 
subject  to  the  same  duties  and  penalties  and  have  the  same  powers  and 
compensation  as  the  collector  in  whose  place  he  was  appointed.21  The 
supervisor  of  the  town  shall  forthwith  give  notice  of  such  appointment 
to  the  county  treasurer.  Such  appointment  shall  not  exonerate  the 
former  collector  or  his  sureties  from  any  liability  incurred  by  him  or 
them.  If  a warrant  shall  have  been  issued  by  the  board  of  supervisors 
before  the  appointment  of  a collector  to  fill  a vacancy  or  before  the 
appointment  of  a collector  under  this  section,  the  original  warrant,  if 
obtainable,  shall  be  delivered  to  the  collector  so  appointed  and  shall 
give  him  the  same  powers  as  if  originally  issued  to  him.  If  such  war- 
rant is  not  obtainable,  a new  one  shall  be  issued  by  the  chairman  and 
clerk  of  the  board  of  supervisors  of  the  county,  directed  to  the  collector 
appointed,  with  the  same  force  and  effect  as  if  originally  issued  to  him. 
Upon  any  such  appointment,  the  supervisor  of  the  town,  if  he  shall 
deem  it  necessary,  may  extend  the  time  limited  for  the  collection  of 
taxes,  for  a period  not  exceeding  thirty  days,  and  forthwith  give  notice 
of  such  extension  to  the  county  treasurer.  [Tax  Law,  § 86,  as  amended 
by  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  5898.] 

§ 30.  SHERIFF  TO  COLLECT  TAXES  IN  CASE  OF  COLLECTOR’S 
FAILURE  TO  EXECUTE  BOND,  UNLESS  VACANCY  BE 
FILLED;  DUTIES  OF  SHERIFF  THEREUNDER. 

If  the  collector  of  any  tax  district  in  the  state  sha)l  neglect  or  refuse 
to  execute  an  official  bond  or  undertaking  as  required  by  law,  or  the 
supervisor  of  the  town  shall  refuse  or  neglect  to  approve  and  file  the  same, 
within  the  time  prescribed  by  law,  and  a new  collector  shall  not  have  been 
appointed  within  ten  days  after  the  time  when  such  bond  or  undertaking 
should  have  been  filed,  the  board  of  supervisors  shall  deliver  the  tax-roll 


of  taxes,  see  Form  No.  58,  post.  For  form  of  order  of  treasurer  granting 
extension,  see  Form  No.  59,  post. 

Vacancies  are  created  in  the  manner  prescribed  by  section  30  of  the 
Public  Officers  Law,  ante. 

As  to  filling  vacancies  generally  in  town  offices,  see  section  130  of  the  Town 
Law,  ante. 

For  provisions  respecting  collector’s  undertaking,  see  sections  114  and  115 
of  the  Town  Law  and  notes  thereunder,  ante. 


COLLECTION  OF  TAXES. 


607 


Tax  Law,  § 88. 

or  a copy  thereof  with  the  warrant  annexed,  to  the  sheriff,  who  shall  give 
a like  undertaking  as  is  required  from  the  collector,  and  who  shall 
then  proceed  with  the  collection  of  the  taxes  levied  therein  in  like  manner 
as  collectors  are  authorized  by  law  to  do,  and  with  like  powers  and  subject 
to  the  same  duties  and  obligations.  Every  such  warrant  shall  require  all 
payments  therein  specified  to  be  made  by  the  sheriff  within  sixty  days 
after  the  receipt  of  the  warrant  by  him.  The  expense  of  the  collection  of 
such  taxes  by  him,  if  any,  over  and  above  the  fees  lawfully  chargeable  by 
the  collector,  shall  be  audited  by  the  board  of  supervisors  and  shall  be 
a charge  upon  the  town.  [Tax  Law,  § 87 ; B.  C.  & G.  Cons.  L.,  p.  5898.] 


| 31.  COLLECTOR’S  BOND,  SATISFACTION  OF,  BY  COUNTY  TREAS- 
URER; FORM  OF  SATISFACTION;  FILING  THEREOF. 

Upon  the  settlement  of  the  account  of  taxes  directed  to  be  collected 
by  a collector  in  any  town  or  city,  except  in  the  city  of  New  York,  the 
county  treasurer  shall,  if  requested,  and  if  the  collector  shall  have  fully 
paid  or  duly  accounted  for  all  the  taxes  which  he  was  by  law  to  collect, 
give  to  such  collector  or  any  of  his  sureties,  a written  certificate  of  such 
settlement,  duly  acknowledged,  and  upon  the  filing  thereof  in  the  office 
of  the  clerk  where  the  undertaking  is  recorded,  the  clerk  shall  enter 
satisfaction  of  such  undertaking  which  shall  thereby  be  discharged,22  ex- 
cept that  in  counties  containing  cities  of  the  first  class  such  satisfaction 
when  so  entered  shall  only  discharge  the  lien  of  said  bond  or  undertaking 
upon  the  real  estate  of  the  collector  and  his  sureties,  but  the  liability  of 
the  collector  and  his  sureties  upon  such  bond  or  undertaking  for  a failure 
upon  the  part  of  such  collector  to  pay  over  moneys  collected  by  him  shall  be 
in  no  wise  impaired.  [Tax  Law,  § 88;  B.  C.  & G.  Cons.  L.,  p.  5899.] 


22.  Satisfaction  of  collector’s  undertaking.  By  section  115  of  the  Town 
Law,  ante , p.  308  , the  undertaking  of  a collector  must  be  filed  by  the  super- 
visor in  the  office  of  the  county  clerk,  and  it  is  to  be  entered  in  a book 
provided  for  that  purpose  in  the  same  manner  as  judgments  are  entered  of 
record;  and  every  such  undertaking  is  a lien  on  the  real  estate  of  the  col- 
lector and  his  sureties  until  it  is  satisfied.  The  certificate  of  the  county  clerk 
that  the  taxes  collected  by  the  collector  have  been  fully  paid  over  or  duly 
accounted  for  constitutes,  when  filed  in  the  office  of  the  county  clerk,  a 
satisfaction  of  the  undertaking  of  the  collector. 

How  collector  can  be  released.  There  are  but  two  ways  in  which  a col- 
lector receiving  a valid  warrant  can  be  released.  1.  By  paying  the  proper 
officer  the  gross  sum  he  is  required  to  collect;  2.  By  returning  warrant  with 
an  itemized  account  of  unpaid  taxes  duly  verified.  The  alleged  loss  of  the 
assessment-roll  will  not  excuse  him.  Village  of  Olean  v.  King,  5 N.  Y.  St. 
Rep.  169,  affd.  116  N.  Y.  355. 


608 


TAXATION. 


Tax  Law,  §§  89,  90. 


§ 3 1-a.  REASSESSMENT  OF  TAXES  LEVIED  ON  IMPERFECTLY  DE- 
SCRIBED REAL  PROPERTY. 

The  county  treasurer  of  any  county  from  which  accounts  of  unpaid  taxes  are  not 
returned  to  the  comptroller  shall  examine  the  accounts  of  arrears  of  taxes  received 
from  the  collector  of  each  tax  district  and  shall  reject  all  taxes  charged  on  real 
property  deemed  to  be  so  imperfectly  described  or  erroneously  assessed,  in  form  or 
substance,  that  the  collection  of  the  same  by  the  sale  of  such  real  property  cannot 
be  enforced,  and  shall,  on  or  before  May  first,  deliver  a transcript  thereof  to  the 
supervisor  of  the  tax  district  in  which  the  real  property  on  which  taxes  have  been 
so  rejected  shall  be  located.  Such  supervisor  shall,  if  in  his  power,  within  thirty 
days  thereafter,  cause  an  accurate  description  of  such  real  property  to  be  made  and 
returned  to  such  treasurer,  with  the  correct  amount  of  taxes  thereon,  each  kind  of 
tax  being  stated  separately,  and  if  necessary,  he  may  cause  a survey  and  map  of 
any  of  such  real  property  to  be  made,  and  the  expense  of  such  survey  and  map  on  or 
for  each  lot  or  parcel  shall  be  returned  to  such  treasurer  and  be  a legal  charge  upon 
such  real  property  and  be  collected  with  the  taxes  thereon.  A statement  of  the 
taxes  on  real  property  in  each  tax  district  remaining  so  rejected  on  the  first  day  of 
July,  including  the  amount  of  taxes,  fees  and  interest  thereon,  shall  be  forwarded 
by  the  treasurer  to  the  supervisor  of  the  tax  district  in  which  such  real  property 
was  assessed,  and  such  supervisor  shall,  prior  to  the  first  day  of  the  annual  meet- 
ing of  the  board  of  supervisors  in  such  county,  add  to  the  assessment- roll  of  the 
tax  district  in  which  the  real  property  is  situated,  for  the  then  current  year,  an 
accurate  description  of  such  real  property,  the  correct  amount  of  taxes  thereon, 
the  tax  of  each  year  and  kind  of  tax  separately,  stating  that  it  is  a reassessment, 
and  charge  the  same  therewith.  The  board  of  supervisors  shall  direct  the  collec- 
tion of  such  taxes  so  added  to  the  assessment-roll,  and  they  shall  be  considered  the 
taxes  of  the  year  in  which  the  description  shall  be  perfected.  If  such  tax  be  not 
levied  upon  such  real  property  as  herein  required,  the  board  of  supervisors  shall 
cause  the  same  with  interest  thereon  at  the  rate  of  ten  per  centum  per  annum,  to 
be  levied  upon  the  tax  district  in  which  originally  assessed  and  collected  with  the 
other  taxes  of  the  same  year.  [Tax  Law,  § 88-a,  as  added  by  L.  1913,  ch.  666,  and 
amended  by  L.  1916,  ch.  323.] 

§ 32.  REASSESSMENT  OF  UNPAID  TAXES  ON  RESIDENT  REAL 
PROPERTY;  SUPERVISOR  TO  INCLUDE  IN  TAX-ROLL; 
RATE  OF  INTEREST  ON  UNPAID  TAXES;  TO  BE  REGARDED 
AS  NON-RESIDENT  THEREAFTER. 

When  the  tax  on  any  real  property,  not  assessed  as  nonresident,  is  returned  as 
unpaid  and  so  remains,  the  county  treasurer  shall,  unless  such  tax  shall  have  been 
rejected  as  provided  by  section  eighty-eight-a,  immediately  deliver  a transcript 
thereof  to  the  supervisor  of  the  tax  district  in  which  such  tax  was  assessed.  Such 
supervisor  shall,  if  in  his  power,  within  thirty  days  thereafter,  cause  an  accurate 
description  of  such  real  property  to  be  made  and  returned  to  said  treasurer,  with 
the  correct  amount  of  taxes  thereon,  each  kind  of  tax  being  stated  separately,  and 
if  necessary,  he  may  cause  a survey  and  map  of  any  of  said  real  property  to  be  made, 
and  the  expense  of  such  survey  and  map  on  or  for  each  lot  or  parcel  shall  be  re- 
turned to  said  treasurer,  and  be  a legal  charge  upon  such  real  property  and  be  col- 
lected with  the  taxes  thereon.  The  amount  of  such  tax  shall  bear  interest  at  the 
rate  of  ten  per  centum  per  annum’  from  the  first  day  of  February  until  paid,  or 
until  the  sale  of  such  property  to  satisfy  such  tax  by  the  county  treasurer,  or  if  the 
property  is  located  in  a county  embracing  a portion  of  the  forest  preserve  until  the 
return  of  such  unpaid  tax  to  the  comptroller.  And  such  real  property  and  the  tax 
thereon  shall  be  regarded  for  all  purposes  of  assessment,  collection  and  sale  as 
nonresident,  and  subject  to  all  the  provisions  of  the  tax  law  in  relation  to  non- 
resident real  property  and  nonresident  taxes. 23  [Tax  Law,  § 89,  as  amended  by 
L.  1913,  ch.  666,  and  L.  1916,  chs.  323,  332;  B.  C.  & G.  Cons.  L.,  p.  5899.] 

23.  Sale  for  unpaid  taxes.  Where  taxes  on  resident  real  property  were  re- 
turned as  unpaid,  an  assessment  must  first  be  made  against  the  land  as  such  in 
the  part  of  the  assessment-roll  relating  to  non-resident  lands  before  a sale  for  such 
unpaid  taxes  can  be  made.  People  ex  rel.  McGuinness  v.  Lewis,  127  App.  Div.  107,. 
Ill  N.  Y.  Supp.  398. 

Tax  on  resident  real  property  returned  by  the  collector  as  unpaid  should  be  trans- 
mitted to  the  comptroller  without  reassessment  ( since  the  amendment  of  this  sec- 
tion in  1902).  Kept,  of  Atty.  Genl.,  June  1.  1911. 


COLLECTION  OP  TAXES. 

Tax  Law,  § 91. 


609 


§ 83.  COUNTY  TREASURER  TO  PAY  MONEY  TO  CREDITORS  OF  COUNTY. 

Each  county  treasurer  shall  pay  to  the  creditors  of  the  county  from  the  moneys 
paid  to  him  by  the  collectors  of  taxes  of  the  several  towns  therein,  such  sums  and  in 
such  manner  as  the  board  of  supervisors  of  the  county  direct.  [Tax  Law,  § 90;  B. 
C.  & G.  Cons.  L.,  p.  5900.] 

§ 34.  COUNTY  TREASURER  TO  BE  CHARGED  WITH  AMOUNT  OF  STATE 
TAX;  WHEN  STATE  TAX  IS  TO  BE  PAID  OYER;  COUNTY 
TREASURER  MAY  BORROW  MONEY  FOR  PAYMENT  OF  STATE 
TAX;  INTEREST  ON  AMOUNT  WITHHELD.24 

The  comptroller  shall  charge  each  county  treasurer  with  the  amount 
of  the  state  tax  levied  on  his  county,  except  the  tax  for  schools,  crediting  him  with 
his  fees,  if  any,  but  no  fees  shall  be  allowed  by  the  comptroller  for  such  portion  of 
the  state  tax  as  is  credited  by  him  for  unpaid  non-resident  taxes.  The  county 
treasurer  of  each  county  shall,  after  retaining  his  fees  thereon,  at  the  rate  of  one 
per  centum  thereof,  which  shall  not,  however,  in  any  case  exceed  fifteen  hundred 
dollars,  for  all  taxes  for  state  purposes  including  schools  pay  the  state  tax  to  the 
treasurer  of  the  state  as  follows:  One-third  of  the  state  tax  exclusive  of  the  state 

tax  for  schools  on  or  before  the  fifteenth  day  of  February,  one-third  thereof  on  or 
before  the  fifteenth  day  of  April,  and  unless  otherwise  provided  by  law,  the  balance 
thereof  on  or  before  the  fifteenth  day  of  May  in  each  year,  and  notify  the  comptroller 
of  such  payment.25  Whenever  the  state  tax  for  schools,  payable  by  any  county,  shall 
exceed  the  apportionment  to  such  county  of  state  school  moneys  as  made  by  the  state 
commissioner  of  education,  in  accordance  with  the  provisions  of  the  education  law, 
such  excess  shall  be  paid  by  the  treasurer  of  such  county  to  the  treasurer  of  the 
state  on  or  before  the  fifteenth  day  of  March  in  each  year,  and  such  treasurer  shall 
notify  the  state  commissioner  of  education  of  such  payment.  If  there  are  not  suffi- 
cient funds  in  the  county  treasury  standing  to  the  credit  of  any  town  to  pay  the 
state  tax  chargeable  thereto,  the  treasurer  shall  borrow  sufficient  money  upon  the 
credit  of  the  county  and  charge  the  same  against  such  town,  with  interest  thereon  un- 
til the  same  is  paid.26  If  any  county  treasurer  shall  not  pay  over  the  state  tax,  in- 


24.  References.  This  section  probably  supersedes  sub.  5 of  sec.  142  of 
the  County  Law  (see  ante),  which  authorizes  the  county  treasurer  to  pay 
over  one-half  of  the  state  tax  on  or  before  April  15th,  and  the  other  half 
on  or  before  May  15th. 

25.  Manner  of  payment.  Any  mode  which  brings  the  money  into  the  state 
treasurer’s  hands  is  lawful.  The  county  treasurer  is  not  confined  to  the 
methods  indicated  by  the  statute.  Phelps  v.  People,  72  N.  Y.  334. 

Liability  of  county  for  uncollected  state  taxes.  Under  the  system  of 
taxation  in  force  in  this  state,  the  state  deals  not  with  individuals,  but  with 
counties  as  representing  divisions  or  areas  of  taxation.  The  share  or  quota 
of  each  county  is  charged  against  it,  and  it  is  for  each  county  to  make  up 
any  deficiency  in  the  collections,  save  that  the  counties  outside  of  New  York 
are  credited  for  uncollected  taxes  on  non-resident  lands.  Mayor,  etc.,  of  New 
York  v.  Davenport,  92  N.  Y.  604.  See,  also,  Wood  v.  Supervisors,  50  Hun  1, 
2 N.  Y.  Supp.  369. 

But  a county’s  proportion  of  the  state  tax  is  payable  by  the  county 
treasurer.  In  case  of  his  failure  or  neglect  to  pay  to  the  state  the  tax  due, 
or  to  render  an  account  thereof  to  the  comptroller,  it  is  not  until  the  remedies 
against  him  and  against  his  bondsmen  have  been  exhausted  and  the  loss 
by  reason  of  that  default  has  been  thus  ascertained,  that  the  county  is 
required  to  act  or  any  duty  is  attached  to  it.  National  Bank  of  Ballston 
Spa  v.  Board  of  Supervisors,  106  N.  Y.  488;  13  N.  E.  439. 

26.  Liability  of  county  for  money  borrowed.  A county  treasurer  can  only 


610 


TAXATION. 


Tax  Law,  § 92. 

eluding  the  state  tax  for  schools,  as  herein  directed,  the  comptroller  shall 
charge  on  all  sums  withheld  such  rate  of  interest  as  shall  be  sufficient  to 
repay  all  expenditures  incurred  by  the  state  in  borrowing  money  equiva- 
lent to  the  amount  so  withheld,  and  such  additional  rate  as  he  shall  deem 
proper,  not  exceeding  ten  per  centum,  from  the  dates  hereinbefore  provided 
for  such  payments  in  each  year,  which  shall  be  regarded  as  funds  in 
the  hands  of  the  county  treasurer  belonging  to  the  state  and  for  which  his 
sureties  and  county  shall  be  liable.  The  fees  of  the  county  treasurer  for 
collecting  and  paying  over  the  school  tax  shall  be  allowed  and  paid  by  the 
commissioner  of  education.27  [Tax  Law,  § 91;  B.  C.  & G.  Cons.  L.,  p. 
5901.] 

§ 35.  STATE  COMPTROLLER  TO  STATE  ACCOUNTS  WITH  COUNTY 
TREASURER;  TO  INSTITUTE  PROCEEDINGS  AGAINST 
COUNTY  TREASURER  FOR  FAILURE  TO  PAY  OVER. 

The  comptroller  shall  state  annually  on  June  first,  the  account  of  each 
county  treasurer,  and  if  any  part  of  the  state  tax  is  unpaid  at  that  date, 
the  comptroller  shall  transmit  by  mail  to  the  county  treasurer  a copy 
of  such  accounts  and  requisition  that  he  must  pay  the  balance  due  the 
state  within  thirty  days,  and  if  the  tax  is  not  paid  within  such  time,  the 
comptroller  shall,  unless  he  is  satisfied  by  due  proof  that  the  treasurer 
has  not  received  such  balance,  and  has  used  due  diligence  in  collecting  the 
same,  forthwith  deliver  a copy  of  the  account  to  the  attorney-general,  who 
shall  take  the  necessary  proceedings  to  collect  the  same  of  the  county 
treasurer  or  his  sureties  or  otherwise,  with  interest  as  provided  by  the 
last  preceding  section.  The  comptroller  may  also,  in  his  discretion,  direct 
the  board  of  supervisors  of  the  county  to  institute  the  necessary  proceedings 
on  the  undertaking  of  such  county  treasurer  and  sureties.  The  comp- 
troller shall  also  transmit  to  the  board  of  supervisors  on  or  before  October 
tenth,  a statement  of  account  between  his  office  and  the  county  treasurer. 
[Tax  Law,  § 92 ; B.  C.  & G.  Cons.  L.,  p.  5902.] 


borrow  money  upon  the  credit  of  the  county  to  the  extent  of  the  deficiency  appearing 
in  the  county  treasury  against  the  several  towns  of  the  county.  An  amount  bor- 
rowed in  excess  of  this  deficiency  is  upon  the  responsibility  of  the  county  treasurer 
alone,  the  county  cannot  be  held  liable  therefor.  Hathaway  v.  County  of  Delaware, 
103  App.  Div.  179,  93  N.  Y.  Supp.  436,  modf.  185  N.  Y.  368. 

Interest  chargeable  to  county  for  failure  to  pay.  People  v.  Fitch,  89  Hun, 
310,  35  N.  Y.  Supp.  191,  modf.  148  N.  Y.  71;  People  v.  Myers,  66  Hun,  167,  21  N.  Y. 
Supp.  79,  affd.  138  N.  Y.  590. 

27.  Fees  provided  by  this  section  may  be  retained  by  the  county  treasurers 
in  addition  to  their  salaries.  Rept.  of  Atty.  Genl.  (1900)  204.  In  allowing  fees 
to  a county  treasurer  the  comptroller  should  deduct  from  the  total  state  tax  received, 
the  portion  of  the  state  tax  credited  for  all  non-resident  taxes  and  also  the  portion 
of  the  state  tax  which  is  credited  for  the  amount  of  taxes  levied  against  the  state 
upon  forest  preserve  lands.  Rept.  of  Atty.  Genl.,  1912,  vol.  2,  p.  439. 


COLLECTION  OF  TAXES. 


611 


Tax  Law,  §§  93,  94. 

§ 36.  LOSSES  BY  DEFAULT  OF  COLLECTOR  OR  TREASURER,  HOW 
BORNE. 

All  losses  sustained,  and  all  deficiences  in  any  taxes,  or  in  the  payments 
to  be  made  therefrom,  by  reason  of  the  default  of  any  collector,  shall  be 
chargeable  to  the  town,  or  city,  of  which  he  is  collector.  If  occasioned 
by  the  default  of  the  treasurer  of  any  county  in  the  discharge  of  his  official 
duties,  such  losses  shc.ll  be  chargeable  to  such  county.  Any  judgment 
against  such  treasurer  for  any  such  loss  or  deficiency  on  account  of  the 
state  tax  upon  which  an  execution  shall  have  been  issued  and  returned 
unsatisfied  shall  be  conclusive  as  to  the  fact  of  such  loss  or  deficiency, 
and  the  amount  of  such  deficiency  shall  thereupon  become  a charge  against 
such  county,  and  the  board  of  supervisors  thereof  shall  add  all  such  losses 
or  deficiencies  to  the  next  year’s  taxes  of  such  town,  city  or  county,  and 
levy  the  same  thereon.28  [Tax  Law,  § 93;  B.  C.  & G.  Cons.  L , p.  5902.] 

§ 37.  COLLECTOR  TO  GIVE  RECEIPTS  TO  EACH  PERSON  PAYING 
A TAX;  FORM  OF  RECEIPTS;  TO  BE  PROVIIED  BY  BOARD 
OF  SUPERVISORS. 

Every  collector  of  taxes  shall  deliver,  or  upon  request  forward  by 
mail,  a receipt  wholly  written  with  ink  or  partly  printed  and  filled  out 
with  ink  to  each  person  paying  a tax,  specifying  the  date  of  such  pay- 
ment, the  name  of  such  person,  the  description  of  the  property  as  shown 
on  the  assessment-roll,  the  name  of  the  person  to  whom  the  same  is 
assessed,  the  amount  of  such  tax,  and  the  date  of  the  delivery  to  him  of 
the  assessment- roll  on  account  of  which  such  tax  was  paid.  For  the 
purpose  of  giving  such  receipt,  each  collector  shall  have  a book  of  blank 
receipts,  so  arranged  that  when  a receipt  is  torn  therefrom  a correspond- 
ing copy  or  stub  will  remain.  The  tax  commission  shall  prescribe  the 
form  of  such  receipts,  stubs  and  books  and  they  shall  be  furnished  to 
the  town  collector  by  the  board  of  supervisors,  at  the  expense  of  the 
county;  to  the  city  collector  by  the  common  council,  at  the  expense  of 
the  city;  to  the  village  collector  by  the  village  trustees  at  the  expense  of 
the  village;  to  the  school  collector  by  the  trustee  or  trustees  at  the 
expense  of  the  school  district.  The  expense  of  mailing  receipts  shall  be 
a proper  charge  against  the  city,  town,  village  or  school  district.  At 


28.  Liability  of  county.  County  is  surety,  but  is  not  called  upon  to  act  until 
state  has  exhausted  its  remedy  against  the  treasurer  and  his  sureties.  Wood  v. 
Supervisors  of  Monroe,  50  Hun,  1,  2 N.  Y.  Supp.  369.  The  treasurer’s  duties  have 
the  nature  of  an  agency.  Denton  v.  Merrill,  43  Hun,  224,  affd.  118  N.  Y.  187;  Super- 
visors v.  Otis,  62  Id.  88.  It  is  the  lasses  which  are  to  be  charged  to  the  county,  not 
the  amount  of  tax  authorized  to  be  levied  on  the  taxable  property  of  the  county. 
Bank  v.  Supervisors,  106  Id.  488;  Bridges  v.  Supervisors,  92  Id.  571.  The  share 
or  quota  of  each  county  is  charged  against  it,  and  it  must  make  up  any  deficiency 
in  the  collections.  Mayor,  etc.,  of  New  York  v.  Davenport,  92  Id.  604. 


612 


TAXATION. 


Penal  Law,  § 1870. 

the  time  of  giving  such  a receipt  the  collector  shall  make  the  same  entries 
on  the  corresponding  copy  or  stub  as  are  required  to  be  made  on  the 
receipt.  Such  book  shall  be  subject  to  public  inspection  and  shall  be 
filed  by  the  collector  with  his  return,  together  with  the  assessment-roll 
in  the  office  of  the  county  treasurer,  or  such  officer  or  board  to  which  such 
collector  makes  his  return.  [Tax  Law,  § 94,  as  amended  by  L.  1911, 
ch.  579,  and  L.  1914,  ch.  483,  and  renumbered  § 70b,  and  amended  bv 
L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  5903.] 

§ 38.  OBSTRUCTING  OFFICER  IN  COLLECTING  TAXES. 

A person  who  wilfully  obstructs  or  hinders  a public  officer  from 
collecting  any  revenue,  taxes  or  other  sum  of  money  in  which,  or  in  any 
part  of  which  the  people  of  this  state  are  directly  or  indirectly  inter- 
ested, and  which  such  officer  is  by  law  empowered  to  collect,  is  guilty 
of  a misdemeanor.  [Penal  Law,  § 1870 ; B.  C.  & G.  Cons.  L.,  p.  4052.] 


SALES  BY  COUNTY  TREASURER  FOR  UNPAID  TAXES. 

Explanatory  note. 


613 


CHAPTER  XXXIX. 

SALES  BY  COUNTY  TREASURER  FOR  UNPAID  TAXES  AND  REDEMP- 
TION OF  LANDS  SOLD 

EXPLANATORY  NOTE. 

Sales  by  County  Treasurer. 

In  counties  embracing  any  portion  of  the  forest  preserve,  the  county 
treasurer  certifies  as  to  the  correctness  of  collectors’  returns  of  unpaid 
taxes  and  transmits  the  same  to  the  state  comptroller.  The  lands  upon 
which  such  taxes  were  assessed  are  then  sold  by  the  state  comptroller. 
In  ail  other  counties,  and  also  in  St.  Lawrence,  Lewis,  Clinton,  Warren, 
Washington  and  Oneida  Counties,  lands,  upon  which  unpaid  taxes  are 
assessed  and  returned,  are  sold  by  the  county  treasurer  as  provided  in 
this  chapter. 


Section  1.  Assessment-roll  to  be  returned  by  collector  to  county  treasurer; 

county  treasurer  to  transmit  accounts,  etc.,  if  his  county  em- 
braces a part  of  the  forest  preserve. 

2.  Sale  of  lands  by  county  treasurer  for  unpaid  taxes  in  counties 

embracing  no  portion  of  the  forest  preserve. 

3.  List  of  property  to  be  sold  and  notice  of  a sale  to  be  published;  sale. 
3a.  New  certificate  upon  setting  aside  sale. 

4.  Owner  mav  redeem  within  one  year. 

5.  Redemption  of  real  property  stricken  from  tax  rolls. 

6.  Conveyance  by  county  treasurer,  if  real  property  sold  be  not 

redeemed. 

7.  Effect  of  conveyance. 

8.  Purchase  money,  when  to  be  refunded  by  boards  of  supervisors. 

9.  County  treasurer  to  transmit  to  comptroller  list  of  lands  to  be 

sold;  sale  of  lands  owned  by  the  state  or  upon  which  it  has  a 
lien. 

10.  Provisions  relative  to  comptroller  to  apply  to  treasurer. 

11.  Expense  of  publishing  notice  to  redeem. 

§ 1.  ASSESSMENT-ROLL  TO  BE  RETURNED  BY  COLLECTOR  TO 
COUNTY  TREASURER;  COUNTY  TREASURER  TO  TRANSMIT 
ACCOUNTS,  ETC.,  IF  HIS  COUNTY  EMBRACES  A PART  OF 
THE  FOREST  PRESERVE. 

The  collector  shall  return  the  original  assessment  roll  to  the  county 


614 


TAXATION. 


Tax  Law,  §§  100,  150,  151. 

treasurer,  and  when  the  treasurer  finds  an  account  of  unpaid  taxes  on 
real  property  or  unpaid  taxes  on  corporations,  received  from  a collector 
to  be  a true  transcript  of  such  original  assessment-roll  to  which  the  col- 
lector’s warrant  is  attached  with  the  descriptions  furnished  by  the  super- 
visor as  provided  in  section  eighty-nine,  he  shall  add  to  it  a certificate 
that  he  has  examined  and  compared  the  account  with  such  roll  and 
found  it  to  he  correct,  and  after  crediting  the  collector  with  the  amount 
thereof,  he  shall,  except  in  Saint  Lawrence,  Franklin,  Lewis,  Clinton,  War- 
ren, Washington  and  Oneida  counties,  in  case  his  county  embraces  a por- 
tion of  the  forest  preserve,  before  the  first  day  of  May  next  ensuing,  trans- 
mit such  account,  affidavit  and  certificate  to  the  comptroller  who  may,  be- 
fore acting  thereon,  return  any  such  account  to  the  county  treasurer  for 
correction,  who  shall  make  such  correction  and  return  to  the  comptroller 
in  one  month  thereafter  or  as  the  comptroller  may  otherwise  direct.1  [Tax 
Law,  § 100,  as  amended  by  L.  1913,  chs.  377,  642,  L.  1915,  ch.  323,  and  L. 
1918,  ch.  159;  B.  C.  & G.  Cons.  L.,  p.  5903.] 

§ 2.  SALE  OF  LANDS  BY  COUNTY  TREASURER  FOR  UNPAID 
TAXES  IN  COUNTIES  EMBRACING  NO  PORTION  OF  THE 
FOREST  PRESERVE. 

'Whenever  any  tax  charged  on  real  estate,  in  the  counties  of  Saint  Law- 
rence, Franklin,  Lewis,  Clinton,  Warren,  Washington  and  Oneida,  or  in  a 
county  not  including  a portion  of  the  forest  preserve,  is  returned  to  the 
county  treasurer,  he  shall  not  return  the  same  to  the  comptroller,  but  if 
such  tax,  with  interest  thereon  at  the  rate  of  ten  per  centum  per  annum, 
computed  from  the  first  day  of  February,  after  the  same  is  levied,  shall 
remain  unpaid  for  six  months  from  that  date,  such  county  treasurer  shall 
advertise  and  sell  such  real  estate  as  herein  provided  for  the  payment  of 
such  tax  and  interest  and  the  expenses  of  such  sale.  The  expense  of  pub- 
lication of  the  notice  of  sale  and  the  list  of  lands  to  be  sold  and  the  ex- 
pense of  conducting  the  sale,  and  the  expense  of  publication  of  the  notice 
of  unredeemed  lands,  if  thereafter  redeemed,  shall  be  a charge  on  the  land 
liable  to  be  sold  and  shall  be  added  to  the  tax  and  interest.  The  county 
treasurers  of  the  counties  of  Rockland  and  Suffolk  may  defer  the  sale  of 
any  parcel  of  nonresident  real  estate  in  their  respective  counties  for  un- 
paid taxes,  until  the  unpaid  taxes  thereon  with  accrued  interest  shall 
amount  in  the  aggregate  to  the  sum  of  two  dollars. la  The  county  treasurer 
of  Suffolk  county  on  the  order  of  the  board  of  supervisors  of  said  county 
may  defer  for  not  exceeding  two  years  from  the  date  of  the  levy  of  the 
tax,  the  sale  for  unpaid  taxes  of  such  properties  subject  thereto  as  such 
board  may  specify,  and  the  unpaid  taxes  on  such  parcels  shall  meantime 
be  charged  with  interest  at  the  rate  of  ten  per  centum  per  annum.  [Tax 

1.  Application  of  the  provision  requiring  a certificate  of  the  county  treasurer  to 
the  effect  that  he  has  compared  the  account  of  unpaid  taxes  with  the  assessment 
roll  and  found  it  to  be  correct,  relates  only  to  proceedings  to  sell  by  the  State 
Comptroller  and  has  no  application  to  a sale  by  the  county  treasurer.  Smith  v.. 
Russell  (1916),  172  App.  Div.  793,  159  N.  Y.  Supp.  169. 

la.  Delay  in  selling  land  for  unpaid  taxes.  An  unexplained  delay  of  thirteen 
months  by  county  treasurer  in  selling  real  estate  for  unpaid  taxes  is  unreasonable; 
a delay  of  one  month,  cannot,  however,  be  said  to  be  unreasonable.  The  question  as 
to  what  constitutes  a reasonable  time  will  be  determined  by  the  circumstances  of 
each  case.  People  ex  rel.  Carman  v.  Lewis,  102  App.  Div.  408,  92  N.  Y.  Supp.  642. 


SALES  BY  COUNTY  TREASURER  FOR  UNPAID  TAXES. 


615 


Tax  Law,  § 151. 

Law,  § 150,  as  amended  by  L.  1913,  chs.  377,  642,  L.  1914,  ch.  417,  L.  1915, 
ch.  328,  and  L.  1918,  ch.  159;  B.  C.  & Gr.  Cons.  L.,  p.  5933.] 

§ 3.  LIST  OF  PROPERTY  TO  BE  SOLD  AND  NOTICE  OF  A SALE  TO 
BE  PUBLISHED;  SALE. 

The  county  treasurer  shall  immediately  after  the  expiration  of  such 
six  months  cause  to  be  published  at  least  once  in  each  week  for  six  weeks, 
in  two  newspapers  designated  for  the  publication  of  the  session  laws,  a 
list  of  real  estate  so  liable  to  be  sold,  together  with  a notice  that  such 
real  estate  will,  on  a day  at  the  expiration  of  said  six  weeks  specified  in 
such  notice,  and  the  succeeding  days,  be  sold  at  public  auction  at  the 
courthouse  in  the  county  where  the  same  is  situated,  to  discharge  the 
taxes,  interest  and  expenses  that  may  be  due  thereon,  at  the  time  of  such 
sale.* 2  Such  list  shall  contain  the  name  of  the  owner  or  occupant  of  each 
piece  of  real  estate  to  be  sold,  as  the  same  appears  upon  the  assessment- 
roll  of  the  year  in  which  unpaid  taxes  were  assessed,  a brief  description 
of  such  real  estate,  and  the  total  amount  of  such  unpaid  taxes  for  the  year 
advertised,  which  said  total  amount  shall  include  all  taxes,  interest,  ex- 
penses and  other  charges  against  the  property  for  the  year  advertised. 
The  comptroller  may  prescribe  the  form  and  manner  of  preparing  such  list, 
which  when  so  prescribed  shall  be  followed  so  far  as  possible  by  the  several 
counties  of  the  state.  No  such  list  shall  be  published  until  the  same  shall 
have  been  submitted  to  and  approved  by  the  state  comptroller.  On  the 
days  mentioned  in  such  notice  the  county  treasurer  shall  begin  the  sale  of 
said  real  estate  and  continue  the  same  from  day  to  day.  The  charges  for 
publishing  such  notice  shall  be  seventy-five  cents  per  folio  for  the  first 
insertion,  and  fifty  cents  per  folio  for  each  subsequent  insertion.  The 
counties  of  Saint  Lawrence,  Frankling,  Lewis,  Clinton,  Warren,  Washing- 
ton and  Oneida,  and  the  counties  of  the  state  other  than  those  in  the  forest 
preserve  are  empowered  to  acquire  and  hold  such  lands.  Within  twenty 
days  after  the  time  for  redemption  has  expired  the  county  treasurer  of  each 
of  the  counties  of  Saint  Lawrence,  Franklin,  Lewis,  Clinton,  Warren, 
Washington  and  Oneida  shall  file  with  the  comptroller  a certified  statement 


Purchase  of  land  at  tax  sale  by  county.  Where  land  offered  for  sale  at  a tax 
sale  is  brought  in  by  the  county  because  of  the  failure  of  other  parties  to  bid  for  it, 
the  same  payments  are  to  be  made  by  the  county  that  would  have  been  required  of 
an  individual ; for  instance,  the  county  must  pay  a proportionate  share  of  the  ex- 
penses of  sale,  including  the  expense  of  publishing  the  notice  of  sale,  and  charge  the 
same  pro  rata  on  the  real  property  sold.  Armstrong  v.  County  of  Nassau.  101  App. 
Div.  116,  91  N.  Y.  Supp.  867. 

Collection  of  taxes  in  Suffolk  county.  Chapter  620  of  the  Laws  of  1873,  as 
amended  by  ch.  80  of  Laws  of  1875,  which  is  a special  statute  governing  the  col- 
lection of  taxes  in  Suffolk  county,  has  not  been  specifically  or  impliedly  repealed  or 
superseded,  and  is  still  in  force.  Welstead  v.  Jennings,  104  App.  Div.  179,  93  N.  Y. 
Supp.  339,  affd.  185  N.  Y.  588. 

2.  Publication  of  notice.  It  is  not  required  that  the  notice  be  in  the  body  of 
the  newspaper  and  not  in  the  supplement,  as  in  the  case  of  sales  by  the  comptroller 
(§  120),  and  therefore  it  is  not  essential  that  the  publication  shall  be  in  any  par- 
ticular part  of  the  newspaper.  Morton  v.  Horton,  189  N.  Y.  398,  revg.  101  App. 
Div.  322,  91  N.  Y.  Supp.  950. 

In  proceedings  to  sell  lands  of  a non-resident  for  taxes,  failure  to 

return  the  tax  to  the  county  treasurer  as  unpaid  constitutes  a defect,  as  does  also 
the  inclusion  of  three  lots  in  a single  assessment.  Howell  v.  Rowe  (1914),  85  Misc. 
560,  147  N.  Y.  Supp.  482. 


616 


TAXATION. 


Tax  Law,  §§  151-a,  152. 

of  all  tracts  or  parcels  of  land  situated  in  the  forest  preserve  which  have 
been  bid  in  by  the  county  and  have  not  been  redeemed,  and  shall  sell  and 
convey  to  the  state  any  tract  or  parcel  of  land  specified  in  such  statement 
which  the  comptroller  shall  designate  within  six  months  after  such  state- 
ment is  filed,  upon  the  payment  of  the  taxes,  interest  and  expenses  due 
thereon  at  the  time  of  the  sale,  and  also  all  taxes  assessed  thereon  since 
such  sale,  and  the  comptroller  shall  draw  his  warrant  on  the  state  treasurer 
for  the  amount  thereof  or  credit  the  county  with  such  amount  on  the  books 
of  his  office.  After  the  expiration  of  such  six  months,  in  the  counties  of 
Saint  Lawrence,  Franklin,  Lewis,  Clinton,  Warren,  Washington  and 
Oneida,  and  after  the  time  for  redemption  has  expired  in  any  other  county, 
the  county  treasurer  is  authorized  in  the  name  of  the  board  of  supervisors 
of  the  county  to  sell  and  convey  under  his  hand  and  seal  such  lands  as 
have  not  been  conveyed  to  the  state  in  the  manner  and  upon  such  terms 
as  the  board  of  supervisors  of  the  county  may  direct.  [Tax  Law,  § 151, 
as  amended  by  L.  1913,  chs.  377,  642,  L.  1915,  328,  and  L.  1918,  ch.  159; 
B.  C.  & G.  Cons.  L.,  p.  5933.] 

§ 3-a.  NEW  CERTIFICATE  UPON  SETTING  ASIDE  SALE. 

If  a purchaser  shall  not  have  paid  his  bid,  or  the  same  shall  not  have 
been  collected  from  him  at  the  expiration  of  one  month  from  the  conclu- 
sion of  the  sale  at  which  the  bid  was  made,  the  county  treasurer  may  set 
aside  the  sale  of  land  for  which  the  bid  is  made  and  all  rights  of  the 
purchaser  under  such  bid  shall  thereby  be  extinguished.  A certificate 
of  such  sale  may  thereupon  be  issued  by  the  county  treasurer  to  any 
person  who  will  pay  the  same  amount  as  would  have  been  payable  by 
the  original  purchaser  if  the  sale  had  not  been  set  aside.  If  such  certifi- 
cate shall  not  have  been  sold  within  three  months  from  the  date  of  such 
sale  the  county  treasurer  shall  transfer  the  same  to  the  county,  in  which 
ease  the  whole  quantity  of  land  liable  to  sale  for  the  purchase  money 
mentioned  in  the  certificate  shall  be  covered  by  such  purchase,  the  same 
as  if  no  person  had  offered  to  bid  therefor  at  the  sale.  The  change  of 
purchaser  made  pursuant  to  this  section  and  the  time  when  made  shall 
be  noted  in  the  sales  book,  and  the  certificate  issued  shall  confer  upon 
the  county  the  same  rights  as  it  would  have  acquired  had  the  land  been 
bid  in  for  it  at  the  sale.  [Tax  Law,  § 151-a,  as  added  by  L.  1913,  ch. 
369.] 

§ 4.  OWNER  MAY  REDEEM  WITHIN  ONE  YEAR. 

The  owner,  occupant  or  any  other  peron  having  an  interest  in  any  real  estate 
sold  for  taxes  as  aforesaid  may  redeem  the  same  at  any  time  within  one  year  after 
the  last  day  of  such  sale,  by  paying  to  the  county  treasurer  of  the  county,  for  the 
use  of  the  purchaser,  the  sum  mentioned  in  his  certificate,  together  with  interest 
thereon  at  the  rate  of  ten  per  centum  per  annum,  to  be  computed  from  the  date  of 
such  certificate,  and  any  tax  which  the  holder  of  said  certificate  shall  have  paid 
between  the  days  of  sale  and  redemption  provided  such  purchaser  shall  have  notified 
the  county  treasurer  thereof  immediately  upon  the  payment  of  such  tax  together 
with  the  share  of  the  expense  of  the  publication  of  notices  to  redeem  the  real  estate 
sold  in  such  county  for  unpaid  taxes,  as  apportioned  by  the  county  treasurer  to  the 
real  estate  so  redeemed,  which  expense  shall  be  in  the  first  instance  a county  charge 
and  shall  be  at  the  same  rate  as  that  provided  for  the  publication  of  notices  ot  tax 


SALES  BY  COUNTY  TREASURER  FOR  UNPAID  TAXES. 


617 


Tax  Law,  §§  153,  154. 

sales.  In  case  any  parcel  of  real  estate  mentioned  in  such  notice  to  redeem  shall 
not  be  redeemed  within  the  one  year  allowed  by  law  for  such  redemption  then  and 
in  that  event  the  share  of  the  expense  of  the  publication  of  notices  to  redeem  such 
unredeemed  real  estate  sold  in  any  such  county  for  unpaid  taxes,  as  apportioned  by 
the  county  treasurer,  together  with  interest  thereon  for  one  year  at  the  rate  of  ten 
per  centum  per  annum,  shall  be  laid  before  the  board  of  supervisors  of  such  county 
for  re-assessment  as  are  other  taxes  and  shall  be  by  such  board  of  supervisors  re- 
assessed upon  the  assessment-roll  of  the  current  year  against  such  real  estate 
and  shall  be  a lien  thereon.  [Tax  Law,  § 152,  as  am&fidod  by  L.  1916,  ch.  332;  B. 
C.  &.  G.  Cons.  L.,  p.  5935.] 

§ 5.  REDEMPTION  OF  REAL  PROPERTY  STRICKEN  FROM  TAX 
ROLLS. 

The  real  property  struck  down  to  a county  at  said  trax  sale  and  omitted 
from  the  tax  rolls  as  provided  in  section  fifty  of  this  chapter  shall  not  be 
subject  to  further  sale  after  having  been  once  so  sold  for  taxes.  The 
real  property  so  omitted  from  the  tax  rolls  may  be  redeemed  by  the 
owner,  occupant  or  any  person  having  an  interest  in  the  same,  provided 
the  county  has  not  acquired  a title  in  fee  to  such  property,  upon  the 
payment  to  the  county  treasurer  for  the  use  and.  benefit  of  the  county 
of  a sum  equal  to  the  gross  amount  of  the  taxes,  expenses  of  such  sale, 
penalty  and  interest  thereon,  together  with  the  tax  and  interest  thereon 
which  would  have  been  due  on  said  real  property  had  it  been  taxed 
during  each  of  the  years  it  was  omitted  from  the  tax  rolls.  The  said 
taxes  for  each  of  the  years  during  which  said  real  estate  is  so  omitted 
from  the  tax  rolls  shall  be  computed  on  the  basis  of  the  assessed  valua- 
tions returned  on  said  real  property  by  the  assessors  of  the  several  tax 
districts  and  at  the  rate  fixed  by  the  board  of  supervisors  as  the  tax  rate 
for  the  tax  district  within  which  such  real  estate  is  situated.  [Tax 
Law,  § 153  ; B.  C.  & G.  Cons.  L.,  p.  5935.] 

§ 6.  CONVEYANCE  BY  COUNTY  TREASURER,  IF  REAL  PROPERTY 
SOLD  BE  NOT  REDEEMED. 

If  such  real  estate,  or  any  portion  thereof,  be  not  redeemed  as  herein  provided,  the 
county  treasurer  shall  execute  to  the  purchaser  a conveyance  of  the  real  estate  sold, 
the  description  of  which  real  estate  shall  include  a specific  statement  of  whose  title 
or  interest  is  hereby  conveyed,  so  far  as  appears  on  the  record,  which  conveyance 
shall  vest  in  the  grantee  an  absolute  estate  in  fee,  subject,  however,  to  all  claims  the 
county  or  state  may  have  thereon  for  taxes  or  liens  or  incumbrance.  The  county 
treasurer  shall  receive  from  the  purchaser  fifty  cents  for  preparing  such  conveyance, 
and  ten  cents  additional  for  each  piece  or  parcel  of  land  described  therein,  exceed- 
ing the  first.  All  purchases  made  for  the  county  shall  be  included  in  one  con- 
veyance, for  which  the  county  treasurer  shall  receive  ten  dollars.  Every  such 
conveyance  shall  be  executed  by  the  treasurer  of  the  county,  under  his  hand 
and  seal,  and  may  be  recorded  in  the  same  manner  and  with  like  effect  as  a 
conveyance  of  real  estate  properly  acknowledged  or  proven. -’a  The  money 


2a.  Application.  This  section  has  no  reference  to  tax  deeds  or  certificates  executed 
by  the  state  comptroller  under  § 131  of  the  Tax  Law.  Sheldon  v.  Russell,  91  Misc. 
278,  154  N.  Y.  Supp.  632. 

The  provisions  of  section  154  to  the  effect  that  if  real  real  estate  sold  by  a county 
treasurer  is  not  redeemed  the  title  of  the  purchaser  shall  become  absolute  and  that 
the  description  of  lands  shall  include  a specific  statement  of  whose  title  is  conveyed 
“ so  far  as  appears  from  the  record”  related  only  to  the  record  in  the  county  treas- 
urer's office,  not  to  the  county  clerk’s  records.  Smith  v.  Russell  (1916),  172  Ann. 
Div.  793,  159  N.  Y.  Supp.  169. 


618 


TAXATION. 


Tax  Law,  §§  155,  156,  157. 


received  by  the  county  treasurer  on  every  such  sale  shall  be  applied  by 
him,  after  deducting  the  expenses  thereof,  in  like  manner  as  if  the  same 
had  been  paid  to  him  by  the  collectors  of  the  several  towns.  [Tax  Law, 
§ 154;  B.  C.  & G.  Cons.  L.,  p.  5936.] 

§ 7.  EFFECT  OF  CONVEYANCE. 

A purchaser  or  his  legal  representative  may,  upon  receiving  a con- 
veyance under  and  by  virtue  thereof,  possess  and  enjoy  for  his  own  use 
the  real  estate  described  in  such  conveyance,  unless  redeemed  as  herein 
provided,  and  after  the  expiration  of  the  time  to  redeem  the  same,  may 
cause  the  occupant  of  such  real  estate  to  be  removed  therefrom,  and  the 
possession  to  be  delivered  to  him  in  the  same  manner  and  by  the  same 
proceedings,  and  before  the  same  officers  as  in  case  of  a tenant  holding 
over  after  the  expiration  of  his  term  without  permission  of  his  land- 
lord.* * 3 4 [Tax  Law,  § 155;  B.  C.  & G.  Cons.  L.,  p.  5936.] 

§ 8.  PURCHASE  MONEY,  WHEN  TO  BE  REFUNDED  BY  BOARDS  OF 
SUPERVISORS. 

Whenever  any  purchaser  under  such  sale  shall  be  unable  to  regain  possession  of 
the  real  estate  purchased  by  him.,  or  when  the  county  treasurer  shall  have  canceled 
any  such  sale,  or  when  any  such  sale  shall  have  been  canceled  by  a judgment  of  a 
court  of  competent  jurisdiction,  in  either  case  by  reason  of  an  error  or  irregularity 
in  the  assessment  or  levying  of  a tax,  or  in  proceedings  for  the  collection  thereof, 
the  board  of  supervisors  of  the  county  shall  refund  the  purchase  money  so  paid, 
with  interest  upon  the  same  being  presented  and  audited  as  other  county  charge*, 
and  such  money  shall  be  charged  to  the  tax  district  from  which  the  tax  was  returned, 
and  the  same  shall  be  levied  and  collected  in  the  succeeding  year  and  paid  to  the 
county  treasurer.*  [Tax  Law,  § 156,  as  amended  by  L.  1912,  ch.  268;  B.  C.  & G. 
Cons.  L.,  p.  5936.] 

§ 9.  COUNTY  TREASURER  TO  TRANSMIT  TO  COMPTROLLER  LIST 
OF  LANDS  TO  BE  SOLD;  SALE  OF  LANDS  OWNED  BY  STATE 
OR  UPON  WHICH  IT  HAS  A LIEN. 

The  county  treasurer  of  any  county  not  embracing  a portion  of  the  forest 
preserve  shall,  at  least  two  months  prior  to  any  tax  sale  to  be  held  by  him, 
transmit  to  the  comptroller  an  accurate  and  complete  list  of  all  the  lands 
in  such  county  to  be  sold  thereat.  The  state  comptroller  shall,  at  least  two 
weeks  prior  to  any  such  tax  sale,  transmit  to  such  county  treasurer  a list  of 

Limitation  upon  actions  to  vacate  sale.— The  Tax  Law  of  1896  repealed 

chapter  442  of  the  Laws  of  1855  which  prescribed  a limitation  upon  actions  to 
vacate  a sale  of  land  for  unpaid  taxes,  also  chapter  217  of  the  Laws  of  1891  which 
extended  the  operation  of  said  statute  of  1885;  but  rights  which  had  become  vested 
and  fixed  by  said  statute  before  repeal  remain  unaffected  thereby.  Howell  v.  Rowe 
(1914),  85  Misc.  560,  147  N.  Y.  Supp.  482, 

3.  Title  of  purchaser.  Where  taxes  are  regularly  assessed  against  parties  in 
possession  of  land  and  claiming  title  thereto,  and  the  right  of  possession,  and  the  land 
is  sold  for  non-payment  of  the  taxes,  the  purchaser  gets  a good  title  as  against  those 
in  possession  and  all  claiming  under  them.  Croner  v.  Cowdrey,  139  N.  Y.  471,  54  N. 
Y.  St.  Rep.  728. 

4.  Assignment  by  county  treasurer  of  certificate  of  sale.  Where,  prior 
to  the  expiration  of  the  time  to  redeem  from  a tax  sale  property  which  has  been  bid 
in  by  the  county,  a person  claiming  an  interest  in  the  property,  for  the  purpose  of 
protecting  such  interest,  pays  the  amount  of  the  unpaid  taxes  and  receives  from  the 
county  treasurer  an  assignment  of  the  certificate  of  sale,  such  assignee  is  entitled, 
under  this  section,  if  the  assessment  under  which  the  sale  was  made  proves  to  be 
void,  to  have  refunded  to  him  the  money  paid  by  him  to  the  county  treasurer.  Peo- 
ple ex  rel.  Stephens  v.  Supervisors,  104  App.  Div.  176,  93  N.  Y.  Supp.  344. 


SALES  BY  COUNTY  TREASURER  FOR  UNPAID  TAXES.  (319 


Tax  Law,  §§  158,  159. 

all  lands  advertised  to  be  sold  at  such  tax  sale,  belonging  to  the  state,  or 
which  shall  then  be  mortgaged  to  the  commissioners  for  loaning  certain 
moneys  of  the  United  States,  or  against  which  the  state  holds  a bond  or  lien, 
for  any  part  of  the  purchase  money  thereof,  or  for  whicn  the  state  may  then 
hold  a tax  sale  certificate.  The  county  treasurer  conducting  such  sale  shall 
bid  in  for  the  state  all  lands  described  in  the  list  transmitted  to  him  by 
the  comptroller,  and  shall,  at  the  close  of  such  sale,  transmit  to  the  comp- 
troller a verified  and  itemized  statement  showing  the  amount  of  each  bid 
made  in  the  name  of  the  state  thereat,  and  the  state  comptroller  shall, 
within  ten  days  after  the  receipt  by  him  of  such  statement,  draw  his 
warrant  on  the  state  treasurer  for  the  amount  thereof  or  credit  the  county 
with  the  amount  of  such  statement  on  the  books  of  his  office.5  [Tax  Law, 
§ 157;  B.  C.  & G.  Cons.  L.,  p.  5937.] 

§ 10.  PROVISIONS  RELATIVE  TO  COMPTROLLER  TO  APPLY  TO 
TREASURER. 

The  provisions  of  article  six  of  this  chapter,  entitled  “ sales  by  comp- 
troller for  unpaid  taxes  and  redemption  of  lands  ” shall,  in  so  far  as  it  is 
not  otherwise  herein  provided,  govern  and  control  the  action  of  the  county 
treasurer,2  who  shall  perform  the  duties  therein  devolved  upon  the  comp- 
troller and  the  same  rights  and  remedies  shall  be  deemed  to  exist  under  the 
provisions  of  this  article  as  are  provided  for  in  said  article  six.  [Tax  Law, 
§ 158;  B.  C.  & G.  Cons.  L.,  p.  5937.] 

§ 11.  EXPENSES  OF  PUBLISHING  NOTICE  TO  REDEEM. 

Where  a tax  sale  has  been  held  by  a county  treasurer  pursuant  to  this 
article,  the  expense  of  publishing  the  notice  to  redeem  as  required  by  sec- 
tion one  hundred  and  thirty  of  this  chapter  shall  be  apportioned  as  equi- 
tably as  may  be  between  the  several  pieces  or  parcels  included  therein.  The 
amount  so  apportioned  to  any  parcel  shall  be  paid  to  the  county  treasurer 
by  the  purchaser  at  the  tax  sale  upon  the  execution  of  a conveyance  to 
him.  If  a parcel  of  land  is  redeemed  subsequent  to  the  publication  of  the 
notice,  the  person  redeeming  shall  pay  to  the  county  treasurer,  in  addition 
to  the  amount  required  by  section  one  hundred  and  fifty-two,  the  expense 


5.  County  treasurer  of  Oswego  county,  on  sale  for  non-payment  of  taxes, 
under  Laws  1878,  ch.  65,  and  Laws  1882,  ch.  322,  bid  in  the  lands  for  the 
county,  and  after  the  expiration  of  the  time  to  redeem,  delivered  deed  thereof 
to  the  plaintiff's.  On  proof  of  compliance  with  all  the  requirements  of  the 
statutes  and  that  the  time  to  redeem  after  delivery  of  the  deed  had  also 
expired,  and  that  the  lands  were  not  redeemed, — held,  that  plaintiff  was 
entitled  to  recover  possession.  Supervisors  v.  Betts,  25  N.  Y.  St.  Rep.  660. 


620 


TAXATION. 


Tax  Law,  § 169. 

of  publishing  the  notice  to  redeem  the  same.  If  a parcel  of  land  is  bid  in 
by  the  county  and  is  not  redeemed,  the  expense  of  publishing  the  notice  to 
redeem  shall  be  a county  charge.  The  money  received  by  a county  treas 
urer  for  the  expense  of  publishing  the  redemption  notices  shall  be  applied 
by  him  to  pay  the  publishers  thereof.  [Tax  Law,  § 159;  B.  C.  & G.  Cons. 
L.,  p.  5938.] 


MORTGAGES  OF  REAL  PROPERTY. 


G21 


Tax  Law,  § 250. 


CHAPTER  XL. 

MORTGAGES  OF  REAL  PROPERTY  WITHIN  THIS  STATE. 


Section  1.  Definitions. 

2.  Exemptions  from  local  taxation. 

3.  Exemptions. 

4.  Recording  tax 

5.  Optional  tax  on  prior  mortgages. 

6.  Supplemental  mortgages. 

7.  Mortgages  for  indefinite  or  for  contract  obligations. 

8.  Payment  of  taxes. 

9.  Effect  of  non-payment  of  tax. 

10.  Trust  mortgages. 

11.  Apportionment  by  state  board,  of  tax  commissioners. 

12.  Payment  over  and  distribution  of  tax. 

13.  Expenses  of  officers. 

14.  Supervisory  power  of  state  board  of  tax  commissioners  and  state 

comptroller. 

15.  Tax  on  prior  advance  mortgages. 

§ 1.  DEFINITIONS. 

The  term  “ real  property  ” as  used  in  this  article,  in  addition  to  the 
definition  thereof  contained  in  section  two  of  this  chapter,  includes 
everything  a conveyance  or  mortgage  of  which  can  be  recorded  as  a 
conveyance  or  mortgage  of  real  property  under  the  laws  of  the  state. 
The  term  “ mortgage  99  as  used  in  this  article  includes  every  mortgage 
or  deed  of  trust  which  imposes  a lien  on  or  affects  the  title  to  real  prop- 
erty, notwithstanding  that  such  property  may  form  a part  of  the  security 
for  the  debt  or  debts  secured  thereby.  Executory  contracts  for  the  sale 
of  real  property  under  which  the  vendee  has  or  is  entitled  to  possession 
shall  be  deemed  to  be  mortgages  for  the  purposes  of  this  article  and 
shall  be  taxable  at  the  amount  unpaid  on  such  contracts.  A contract  or 
agreement  by  which  the  indebtedness  secured  by  any  mortgage  is  in- 
creased or  added  to,  shall  be  deemed  a mortgage  of  real  property  for 
the  purpose  of  this  article,  and  shall  be  taxable  as  such  upon  the  amount 


622 


TAXATION. 


Tax  Law,  § 251. 

of  such  increase  or  addition.1  [Tax  Law,  § 250,  as  amended  by  L. 
1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  6017.] 

§ 2.  EXEMPTION  FROM  LOCAL.  TAXATION. 

All  mortgages  of  real  property  situated  within  the  state  which  are 
taxed  by  this  article  and  the  debts  and  the  obligations  which  they 
secure,  together  with  the  paper  writings  evidencing  the  same,  shall  be 
exempt  from  other  taxation  by  the  state,  counties,  cities,  towns,  vil- 
lages, school  districts  and  other  local  subdivisions  of  the  state,  except 
that  such  mortgage  shall  not  be  exempt  from  the  taxes  imposed  by  sec- 
tions twenty-four  to  twenty-four-g,  both  inclusive,  one  hundred  and  eighty- 
seven,  one  hundred  and  eighty-eight,  one  hundred  and  eighty-nine  and 

1.  Mortgages  executed  before  act  of  1906.  The  repeal  of  the  provisions  of 
the  act  of  1905,  ch.  729,  which  provided  for  an  annual  tax  on  mortgages  by  the 
provision  of  the  act  of  1906,  ch.  532,  providing  for  a recording  tax  on  mortgages, 
leaves  mortgages  executed  before  the  passage  of  the  latter  act  open  to  taxation 
under  §§  2 and  3 ; the  law  of  1905  created  no  contract  between  the  state  and 
individuals,  and  taxation  of  such  prior  mortgages  is  not  unconstitutional  as  im- 
pairing contracts.  People  ex  rel.  Cassavoy  v.  Dimond,  121  App.  Div.  559,  106 
N.  Y.  Supp.  277. 

A lease  for  five  years  is  real  property  within  the  meaning  of  this  section, 
and  does  not  lose  its  character  after  the  expiration  of  two  years  of  the  term, 
People  ex  rel.  Elias  Brewing  Co.  v.  Gass,  53  Misc.  363,  104  N.  Y.  Supp.  884,  affd. 
120  App.  Div.  147,  104  N.  Y.  Supp.  185,  affd.  190  N.  Y.  565.  A lease  for  three 
years  is  real  property  within  the  definition  herein  included.  Atty.  Genl.  Opin. 
(1915)  4 State  Dept.  Rep.  524. 

Effect  of  law  on  contracts  of  sale.  A vendee  under  a contract  to  purchase 
lands  cannot  reject  the  title  because  a mortgage,  though  having  one  year  to  run, 
contained  a provision  that  should  the  law  for  the  taxation  of  mortgages 
be  changed  so  as  to  increase  the  tax  thereon,  and  the  owner  fail  to  pay,  the 
mortgagee  might  declare  the  mortgage  due  on  thirty  days*  notice.  Frank  v.  Frank, 
123  App.  Div.  802,  108  N.  Y.  Supp.  549. 

A contract  of  sale  under  which,  before  the  execution  of  the  deed,  the  vendee 
may  come  into  possession,  should  be  taxed  as  a mortgage  on  presentation  for 
record,  unless  affidavit  is  made  that  the  vendor  is  in  possession.  Rept.  of  Atty. 
Genl.,  March  22,  1912. 

A trust  deed  may  be  a mortgage  subject  to  a recording  tax.  Rept.  of  A'tty. 
Genl.,  April  15,  1909.  And  an  instrument  granting  and  releasing  real  property  in 
trust,  which  secures  to  the  trustees  a lien  upon  said  real  property  for  advances  made 
by  them,  is  taxable.  Opinion  of  Atty.  Genl.,  Jan.  8,  1913. 

A conveyance  of  lands  to  trustees  for  the  benefit  of  creditors  of  the  grantor’s 
deceased  husband,  made  pursuant  to  an  agreement  whereby  the  trustees,  endowed 
with  a power  of  sale,  were  to  pay  the  creditors  of  the  deceased  husband  from  the 
proceeds  of  the  sale  after  deducting  expenses,  interest  on  mortgages,  etc.,  the  balance 
to  be  returned  to  the  grantor,  does  not  create  a mortgage,  there  being  no  agreement 


MORTGAGES  OF  REAL  PROPERTY. 


623 


Tax  Law,  §§  252,  253. 

article  ten  of  this  chapter.* 2  [Tax  Law,  § 251,  as  amended  by  L.  1916, 
ch.  323,  and  L.  1917,  ch.  485;  B.  C.  & Gr.  Cons.  L.,  p.  6018.] 

§ 3.  EXEMPTIONS. 

]STo  mortgage  of  real  property  situated  within  this  state  shall  be  ex- 
empt, and  no  person  or  corporation  owning  any  debt  or  obligation 
secured  by  mortgage  of  real  property  situated  within  this  state  shall  be 
exempt  from  the  taxes  imposed  by  this  article  by  reason  of  anything 
contained  in  any  statute,  or  by  reason  of  any  provision  in  any  private 
act  or  charter  which  is  subject  to  amendment  or  repeal  by  the  legisla- 
ture, or  by  reason  of  non-residence  within  this  state  or  for  any  other 
cause.3  [Tax  Law,  § 252 ; B.  C.  & G.  Cons.  L.,  p.  6018.] 

§ 4.  RECORDING  TAX. 

A tax  of  fifty  cents  for  each  one  hundred  dollars  and  each  remaining 
major  fraction  thereof  of  principal  debt  or  obligation  which  is,  or  under 


for  a reconveyance  to  the  grantor,  or  for  a defeasance.  Hence,  such  agreement  is 
entitled  to  record  without  payment  of  the  mortgage  recording  tax.  Dryer  v.  Hopper 
(1914),  162  App.  Div.  590,  147  N.  Y.  Supp.  1028. 

Payment  of  tax.  It  was  the  intent  of  the  legislature  to  permit  the  parties  to 
agree  as  to  who  should  pay  the  tax.  Seaman’s  Bank  v.  Fell,  162  App.  Div.  223, 
147  N.  Y.  Supp.  465. 

2.  Exemption  may  be  claimed  at  any  time  before  the  assessors  complete  their 
assessment.  Matter  of  Pullman,  52  Misc.  1,  102  N.  Y.  Supp.  356. 

The  re-examination  of  an  assessment,  made  by  a town  board  of  assessor? 
may  be  had  on  certiorari  only  where  the  prior  examination  before  the  board  involved 
a dispute  and  a doubt,  and  not  where  sueh  examination  was  entirely  conclusive 
permitting  the  assessors  but  one  course  of  action.  People  ex  rel.  Glen  Telephone  Co. 
v.  Hall,  57  Misc.  308,  109  N.  Y.  Supp.  402. 

3.  Effect  on  special  exemptions.  Where  a charitable  education  institution 
is  exempted  by  its  charter  from  paying  the  recording  tax  provided  for  by  this  section, 
such  exemption,  so  far  as  mortgages  belonging  to  it  are  concerned,  must  be 
deemed  to  have  been  repealed  by  this  section.  People  ex  rel.  Cooper  Union  v.  Gass, 
190  N.  Y.  323,  revg.  119  App.  Div.  280,  104  N.  Y.  Supp.  643. 

The  exemption  clause  goes  only  to  the  extent  to  which  the  mortgage  in  question 
is  taxable  and  has  been  taxed.  Hence,  the  owner  of  a bond  of  a foreign  corporation, 
secured  by  real  estate,  the  greater  part  of  which  is  situated  in  this  state,  is  entitled 
to  an  exemption  only  to  the  extent  to  which  such  property  has  been  taxed  by  record- 
ing the  mortgage  in  other  counties  of  the  state,  where  a portion  of  the  real  property 
is  situated.  People  ex  rel.  Braeburn  Assn.  v.  Hanking,  154  App.  Div.  679. 

Mortgages  refunding  prior  mortgages  and  wiping  them  out  of  exist- 
ence, are  not  entitled  to  any  exemption  from  the  recording  tax  imposed  by  this 
section,  as  they  are  not  additional  or  supplemental  mortgages  within  the  meaning 
of  section  255.  Atty.  Genl.  Opin.,  6 State  Dep.  Rep.  445  (1915). 


TAXATION. 


624 


Tax  Law,  § 254. 

any  contingency  may  be  secured  at  the  date  of  the  execution  thereof  or 
at  any  time  thereafter  by  a mortgage  on  real  property  situated  within 
the  state  recorded  on  or  after  the  first  day  of  J uly,  nineteen  hundred  and 
six,  is  hereby  imposed  on  each  such  mortgage,  and  shall  be  collected  and 
paid  as  provided  in  this  article.  If  the  principal  debt  or  obligation 
which  is  or  by  any  contingency  may  be  secured  by  such  mortgage  re- 
corded on  or  after  the  first  day  of  July,  nineteen  hundred  and  seven, 
is  less  than  one  hundred  dollars,  a tax  of  fifty  cents  is  hereby  imposed 
on  such  mortgage,  and  shall  be  collected  and  paid  as  provided  in  this 
article.  [Tax  Law,  § 253,  as  amended  by  L.  1916,  ch.  323;  B.  C.  & 
G.  Cons.  L.,  p.  6018.] 

§ 5.  OPTIONAL  TAX  ON  PRIOR  MORTGAGES. 

Whenever  any  mortgage  other  than  a mortgage  specified  in  section 
two  hundred  and  sixty-four  has  been  recorded  prior  to  July  first,  nine- 
teen hundred  and  six,  the  record  owner  thereof  may  file  with  the  record- 
ing officer  of  the  county  in  which  the  real  property,  or  any  part  thereof, 
on  which  said  mortgage  is  a lien,  is  situated,  a written  statement  under 
oath  verified  by  the  record  owner  or  the  agent  or  officer  of  such  record 
owner  describing  such  mortgage  by  giving  the  date  of  the  same  and  the 
liber  and  page  of  the  record  thereof  together  with  the  names  of  the 
parties  thereto,  specifying  the  amount  then  remaining  unpaid  on  the 
debt  or  obligation  secured  thereby,  and  electing  that  it  shall  become 
subject  to  the  tax  prescribed  by  section  twTo  hundred  and  fifty- three  of 
this  chapter.  Whenever  any  unrecorded  mortgage  has  been  executed 
and  delivered  prior  to  July  first,  nineteen  hundred  and  six,  the  owner 
thereof  may  record  the  same  upon  filing  with  the  recording  officer  a 
similar  statement  and  paying  the  tax  as  herein  prescribed.  A tax  shall 
thereupon  be  computed,  levied  and  collected  upon  the  amount  of  the 
principal  debt  or  obligation  unpaid  at  the  time  of  the  filing  of  such 
statement,  or  of  the  recording  of  such  mortgage  and  filing  of  such  state- 
ment. On  the  payment  of  such  tax  as  herein  provided,  the  recording 
officer  shall  note  on  the  margin  of  the  record  of  such  mortgage  the  fact 
of  such  statement  and  of  the  amount  of  the  tax  paid,  attested  by  his 
signature,  whereupon  such  mortgage  and  the  debt  or  obligation  secured 
thereby  shall  be  entitled  to  the  exemptions  and  immunities  conferred  by 
this  article,  and  all  of  the  provisions  of  this  article  shall  thereafter  be 
applicable  to  said  mortgage.  Whenever  the  original  mortgage  is  pre- 


MORTGAGES  OF  REAL  PROPERTY. 


625 


Tax  Law,  § 255. 

sented  to  the  clerk  together  with  the  statement  he  shall  also  note  on 
said  original  mortgage  the  fact  of  the  filing  of  the  said  statement  and 
also  the  amount  of  the  tax  paid  duly  attested  by  his  signature,  which 
endorsement  shall  be  conclusive  evidence  of  the  payment  of  such  tax. 
[Tax  Law,  § 254;  B.  C.  & G.  Cons.  L.,  p.  6019.] 

§ 6.  SUPPLEMENTAL  MORTGAGES. 

If  subsequent  to  the  recording  of  a mortgage  on  which  all  taxes,  if 
any,  accrued  under  this  article  have  been  paid,  a supplemental  instru- 
ment or  mortgage  is  recorded  for  the  purpose  of  correcting  or  perfecting 
any  recorded  mortgage,  or  pursuant  to  some  provision  or  covenant 
therein,  or  an  additional  mortgage  is  recorded  imposing  the  lien  thereof 
upon  property  not  originally  covered  by  or  not  described  in  such  re- 
corded primary  mortgage  for  the  purpose  of  securing  the  principal 
indebtedness  which  is  or  under  any  contingency  may  be  secured  by  such 
recorded  primary  mortgage,  such  additional  instrument  or  mortgage 
shall  not  be  subject  to  taxation  under  this  article,  unless  it  creates  or 
secures  a new  or  further  indebtedness  or  obligation  other  than  the  princi- 
pal indebtedness  or  obligation  secured  by  or  which  * under  any  con- 
tingency may  be  secured  by  the  recorded  primary  mortgage,  in  which 
case,  a tax  is  imposed  as  provided  by  section  two  hundred  and  fifty-three 
of  this  chapter  on  such  new  or  further  indebtedness  or  obligation,  and 
shall  be  paid  to  the  proper  recording  officer  at  the  time  such  instrument 
or  additional  mortgage  is  recorded.  If  at  the  time  of  recording  such 
instrument,  or  additional  mortgage  any  exemption  is  claimed  under  this 
section,  there  shall  be  filed  with  the  recording  officer  and  preserved  in 
his  office  a statement  under  oath  of  the  facts  on  which  such  claim  for 
exemption  is  based.  The  determination  of  the  recording  officer  upon 
the  question  of  exemption  shall  be  review-able  by  the  tax  commission. 3a 
[Tax  Law,  § 255,  as  amended  by  L.  1916,  ch.  323;  B.  C.  & G.  Cons. 
L.,  p.  6019.] 

3a.  Recording  of  lease  after  contract  tlierefor. — Where  a contract  for  a 
lease  is  assigned  to  secure  an  indebtedness  and  on  its  recording  is  taxed  as  a mort- 
gage, no  further  tax  accrues  or  is  due  upon  the  lease  itself  when  it  is  delivered  and 
recorded.  Report  of  Atty.  Genl.,  March  22,  1912. 

Claim  of  exemption. — In  order  that  a supplemental  mortgage  be  exempt  from 
the  payment  of  a mortgage  tax  upon  recording  a statement  under  oath  of  the  facts 
on  which  a claim  for  exemption  is  based  must  be  filed  with  the  recording  officer 
at  the  time  of  recording  such  mortgage  in  accordance  with  the  provisions  of  this 
section.  Opinion  of  Attv.  Genl.,  June  17,  1914. 


626 


TAXATION. 


Tax  Law,  § 256. 

§ 7.  MORTGAGES  FOR  INDEFINITE  AMOUNTS  OR  FOR  CONTRACT 
OBLIGATIONS. 

If  the  principal  indebtedness  secured  or  which  by  any  contingency 
may  be  secured  by  a mortgage  is  not  determinable  from  the  terms  of  the 
mortgage,  or  if  a mortgage  is  given  to  secure  the  performance  by  the 
mortgagor  or  any  other  person  of  a contract  obligation  other  than  the 
payment  of  a specific  sum  of  money  and  the  maximum  amount  secured 
or  which  by  any  contingency  may  be  secured  by  the  mortgage  is  not  ex- 
pressed therein,  such  mortgage  shall  be  taxable  under  section  two  hun- 
dred and  fifty-three  of  this  chapter  upon  the  value  of  the  property 
covered  by  the  mortgage,  which  shall  be  determined  by  the  recording 
officer  to  whom  such  mortgage  is  presented  for  record,  unless  at  the 
time  of  presenting  such  mortgage  for  record  the  owner  thereof  shall  file 
with  the  recording  officer  a sworn  statement  of  the  maximum  amount 
secured  or  which  under  any  contingency  may  be  secured  by  the  mortgage. 
If  such  maximum  amount  is  expressed  in  the  mortgage  or  in  a sworn 
statement  filed  as  required  by  this  section,  such  amount  shall  be  the 
basis  for  assessing  the  tax  imposed  by  this  article.  A statement  filed 
by  the  owner  of  a mortgage  pursuant  to  this  section  shall  thereafter  at 
all  times  be  binding  upon  and  conclusive  against  such  owner,  the  holders 
of  any  bonds  or  obligations  secured  by  such  mortgage  and  all  persons 
claiming  through  the  mortgagee  any  interest  in  the  mortgage  or  the  mort- 
gaged premises.  If  the  maximum  amount  secured  or  which  by  any  con- 
tingency may  be  secured  by  the  mortgage  is  not  expressed  in  the  mort- 
gage or  in  a sworn  statement  as  authorized  by  this  section,  the  recording 
officer  at  the  time  such  mortgage  is  offered  for  record  may  require  the 
mortgagor  or  mortgagee  to  furnish  him  with  proofs  as  to  such  facts  as 
he  deems  necessary  for  the  purpose  of  computing  the  value  of  the  prop- 
erty covered  by  the  mortgage  and  such  proofs  shall  include  an  affidavit 
of  appraisal  of  the  value  of  the  property  made  by  at  least  two  com- 
petent, disinterested  persons  and  shall  be  preserved  in  his  office.  His 
determination  and  copies  of  the  proofs  as  to  the  basis  for  computing  the 
tax  on  such  mortgage  shall  be  forwarded  to  and  subject  to  review  by 
the  state  tax  commission.  Such  mortgage  shall  not  be  recorded  until 
the  statement  is  filed  or  the  proofs  are  furnished  as  required  by  this, 
article.  [Tax  Law,  § 256,  as  amended  by  L.  1913,  ch.  665,  and  L. 
1916,  ch.  323 ; B.  C.  & G.  Cons.  L.,  p.  6020.] 


MORTGAGES  OF  REAL  PROPERTY. 


627 


Tax  Law,  §§  257,  258v 


§ 8.  PAYMENT  OF  TAXES. 

The  taxes  imposed  by  this  article  shall  be  payable  on  the  recording 
of  each  mortgage  of  real  property  subject  to  taxes  thereunder.  Such 
taxes  shall  be  paid  to  the  recording  officer  of  any  county  in  which  the 
real  property  or  any  part  thereof  is  situated.  It  shall  be  the  duty  of 
such  recording  officer  to  indorse  upon  each  mortgage  a receipt  for  the 
amount  of  the  tax  so  paid.  Any  mortgage  so  indorsed  may  thereupon 
or  thereafter  be  recorded  by  any  recording  officer  and  the  receipt  for 
such  tax  indorsed  upon  each  mortgage  shall  be  recorded  therewith. 
The  record  of  such  receipt  shall  be  conclusive  proof  that  the  amount  of 
tax  stated  therein  has  been  paid  upon  such  mortgage.4  [Tax  Law,  § 
257 ; B.  C.  & G.  Cons.  L.,  p.  6021.] 

§ 9.  EFFECT  OF  NON-PAYMENT  OF  TAXES. 

Ho  mortgage  of  real  property  shall  be  recorded  by  any  county  clerk 
or  register,  unless  there  shall  be  paid  the  tax  imposed  by  and  as  in  this 
article  provided.  Ho  mortgage  of  real  property  which  is  subject  to  the 
taxes  imposed  by  this  article  shall  be  released,  discharged  of  record  or 
received  in  evidence  in  any  action  or  proceeding,  nor  shall  any  assign- 
ment of  or  agreement  extending  any  such  mortgage  be  recorded  unless 
the  taxes  imposed  thereon  by  this  article  shall  have  been  paid  as  pro- 
vided in  this  article.  Ho  judgment  or  final  order  in  any  action  or  pro- 
ceeding shall  be  made  for  the  foreclosure  or  the  enforcement  of  any 
mortgage  which  is  subject  to  the  tax  imposed  by  this  article  or  of  any 
,debt  or  obligation  secured  by  any  such  mortgage,  unless  the  taxes  im- 
posed by  this  article  shall  have  been  paid  as  provided  in  this  article ; 
and  whenever  it  shall  appear  that  any  mortgage  has  been  recorded  or 
that  any  advance  has  been  made  on  a prior  advance  mortgage  or  on  a 
corporate  trust  mortgage  without  payment  of  the  tax  imposed  by  this 
article  there  shall  be  paid  in  addition  to  the  amount  of  the  tax  a sum 
equal  to  one  per  centum  thereof  for  each  month  the  tax  remains  un- 
paid, which  sum  shall  be  added  to  the  tax  and  paid  or  collected  there- 
with. [Tax  Law,  § 258,  as  amended  by  L.  1913,  ch.  665,  and  L.  1916, 
ch.  323;  B.  C.  & G.  Cons.  L.,  p.  6021.] 


4.  A lease  of  real  property  is  a chattel  real  and  creates  an  interest  in  real 
property,  and  a mortgage  thereon  comes  within  the  recording  act  and  may  not  be 
recorded  without  payment  of  the  recording  tax.  People  ex  rel.  Elias  Brewing  Co.  v. 
Gass,  120  App.  Div.  147,  104  N.  Y.  Supp.  885,  affd.  190  N.  Y.  5G5. 


028 


TAXATION. 


Tax  Law,  § 259. 


§ 10.  TRUST  MORTGAGES. 

In  the  case  of  mortgages  made  by  corporations  in  trust  to  secure 
payment  of  bonds  or  obligations  issued  or  to  be  issued  thereafter,  if 
the  total  amount  of  principal  indebtedness  which  under  any  contingency 
may  be  advanced  or  accrue  or  which  may  become  secured  by  any  such 
mortgage  which  is  subject  to  this  article  has  not  been  advanced  or 
accrued  thereon  or  become  secured  thereby  before  such  mortgage  is  re- 
corded, it  may  contain  at  the  end  thereof  a statement  of  the  amount 
which  at  the  time  of  the  execution  and  delivery  thereof  has  been  ad- 
vanced or  accrued  thereon,  or  which  is  then  secured  by  such  mortgage; 
thereupon  the  tax  payable  on  the  recording  of  the  mortgage  shall  be 
computed  on  the  basis  of  the  amount  so  stated  to  have  been  so  advanced 
or  accrued  thereon  or  which  is  stated  to  be  secured  thereby.  Such  state- 
ment shall  thereafter  at  all  times  be  binding  upon  and  conclusive  against 
the  mortgagee,  the  holders  of  any  bonds  or  obligations  secured  by  such 
mortgage  and  all  persons  claiming  through  the  mortgagee  any  interest 
in  the  mortgage  or  in  the  mortgaged  premises.  Whenever  a further 
amount  is  to  be  advanced  under  the  original  mortgage,  or  shall  accrue 
thereon  or  become  secured  thereby,  the  corporation  making  such  mort- 
gage shall  pay  the  tax  on  such  amount  at  or  before  the  time  when  such 
amount  is  to  be  advanced,  accrues  or  becomes  secured  and  shall,  at  the 
time  of  paying  such  tax,  file  in  the  office  of  the  recording  officer  where 
such  mortgage  has  been  or  is  first  recorded  and  with  the  tax  commission 
a statement,  verified  by  the  secretary,  treasurer  or  other  proper  officer, 
of  said  corporation  of  the  amount  of  principal  indebtedness  to  be  so 
advanced,  accruing  or  becoming  secured,  and  the  certification  of  any 
bond  or  bonds  by  the  trust  mortgagee  shall  be  deemed  an  advance  under 
this  article.  Such  additional  tax  shall  be  paid  to  the  recording  officer 
where  such  mortgage  has  been  or  is  first  recorded  and  a receipt  therefor 
shall  be  indorsed  upon  the  mortgage  and  payment  therefor  shall  be 
noted  in  the  margin  of  the  record  of  such  mortgage  and  if  requested  a 
duplicate  receipt  for  such  payment  shall  also  be  given  to  the  party  pay- 
ing such  tax  and  the  note  of  such  payment  or  additional  payment  or 
such  receipt  shall  have  the  same  force  and  effect  as  the  record  of  receipt 
of  the  tax  which  under  this  article  is  payable  at  or  before  the  recording 
of  the  mortgage.  If  such  additional  tax  is  not  paid  as  required  by  this 
section,  the  trust  mortgagee  shall  not  certify  any  bond  or  other  obliga- 
tion issued  on  account  thereof.  The  corporation  making  such  mortgage 


MORTGAGES  OF  REAL  PROPERTY. 


629 


Tax  Law,  § 260. 

or  the  owner  of  the  property  which  secures  the  mortgage  debt  shall 
annually  within  thirty  days  after  July  first,  and  until  it  shall  appear 
by  such  statement  that  the  maximum  amount  of  principal  indebtedness 
secured  by  such  mortgage  has  been  advanced,  has  accrued  or  become 
secured  and  the  tax  thereon  paid,  file  in  the  office  of  the  tax  commission 
and  the  recording  officer  where  such  mortgage  has  been  or  is  first  re- 
corded a statement,  verified  by  the  secretary,  treasurer  or  other  proper 
officer  of  said  corporation  showing : 

1.  The  name  of  the  mortgagor  and  the  mortgagee ; 

2.  The  date  of  the  mortgage  and  the  county  where  first  recorded ; 

3'.  The  maximum  amount  of  principal  debt  or  obligation  which  under 
any  contingency  may  be  secured  by  such  mortgage; 

4.  The  amount  advanced  on  such  mortgage  during  the  year  ending 
June  thirtieth  preceding,  with  the  date  and  amount  of  each  advance- 
ment; 

5.  In  the  case  of  a mortgage  recorded  prior  to  July  first,  nineteen  hun- 
dred and  six,  the  first  annual  statement  filed  under  this  section  as  hereby 
amended,  shall  state  the  total  amount  advanced  prior  to  July  first,  nine- 
teen hundred  and  six,  and  the  date  and  the  amount  of  each  subsequent  ad- 
vancement to  the  end  of  the  period  covered  by  the  statement. 

A failure  to  file  any  statement  required  by  this  section  within  the  speci- 
fied time  shall  subject  the  corporation  or  other  person  required  to  file  such 
statement  to  a penalty  of  not  less  than  one  dollar  nor  more  than  one  hun- 
dred dollars  for  each  one  thousand  dollars  of  the  maximum  amount  of 
principal  indebtedness  which  is  or  under  any  contingency  may  become 
secured  by  the  mortgage,  which  penalty  in  the  aggregate  shall  not  exceed 
the  sum  of  five  thousand  dollars,  recoverable  by  the  attorney-general  in  an 
action  brought  in  the  name  of  the  people  of  the  state  of  New  York.  [Tax 
Law,  § 259,  as  amended  by  L.  1909,  ch.  412,  L.  1913,  ch.  665,  L.  1916, 
ch.  323,  and  L.  1917,  ch.  573;  B.  C.  & G.  Cons.  L.,  p.  6021.] 

§11.  DETERMINATION  AND  APPORTIONMENT  BY  STATE  TAX 
COMMISSION. 

When  the  real  property  covered  by  a mortgage  is  situated  in  more  than 
one  tax  district,  the  state  tax  commission  shall  deduct  from  the  relative 
assessments  of  such  real  property  in  the  respective  tax  districts  covered 
by  such  mortgage  any  prior  existing  mortgage  liens  and  shall  then  appor- 
tion the  tax  paid  on  such  mortgage  between  the  respective  tax  districts 
upon  the  basis  of  the  relative  assessments  of  such  real  property 
as  the  same  appear  on  the  last  assessment-rolls  less  the  deduc- 
tion, if  any.  If,  however,  the  whole  or  any  part  of  the  property 


TAXATION. 


630 

Tax  Law,  § 260. 

covered  by  such  a mortgage  is  not  assessed  upon  the  last  assessment-roll 
or  rolls  of  the  tax  district  or  districts  in  which  it  is  situated,  or  is  so 
assessed,  as  a part  of  a larger  tract,  that  the  assessed  value  cannot  be 
determined,  or  if  improvements  have  been  made  to  such  an  extent  as 
materially  to  change  the  value  of  the  property  so  assessed,  the  tax  com- 
mission may  require  the  local  assessors  in  the  respective  tax  districts, 
or  the  mortgagor,  or  mortgagee,  to  furnish  sworn  appraisals  of  the  prop- 
erty in  each  tax  district,  and  upon  such  appraisals  shall  determine  the 
apportionment.  If  such  mortgage  covers  real  property  in  two  or  more 
counties,  the  tax  commission  shall  determine  the  proportion  of  the  tax 
which  shall  be  paid  by  the  recording  officer  who  has  received  the  same 
to  the  recording  officers  of  the  other  counties  in  which  are  situated  the 
tax  districts  entitled  to  share  therein.  When  any  recording  officer  shall 
pay  any  portion  of  a tax  to  the  recording  officer  of  another  county,  he 
shall  forward  with  such  tax  a description  sufficient  to  identify  the  mort- 
gage on  which  the  tax  has  been  paid,  and  the  recording  officer  receiving 
such  tax  shall  note  on  the  margin  of  the  record  of  such  mortgage  the 
fact  of  such  payment,  attested  by  his  signature.  The  tax  commission 
shall  make  an  order  of  determination  and  apportionment  in  respect  to 
each  such  mortgage  and  file  a certified  copy  thereof  with  the  recording 
officer  of  each  county  in  which  a part  of  the  mortgaged  real  property  is 
situated. 

When  the  real  property  covered  by  a mortgage  is  partly  within  the 
state  and  partly  without  the  state  it  shall  be  the  duty  of  the  tax  com- 
mission to  determine  wffiat  portion  of  the  mortgage  or  of  advancements 
thereon  shall  be  taxable  under  this  article.5  Such  determination  shall 


5.  Mortgage  covering  real  property  in  this  state  and  real  and  personal 
property  in  foreign  state;  method  of  assessing  tax. — Where  a trust  mortgage, 
covering  lands  in  this  state  together  with  lands  in  a foreign  state  and  also  personal 
property  of  large  value  in  the  foreign  state,  is  offered  for  record  in  this  state  as 
required  by  the  statute,  the  amount  of  the  mortgage  tax  to  be  paid  in  this  state 
should  not  be  determined  upon  the  ratio  between  the  value  of  the  real  property  in 
this  state  and.  the  real  property  in  the  foreign  state,  excluding  the  value  of  the  for- 
eign personal  property  covered  by  the  mortgage.  On  the  contrary,  it  should  be  de- 
termined by  the  ratio  between  the  value  of  the  real  property  in  this  state  and  the 
value  of  the  real  and  personal  property,  taken  together,  situated  in  the  foreign  state. 
The  fact  that  the  statute  states  that  in  assessing  such  tax  the  commissioner  shall 
consider  only  the  value  of  “ tangible  ” property  covered  by  the  mortgage  does  not 
mean  that  the  value  of  personal  property  covered  is  to  be  excluded.  People  ex  rel. 
C.  & B.  Transit  Co.  v.  Byrnes  (1914),  162  App.  Div.  223,  147  N.  Y.  Supp.  465. 


MORTGAGES  OF  REAL  PROPERTY. 


631 


Tax  Law,  § 260. 

be  made  in  the  following  manner:  First:  Determine  the  respective  values  of 
the  property  within  and  without  the  state,  and  deduct  therefrom  the  amount 
of  any  prior  existing  mortgage  liens,  excepting  such  liens  as  are  to  be  re- 
placed by  prior  advancements  and  the  advancement  under  consideration. 
Second : Find  the  ratio  that  the  net  value  of  the  mortgaged  property  within 
the  state  bears  to  the  net  value  of  the  entire  mortgaged  property.  Third : 
Make  the  determination  of  the  portion  of  the  mortgage  or  of  the  advance- 
ment thereon  which  shall  be  taxable  under  this  article  by  applying  the  ratio 
so  found.  If  a mortgage  covering  property  partly  within  and  partly  without 
the  state  is  presented  for  record  before  such  determination  has  been  made,  or 
at  the  time  when  an  advance  is  made  on  a corporate  trust  mortgage  or  on  a 
prior  advance  mortgage,  there  may  be  presented  to  the  recording  officer  a 
statement  in  duplicate  verified  by  the  mortgagor  or  an  officer  or  duly  author- 
ized agent  of  the  mortgagor,  in  which  shall  be  specified  the  net  value  of  the 
property  within  the  state  and  the  net  value  of  the  property  without  the 
state  covered  by  such  mortgage.  One  of  such  statements  shall  be  filed  by 
the  recording  officer  and  the  other  shall  be  forthwith  transmitted  by  him 
to  the  state  tax  commission.  The  tax  payable  under  this  article  before  the 
determination  by  the  tax  commission  shall  be  computed  upon  such  portion 
of  the  principal  indebtedness  secured  by  the  mortgage,  or  of  the  sum  ad- 
vanced thereon,  as  the  net  value  of  the  mortgaged  property  within  the 
state  bears  to  the  net  value  of  the  entire  mortgaged  property  as  set  forth  in 
such  statement.  The  tax  commission  shall  on  receipt  of  the  statement  from 
the  recording  officer  and  on  not  less  than  ten  days’  notice  served  per- 
sonally or  by  mail  upon  the  mortgagor,  the  mortgagee  and  the  state  comp- 
troller, proceed  to  make  the  required  determination.  In  determining  the 
separate  values  of  the  property  within  and  without  the  state  the  tax  com- 
mission shall  consider  only  the  tangible  property,  real  and  personal,  except 
that  leases  of  real  property  shall  be  deemed  tangible  property.  For  the 
purpose  of  determining  such  value  the  tax  commission  may  require  the 
mortgagor  or  mortgagee  to  furnish  by  affidavit  or  verified  report  such 


632 


TAXATION. 


Tax  Law,  § 260. 

information  or  data  as  it  may  deem  necessary,  and  may  require  and  take 
the  testimony  of  the  mortgagor,  mortgagee  or  any  other  person.  A certi- 
fied copy  of  the  order  of  determination  and  apportionment  shall  be  delivered 
personally  or  by  mail  to  the  mortgagor,  the  mortgagee  and  the  state  comp- 
troller, and  any  tax  under  such  determination  which  has  not  been  paid  shall 
be  paid  within  ten  days  after  service  of  such  certified  copy ; if,  however,  the 
tax  paid  at  the  time  of  filing  the  statement  hereinbefore  specified  with  the 
recording  officer  is  in  excess  of  the  tax  determined  to  be  payable,  the  certifi- 
cate of  determination  and  apportionment  shall  direct  the  recording  officer 
to  refund  to  the  person  paying  such  tax  the  amount  of  such  excess ; provided 
that  no  refund  shall  be  made  of  any  taxes  paid  pursuant  to  a previous 
determination. 

The  tax  commission  shall  adopt  rules  to  govern  the  procedure  and  the 
manner  of  taking  evidence  in  all  the  matters  provided  for  by  this  section 
and  may  require  verified  statements  to  be  furnished  either  by  boards  of 
assessors,  recording  officers  or  other  persons  having  knowledge  in  relation 
to  such  matters.  Failure  on  the  part  of  any  person  or  officer  to  furnish  a 
statement  or  other  data  when  required  so  to  do  pursuant  to  the  provisions 
of  this  section  shall  render  such  person  or  officer  liable  to  a penalty  of  one 
hundred  dollars,  to  be  recovered  by  the  attorney-general  in  an  action  brought 
in  the  name  of  the  people  of  the  state  of  New  York. 

In  making  determination  and  apportionment  under  thi»  section  the  tax 
commission  shall  consider  each  advancement  made  upon  a mortgage  after 
July  first,  nineteen  hundred  and  six,  as  a new  mortgage.  In  all  cases  under 
this  section  in  which  it  shall  appear  that  the  prior  incumbrances  exceed 
the  assessed  or  appraised  value  of  the  property  in  one  or  more  tax  dis- 
tricts the  commission  may,  by  a process  of  equalization  or  otherwise,  estab- 
lish a basis  of  apportionment  that  will  be  equitable  and  fair.  [Tax  Law, 


MORTGAGES  OF  REAL  PROPERTY. 


633 


Tax  Law,  § 263. 

§ 260,  as  added  by  L.  1916,  ch.  335,  amended  by  L.  1917,  ch  72,  and  L. 
1918,  ch.  204;  B.  C.  & G.  Cons.  L.,  p.  6023.] 

§ 12.  PAYMENT  OVER  AND  DISTRIBUTION  OF  TAXES. 

Upon  the  first  day  of  each  month  the  recording  officer  of  each  county 
shall  pay  over  to  the  county  treasurer  all  moneys  received  during  the  pre- 
ceding month  upon  account  of  taxes  paid  to  him  as  herein  prescribed,  after 
deducting  the  necessary  expenses  of  his  office  as  provided  in  section  two 
hundred  and  sixty-two,  except  taxes  paid  upon  mortgages  which  under  the 
provisions  of  section  two  hundred  and  sixty  are  to  be  apportioned  by  the  tax 
commission  between  several  counties,  which  taxes  and  money  shall  be  paid 
over  by  him  as  provided  by  the  determination  of  said  tax  commission  within 
five  days  after  the  filing  of  said  determination  in  his  office.  The  county 
treasurer  of  each  county  shall  on  the  first  day  of  January,  April,  July  and 
October  in  each  year,  after  having  deducted  the  necessary  expenses  of  his 
office  provided  in  two  hundred  and  sixty-two,  transmit  one-half  of  this  net 
amount  collected  under  the  provisions  of  this  article  to  the  state  treasurer 
and  shall  receive  from  the  state  treasurer  a receipt  therefor  countersigned 
by  the  comptroller.  The  remaining  portions  thereof  in  the  counties  of 
New  York,  Kings,  Queens,  Richmond  and  Bronx  shall  be  paid  into  the 
general  fund  of  the  city  of  New  York  and  be  applied  to  the  reduction 
of  taxation,  and  in  the  other  counties  of  the  state  the  remaining  portion 
shall  be  held  by  the  respective  county  treasurers  subject  to  the  order 
of  the  board  of  supervisors  as  hereinafter  provided.  Prior  to  the  first 
day  of  November  in  each  year  the  recording  officer  shall  cause  to  be 
prepared  a statement  containing  a description  of  all  mortgages  upon 
which  taxes  have  been  paid  by  a reference  to  the  date  of  each  mortgage, 
the  name  of  the  mortgagor  and  mortgagee,  the  amount  of  the  principal 


634 


TAXATION. 


Tax  Law,  § 262. 

debt  upon  which  the  tax  was  paid  together  with  the  book  and  page  wffiere 
said  mortgage  is  recorded,  together  with  the  tax  district  in  which  the 
mortgaged  property  is  situated,  and  if  situated  in  two  or  more  tax  dis- 
tricts the  amount  apportioned  to  each  tax  district  by  the  tax  commission, 
and  the  amount  deducted  for  his  necessary  expenses  as  approved  by  the 
tax  commission  and  shall  file  the  statement  with  the  clerk  of  the  board  of 
supervisors,  and  a copy  thereof  with  the  tax  commission.  The  boards 
of  supervisors  of  the  several  counties  shall,  on  or  before  the  fifteenth 
day  of  December  in  each  year,  ascertain  from  the  statement  filed  with 
their  clerk  by  the  recording  officer  the  location  of  the  mortgaged  prop- 
erty with  respect  to  the  several  tax  districts  and  the  amount  of  tax 
properly  to  be  credited  to  each  tax  district,  which  shall  be  applicable  to 
the  payment  of  state,  county  and  city,  or  town  expenses;  except  that 
where  a town  contains  within  its  limits  an  incorporated  village,  or  por- 
tion thereof,  the  supervisor  shall  apportion  to  the  village  or  villages  so 
much  of  the  share  credited  to  the  said  town  as  the  assessed  value  of  said 
village  or  portion  thereof  hears  to  twice  the  total  assessed  valuation  of 
the  town,  and  the  remaining  balance  shall  be  applicable  to  the  payment 
of  state,  county  and  town  taxes.  The  board  of  supervisors  of  each 
county,  on  or  before  the  fifteenth  day  of  December  each  year,  shall  de- 
termine the  respective  sums  applicable  hereunder  to  each  of  the  fore- 
going purposes  and  shall  issue  their  warrant  for  the  payment  to  the 
city  treasurer  or  town  supervisor,  of  the  amount  payable  to  the  said  city 
or  town,  and  their  warrant  for  the  payment  to  the  village  treasurer  of 
the  sum  of  money  to  which  the  village  shall  be  entitled,  which  sum  shall 
be  credited  to  the  general  fund  of  the  village.  [Tax  Law,  § 261,  as 
amended  by  L.  1914,  oh.  399,  and  L.  1916,  ch.  323 ; B.  C.  & G.  Cons.  L., 
p.  6025.] 

§ 13.  EXPENSES  OF  OFFICERS. 

Recording  officers  and  county  treasurers  shall  severally  be  entitled 
to  receive  all  their  necessary  expenses  for  the  purposes  of  this  article, 
including  printing,  hire  of  clerks  and  assistants,  being  first  approved 
and  allowed  by  the  tax  commission,  which  shall  be  retained  by  them 
out  of  the  moneys  coming  into  their  hands.6  [Tax  Law,  § 262,  as 
amended  by  L.  1916,  ch.  323;  B.  C.  & G.  Cons.  L.,  p.  6027.] 


6.  The  expenses  incident  to  the  duty  imposed  upon  recording  officers  which  are 
allowed  In  connection  with  the  collection  of  the  tax  upon  a mortgage  presented  for 


MORTGAGES  OF  REAL  PROPERTY. 


6,34a 


Tax  Law,  § 263. 

§ 14.  SUPERVISORY  POWER  OF  TAX  COMMISSION  AND  COMP- 
TROLLER. 

The  tax  commission  shall  have  general  supervisory  power  over  all 
recording  officers  in  respect  of  the  duties  imposed  by  this  article  and 
they  may  make  such  rules  and  regulations  for  the  government  of  record- 
ing officers  in  respect  to  the  matters  provided  for  in  this  article  as  they 
may  deem  proper,  provided  that  such  rules  and  regulations  shall  not  be 
inconsistent  with  this  or  any  other  statute.  Whenever  a duly  verified 
application  for  a refund  of  mortgage  taxes,  erroneously  collected  by  a 
recording  officer,  is  made  to  the  tax  commission  it  shall  be  the  duty  of 
such  commission  to  determine  the  amount  that  has  been  erroneously 
collected  and  make  an  order  directing  such  recording  officer  to  refund  the 
amount  so  determined  from  mortgage  tax  moneys  in  his  hands,  or  which 
shall  come  to  his  hands,  to  the  party  entitled  to  receive  it  and  charge 
such  amount  back  to  the  tax  district  that  may  have  been  credited  with 
the  same.  If  any  recording  officer  shall  have  collected  and  paid  over  to 
the  treasurer  of  any  county,  a tax  paid  upon  a mortgage  which  under 
the  provisions  of  section  two  hundred  and  sixty  of  this  chapter  is  to  be 
apportioned  by  the  tax  commission  between  several  counties  before  such 
apportionment  has  been  made,  or  if  any  recording  officer  shall  have  paid 
over  to  such  treasurer  more  money  than  required  on  account  of  mort- 
gage taxes  such  recording  officer  shall  make  a report  to  the  tax  commis- 
sion in  the  form  of  a verified  statement  of  facts  and  said  commission 
shall  determine  the  method  of  adjustment  and  issue  its  order  accord- 
ingly. The  comptroller  shall  have  general  supervisory  power  over  all 
county  treasurers  in  respect  to  the  duties  imposed  upon  them  by  this 
article,  and  may  make  such  rules  and  regulations,  not  inconsistent  with 
this  or  any  other  statute,  for  the  government  of  said  county  treasurer 


record,  are  limited  in  their  scope  by  this  section  to  the  “ necessary  expenses  for  the 
purposes  ” of  the  article  of  which  it  forms  a part.  The  word  “ necessary  ” may 
express  something  indispensable,  or  it  may  be  construed  as  reasonable,  useful  and 
proper,  dependable  upon  the  character  of  its  application.  When  used  with  reference 
to  the  public,  it  should  be  construed  strictly  for  the  benefit  of  the  public.  People 
ex  rel.  Frost  v.  Woodbury  (1914),  213  N.  Y.  51. 

Employment  of  counsel. — In  the  absence  of  specific  authority,  the  funds  re- 
ceived by  the  recording  officer  cannot  be  ordered  by  the  court  to  be  paid  for  any 
purpose,  except  by  express  authority  of  the  legislature.  Construction  should  not  be 
given  to  this  statute  which  would  admit  of  the  employment  of  counsel  by  a recording 
officer,  and  thus  empower  him  to  create  a liability  for  payment  therefor  against 
the  state  and  county,  and  the  funds  owned  by  them  respectively.  People  ex  rel. 
Frost  v.  Woodbury  (1914),  213  N.  Y.  51. 


634b 


TAXATION. 


Tax  Law,  § 264. 

as  he  deems  proper  to  secure  a due  accounting  for  all  taxes  and  moneys 
collected  or  received  pursuant  to  any  provision  of  this  article.  All 
recording  officers  and  county  treasurers  shall  furnish  such  bond,  con- 
ditioned for  the  faithful  and  diligent  discharge  of  the  duties  required 
of  them  respectively  by  this  article,  to  the  people  of  the  state,  within 
such  time,  with  such  sureties  and  in  such  penal  amount,  not  exceeding 
twenty-five  thousand  dollars,  as  the  comptroller  may  prescribe.  The 
provisions  of  this  section  shall  cover  all  transactions  subsequent  to  July 
first,  nineteen  hundred  and  five.  [Tax  Law,  § 263,  as  amended  by  L. 
1914,  ch.  398,  L.  1915,  ch.  447,  and  L.  1916,  ch.  336;  B.  C.  & G.  Cons. 
L.,  p.  6027.] 

§ 15.  TAX  ON  PRIOR  ADVANCE  MORTGAGES. 

Whenever  any  part  of  the  amount  of  the  principal  indebtedness  which 
is  or  under  any  contingency  may  be  secured  by  a mortgage  recorded 
prior  to  July  first,  nineteen  hundred  and  six,  is  advanced  after  July 
first,  nineteen  hundred  and  six,  the  tax  prescribed  by  section  two  hun- 
dred and  fifty-three  of  this  article  is  hereby  imposed  on  the  amount  of 
principal  indebtedness  so  advanced,  which  tax  shall  be  payable  at  the 
same  time  and  in  the  same  manner  as  taxes  imposed  by  section  two  hun- 
dred and  fifty-nine  of  this  article,  and  all  the  provisions  of  section  two 
hundred  and  fifty-nine  in  relation  to  the  time  and  manner  of  paying 
such  tax,  the  filing  of  statements  in  relation  to  the  time  and  amount  of 
such  advances,  and  penalties  for  failure  to  file  the  same  shall  apply  to 
advances  made  under  this  section  and  the  payment  of  a tax  thereon, 
except  that  if  the  mortgagor  is  not  a corporation,  such  statement  shall 
be  filed  by  the  owner  of  the  mortgage,  who,  for  failure  to  do  so,  shall 
be  subject  to  the  penalties  prescribed  by  such  section.  In  case  said 
mortgage  was  given  to  secure  the  payment  of  a series  of  bonds,  the  mort- 
gagor may,  at  the  time  of  paying  such  tax,  present  to  the  recording 
officer,  the  bonds  representing  the  portion  of  the  principal  indebtedness 
secured  by  said  mortgage  upon  which  the  tax  is  to  be  paid,  and  also 
filed  with  said  recording  officer  a statement  verified  by  the  mortgagor  or 
an  officer  or  duly  authorized  agent  or  attorney  of  the  mortgagor  specify- 
ing that  said  bonds,  so  presented,  are  the  bonds  representing  that  portion 
of  the  principal  indebtedness  secured  by  said  mortgage  upon  which  the 
tax  is  to  be  paid  and  that  said  bonds  are  secured  by  a mortgage  recorded 
in  said  office  stating  the  date  of  said  mortgage  and  the  liber  and  page  of 
the  record  of  the  same.  It  shall  be  the  duty  of  such  recording  officer  to 
indorse  upon  each  of  said  bonds,  so  presented  to  him,  a statement  signed 


MORTGAGES  OF  REAL  PROPERTY. 


634c 


Tax  Law,  § 264. 


by  him  to  the  effect  that  the  tax  imposed  by  this  article  on  that  portion 
of  the  principal  indebtedness  secured  by  said  mortgage  represented  by 
said  bonds  has  been  paid,  and  said  statement  shall  be  conclusive  proof 
of  such  payment.  Notwithstanding  the  exception  contained  in  section 
two  hundred  and  fifty-four,  the  record  owner  of  any  mortgage  recorded 
prior  to  July  first,  nineteen  hundred  and  six,  other  than  a corporate 
trust  mortgage,  may  file  in  the  office  of  the  recording  officer  where  such 
mortgage  is  first  recorded  a statement  in  form  and  substance  as  required 
by  section  two  hundred  and  fifty-four  of  this  article,  except  that  it  shall 
specify  and  state  the  amount  of  all  advancements  made  thereon  prior 
to  said  date,  giving  the  date  and  amount  of  each  advancement  and  the 
amount  of  such  prior  advancements  remaining  unpaid*,  and  thereby  elect 
that  the  same  be  taxed  under  this  article ; and  any  mortgagor  or  mort- 
gagee under  a corporate  trust  mortgage  given  to  secure  a series  of  bonds 
or  the  owner  of  any  such  bond  or  bonds  secured  thereby  may  file  in  the 
office  of  the  recording  officer  where  such  mortgage  is  first  recorded  a 
statement  in  form  and  substance  as  required  by  section  two  hundred  and 
fifty-four  of  this  article,  except  that  it  shall  specify  the  serial  number, 
the  date  and  amount  of  each  bond  and  otherwise  sufficiently  describe 
the  same  to  identify  it  as  being  secured  by  such  mortgage,  and  thereby 
elect  that  such  bond  or  bonds  be  taxed  under  this  article,  and  such  bond 
or  bonds  shall  be  taxed  upon  the  whole  amount  thereof  notwithstanding 
the  provisions  of  section  two  hundred  and  sixty  of  this  article.  A tax 
shall  thereupon,  in  the  case  of  mortgages  other  than  corporate  trust 
mortgages,  be  computed,  levied  and  collected  upon  the  amount  of  the 
principal  debt  or  obligation  represented  by  said  unpaid  prior  advance- 
ments at  the  time  of  filing  such  statement,  or,  in  the  case  of  a corporate 
trust  mortgage,  upon  the  amount  of  the  bond  or  bonds  specified  in  the 
statement  filed,  at  the  rate  prescribed  by  section  two  hundred  and  fifty- 
three  of  this  article.  Said  bonds  representing  prior  advancements 
under  corporate  trust  mortgages  and  taxed  as  herein  provided  may  be 
presented  to  the  recording  officer,  whose  duty  it  is  to  collect  said  tax, 
for  indorsement  and  he  shall  thereupon  indorse  upon  each  of  said  bonds 
a statement,  attested  by  his  signature,  of  the  payment  of  the  tax  as  pro- 
vided in  this  section  in  respect  to  bonds  representing  subsequent  ad- 
vancements, and  the  record  owner  of  any  other  mortgage  taxed  upon 
prior  advancements  as  herein  provided  may  present  said  mortgage  to 
the  recording  officer  and  thereupon  such  officer  shall  note  upon  the  same 
the  filing  of  the  statement  and  the  amount  of  the  tax  paid,  attested  by 


G34d 


TAXATION. 


Tax  Law,  § 264. 

his  signature.  In  all  such  cases  the  recording  officer  shall  note  on  the 
margin  of  the  record  of  such  mortgage  the  filing  of  such  statement  and 
the  amount  of  the  tax  paid,  and,  in  case  of  bonds  secured  by  corporate 
trust  mortgages,  the  serial  number  of  each  such  bond.  The  words 
u bond  ” and  “ bonds  ” as  used  in  this  section  shall  be  deemed  to  em- 
brace all  notes  or  other  evidences  of  indebtedness  secured  by  mortgages 
taxable  under  this  section.  In  case  of  any  mortgage  taxable  under  this 
section,  the  portion  of  the  indebtedness  secured  thereby  upon  which  the 
tax  imposed  by  this  section  is  paid,  and  such  portion  only,  shall  be 
exempt  from  taxation  under  the  provisions  of  section  two  hundred  and 
fifty-one  of  this  article.  Whenever  the  tax  imposed  by  section  two 
hundred  and  sixty-four  of  this  article  as  said  section  existed  prior  to 
May  thirteenth,  nineteen  hundred  and  seven,  has  been  paid  with  respect 
to  any  mortgage,  no  additional  tax  shall  accrue  on  such  mortgage  under 
this  section  as  hereby  enacted  and  such  mortgage  and  the  debt  or  obliga- 
tion secured  thereby,  shall  continue  to  be  entitled  to  the  exemptions  and 
immunities  conferred  by  this  article  and  all  of  the  provisions  of  this 
article  shall  remain  applicable  to  such  mortgage. 

All  taxes  imposed  by  or  which  became  due,  payable  or  collectible  on  or 
before  the  thirtieth  day  of  June,  nineteen  hundred  and  six,  pursuant 
to  chapter  seven  hundred  and  twenty-nine  of  the  laws  of  nineteen  hun- 
dred and  five,  and  all  taxes  which  under  section  two  hundred  and  fifty- 
eight  of  this  chapter  became  due  and  payable  on  the  thirtieth  day  of 
July,  nineteen  hunded  and  six,  and  all  other  taxes,  if  any,  which  were 
imposed  by  chapter  seven  hundred  and  twenty-nine  of  the  laws  of  nine- 
teen hundred  and  five  on  any  mortgage  recorded  prior  to  the  first  day 
of  July,  nineteen  hundred  and  six,  in  respect  to  any  period  ending  on  or 
before  the  first  day  of  July,  nineteen  hundred  and  six,  shall  be  imposed, 
become  due,  be  payable  and  collectible  and  shall  be  paid  over  and  dis- 
tributed in  the  same  manner,  and  with  the  same  force  and  effect  as  if 
this  article  had  not  been  enacted ; and  for  the  purpose  of  collecting,  pay- 
ing over,  distributing  and  enforcing  any  such  taxes,  chapter  seven  hun- 
dred and  twenty-nine  of  the  laws  of  nineteen  hundred  and  five  shall  be 
deemed  to  be  in  force,  and  the  lien  for  such  taxes  shall  attach  and  such 
taxes  shall  be  levied  and  collected  as  provided  in  chapter  seven  hundred 
and  twenty-nine  of  the  laws  of  nineteen  hundred  and  five,  anything 
herein  contained  to  the  contrary  notwithstanding.  [Tax  Law,  § 264, 
as  amended  by  L.  1910,  ch.  601,  and  L.  1916,  ch.  337 ; B.  C.  & G.  Cons. 
L.,  p.  6027.] 


PART  VI. 


VI VISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

CHAPTER  XLI. 

DIVISION  FENCES;  DUTIES  OF  FENCE  VIEWERS. 

EXPLANATORY  NOTE. 

Controversies  as  to  Division  Fences. 

All  controversies  arising  in  a town  relative  to  the  erection  and  mainte- 
nance of  division  fences  are  to  be  settled  by  the  assessors  and  superin- 
tendent of  highways  acting  as  fence  viewers.  The  powers  and  duties 
of  such  fence  viewers  in  respect  to  such  controversies  are  prescribed  by 
the  several  sections  of  the  Town  Law  included  in  this  chapter. 

Maintenance  of  Division  Fences. 

Division  fences  between  adjoining  tracts  of  land  owned  by  different 
owners  are  to  be  erected  and  maintained  by  such  owners,  on  an  equitable 
and  just  basis.  This  does  not  necessarily  mean  that  each  owner  must 
erect  and  maintain  an  equal  portion  of  the  fence.  The  conditions  may 
be  such  as  to  make  it  “ equitable  and  just  ” for  one  owner  to  maintain 
more  than  one-half  of  the  fence.  Either  one  of  the  owners  may  choose 
to  let  his  lands  lie  open.  In  such  case  he  can  have  no  remedy  for  dam- 
ages incurred  from  the  animals  of  his  neighbor  coming  upon  his  lands. 

Proceedings  to  Settle  Disputes. 

If  any  dispute  arises  as  to  the  portion  of  the  fence  to  be  erected  bv 
each  owner,  it  shall  be  settled  by  any  two  of  the  fence-viewers,  one  to 
be  selected  by  each  owner.  All  parties  interested  are  to  be  notified  of 
the  proceedings.  If  the  two  fence-viewers  cannot  agree,  they  shall  select 
a third.  The  decision  must  be  in  writing,  describe  the  fence  to  be 

635 


636  DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

Explanatory  note. 

erected,  and  state  the  proportion  to  be  maintained  by  each ; such  decision 
must  be  filed  in  the  office  of  the  town  clerk. 

Witnesses  may  be  subpoenaed,  and  examined.  Each  fence-viewer  is 
entitled  to  compensation  at  the  rate  of  one  dollar  and  a half  per  day. 

Damages  for  Failure  to  Maintain  Division  Fence. 

If  any  person  liable  to  contribute  to  the  erection  and  maintenance  of 
a fence  shall  permit  the  same  to  be  out  of  repair,  he  shall  be  liable  to 
pay  the  party  injured  all  damages  which  shall  thereby  accrue.  The 
amount  of  the  damages  is  to  be  ascertained  by  the  fence-viewers  in 
much  the  same  manner,  as  the  portion  of  the  fence  to  be  erected  by  each 
owner,  is  to  be  ascertained. 

Regulations  as  to  Division  Fences. 

Electors  of  a town  at  a biennial  town  meeting  may  make  rules  for  as- 
certaining the  sufficiency  of  all  fences  in  the  town.  Where  such  rules 
are  adopted  any  person  who  shall  neglect  to  keep  a fence  as  therein 
directed  cannot  recover  for  damages  incurred  by  animals  coming  upon 
his  lands  from  adjoining  lands. 


Section  1.  Who  are  fence  viewers. 

2.  Division  fences  to  be  maintained  by  owners;  lands  bordering  on 

navigable  lakes  and  rivers. 

3.  When  lands  may  lie  open;  owner  may,  upon  notice,  enclose  lands 

lying  open. 

4.  Division  fences  on  change  of  title;  duties  of  fence  viewers  in 

case  of  disagreement. 

5.  Settlement  of  disputes  between  owners;  proceedings  of  fence 

viewers;  decision. 

6.  Subpoena  and  examination  of  witnesses  by  fence  viewers;  fees 

and  compensation  of  fence  viewers. 

7.  Damages  for  failure  to  erect  or  repair  division  fence,  to  be  ascer- 

tained by  fence  viewers;  appraisal  of  damages;  one  owner  may 
erect  or  repair  fence  at  expense  of  other. 

8.  Division  fence  destroyed  by  accident;  notice  to  rebuild;  Effect 

of  failure  to  rebuild. 

9.  Damages  done  by  animals  where  fence  is  not  maintained  as  pro- 

vided by  town  rules  and  regulations. 

10.  Damages  when  person  fails  to  build  or  repair  fence;  appraisal  by  fence 

viewers. 

11.  Use  of  barbed  or  other  wire  in  the  construction  of  division  fences;  fence- 

viewers  to  prescribe  kind  of  wire  and  how  to  be  built. 


DIVISION  FENCES;  DUTIES  OF  FENCE  VIEWERS. 


Town  Law,  §§  121,  360. 


G37 


§ 1.  WHO  ARE  FENCE  VIEWERS. 

The  assessors  and  town  superintendent  of  highways  elected  in  every 
town  shall,  by  virtue  of  their  offices,  be  fence  viewers  of  their  town.1 
[Town  Law,  § 121,  as  amended  by  L.  1909,  ch.  491;  B.  C.  & G.  Cons.  L., 
p.  6179.] 


§ 2.  DIVISION  FENCES  TO  BE  MAINTAINED  BY  OWNERS;  LANDS 
BORDERING  ON  NAVIGABLE  LAKES  AND  RIVERS. 

Each  owner  of  two  adjoining  tracts  of  land,  except  when  they  other- 
wise agree,  shall  make  and  maintain  a just  and  equitable  portion 
of  the  division  fence  between  such  lands,  unless  both  of  said 
adjoining  owners  shall  agree  to  let  their  said  lands  lie  open,  along 
the  division  line,  to  the  use  of  all  animals  which  may  be  lawfully 
upon  the  lands  of  either.2  When  the  adjoining  lands  shall  border 


1.  Assessors  and  superintendents  of  highways  of  the  several  towns  in  the 
state  are  authorized  to  act  as  fence  viewers  only  by  force  of  the  statute.  Such 
officers  of  a city  have  no  such  powers.  Armbuster  v.  Wilson  43  Hun  261. 

2.  Maintenance  of  division  fences.  At  common  law,  adjoining  owners  were 
not  bound  as  between  each  other,  to  maintain  division  fences  unless  the  right 
to  compel  their  maintenance  had  been  acquired  by  prescription  or  agreement. 
But  under  this  statute  each  owner  of  two  adjoining  tracts  of  land  are  re- 
quired to  build  and  maintain  a just  and  equal  proportion  of  the  division  fence. 
Roney  v.  Aldrich,  44  Hun,  320.  The  statute  applies  as  well  where  lands  have 
been  partially  fenced  as  where  the  owner  has  elected  to  let  his  land  lie 
altogether  open.  Chryslar  v.  Westfall,  41  Barb.  159. 

Kind  of  fence.  The  law  touching  division  fences  does  not  prescribe  the 
kind  of  fence  that  shall  be  made.  Ferris  v.  Van  Buskirk,  18  Barb,  397, 
400. 

For  whose  benefit  fence  to  be  maintained.  The  statute  was  only  enacted 
for  the  benefit  of  the  owners  or  occupants  of  adjacent  lands.  Crandall  v. 
Eldridge,  46  Hun,  411.  But  one  occupying  land  as  a tenant  at  will  or  at 
sufferance,  is  entitled  to  the  benefit  of  the  statute,  and  may  maintain  an 
action  for  the  expense  of  repairing  the  portion  of  the  adjoining  owner.  The 
statute  is  for  the  benefit  of  occupants  without  respect  to  the  particular  estate 
enjoyed.  Bronk  v.  Brecker,  17  Wend.  320. 

A “ just  and  equitable  portion  ” of  the  division  fence,  as  used  in  the  statute 
does  not  necessarily  mean  an  equal  portion  of  the  fence,  but  a portion  just  and 
equal  with  reference  to  the  cost  of  its  construction  and  maintenance.  People 
ex  rel.  Foote  v.  Dewey,  1 Hun,  259;  3 T.  & C.  638. 

2.  Lands  lying  open.  Owner  must  notify  fence  viewers  that  he  elects  to 
let  his  lands  lie  open  before  he  can  escape  liability  for  maintenance  of  his 
portion  of  the  fence.  Perkins  v.  Perkins,  44  Barb.  134. 

Liability  for  damages.  Where  the  cattle  of  one  of  two  adjoining  proprietors 
are  found  trespassing  upon  the  land  of  the  other,  the  owner  of  the  cattle,  to 


638 


DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 


Town  Law,  § 361. 

upon  any  of  the  navigable  lakes,  streams  or  rivers  of  the  state,  the  owners 
of  the  lands  shall  make  and  maintain  the  division  fence  between  them 
down  to  the  line  of  low  water  mark,  in  such  lakes,  streams  or  rivers, 
except  those  lands  which  overflow  annually  so  as  to  be  so  submerged  with 
water  that  no  permanent  fence  can  be  kept  thereon,  and  known  as  low 
flatlands;  and  when  adjoining  lands  shall  be  bounded  by  a line  between 
the  banks  of  streams  of  water  not  navigable,  and  the  owners  or  occupants 
thereof  cannot  agree  upon  the  manner  in  which  the  division  fence  between 
them  shall  be  maintained,  the  fence  viewers  of  the  town  shall  direct 
upon  which  bank  of  the  stream,  and  where  the  division  fence  shall  be 
located,  and  the  portion  to  be  kept  and  maintained  by  each  adjoining 
owner.  [Town  Law,  § 360,  as  amended  by  L.  1911,  ch.  86 ; B.  C.  & G. 
Cons.  L.,  p.  6231.] 

§ 3.  WHEN  LANDS  MAY  LIE  OPEN;  OWNER  MAY,  UPON  NOTICE,  EN- 
CLOSE LANDS  LYING  OPEN. 

When  the  owners  of  adjoining  lands  shall  choose  to  let  them  lie  open, 
as  provided  in  section  three  hundred  and  sixty,  neither  of  such  owners 
shall  be  liable  to  the  other  in  any  action  or  proceeding  for  any  damages 
done  by  animals  lawfully  upon  the  former’s  premises  going  upon  the 
lands  so  lying  open  or  upon  any  other  lands  of  the  owner  thereof  through 
such  lands  so  lying  open.  Either  owner  of  any  lands  so  lying  open  and 
adjoining,  may,  unless  the  agreement  is  for  a specified  period,  and  after 
such  agreement  has  expired  may  then  have  the  same  inclosed,  by  giving 
written  notice  to  that  effect  to  the  owners  or  occupants  of  the  adjoining 
lands,  whereupon  it  shall  be  the  duty  of  both  parties  to  build  and  main- 
. tain  their  several  proportions  of  a division  fence.* * 3  [Town  Law,  § 361, 
as  amended  by  L.  1911,  ch.  86 ; B.  O.  & G.  Cons.  L.,  p.  6232.] 


excuse  himself,  must  show  not  only  that  the  fences  which  the  proprietor  was 
bound  to  maintain  were  out  of  repair,  but  also  that  the  cattle  passed  over  such 
defective  fences.  Angell  v.  Hill,  45  N.  Y.  St.  Rep.  83,  18  N.  Y.  Supp.  824;  Deyo 

v.  Stewart,  4 Den.  101. 

3.  Removal  of  fence.  The  effect  of  removing  a division  fence  and  permit- 
ting the  lands  to  lie  open  is  to  remit  the  parties  to  their  common  law  rights 
and  duties.  Holladay  v.  Marsh,  3 Wend.  142.  In  such  case  the  owner  of  the 
adjoining  lands  is  not  liable  for  any  damages  done  by  animals  going  upon  the 
lands  so  lying  open.  See  Van  Slyck  v.  Snell,  6 Lans.  299.  Thus,  where  a party 
removes  a division  fence  without  notice,  he  is  liable  for  all  damages  sustained. 
Richardson  v.  M’Dougall,  11  Wend.  46. 

Notice  may  be  by  parol.  Holliday  v.  Marsh,  3 Wend.  142;  Perkins  v.  Perkins, 
44  Barb.  134. 


DIVISION  FENCES;  DUTIES  OF  FENCE  VIEWERS. 


639 


Town  Law,  §§  362,  363. 

§ 4.  DIVISION  FENCES  ON  CHANGE  OF  TITLE;  DUTIES  OF  FENCE 
VIEWERS  IN  CASE  OF  DISAGREEMENT. 

Whenever  a subdivision,  or  new  apportionment  of  any  division  fence 
shall  become  necessary  by  reason  of  transfer  of  the  title  of  either  of  the 
adjoining  owners,  to  the  whole,  or  any  portion  of  the  adjoining  lands,  by 
conveyances,  devise  or  descent,  such  subdivision  or  new  apportionment  shall 
thereupon  be  made  by  the  adjoining  owners  affected  thereby;  and  either 
adjoining  owner  shall  refund  to  the  other  a just  proportion  of  the  value 
at  the  time  of  such  transfer  of  title,  of  any  division  fence  that  shall  there- 
tofore have  been  made  and  maintained  by  such  other  adjoining  owner,  or 
the  person  from  whom  he  derived  his  title,  or  he  shall  build  his  proportion 
of  such  division  fence.* * * 4  The  value  of  any  fence,  and  the  proportion 
thereof  to  be  paid  by  any  person,  and  the  proportion  to  be  built  by  him, 
shall  be  determined  by  any  two  of  the  fence  viewers  of  the  town,  in  case  of 
disagreement.  [Town  Law,  § 362;  B.  C.  & G.  Cons.  L.,  p.  6232.] 


§ 5.  SETTLEMENT  OF  DISPUTES  BETWEEN  OWNERS;  PROCEED- 
INGS OF  FENCE  VIEWERS;  DECISION. 

If  disputes  arise  between  the  owners  of  adjoining  lands,  concerning  the 
liability  of  either  party  to  make  or  maintain  any  division  fence,  or  the 
proportion  or  particular  part  of  the  fence  to  be  made  or  maintained  by 
either  of  them,  such  dispute  shall  be  settled  by  any  two  of  the  fence 
viewers  of  the  town,  one  of  whom  shall  be  chosen  by  each  party;  and  if 
either  neglect,  after  eight  days’  notice  to  make  such  choice,  the  other  party 
may  select  both.5  The  fence  viewers,  in  all  matters  heard  by  them,  shall 


Effect  of  statute.  Under  the  common  law  the  owner  of  domestic  animals  is 
liable  for  their  trespass  upon  the  lands  of  others  even  though  such  lands  are  not 
inclosed.  This  section  modifies  the  common  law  in  this  respect.  Wood  v. 

Snider,  187  N.  Y.  28,  revg.  108  App.  Div.  168,  95  N.  Y.  Supp.  508.  See  also 

Stafford  v.  Ingersoll,  3 Hill,  38. 

4.  Effect  of  subdivision  or  new  apportionment.  New  obligations  arise 
when,  by  sub-division  or  otherwise,  there  is  a change  in  the  extent  to  which 
the  adjoining  lands  of  one  owner  borders  upon  the  lands  of  the  other.  The 
statute  which  empowers  fence  viewers  to  fix  the  just  proportion  of  fence  to  be 
maintained  refers  to  the  state  of  things  existing  when  they  are  called  upon  to 
act,  and  has  no  relation  to  any  former  ownership  of  the  adjoining  possessions. 
Adams  v.  Van  Alstyne,  25  N.  Y.  232. 

For  form  of  decision  of  fence  viewers  when  a transfer  of  title  has  been 
made,  see  Form  No.  60,  post. 

5.  Jurisdiction  of  fence  viewers.  If  there  be  a valid  prescription  binding 
the  owner  of  land  to  maintain  perpetually  the  fence  between  him  and  the 
adjoining  proprietor,  fence  viewers  have  no  jurisdiction  under  our  statutes. 
The  maintenance  of  a fence  by  one  of  the  adjoining  proprietors  exclusively  for 


040  DIVISION  PENCES;  STRAYED  ANIMALS;  DOGS. 

Town  Law,  §§  364,  365. 

see  that  all  interested  parties  have  had  reasonable  notice  thereof,  and  shall 
examine  the  premises  and  hear  the  allegations  of  the  parties.  If  they 
cannot  agree,  they  shall  select  another  fence  viewer  to  act  with  them, 
and  the  decision  of  any  two  shall  be  reduced  to  writing,  and  contain  a 
description  of  the  fence,  and  the  proportion  to  be  maintained  by  each, 
and  shall  be  forthwith  filed  in  the  office  of  the  town  clerk,  and  shall  be 
final  upon  the  parties  to  such  dispute,  and  all  parties  holding  under 
them.* * * 6  [Town  Law,  § 363;  B.  C.  & G.  Cons.  L.,  p.  6233.] 

§ 6.  SUBPOENA  AND  EXAMINATION  OF  WITNESSES  BY  FENCE 
VIEWERS;  FEES  AND  COMPENSATION  OF  FENCE  VIEWERS. 

Witnesses  may  be  examined  by  the  fence  viewers  on  all  questions  sub- 
mitted to  them;  and  either  of  such  fence  viewers  may  issue  subpoenas 
for  witnesses,  who  shall  receive  the  same  fees  as  witnesses  in  a justice’s 
court.7  Each  fence  viewer  thus  employed  shall  be  entitled  to  one  dollar 
and  fifty  cents  per  diem.  The  party  refusing  or  neglecting  to  pay  the 
fence  viewers  or  either  of  them,  shall  be  liable  to  an  action  for  the  same 
with  costs.  [Town  Law,  § 364 ; B.  C.  & G.  Cons.  L.,  p.  6233.] 


§ 7.  DAMAGES  FOR  FAILURE  TO  ERECT  OR  REPAIR  DIVISION 
FENCE,  TO  BE  ASCERTAINED  BY  FENCE  VIEWERS;  AP- 
PRAISAL OF  DAMAGES;  ONE  OWNER  MAY  ERECT  OR  RE- 
PAIR FENCE  AT  EXPENSE  OF  OTHER. 

If  any  person  who  is  liable  to  contribute  to  the  erection  or  repair  of  a 
division  fence,  shall  neglect  or  refuse  to  make  and  maintain  his  propor- 
tion of  such  fence,  or  shall  permit  the  same  to  be  out  of  repair,  he  shall 
be  liable  to  pay  the  party  injured  all  such  damages  as  shall  accrue  there- 
by, to  be  ascertained  and  appraised  by  any  two  fence  viewers  of  the  town, 
and  to  be  recovered  with  costs.  The  appraisement  shall  be  reduced  to 


more  than  twenty  years,  when  he  might  have  compelled  the  other  to  maintain 

a part,  warrants  the  presumption  of  a grant  or  covenant  compelling  him  to  do 

so.  Adams  v.  Van  Alstyne,  25  N.  Y.  232. 

6.  For  form  of  notice  to  choose  fence  viewer,  see  Form  No.  61,  post.  For 
form  of  certificate  of  apportionment  of  division  fence,  see  Form  No.  62,  post. 

The  decision  of  fence  viewers  having  jurisdiction  of  the  subject  matter  and 
the  parties  is  final.  People  ex  rel.  Foote  v.  Dewey,  1 Hun,  529;  3 T.  & C.  638. 

7.  References.  Fence  viewers  being  authorized  to  take  testimony  in  regard 
to  matters  before  them  are  authorized  to  administer  an  oath  for  that  purpose. 
See  Code  Civ.  Proc.,  sec.  843.  Fence  viewers,  being  also  authorized  to  subpoena 
witnesses,  may  compel  such  witnesses  to  attend  and  give  testimony.  See  Code 
Civ.  Proc.,  secs.  852-862. 

For  form  of  subpoena  by  fence  viewer,  see  Form  No.  63,  post. 


DIVISION  FENCES;  DUTIES  OF  FENCE  VIEWERS.  (344 

Town  Law,  §§  366,  367. 

writing,  and  signed  by  the  fence  viewers  making  it.8  If  such  neglect  or 
refusal  shall  be  continued  for  the  period  of  one  month  after  request  in 
writing  to  make  or  repair  the  fence,  the  party  injured  may  make  or  repair 
the  same,  at  the  expense  of  the  party  so  neglecting  or  refusing,  to  be 
recovered  from  him  with  costs.9  [Town  Law,  § 365 ; B.  C.  & G.  Cons.  L., 
1*.  6233.] 


§ 8.  DIVISION  FENCE  DESTROYED  BY  ACCIDENT;  NOTICE  TO  RE- 
BUILD; EFFECT  OF  FAILURE  TO  REBUILD. 

Whenever  a division  fence  shall  be  injured  or  destroyed  by  floods,  or 
-other  casualty,  the  person  bound  to  make  and  repair  such  fence,  or 
unv  part  thereof,  shall  make  or  repair  the  same,  or  his  just  proportion 
thereof  within  ten  days  after  he  shall  be  so  required  by  any  person  inter- 
ested therein.  Such  requisition  shall  be  in  writing,  and  signed  by  the 
party  making  it.10  If  the  person  so  notified  shall  refuse  or  neglect  to  make 
or  repair  his  proportion  of  such  fence,  for  the  space  of  ten  days  after  such 
request,  the  party  injured  may  make  or  repair  the  same  at  the  expense  of 
the  party  so  refusing  or  neglecting,  to  be  recovered  from  him  with  costs. 
[Town  Law,  § 366;  B.  C.  & G.  Cons.  L.,  p.  6234.] 


§ 9.  DAMAGES  DONE  BY  ANIMALS  WHERE  FENCE  IS  NOT  MAIN- 
TAINED AS  PROVIDED  BY  TOWN  RULES  AND  REGULA- 
TIONS. 

Whenever  the  electors  of  any  town  shall  have  made  any  rule  or  regula- 
tion prescribing  what  shall  be  deemed  a sufficient  division  fence  in  such 
town,  any  person  who  shall  thereafter  neglect  to  keep  a fence  according 
to  such  rule  or  regulation  shall  be  precluded  from  recovering  compensation 
for  damages  done  by  any  beast  lawfully  kept  upon  the  adjoining  lands 
that  may  enter  therefrom  on  any  lands  of  such  person,  not  fenced  in  con- 
formity to  the  said  rule  or  regulation,  through  any  such  defective  fence.11 


8.  For  form  of  appraisement  of  damages  by  fence  viewer  for  neglect  to  build 
or  repair  a division  fence,  see  Form  No.  64,  post. 

Appraisement  of  damages  is  not  necessary  before  beginning  an  action. 
Bronk  v.  Becker,  17  Wend.  320.  Amount  of  damages,  how  ascertained.  Clark 
v.  Brown,  18  Wend.  213;  Richardson  v.  McDougall,  11  Wend.  46;  Stafford  v. 
Ingersol,  3 Hill  38;  Crandall  v.  Eldridge,  46  Hun,  411,  413. 

9.  For  form  of  notice  to  build  or  repair  a division  fence,  see  Form  No.  65, 
post. 

10.  For  form  of  notice  to  build  a fence  destroyed  by  accident,  see  Form  No. 

66,  post. 

11.  Reference.  Electors  of  a town  at  a biennial  town  meeting  may  make 


642 


DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 


Town  Law,  § 368. 

When  the  sufficiency  of  a fence  shall  come  in  question  in  any  action,  it  shall 
be  presumed  to  have  been  sufficient  until  the  contrary  be  established. 
[Town  Law,  § 367 ; B.  C.  & G.  Cons.  L.,  p.  6234.] 


§ 10.  DAMAGES  WHEN  PERSON  FAILS  TO  BUILD  OR  REPAIR 
FENCE;  APPRAISAL  BY  FENCE  VIEWERS. 

If  any  person  liable  to  contribute  to  the  erection  or  repair  of  a division 
fence  shall  neglect  or  refuse  to  make  and  maintain  his  proportion  of  such 
fence,  or  shall  permit  the  same  to  be  out  of  repair,  he  shall  not  be  allowed 
to  have  and  maintain  any  action  for  damages  incurred  by  beasts  coming 
thereon  from  adjoining  lands  where  such  beasts  are  lawfully  kept,  by 
reason  of  such  defective  fence,  but  shall  be  liable  to  pay  to  the  party  in- 
jured all  damages  that  shall  accrue  to  his  lands,  and  the  crops,  fruit  trees 
and  shrubbery  thereon,  and  fixtures  connected  with  the  land,  to  be 
ascertained  and  appraised  by  any  two  fence  viewers  of  the  town,  and  to  be 
recovered,  with  costs;  which  appraisement  shall  be  reduced  to  writing  and 
signed  by  the  fence  viewers  making  the  same,  but  shall  be  only  iprima  facie 
evidence  of  the  amount  of  such  damages.12  [Town  Law,  § 368 ; B.  C.  & G. 
Cons.  L.,  p.  6235.] 


rules  and  regulations  for  ascertaining  the  sufficiency  of  all  fences  in  such  town 
See  Town  Law,  sec.  43,  ante. 

Application.  Statute  only  applies  where  electors  have  prescribed  as  to  what 
constitutes  a sufficient  fence.  Tonawanda  R.  R.  Co.  v.  Munger,  5 Den.  255. 

Kind  of  fence.  A fence,  erected  and  maintained  upon  or  near  the  division 
line  of  such  a dangerous  character  as  to  cause  serious  injury  and  damage  to 
the  animals  of  an  adjoining  owner,  is  a nuisance.  Rowland  v.  Blaird,  18  Abb. 
N.  C.  256. 

A crooked  or  Virginia  fence  is  a proper  division  fence.  Ferris  v.  Van  Buskirk, 
18  Barb.  397. 

Proof  of  insufficiency  of  the  fence  should  be  made,  for  in  no  case  is  it  to  be 
presumed.  White  v.  Scott,  4 Barb.  56. 

Recovery  of  damages.  The  rule  of  damages  contained  in  this  section  is 
declaratory  of  the  common  law.  Griffin  v.  Martin,  7 Barb.  297. 

In  an  action  against  a railroad  company  for  an  injury  to  a cow  escaping 
through  an  insufficient  fence  on  to  the  track  of  such  company,  it  was  held  that 
in  the  absence  of  action  by  a town  meeting  establishing  the  height  or  strength 
of  division  fences,  that  it  was  competent  to  show  what  in  that  town  the  height 
and  strength  of  such  fences  generally  were.  Leyden  v.  N.  Y.  C.  & H.  R.  R.  R. 
Co.,  55  Hun,  114,  117. 

12.  Action  for  damages.  The  word  “ incurred  ” means  brought  on,  and  by 
this  statute  the  party  in  default  is  to  have  no  action  for  damages  brought  on 
himself  in  some  manner.  Deyo  v.  Stewart,  4 Denio  101,  103;  Stafford  v.  Inger- 
sol,  3 Hill  40;  Clark  v.  Brown,  18  Wend.  213. 


DIVISION  FENCES;  DUTIES  OF  FENCE  VIEWERS.  643 

Town  Law,  § 369'. 

§11.  USE  OF  BARBED  OR  OTHER  WIRE  IN  THE  CONSTRUCTION 
OF  DIVISION  FENCES;  FENCE  VIEWERS  TO  PRESCRIBE 
KIND  OF  WIRE  AND  HOW  TO  BE  BUILT. 

Barbad  or  other  wire  may  be  used  in  the  construction  of  any  division  fence,  pro- 
vided, however,  that  the  person  or  corporation  desiring  to  use  such  material  shall 
first  obtain  from  the  owner  of  the  adjoining  property  his  written  consent  that  it  may 
be  so  used.  If  the  owner  of  the  adjoining  property  refuses  to  consent  to  the  building 
of  such  a fence,  it  may  nevertheless  be  built  in  the  following  manner:  The  fence 

shall  be  of  at  least  four  strands  of  wire  with  a sufficient  bar  of  wood  at  the  top; 
and  the  size  of  such  top  bars  and  of  the  posts  and  supports  of  such  fence,  and  their 
distances  apart,  shall  be  such  as  the  fence  viewers  of  tne  town  may  prescribe  and 
with  the  posts  no  further  apart  than  fourteen  feet;  and  such  fence  shall  be  otherwise 
suostantially  built  and  a reasonably  sufficient  inclosure  for  holding  the  particular 
kind  or  class  of  cattle  or  animals  usually  pastured  on  either  side  of  the  fence.  Noth- 
ing contained  in  section  three  hundred  and  sixty-seven  shall  be  construed  to  author- 
ize the  electors  of  any  town  to  prohibit  the  use  of  wire  fences,  for  division  fences,  if 
such  fences  comply  with  the  requirements  of  this  section.  Whenever  such  fence  shall 
become  so  out  of  repair  as  to  be  unsafe,  it  shall  be  the  duty  of  the  owner  or  owners 
to  immediately  repair  the  same.  But  any  person  building  such  a fence  without  the 
written  consent  of  the  owner  of  the  adjoining  property  shall  be  liable  to  all  damages 
that  may  be  occasioned  by  reason  of  such  fence.  But  this  section  shall  not  be  so 
construed  as  to  permit  railroad  corporations  to  use  barbed  wire  in  the  construction 
of  fences  along  their  lines  contrary  to  the  provisions  of  section  52  of  the  railroad 
law.i3  [Town  Law,  § 369,  as  amended  by  L.  1911,  ch.  86;  B.  C.  & G.  Cons.  L.,  p. 
6235.] 


13.  Use  of  barbed  wire.  The  provision  of  the  statute  prohibiting  or  regulating 
the  use  of  barbed  wire  in  the  construction  of  fences  does  not  apply  to  fences  con- 
structed before  the  enactment  of  the  statute.  Stissner  v.  N.  Y.  C.  & H.  R.  R.  R.  Co., 
32  App.  Div.  98;  52  N.  Y.  Supp.  861.  In  this  case  it  was  held  that  a flat  iron  ribbon 
one-half  inch  wide,  with  saw  teeth  cut  in  one-fourth  of  an  inch  on  one  side  of  the 
ribbon,  one  and  one-half  inches  apart,  was  not  a barbed  wire  within  the  prohibition  of 
the  use  of  such  material  in  railroad  fences  under  section  52  of  the  Railroad  Law. 

Where  a barbed  wire  fence  has  been  constructed  without  the  consent  of  the  adjoin- 
ing owner  by  a tenant  occupying  the  land,  he  will  be  liable  for  the  resulting  damages, 
although  the  statute  imposes  a duty  upon  the  owner  of  the  land  to  construct 
and  maintain  proper  division  fences.  Buckley  v.  Clark,  21  Misc.  138;  47  N.  Y. 
Supp.  42. 

Liability.  It  is  immaterial  to  defendant’s  liability  that  the  fence  was  not  built 
upon  the  division  line,  but  was  built  near  the  line  and  on  defendant’s  property. 
Rowland  v.  Baird,  18  Abb.  N.  C.  256. 

Whether  it  is  or  is  not  negligence  to  erect  barbed-wire  fence  is  a question  of  fact; 
effect  of  statute  relating  to  such  fences.  Although  this  section  forbids  the  use  of 
barbed  wire  in  the  construction  of  a division  fence,  except  in  the  manner  therein  pre- 
scribed, without  the  written  consent  of  the  owner  of  tne  adjoining  property,  and 
provides  that  the  person  building  a fence  as  therein  authorized  without  such  con- 
sent shall  be  liable  for  all  damages  that  may  be  occasioned  thereby,  yet  a barbed- 
wire  fence  is  not  a nuisance  as  a matter  of  law.  Whether  it  is  or  not  negligence  to 
erect  and  maintain  one  is  a question  of  fact,  and  the  statute  is  to  be  considered  in 
determining  that  question.  The  owner  of  a farm  adjoining  and  surrounding  a 
schoolhouse  lot  erected  a fence  on  the  division  line  between  his  land  and  the  lot  by 
setting  posts  on  such  line,  on  which  he  fastened,  about  four  feet  from  the  ground, 
a barbed  wire,  with  barbs  about  six  inches  apart.  The  next  day,  and  while  the  fence 
was  incompleted,  a child  eleven  years  of  age,  who  was  not  aware  that  the  wire  had 
been  fastened  to  the  posts,  ran  from  the  door  of  the  schoolhouse  toward  the  fence, 
looking  over  her  shoulder  and  calling  to  a schoolmate,  and  while  so  running  her  neck 
came  in  contact  therewith  and  was  lacerated  thereby.  Upon  the  trial  of  the  action 
to  recover  for  the  injuries  the  court  dismissed  the  complaint.  Held,  error;  that  the 
questions  of  the  negligence  of  the  defendant  and  that  of  the  contributory  negligence 
of  the  plaintiff  were  for  the  jury.  Barr  v.  Green  (1914),  210  N.  Y.  252, 104  N.  E.  6191. 


644 


DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 


Town  Law,  § 380. 


CHAPTER  XLII. 

STRAYED  ANIMALS  DOING  DAMAGE;  DUTIES  OF  FENCE  VIEWERS. 

Section  1.  Lien  upon  strayed  animals  doing  damage. 

2.  Notice  of  lien  to  be  filed  with  town  clerk;  fees  for  recording. 

3.  Impounding  strayed  animals;  if  not  impounded  to  be  properly 

cared  for. 

4.  Owner  or  occupant  of  the  lands  to  notify  the  owner  of  the  ani- 

mals of  the  impounding  of  such  animals. 

5.  Charges  for  notice;  fence  viewers  to  determine  damages  in  case 

of  disagreement. 

6.  Fence  viewers’  fees. 

7.  Foreclosure  of  lien;  effect  of  failure  to  establish  lien. 

8.  Sale  of  animals  by  fence  viewers;  notice  of  sale. 

S.  Disposition  of  proceeds  of  sale. 

10.  Notice  of  fence  viewers’  meeting  for  assessment  of  damages  to 

be  given  to  owner  of  animals. 

11.  Fence  viewers  to  view  premises  damaged;  subpoenas;  examina- 

tion of  witnesses. 

12.  Foreclosure  of  lien  by  action. 

13.  Duties  and  fees  of  pound-masters. 

14.  Surplus  moneys  arising  from  sale  of  animals,  if  unclaimed,  to 

be  paid  to  overseers  of  the  poor. 

15.  Villages  and  cities  deemed  towns,  for  purposes  of  assessing  damages 

for  stray  animals. 

16.  Assessment  of  damages  occasioned  by  inanimate  goods  or  chattels. 


§ 1.  LIEN  UPON  STRAYED  ANIMALS  DOING  DAMAGE. 

Whenever  any  person  shall  have  any  strayed  horses,  cattle,  sheep,  swine  or 
other  beasts  upon  his  inclosed  land,  or  shall  have  any  such  beast  on  land 
owned  or  occupied  by  him  doing  damage,  and  such  beast  shall  not  have 
come  upon  such  lands  from  adjoining  lands,  where  they  are  lawfully  kept, 
by  reason  of  his  refusal  or  neglect  to  make  or  maintain  a division  fence 
required  of  him  by  law,  such  person  may  have  a lien  upon  such  beasts  for 
the  damages  sustained  by  reason  of  their  so  coming  upon  his  lands  and 
doing  damage,  for  his  reasonable  charges  for  keeping  them  and  all  fees 
and  costs  made  thereon,  and  he  may  keep  such  beasts  until  such  damages, 
charges,  fees  and  costs  are  paid,  or  such  lien  is  forclosed,  upon  complying 


STRAYED  ANIMALS  DOING  DAMAGE. 


645 


Town  Law,  § 381. 

with  the  provisions  of  this  article  relating  thereto.1  [Town  Law,  § 380; 
B.  C.  & G.  Cons.  L.,  p.  6236.] 

§ 2.  NOTICE  OF  LIEN  TO  BE  FILED  WITH  TOWN  CLERK;  FEES 
FOR  RECORDING. 

If  such  beasts  are  not  redeemed  within  five  days  after  coming  upon 
such  lands,  the  person  entitled  to  such  lien,  shall  deliver  to  the  town  clerk 
of  the  town,  within  which  such  lands  or  some  part  thereof  shall  be,  a written 
notice  subscribed  by  him,  containing  his  residence,  and  a description  of 
the  beasts  so  strayed  or  coming  upon  his  lands,  as  near  as  may  be,  and 
that  he  claims  a lien  on  such  beasts  for  such  damages,  charges,  fees  and 
costs.2  The  town  clerk  shall  record  the  notice  in  a book  to  be  kept  by  him 
for  that  purpose,  for  which  he  shall  receive  ten  cents  for  each  beast,  to 
be  paid  by  the  person  delivering  the  notice.  Such  book  shall  always  be 


1.  Strays  upon  highways.  Code  Civ.  Proc.  (Gilbert’s  Annotated  Code), 
secs.  3082-3115,  provides  a penalty  for  allowing  animals  to  run  at  large  in 
public  streets  and  highways,  authorizes  the  seizure  of  such  animals  by  over- 
seers of  the  highways  in  towns,  and  street  commissioners  in  villages,  or  by 
the  owner  of  the  land  upon  which  such  animals  have  strayed  from  a street 
or  highway,  and  provides  procedure  before  a justice  of  the  peace  for  the  sale 
of  such  animals  and  the  disposition  of  the  proceeds  of  such  sale. 

Strayed  animals  coming  upon  lands  owned  or  occupied  by  any  person, 
from  lands  adjoining,  because  of  insufficient  or  improperly  maintained  divi- 
sion fences  are  to  be  disposed  of  as  provided  in  this  chapter.  The  sections 
of  the  Code  of  Civil  Procedure  above  referred  to,  do  not  apply  to  animals 
escaping  through  a division  fence  upon  an  adjoining  owner,  nor  do  they  au- 
thorize the  trial  of  the  sufficiency  of  such  a fence.  Cowles  v.  Balzer,  47  Barb. 
562;  Cropsey  v.  Perry,  1 How.  Pr.  N.  S.  40;  Jones  v.  Sheldon,  50  N.  Y.  477. 

Lien  upon  horses  found  upon  premises.  Where  horses  have  strayed  from  the 
highway  upon  premises,  the  owner  of  the  premises  may  take  possession  of  the 
horse  and  have  a lien  thereon  under  the  provisions  of  the  above  section.  The 
fact  that  after  the  owner  of  the  land  took  possession  of  the  horses,  the  owner  of 
the  horses  demanded  the  return  thereof,  but  made  no  legal  offer  to  redeem  does 
not  affect  the  right  of  lien.  Lynch  v.  Ford,  72  App.  Div.  536,  76  N.  Y.  Supp.  546. 

Liability  for  damages.  Where  cattle  cross  unfenced  land  abutting  upon  a 
highway  and  trespass  upon  other  unfenced  lands  adjacent  thereto  but  not  abut- 
ting upon  the  highway,  the  owner  of  such  animals  is  liable  for  the  damages 
caused  thereby,  notwithstanding  the  absence  of  a fence.  Wood  v.  Snider,  187 
N.  Y.  28  revg.  108  App.  Div.  168,  95  N.  Y.  Supp.  508. 

Damages  awarded  measured  by  injuries  caused  by  animals  and  the  cost  of 
keeping  them.  Cook  v.  Gregg,  46  N.  Y.  439.  And  see  Armbruster  v.  Wilson, 
43  Hun  261. 

2.  For  form  of  notice  that  person  has  animals  in  his  possession  found 
Upon  his  lands,  and  that  he  claims  a lien  on  such  animals,  see  Form  No.  67, 

posit. 


646 


DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 


Town  Law,  §§  382,  383,  384. 

kept  open  for  inspection,  and  no  fees  shall  be  taken  by  the  clerk  therefor. 
[Town  Law,  § 381 ; B.  C.  & G.  Cons.  L.,  p.  6238.] 

§ 3.  IMPOUNDING  STRAYED  ANIMALS-,  IF  NOT  IMPOUNDED  TO  BE 
PROPERLY  CARED  FOR. 

Within  six  days  after  such  beasts  shall  have  come  upon  such  lands, 
such  owner  or  occupant  may  cause  them  to  be  put  in  the  nearest  pound  in 
the  same  town,  if  there  be  one,  there  to  remain  until  they  are  redeemed, 
sold  or  reclaimed  according  to  law.  If  there  be  no  such  pound,  or  he 
elect  to  keep  such  beasts,  he  shall  cause  them  to  be  properly  fed  and  cared 
for  until  they  are  redeemed,  sold  or  reclaimed  according  to  law.  [Town 
Law,  § 382;  B.  C.  & G.  Cons.  L.,  p.  6237.] 

§ 4.  OWNER  OR  OCCUPANT  OF  THE  LANDS  TO  NOTIFY  THE 
OWNER  OF  THE  ANIMALS  OF  THE  IMPOUNDING  OF  SUCH 
ANIMALS. 

Within  thirty  days  after  any  such  beasts  may  have  come  or  been  found 
upon  any  lands,  the  owner  or  occupant  of  the  lands  shall  serve  a written 
notice,  either  personally  or  by  mail,  upon  the  owner  of  the  beasts,  if  known, 
that  they  are  upon  his  lands,  or  in  pound  as  the  case  may  be,  and  are  held 
by  him  as  strays  or  beasts  doing  damage,  as  the  case  may  be;  and  if  such 
owner  is  not  known,  he  shall  publish  such  notice,  within  such  time,  in  the 
nearest  newspaper  of  the  county  for  at  least  two  successive  weeks.4  [Town 
Law,  § 383;  B.  C.  & G.  Cons.  L.,  p.  6237.] 

§ 5.  CHARGES  FOR  NOTICE;  FENCE  VIEWERS  TO  DETERMINE 
DAMAGES  IN  CASE  OF  DISAGREEMENT. 

The  person  delivering  the  notice  to  the  town  clerk  shall  be  entitled  to 
receive  therefor,  in  addition  to  the  fees  paid  the  town  clerk,  fifteen  cents 
each  for  all  horses,  mules,  cattle  and  swine,  and  five  cents  for  each  other 
beast  described  in  the  notice.  If  the  charges,  damages,  costs  and  fees  are 


3o  Pounds.  The  electors  of  a town  at  a biennial  town  meeting  may  vote 
to  establish  and  maintain  pounds  at  convenient  places  within  the  town.  See 
Town  Law,  sec.  43,  sub.  6,  ante. 

Failure  to  provide  food  and  drink.  The  Penal  Law,  § 187,  provides  that: 
“ A person  who,  having  impounded  any  animal,  refuses  or  neglects  to  supply 
to  such  animal  during  its  confinement  a sufficient  supply  of  good  and  wholesome 
air,  food,  shelter  and  water,  is  guilty  of  a misdemeanor.” 

4.  For  form  of  notice  to  owner  of  animals  held  as  a stray,  see  Form  No.  68, 
vost.  • 


STRAYED  ANIMALS  DOING  DAMAGE. 


647 


Town  Law,  §§  385,  386,  387. 

not  agreed  upon  between  the  person  delivering  the  notice  and  the  owner  of 
the  beasts,  they  shall  be  determined  by  two  fence  viewers  of  the  town,  one 
of  whom  shall  be  selected  by  the  person  claiming  the  lien,  the  other  by  the 
fence  viewer  so  selected.  If  such  fence  viewers  cannot  agree,  they  shall 
select  another  to  act  with  them,  and  the  decision  of  any  two  of  them  shall 
be  final.  [Town  Law,  § 384;  B.  C.  & G.  Cons.  L.,  p.  6238.] 

§ 6.  FENCE  VIEWERS’  FEES. 

Each  fence  viewer  shall  be  entitled  to  receive  ten  cents  for  every  mile 
he  shall  be  obliged  to  travel  from  his  residence  to  the  place  where  the  beasts 
are  kept,  and  seventy-five  cents  for  certificate  of  the  charges  as  ascertained 
by  them.  [Town  Law,  § 385 ; B.  C.  & G.  Cons.  L.,  p.  6238.] 


§ 7.  FORECLOSURE  OF  LIEN;  EFFECT  OF  FAILURE  TO  ESTABLISH 
LIEN. 

If  the  owner  of  snch  beasts  shall  not  redeem  the  same  within  three 
months  after  delivery  of  the  notice  to  the  town  clerk,  the  person  delivering 
the  notice  may  foreclose  his  lien  by  action,  or  by  a sale  of  the  beasts,  as 
herein  provided.  When  a person  claiming  a lien,  as  herein  provided,  shall 
fail  to  establish  the  same,  he  shall  not  be  entitled  to  receive  anything  for 
damages,  charges,  fees  or  costs,  but  shall  be  liable  to  pay  all  fees,  costs  and 
expenses  incurred  by  reason  of  his  keepiing  such  beasts  and  the  proceedings 
thereon.  [Town  Law,  § 386 ; B.  C.  & G.  Cons.  L.,  p.  6238.] 


§ 8.  SALE  OF  ANIMALS  BY  FENCE  VIEWERS;  NOTICE  OF  SALE. 

After  such  three  months,  a fence  viewer  of  the  town,  on  application  of 
the  person  delivering  the  notice,  shall  give  at  least  ten  days’  previous 
notice  of  the  time  and  place  of  the  sale  of  such  beasts,  by  advertisement 
posted  up  in  at  least  five  public  places  in  the  town  where  such  beasts  may 
have  been  kept,  one  of  which  shall  be  at  or  near  the  outside  door  of  the 
town  clerk’s  office.5  At  the  time  and  place  mentioned,  such  fence  viewers 
shall  sell  such  beasts  to  the  highest  bidder,  unless  redeemed  by  the  owner. 
[Town  Law,  § 387;  B.  C.  & G.  Cons.  L.,  p.  6238.] 


§ 9.  DISPOSITION  OF  PROCEEDS  OF  SALE. 

Out  of  the  proceeds  from  such  sale,  the  fence  viewer  shall  retain  and 


5.  For  form  of  a notice  of  sale  by  a fence  viewer,  see  Form  No.  69,  post. 


648  DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

Town  Law,  §§  388,  389,  390. 

pay  the  sums  charged  for  such  notices,  fees  and  costs,  together  with  the 
sums  specified  in  the  certificate  for  keeping  the  beasts  and  damages 
done  by  them ; and  the  like  charges  for  the  sale,  as  are  allowed  on  sales 
under  executions  issued  out  of  Justices’  Courts,  and  he  shall  pay  the 
residue  to  the  owner  of  the  beasts,  if  he  shall  appear  and  demand  the 
same.  [Town  Law,  § 388;  B.  C.  & G.  Cons.  L.,  p.  6239.] 


§ 10.  NOTICE  OF  FENCE  VIEWERS’  MEETING  FOR  ASSESSMENT 
OF  DAMAGES  TO  BE  GIVEN  TO  OWNER  OF  ANIMALS. 

When  the  owner  of  such  beasts  is  known  and  resides  in  the  same  town 
where  such  beasts  are  kept,  five  days’  notice  of  the  time  and  place  of 
the  meetings  of  the  fence  viewers  to  determine  the  damages  done  by  such 
beasts,  and  the  charges  for  keeping  them,  shall  be  personally  served  on 
him;  if  he  resides  elsewhere,  and  his  post-office  address  is  known,  such 
notice  shall  be  served  by  mail  or  personally.6  [Town  Law,  § 389;  B.  C. 
& G.  Cons.  L.,  p.  6239.] 


§11.  FENCE  VIEWERS  TO  VIEW  PREMISES  DAMAGED;  SUB- 
POENAS; EXAMINATION  OF  WITNESSES. 

The  fence  viewers  shall  view  the  premises  where  damages  are  claimed 
to  have  been  done,  and  they  may  issue  subpoenas,  examine  witnesses  and 
take  any  competent  evidence  of  the  facts  and  circumstances  7 necessary  to 
enable  them  to  determine  the  matter  submitted  to  them,  and  shall  deter- 
mine any  dispute  that  may  arise  touching  the  sufficiency  of  any  division 
fence  around  the  premises  where  such  damage  was  done,  and  from  where 
and  how  the  beasts  came  upon  the  lands  of  the  person  claiming  such  dam- 
ages and  charges;  if  they  determine  that  for  any  cause  the  claimants’' 
lien  is  not  enforceable,  they  shall  so  certify,  and  the  owner  of  the  beasts 
shall  thereupon  be  entitled  to  them  without  paying  any  charges  thereon.8 
[Town  Law,  § 390;  B.  C.  & G.  Cons.  L.,  p.  6239.] 


6.  For  form  of  notice  to  owner,  of  fence  viewers’  meeting,  see  Form  No. 
70,  post. 

7.  Administering  oath  by  a fence  viewer,  authorized  by  section  843  of  the 
Code  of  Civ.  Proc. 

Witnesses.  Fence  viewers  may  compel  witnesses  to  attend  and  testify.  Code 
Civ.  Proc.,  secs.  854-862. 

8.  For  form  of  certificate  of  fence  viewers  showing  their  determination  of 
the  dispute,  see  Form  No.  71,  post. 


STRAYED  ANIMALS  DOING  DAMAGE. 


649 


Town  Law,  §§  391,  392,  393. 

§ 12.  FORECLOSURE  OF  LIEN  BY  ACTION. 

When  such  lien  is  foreclosed  by  action,9  all  questions  relating  to  damages,, 
charges,  sufficiency  of  fence,  and  from  where  and  how  such  beasts  came 
upon  the  lands  of  the  person  claiming  such  damages  and  charges,  shall  be 
proven  upon  the  trial  of  such  action,  and  no  certificate  of  fence  viewers 
upon  such  questions  shall  then  be  necessary.10  [Town  Law,  § 391;  B.  C.  & 
G.  Cons.  L.,  p.  6239.] 

§ 13.  DUTIES  AND  FEES  OF  POUND  MASTERS. 

Every  pound  master  shall  receive  and  keep  all  beasts  delivered  to  him 
as  herein  provided,  until  they  shall  be  redeemed,  sold  or  reclaimed,  for 
which  he  shall  be  entitled  to  a reasonable  compensation,  not  exceeding 
fifty  cents  per  day  for  a horse  or  mule,  twenty-five  cents  per  day  for  each 
head  of  cattle,  and  fifteen  cents  per  day  for  all  other  beasts,  to  be  deter- 
mined by  the  fence  viewer  making  the  sale,  or  the  court  before  whom  the 
action  is  tried,  besides  his  fees  for  taking  and  discharging  the  beasts, 
to  be  paid  by  the  owner  of  the  beasts,  if  the  lien  is  established,  otherwise 
by  the  person  claiming  a lien  thereon.  [Town  Law,  392;  B.  C.  & G. 
Cons.  L,.  p.  6240.] 


§ 14.  SURPLUS  MONEY  ARISING  FROM  SALE  OF  ANIMALS,  IF 
UNCLAIMED,  TO  BE  PAID  TO  OVERSEERS  OF  THE  POOR. 

If  the  owner  of  the  beasts  shall  not  appear  and  demand  the  residue  of 
such  moneys  within  one  year  after  the  sale,  he  shall  be  thereafter  pre- 
cluded from  recovering  any  part  thereof,  and  the  same  shall  be  paid 
by  the  officer  making  the  sale  to  the  overseers  of  the  poor  of  the  town,  or, 
in  cities,  to  the  officers  having  their  powers,  for  the  use  of  the  poor  there- 
of, and  their  receipt  shall  be  a legal  discharge  to  the  keeper  of  such  beasts 
and  the  officer  selling  the  same.  If  the  officer  who  shall  have  sold  such 
beasts  shall  not,  within  thirty  days  after  the  expiration  of  the  year,  pay 
such  moneys  to  the  overseers  of  the  poor  of  the  town,  or,  in  cities,  to 
officers  having  their  powers,  he  shall  forfeit  to  the  town  or  city  double 


9.  Foreclosure  by  action.  A lien  on  strayed  animals  created  pursuant  to 
this  chapter  may  he  foreclosed  by  action  in  the  manner  provided  by  secs. 
1737-1741  of  Code  of  Civ.  Proc.  (Gilbert’s  Annotated  Code.) 

10.  Lien  a defense  in  action  for  replevin.  A defense,  in  an  action  for 
replevin  of  animals,  that  the  defendant  distrained  them  while  trespassing  on 
his  lands,  and  detains  them  under  the  lien  thereby  created  for  the  damage 
done,  is  good  and  sufficient.  Boyce  v.  Perry,  26  Misc.  355,  57  N.  Y.  Supp. 
214. 


050  DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

Town  Law,  §§  396,  394. 

the  sum  so  remaining  in  his  hands,  together  with  the  amount  of  such 
moneys.  [Town  Law,  § 393 ; B.  C.  & G.  Cons.  L.,  p.  6240.] 

§ 15.  VILLAGES  AND  CITIES  DEEMED  TOWNS,  FOR  PURPOSES  OF 
ASSESSING  DAMAGES  FOR  STRAY  ANIMALS. 

The  villages  and  cities  of  this  state  shall  be  considered  towns  for  the 
purposes  of  this  article ; and  the  trustees  of  the  village  and  the  aldermen 
of  the  city  shall  be  fence  viewers  therein  for  the  purposes  of  this  article. 
[Town  Law,  § 396 ; B.  C.  & G.  Cons.  L.,  p.  6241.] 

§ 16.  ASSESSMENT  OF  DAMAGES  OCCASIONED  BY  INANIMATE 
GOODS  OR  CHATTELS. 

When  any  person  shall  be  authorized  to  distrain  inanimate  goods  or 
chattels  doing  damage,  or  whenever  any  logs,  timbers,  boards  or  plank, 
in  rafts  or  otherwise,  or  other  personal  property  shall  have  drifted  upon 
his  lands,  he  shall  be  entitled  to  the  same  remedies,  and  shall  proceed 
therein  in  the  same  manner  and  with  the  same  powers  as  herein  provided 
with  respect  to  beasts  found  doing  damage,  so  far  as  such  provisions  are 
applicable.  He  must  deliver  his  notice  of  lien  to  the  town  clerk, 
describing  the  property,  within  thirty  days  after  it  lodges  upon  his 
lands,  and  he  shall  keep  the  same  in  some  convenient  place,  without 
removal  to  a pound,  until  the  property  is  sold  or  reclaimed.  The  same 
officer  shall  conduct  proceedings  therein  as  in  proceedings  where  beasts 
are  found  doing  damage,  and  all  proceeds  of  sale  shall  be,  in  like  man- 
ner, paid  over  and  applied,  subject  to  the  same  penalties  and  liabilities, 
and  with  the  same  force  and  effect.  The  fee  of  the  town  clerk  for 
filing  and  recording  such  notices  of  lien  pursuant  to  section  three  hun- 
dred and  eighty-one  of  this  chapter,  shall  be  one  dollar  and  the  charges 
of  the  land  owner  claiming  such  lien  and  delivering  such  notice  to  the 
town  clerk,  pursuant  to  this  section,  shall  be  at  the  rate  of  five  cents 
for  each  such  stray,  but  shall  in  no  event  exceed  the  sum  of  fifty  dollars 
upon  any  one  lien.  Any  lien  for  logs,  timber,  boards  or  plank,  in  rafts 
or  otherwise,  filed  herein  may  be  discharged  in  the  manner  provided  in 
sections  nineteen  and  twenty  of  the  lien  law,  with  reference  to  the  dis- 
charge of  mechanics’  liens,  so  far  as  such  provisions  are  applicable. 
[Town  Law,  § 394,  as  amended  by  L.  1915,  ch.  439;  B.  C.  & G.  Cons. 
L.,  p.  6240.] 


DOGS,  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 
County  Law,  § 110. 


651 


CHAPTER  XLIII. 


DOGS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS  RELATIVE  TO  DOGS. 


Section  1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 


10. 

11. 

12. 

13. 

14. 

15. 

16. 


Licensing  of  dogs;  former  laws  repealed. 

Definitions. 

Licensing  of  dogs  and  dog  kennels;  fees. 

Assessors  to  prepare  lists  of  dogs. 

Issuance  of  licenses;  penalty  for  failure  to  obtain;  registry  of  licenses. 
Tags;  how  furnished  and  attached;  blanks  and  forms. 

Killing  unlicensed  dog;  killing  dog  for  attacking  animals;  dogs  running 
at  large;  dog  killed  on  court  order. 

Town  and  city  clerks  to  report  failure  to  pay;  penalties;  fees  of  officers 
and  magistrates. 

Damages  for  injuries  caused  by  dogs;  assessors  to  ascertain  damages; 

payment  of  claim  by  state. 

Report  as  to  dog  killed. 

Disposition  of  fees,  penalties  and  damages  recovered. 

Recovery  of  penalties;  actions  for  damages. 

Apportionment  to  towns  and  cities  of  surplus  moneys. 

Enforcement  of  provisions  of  chapter. 

Pounds  and  dog  catchers  in  certain  counties. 

Dogs  running  at  large  in  forest  preserve. 


§ 1.  LICENSING  OF  DOGS;  FORMER  LAWS  REPEALED. 

The  laws  relative  to  licensing  dogs,  the  assessment  and  payment  of  dam- 
ages, caused  by  dogs,  and  the  imposing  of  penalties  for  failure  to  obtain 
licenses,  were  repealed  by  L.  1917,  ch.  800.  By  this  act,  as  amended  by 
L.  1918,  ch.  439,  the  licensing  of  dogs  and  the  payment  of  claims  for 
damages  caused  by  dogs  are  placed  under  the  control  of  the  State  Depart- 
ment of  Farms  and  Markets.  Town  officers,  including  town  clerks,  assessors, 
justices  of  the  peace  and  constables,  are  required  to  perform  many  import- 
ant duties  as  to  licensing  of  dogs,  killing  dogs  that  are  not  licensed  or  are 
running  at  large  and  the  assessment  of  damages.  All  fees  are  paid  to  the 
state,  and  claims  when  adjusted  are  paid  out  of  state  funds. 

All  local  laws  and  laws  regulating  the  keeping  of  dogs  in  towns,  villages 
and  cities  are  repealed.  It  is  provided  in  section  2 of  L.  1917,  ch.  800, 
that  “ Article  seven,  constituting  sections  one  hundred  and  ten  to  one  hun- 
dred and  thirty-six  of  chapter  sixteen  of  the  laws  of  nineteen  hundred  and 
nine,  (the  County  Laws)  entitled,  ‘An  act  in  relation  to  counties,  constitut- 
ing chapter  eleven  of  the  Consolidated  Laws,’  and  the  acts  amendatory 
thereof  or  supplemental  thereto,  are  hereby  repealed.” 


652  DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

Agricultural  Law,  §§  131,  132. 

§ 2.  DEFINITIONS. 

When  used  in  this  act,  the  word  “ owner/5  referring  to  the  owner  of  the 
'dog,  includes  a person  harboring  or  keeping  such  dog.1  The  word  “ kennel/5 
when  so  used,  means  the  place  where  five  or  more  dogs  over  six  months 
old  are  harbored  or  kept,  which  dogs  are  registered  in  or  by  a recognized 
registry  association.  The  word  “ dog/5  when  so  used,  shall  include  a bitch, 
except  where  provision  is  made  for  the  licensing  of  dogs  and  the  payment  of 
license  fees.  [Agricultural  Law,  § 131,  as  added  by  L.  1917,  ch.  800.] 

§ 3.  LICENSING  OF  DOGS  AND  DOG  KENNELS;  FEES. 

Dogs  to  be  licensed ; fees. — A person  who  owns,  harbors  or  keeps  a dog 
shall  obtain  a license  therefor,  as  provided  herein,  and  shall  pay  the  follow- 
ing fees:  (1)  two  dollars  for  each  male  dog  and  spayed  female  dog;  (2) 
three  dollars  for  each  bitch;  (3)  twenty  dollars  for  a kennel  of  pure-bred 
dogs,  or  such  sum  not  in  excess  of  such  sum  of  twenty  dollars  as  will  equal 
two  dollars  for  each  dog  over  six  months  old  harbored  or  kept  in  such  kennel, 
for  which  a special  kennel  license  shall  be  given  as  hereinafter  provided.  Be- 
fore any  person  shall  be  entitled  to  obtain  a license  for  a spayed  female  dog 
at  the  reduced  fee  herein  provided,  he  shall  produce  and  deliver  to  such  town 
or  city  clerk  a certificate  in  writing  signed  by  a duly  licensed  veterinary 
surgeon  showing  that  such  female  dog  has  been  spayed.  There  shall  be  paid 
to  the  town  or  city  clerk,  in  addition  to  each  license  fee,  a sum  of  twenty-five 
cents  as  a registration  fee,  for  the  services  of  such  clerk. 

Application  for  a license  shall  be  made  to  the  clerk  of  the  town  or  city  in 
which  the  dog  is  harbored  or  kept.  Such  application  shall  be  in  writing  and 
shall  state  the  name,  sex,  breed,  age,  color  and  marking  of  the  dog  for  which 
a license  is  sought. 

Licenses  first  obtained  hereunder  shall  be  applied  for  on  or  before 
July  first,  nineteen  hundred  and  seventeen.  Licenses  thereafter  issued 
shall  be  applied  for  on  before  March  first  in  each  year,  and  shall  continue 

1.  What  constitutes  harboring  a dog.  Affording  shelter  or  protection  to  a dog, 
temporarily  or  permanently,  is  “harboring”  within  the  meaning  of  this  section. 
Robinson  v.  Rowland,  26  Hun,  501. 

The  situs  of  a dog  for  the  purpose  of  taxation,  under  the  above  section,  is  the 
place  or  town  where  he  is  kept  or  harbored,  and  not  the  residence  of  his  owner. 
Arnold  v.  Ford,  53  App.  Div.  25;  65  N.  Y.  Supp.  528.  The  court  (per  Kellogg,  J.), 
says  in  this  case:  “ The  entire  law  seems  to  form  a scheme  of  taxation  wholly  dif- 

ferent from  the  general  scheme  of  taxation  of  personal  or  real  property,  and  the  tax 
wThen  collected  forms  a special  fund  to  defray  the  depredations  of  dogs  upon  sheep. 
A fair  construction  of  the  law,  it  seems  to  me,  discloses  a clear  intention  to  compel 
the  owner  or  possessor  of  a dog  to  pay  the  tax  into  this  sheep  fund  in  the  town 
where  the  dog  is  kept,  and  to  pay  the  tax  once  each  year.  If  the  payment  cannot 
be  enforced,  then  it  is  made  the  duty  of  the  collector  to  kill  the  dog.  This  clearly 
shows  the  intention  of  the  legislature  to  make  the  situs  of  the  dog,  for  the  purposes 
of  this  tax,  to  be  the  place  or  town  where  he  is  kept  or  harbored. 


DOGS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS.  653 

Agricultural  Law,  § 134. 

for  a term  of  one  year.  Licenses  shall  not  be  required  for  dogs  under  the 
age  of  four  months,  or  under  the  age  of  six  months  if  the  owner  be  the 
breeder  thereof.  If  such  dog  shall  become  of  the  age  of  four  months,  or  of  six 
months  if  the  owner  be  the  breeder  thereof,  after  the  first  day  of  March,  or 
if  a person  shall  become  the  owner  of  an  unlicensed  dog  after  such  date,  or  if 
a license  issued  under  existing  laws  prior  to  the  taking  effect  of  this  act  shall 
expire  after  such  date,  the  license  fee  for  the  balance  of  the  twelve  months 
shall  be  a proportionate  part  of  the  fee  charged  for  one  year,  and  the  fee  of 
twenty-five  cents  for  the  registration  of  such  dog.  Each  license  of  a dog 
first  issued  shall  take  effect  when  issued,  and  shall  expire  on  the  last  day 
of  February  following  its  issuance.  Each  license  in  renewal  of  a license 
already  issued  shall  be  for  a term  of  one  year  beginning  on  March  first. 
[Agricultural  Law,  § 132,  as  added  by  L.  1917,  ch.  800,  and  amended  by 
L.  1918,  ch.  439.] 

Special  kennel  licenses. — The  owner  of  a kennel  may  apply  for  and  obtain 
a special  kennel  license,  wrhich  shall  be  in  lieu  of  the  license  issued  under  this 
chapter  for  each  dog  harbored  or  kept  in  such  kennel.  Upon  the  procuring 
of  such  special  license  for  a kennel,  the  owner  or  owners  thereof  shall  be 
exempt  from  any  further  license  fee  in  respect  to  such  dogs  for  the  year 
for  which  such  license  is  issued.  The  applicant  shall  present  with  his 
application  for  a kennel  license  a registry  certificate  of  the  registry  associa- 
tion registering  the  dogs  in  such  kennel.  A copy  of  such  certificate  shall 
be  filed  with  the  city  or  town  clerk.  If  the  owner  of  a kennel  shall  harbor 
or  keep  a dog  which  is  not  covered  by  such  a certificate,  such  dog  shall  be 
licensed  separately  and  the  same  fee  paid  as  in  the  case  of  other  dogs.  A 
kennel  license  shall  continue  for  the  same  period  as  licenses  issued  under 
the  preceding  section.  [Agricultural  Law,  § 133,  as  added  by  L.  1917,  ch. 
800.] 

§ 4.  ASSESSORS  TO  PREPARE  LISTS  OF  DOGS. 

The  assessors  of  each  town  or  police  department  of  a city  shall  annually 
in  the  month  of  June  ascertain  by  due  inquiry  the  dogs  owned,  harbored 
or  kept  in  such  town  or  city.  Each  owner  of  a dog  shall  answer  all  ques- 
tions relative  to  ownership  of  such  dog,  and  if  he  answers  falsely  or  refuses 
to  answer  such  questions,  he  shall  be  subject  to  a penalty  of  ten  dollars,  to 
be  recovered  in  an  action  brought  therefor  as  hereinafter  provided. 

The  assessors  in  each  town  and  the  police  department  of  each  city  shall 
prepare  a list  containing  the  names  and  addresses,  by  street  and  number, 
if  any,  of  the  owners  of  dogs  in  such  town  or  city,  and  the  number  and  sex 
of  dogs  owned,  harbored  and  kept  by  each  owner,  and  whether  such  dogs 
are  kept  or  harbored  in  kennels.  Such  list  shall  be  prepared  in  duplicate, 
one  of  which  shall  be  filed  with  the  town  or  city  clerk  and  the  other  with  the 
department  of  farms  and  markets,  on  or  before  the  tenth  day  of  July  follow- 


654  DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

Agricultural  Law,  §§  135,  137,  136. 

ing.  The  assessors  shall  receive  as  compensation  for  their  services  the 
sum  of  twenty  cents  for  each  dog  listed  by  them,  which  shall  be  paid  out  of 
the  state  treasury  out  of  moneys  appropriated  for  the  enforcement  of  the 
provisions  of  this  chapter.  [Agricultural  Law,  § 134,  as  added  by  L.  1917, 
ch.  800,  and  amended  by  L.  1918,  ch.  439.] 

§ 5.  ISSUANCE  OF  LICENCES;  PENALTY  FOR  FAILURE  TO  OBTAIN 
REGISTRY  OF  LICENCES. 

Issuance  of  licenses;  penalty  for  failure  to  obtain. — A license  shall  be 
issued  upon  application  being  made  therefor  and  upon  payment  of  the  fee 
hereinbefore  prescribed.  Such  license  shall  be  in  the  form  prescribed  by 
the  department  of  farms  and  markets,  and  shall  be  executed  by  the  town  or 
city  clerk.  Each  license  shall  state  the  year  for  which  it  was  issued  and 
shall  bear  a serial  number.  An  owner  of  a dog,  who  fails  or  refuses  to 
obtain  a license  for  such  dog  within  thirty  days  after  he  is  required  to  do  so 
under  the  provisions  of  this  chapter,  shall  be  subject  to  a penalty  of  ten 
dollars.  [Agricultural  Law,  § 135,  as  added  by  L.  1917,  ch.  800,  and 
amended  by  L.  1918,  ch.  439.] 

Registry  of  licenses. — The  town  or  city  clerk  shall  register  the  dogs 
and  kennels  licensed  under  the  provisions  of  this  chapter,  in  a book  to  be 
provided  for  such  purpose.  The  books  for  the  registry  of  such  licenses 
shall  be  furnished  by  the  department  of  farms  and  markets  and  shall  be  kept 
in  the  manner  prescribed  by  it.  Such  registry  shall  contain  the  name  of  the 
owner  of  the  dog  or  kennel  licensed,  the  date  of  the  license,  and  the  number 
of  the  tag  or  tags  issued  for  each  licensed  dog  or  kennel.  Such  clerk  shall 
furnish,  upon  the  demand  of  the  department  of  farms  and  markets  tran- 
scripts of  the  whole  or  any  part  of  such  registry,  and  of  any  other  records 
required  to  be  kept  by  this  chapter,  and  shall  receive  therefor  compensation 
to  be  fixed  by  the  department.  [Agricultural  Law,  § 137,  as  added  by  L. 
1917,  ch.  800,  and  amended  by  L.  1918,  ch.  439.] 

% 6.  TAGS;  HOW  FURNISHED  AND  ATTACHED;  BLANKS  AND 
FORMS. 

Tags  to  be  furnished;  how  attached. — The  city  or  town  clerk  issuing 
such  license  shall  at  the  time  of  the  issuance  thereof  deliver  to  the  owner  a 
metal  tag.  Such  tag  shall  bear  the  same  date  and  serial  number  as  the 
license.  The  owner  of  the  dog  so  licensed  shall  place  and  keep  around  the 
neck  of  such  dog  a collar  of  leather  or  other  suitable  material,  and  shall 
attach  such  tag  to  such  collar  by  means  of  rivets,  metal  bands  or  other  suit- 
able devices.  xAn  owner  of  a dog  shall  not  permit  a licensed  dog  to  be  without 
such  collar  and  tag  during  the  period  of  the  license. 

And  where  the  license  thus  issued  is  the  special  kennel  license  herein- 
before provided  for,  it  shall  be  the  duty  of  the  city  or  town  clerk  to  deliver 
to  the  person  to  whom  the  special  kennel  license  is  delivered  as  many  metal 


DOGS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


655 


Agricultural  Law,  §§  138,  139. 

tags  as  there  are  dogs  over  six  months  of  age  covered  by  such  special  license. 
The  town  or  city  clerk  shall  also  be  paid  by  the  person  to  whom  the  same  is 
issued  a tag  fee  of  twenty-five  cents  for  each  tag  issued. 

A new  tag  with  a new  number  shall  be  furnished  to  the  owner  of  a licensed 
dog  by  the  city  or  town  clerk,  in  place  of  the  original  tag,  upon  presentation 
of  the  license  and  proof  of  the  loss  of  such  original  tag.  The  clerk  shall 
endorse  the  new  number  of  such  tag  on  such  license,  and  shall  enter  it  upon 
the  registry.  The  clerk  shall  receive  for  his  services  in  issuing  such  new 
tag  the  sum  of  twenty-five  cents.  [Agricultural  Law,  § 136,  as  added  by 
L.  1917,  ch.  800.] 

Tags  and  blanks  to  be  furnished  by  department  of  farms  and  markets ; 
forms. — The  forms  of  applications  for  licenses  and  of  other  statements, 
reports,  certificates  and  papers  required  to  be  filed  or  presented  under  the 
provisions  of  this  chapter  shall  be  prescribed  by  the  department  of  farms 
and  markets.  The  department  shall  furnish  to  each  town  or  city  clerk 
(1)  a sufficient  number  of  blank  applications  for  licenses  and  licenses  for 
the  use  of  such  clerk  in  licensing  dogs  as  provided  herein;  (2)  blank  state- 
ments, reports,  certificates  and  other  documents  required  for  the  purposes 
of  this  chapter;  (3)  a sufficient  number  of  suitable  metal  tags  required  to  be 
worn  by  dogs  licensed  as  provided  in  this  chapter.  The  cost  of  such  blanks 
and  tags  shall  be  paid  by  the  department  out  of  moneys  appropriated 
therefor.  [Agricultural  Law,  § 138,  as  added  by  L.  1917,  ch.  800,  and 
amended  by  L.  1918,  ch.  439.] 

§ 7.  KILLING  UNLICENSED  DOG;  KILLING  DOG  ATTACKING  ANI- 
MALS; DOGS  RUNNING  AT  LARGE;  DOG  KILLED  ON  COURT 
ORDER. 

Killing  unlicensed  dog. — The  fact  that  a dog  is  without  a tag  attached 
to  a collar,  as  hereinbefore  required,  shall  be  presumptive  evidence  that 
such  dog  is  unlicensed  and  that  a tag  was  not  issued  and  attached  as  so 
required.  An  action  shall  not  be  maintained  for  an  injury  to  or  destruc- 
tion of  a dog  without  a tag,  unless  it  shall  appear  affirmatively  that  such 
dog  was  duly  licensed  under  this  chapter  and  that  a tag  was  duly  fastened 
to  the  collar  of  the  dog  and  was  lost  or  removed  without  the  owner’s  knowl- 
edge or  consent. 

A representative  designated  by  the  department  of  farms  and  markets,  or 
any  peace  officer,  shall  seize  an  unlicensed  dog,  either  on  or  off  the  owner’s 
premises,  or  if  the  dog  be  not  delivered  to  him  by  the  owner  on  request  and 
he  cannot  with  reasonable  effort  secure  him,  he  may  after  pursuit,  kill  the 
dog.  If  the  owner  of  the  dog  so  seized  does  not,  within  five  days  after  such 
seizure,  obtain  a proper  license,  and  pay  the  sum  of  two  dollars  as  the  cost 
of  seizure,  such  dog  may  be  killed  or  sold  by  such  representative  or  peace 
officer.  The  proceeds  of  the  sale  and  the  charge  made  for  such  seizure 
shall  be  paid  into  the  state  treasury.  Peace  officers  either  seizing  or  killing 


656 


DIVISION  FENCES;  STEAYED  ANIMALS;  DOGS. 
Agricultural  Law,  §§  139,  139a. 


or  both  seizing  and  killing  dogs  under  the  provisions  of  this  section  shall 
be  paid  two  dollars  for  each  dog  seized  and  one  dollar  for  each  dog  killed. 

Incorporated  societies  for  the  prevention  of  cruelty  to  animals,  humane, 
or  other  like  associations  or  corporations,  now  performing  duties  or  exer- 
cising functions  with  reference  to  dogs  in  cities,  under  existing  provisions  of 
law  or  contracts  entered  into  by  them  with  the  several  cities  of  the  state 
in  which  such  duties  or  functions  are  performed  or  exercised,  shall  continue 
to  perform  such  duties  or  exercise  such  functions  in  accordance  with  such 
provisions  of  law  or  the  terms  of  such  contract.  A city  may  designate  a 
humane  or  other  like  association  or  corporation,  or  any  of  the  officers  or 
agents  thereof,  or  any  city  officer  or  officers  to  enforce  the  provisions  of  this 
article  in  such  city,  and  may  fix  the  compensation  or  salary  of  the  person 
or  persons,  association  or  corporation  performing  the  services,  and  may 
provide  for  the  disposition  of  fees  earned  in  the  performance  of  such  duties, 
either  .by  payment  into  the  city  treasury  or  otherwise.  But  the  department 
of  farms  and  markets  may  by  an  order  revoke  the  right  of  any  such  society, 
association  or  corporation,  or  officer  or  agent  thereof  to  perform  such  duties 
or  exercise  such  functions,  if,  after  notice  to  such  society,  association,  cor- 
poration, or  officer  or  agent  thereof,  and  a hearing  thereon,  it  shall  appear 
that  such  society,  association,  corporation,  officer  or  agent,  has  failed  to 
discharge  properly  its  duties  or  functions  under  such  provisions  of  law  or 
contracts,  and  may  designate  any  such  association,  corporation,  officer  or 
agent  or  a representative  of  the  department  to  enforce  the  provisions  of  this 
article  in  the  place  of  the  association  or  corporation,  officers  or  agents  whose 
authority  is  so  revoked.  Such  order  shall  not  be  effective  until  approved  by 
the  governor.  Whenever  requested  by  any  municipality,  it  shall  be  the  duty 
of  the  department  of  farms  and  markets  to  permit  impounded  dogs  re- 
quired to  be  killed  under  this  chapter,  to  be  killed  by  or  under  the  direction 
of  such  a society,  association  or  corporation.  Contracts  hereafter  entered 
into  between  an  incorporated  society  for  the  prevention  of  cruelty  to  animals 
and  the  mayor  of  a city  of  the  second  class,  under  the  provisions  of  section 
two  hundred  and  thirty  of  the  second  class  cities  law,  shall  be  subject  to  the 
approval  of  the  department  of  farms  and  markets  and  shall  when  so  ap- 
proved be  in  full  force  and  effect,  subject  to  the  provisions  of  this  article ; 
provided,  however,  that  the  compensation  to  be  paid  under  such  contracts 
shall  not  exceed  the  amount  of  the  surplus  apportioned  to  such  cities  as 
provided  in  this  article.  Any  city  or  town  may  impose  restrictions  and 
limitations  upon  the  keeping  and  running  at  large  of  dogs  within  such  city 
or  town,  although  such  limitations  or  restrictions  are  not  otherwise  im- 
posed by  this  article.  [Agricultural  Law,  § 139  as  added  by  L.  1917,  ch. 
800,  and  amended  by  L.  1918,  ch  439.] 

Dog  to  be  frilled  for  attacking  animals. — Any  person  may  kill  a dog 
while  it  is  attacking,  chasing  or  worrying  any  domestic  animal  having  a 


DOGS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


657 


Agricultural  Law,  § 139b. 

commercial  value,  or  attacking  fowls,  or  while  such  dog  is  being  pursued 
thereafter.  [Agricultural  Law,  § 139a,  as  added  by  L.  1917,  ch.  500.] 

Dogs  running  at  large;  order  of  department  of  farms  and  markets. — 
The  department  of  farms  and  markets  on  its  own  motion  or  on  the  applica- 
tion of  at  least  two  residents,  may  issue  an  order  restraining  the  owner  of  a 
dog,  to  be  described  in  such  order  as  dangerous  to  persons,  domestic  animals 
or  fowls,  from  permitting  such  dog  to  run  at  large  outside  of  and  away 
from  the  premises  of  the  owner,  during  a time  to  be  specified  in  such  order. 
Such  order  shall  be  served  personally  or  by  registered  mail  on  the  owner, 
or  in  case  of  his  absence  on  an  adult  member  of  the  family  or  person  in 
charge  of  the  premises  where  such  dog  is  harbored. 

An  owner  of  a dog  who,  after  the  service  of  such  order,  causes  or  permits 
such  dog  to  run  at  large  in  violation  of  such  order,  shall  be  subject  to  a 
penalty  of  twenty-five  dollars  for  each  offense. 

Whenever  in  the  judgment  of  the  department  of  farms  and  markets 
other  regulations  in  this  article  for  the  supervision  of  dogs  and  the  pro- 
tection of  domestic  animals  and  fowls  have  proved  inadequate  for  such  pur- 
poses in  a town  or  county  or  part  thereof,  the  said  department  may  make 
and  publish  an  order  that  the  dogs  in  such  town  or  county,  or  part  thereof, 
shall  be  securely  confined  between  sunset  and  one  hour  after  sunrise  during 
such  portion  of  the  year  as  may  be  deemed  necessary  by  this  department. 
Such  order  shall  be  posted  in  at  least  three  public  places  in  such  town  and 
published  in  a newspaper  if  any  published  in  such  town,  and  if  there  be  no 
such  newspaper,  in  a newspaper,  if  any,  published  in  the  county  in  which 
such  town  is  located;  provided  that,  if  such  order  shall  apply  to  a county 
or  part  thereof,  it  shall  be  posted  in  three  public  places  in  each  town  of 
such  county  or  part  thereof  and  published  in  three  newspapers  published 
in  such  county,  if  so  many  newspapers  are  published  in  such  county,  and 
if  not  in  such  newspapers  as  are  published  in  the  county.  If  any  owner 
of  a dog  or  person  harboring  the  same,  refuse  or  neglect  to  confine  his  dog 
within  one  week  after  such  posting  and  publication  as  required  by  such  order 
he  shall  forfeit  the  sum  of  ten  dollars  to  be  recovered  by  the  department  of 
farms  and  markets,  and  any  representative  of  the  department  or  policeman, 
constable  or  other  peace  officer  shall  seize  and  impound  a dog  permitted  to 
run  at  large  in  violation  of  said  order  and  hold  the  same  until  said  penalty 
is  paid,  and  if  not  paid  within  five  days,  kill  the  said  dog  in  the  same  manner 
as  if  the  dog  had  not  been  licensed  and  tagged  under  the  provisions  of  this 
article. 

The  duly  designated  representative  of  the  department  or  any  peace  officer 
shall,  and  any  other  person  may,  kill  on  sight  any  dog  running  at  large  in 
violation  of  this  section,  provided  he  shall  first  have  made  reasonable  effort 
to  secure  said  dog  and  failed. 

When  seizure  of  a dog  is  made  under  any  of  the  provisions  of  this  article 


658  DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

Agricultural  Law,  §§  139c,  139d. 

notice  of  such  seizure  shall  be  immediately  given  to  the  owner  thereof  if  he 
may  be  found  upon  reasonable  inquiry  within  the  time  during  which  such 
dog  is  required  to  be  held  prior  to  his  disposal  as  provided  herein.  Such 
notice  may  be  served  upon  the  owner  either  personally,  by  registered  mail, 
or  in  case  of  the  absence  of  the  owner  from  home  by  leaving  a copy  thereof 
with  the  person  in  charge  of  the  premises  where  such  dog  was  harbored. 
Every  dog  seized  under  the  provisions  of  this  article  shall  be  properly  fed 
and  cared  for  by  and  at  the  expense  of  such  town  or  city  until  disposition 
thereof  be  made  as  herein  provided.  [Agricultural  Law,  § 139-b,  as  added 
by  L.  1917,  ch.  800,  and  amended  by  L.  1918,  ch.  439.] 

Dog  killed  on  order  of  court  or  justice. — If  a dog  shall  attack  a person 
who  is  peaceably  traveling  upon  a street  or  highway  or  is  otherwise  peace- 
ably conducting  himself  on  premises  where  he  may  lawfully  be,  or  shall 
attack  his  horse  or  team  or  any  domestic  animal  having  a commercial  value, 
w'hich  is  peaceably  traveling  on  a street  or  highway  in  charge  of  such  person, 
or  on  premises  where  it  may  lawfully  be,  and  complaint  thereof  be  made 
by  the  person  attacked,  or  if  a child  by  his  parent  or  guardian,  or  in  case 
of  an  animal,  by  the  owner  or  person  in  charge  of  the  same,  or  by  a duly 
designated  representative  of  the  department  of  farms  and  markets,  or  any 
peace  officer,  to  a justice  of  the  peace  of  the  town  or,  within  a city,  to  a 
police  justice  or  judge  of  a municipal  court  having  the  general  jurisdiction 
of  a justice  of  the  peace,  such  justice  or  court  shall  inquire  into  the  com- 
plaint, upon  notice  of  not  less  than  three  days  to  the  owner  of  the  dog. 
If  upon  investigation  of  the  facts  he  is  satisfied  of  the  truth  of  the  com- 
plaint, such  justice  or  court  shall  order  the  owner  to  kill  the  dog  immedi- 
ately. An  owner  who  fails  to  kill  such  dog  within  forty-eight  hours  after 
the  service,  either  personally  or  by  registered  mail,  upon  him  of  such  order, 
shall  be  subject  to  a penalty  of  twenty-five  dollars,  and  the  further  penalty 
of  two  dollars  for  each  twenty-four  hours  thereafter  until  the  dog  is  killed. 
If  such  order  be  issued  and  the  owner  fails  to  kill  such  dog  as  required 
therein,  a duly  designated  representative  of  the  department  of  farms  and 
markets  or  any  peace  officer  shall  kill  such  dog  on  or  off  the  premises  of  the 
owner,  and  any  person  may  kill  such  dog  if  running  at  large  off  the  premises 
of  the  owner.  [Agricultural  Law,  § 139-c,  as  added  by  L.  1917,  ch.  800, 
and  amended  by  L.  1918,  ch.  439.] 

§ 8.  TOWN  AND  CITY  CLERKS  TO  REPORT  FAILURE  TO  PAY; 

PENALTIES;  FEES  OF  OFFICERS  AND  MAGISTRATES. 

If  any  owner  of  a dog  in  a town  or  city  neglects  or  refuses  to  obtain  a 
license  and  pay  the  license  fee  to  the  town  or  city  clerk  as  herein  required, 
the  town  or  city  clerk  shall,  with  ten  days  from  the  date  upon  which  such 
payment  is  required  to  be  made,  report  such  fact  to  a justice  of  the  peace 
or  other  magistrate  in  the  town  or  city  where  such  owner  resides  and  to  the 


DOGS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


659 


Agricultural  Law,  § 139e. 

department  of  farms  and  markets.  Such  justice  of  the  peace  or  magistrate 
shall  forthwith  issue  an  order  signed  by  him  directed  to  any  constable,  police- 
man or  peace  officer  of  such  town  or  city  requiring  him  to  seize  and  impound 
such  dog.  He  shall  keep  the  dog  impounded  for  a period  of  five  days,  and 
if  within  that  time  the  owner  of  the  dog  obtains  a license,  and  pays  to  the 
town  or  city  clerk  the  license  fee  and  in  addition  thereto  the  sum  of  two 
dollars,  such  dog  shall  be  returned  to  the  owner.  If  such  license  is  not  so 
obtained  and  such  sum  so  paid  within  such  time  the  dog  shall  be  killed  by 
the  officer  seizing  and  impounding  him.  The  peace  officer  shall  within 
twenty-four  hours  after  the  seizure  of  the  dog  report  the  same  to  the  justice 
of  the  peace  or  magistrate  issuing  the  order. 

A constable,  policeman  or  peace  officer  to  whom  shall  be  delivered  such 
order  shall  be  paid  for  each  dog  seized  by  him  in  pursuance  of  such  order 
the  sum  of  two  dollars  and  for  each  impounded  dog  killed  by  him,  an  addi- 
tional sum  of  one  dollar.  He  shall  also  be  paid  for  each  mile  necessarily 
traveled  in  complying  with  such  order,  the  sum  of  five  cents  per  mile  to  be 
audited  and  allowed  by  the  justice  of  the  peace  or  magistrate  issuing  such 
order,  not  exceeding  in  any  case  the  sum  of  two  dollars.  The  justice  of 
the  peace  or  magistrate  shall  be  entitled  to  receive  as  a fee  for  each  order 
issued  by  him  the  sum  of  twenty  cents  for  each  dog  directed  to  be  seized 
thereunder;  but  a single  order  shall  be  issued  to  cover  all  dogs  included  in 
a single  report  as  not  being  duly  licensed,  and  the  total  sum  charged  for 
such  single  order  shall  not  exceed  the  sum  of  three  dollars.  The  justice  of 
the  peace  or  the  magistrate  and  the  constable,  policeman  or  peace  officer 
-entitled  to  such  fees  shall  make  out  and  file  with  the  town  or  city  clerk 
vouchers,  in  the  form  and  manner  prescribed  by  the  department  of  farms 
and  markets  showing  the  fees  to  which  they  are  entitled  under  this  section, 
and  upon  the  allowance  thereof  the  same  shall  be  paid  by  such  town  or  city. 

If  a town  or  city  clerk  fail  to  make  within  the  specified  time  a report 
containing  the  names  of  the  owners  of  dogs  who  have  neglected  or  refused 
to  obtain  licenses  for  such  dogs  and  pay  the  license  fee  as  herein  provided 
within  ten  days  after  such  neglect  or  refusal,  or  if  any  officer  receiving  an 
order  to  seize,  impound  or  kill  any  dog,  fail  or  refuse  to  execute  said  order 
within  ten  days,  he  shall  forfeit  the  sum  of  ten  dollars  to  be  collected  by  the 
department  of  farms  and  markets.  [Agricultural  Law,  § 139d,  as  added 
by  L.  1917,  ch.  800,  and  amended  by  L.  1918,  ch.  439.] 

§ 9.  DAMAGES  FOR  INJURIES  CAUSED  BY  DOGS;  ASSESSORS  TO 
ASCERTAIN  DAMAGES;  PAYMENT  OF  CLAIM  BY  STATE. 

Damages  for  injuries  caused  by  dogs. — The  owner  of  a dog  which  shall 
attack,  chase,  worry,  injure  or  kill  domestic  animals  or  fowls  shall  be  liable 
for  the  damages  caused  thereby,  to  be  recovered  as  herein  provided,  for  the 


660 


DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 


Agricultural  Law,  § 139f. 

benefit  of  the  owner  of  such  domestic  animals  or  fowls.  Such  damages  shall 
equal  the  value  of  the  animals  or  fowls  killed,  or  if  not  killed,  the  amount 
of  the  damages  caused  by  the  injury  of  such  animals  or  fowls,  and  if  the 
damage  suffered  amounts  to  twenty-five  dollars  or  more  there  shall  be 
added  thereto  the  sum  of  ten  dollars  as  liquidated  damages  for  the  injury 
caused  by  such  dog.  If  sheep  are  attacked,  chased  or  worried,  the  amount 
of  damages  to  be  recovered  shall  be  as  above  provided,  and  such  additional 
or  increased  damages  as  may  appear  subsequently  to  have  been  suffered  in 
the  flock  attacked,  chased  or  worried  by  such  dog.  [Agriculural  Law, 
§ 139e,  as  added  by  L.  1917,  ch.  800,  and  amended  by  L.  1918,  ch.  439.] 
Amount  of  damages  to  be  paid  by  the  county ; assignment  of  claim  to 
state. — The  owner  of  domestic  animals  or  fowls  attacked,  chased,  worried, 
injured  or  killed  by  a dog  or  dogs  shall  within  ten  days  after  discovery  there- 
of give  notice  of  claim  to  any  assessor  of  the  city  or  town  where  such  animals- 
or  fowls  were  so  attacked,  chased,  worried,  injured  or  killed,  that  he  makes  a 
claim  therefor  and  requests  that  the  damages  be  ascertained.  Such  notice 
of  claim  shall  set  forth  the  facts,  as  claimed,  including  a description  of 
such  animals,  the  time  and  place  where  the  claimant  believed  they  were 
attacked,  chased,  worried,  injured  or  killed,  and  such  other  circumstances 
in  connection  therewith  as  may  be  within  his  knowledge.  The  assessors,  or 
a majority  of  them,  shall  thereupon  at  a time  and  place  to  be  designated  by 
them  inquire  into  the  matter,  and,  if  necessary,  examine  witnesses  in  rela- 
tion thereto.  If  after  such  inquiry  they  shall  determine  that  such  animals 
or  fowls  were  so  attacked,  chased,  worried,  injured  or  killed  by  a dog  or 
dogs,  they  shall  make  a certificate  of  such  fact,  the  number  and  kind  of 
animals  or  fowls,  and  the  amount  of  damages  if  any,  caused  thereby.  Such 
certificate  shall  also  specify  the  amounts  of  their  fees,  which  shall  not  exceed 
three  dollars  each  for  all  services  in  connection  with  one  claim.  The  differ- 
ence between  the  value  of  the  animals  or  fowls  before  and  such  value  after 
the  occurrence  of  the  acts  on  which  the  claim  is  based,  shall  be  the  meas- 
ure of  damages,  to  which  shall  be  added  liquidated  damages  when  allowed 
as  herein  provided.  Such  certificate  shall  be  filed  in  the  office  of  the  de- 
partment of  farms  and  markets.  The  department  may  approve,  reject  or 
modify  the  determination  of  the  assessors.  If  additional  or  increased  dam- 
ages are  claimed  on  account  of  a flock  of  sheep  being  attacked,  chased  or 
worried,  accruing  subsequent  thereto  and  not  apparent  at  the  time  of  the 
first  appraisal  of  damages  to  the  flock,  a supplemental  notice  of  claim  for 
such  damages  may  be  given  to  the  department  of  farms  and  markets,  at  any 
time  within  one  year  from  the  discovery  of  the  original  damages.  Such  sup- 
plemental notice  of  claims  shall  set  forth  the  facts  required  to  be  specified  in 
the  original  notice  and  also  the  facts  upon  which  such  additional  or  increased 
damages  are  based.  The  department  of  farms  and  markets  shall  cause  such 
claim  to  be  referred  to  the  assessors  of  the  town  or  city  where  such  damages 


DOGS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


661 


Agricultural  Law,  § 139f. 

accrued,  and  the  same  proceedings  shall  be  had  thereon  as  in  the  case  of 
an  original  claim. 

After  passing  on  the  claim,  the  department  shall  cause  to  be  executed  a 
certificate  in  duplicate,  containing  the  name  of  the  owner  of  such  animals 
or  fowls  and  the  amount  of  the  damages  ascertained  as  herein  provided. 
One  of  such  certificates  shall  be  filed  in  the  office  of  the  comptroller,  and  the 
other  delivered  to  the  owner.  The  department  shall  cause  such  certificate, 
with  notice  of  the  filing  thereof,  to  be  sent  by  mail  to  the  person  in  whose 
favor  the  certificate  was  issued.  Within  twenty  days  from  the  date  of  mail- 
ing such  certificate,  the  person  in  whose  favor  it  was  issued  may  file  a pe- 
tition with  the  department  of  farms  and  markets  for  a review  of  the  deter- 
mination of  the  assessors,  and  the  department  shall  cause  an  investigation 
to  be  made  of  the  facts  upon  which  such  determination  was  based.  The 
department  may  designate  an  inspector  to  hear  the  evidence  to  be  sub- 
mitted as  to  the  claim  of  the  petitioner.  The  department  shall  cause  notice 
of  the  time  and  place  of  the  investigation  or  hearing  to  be  given  to  the 
petitioner,  and  the  assessors  whose  determination  is  to  be  reviewed.  The 
department  shall  render  its  decision  on  such  review  to  be  made  within  sixty  ’ 
days  from  the  date  of  the  filing  of  the  petition,  which  decision  shall  be 
based  upon  the  facts  disclosed  upon  such  investigation  or  hearing,  and  a 
copy  of  such  decision  shall  be  delivered’  to  the  petitioner,  and  a copy  thereof 
shall  also  be  filed  with  the  comptroller.  The  person  to  whom  a certificate 
or  decision  on  review  allowing  any  damages  shall  be  issued,  or  his  assignee 
or  legal  representative,  may  present  the  same  for  payment  and  the  amount 
thereof  and  of  assessor’s  fees  shall  be  paid  to  such  person  and  assessors,  or 
their  assignees  or  legal  representatives,  by  the  state  treasurer  on  the  war- 
rant of  the  comptroller,  out  of  any  moneys  available  therefor,  upon  a proper 
receipt  being  signed  by  the  person  or  assessor  entitled  to  such  payment  and 
upon  the  presentation  of  an  assignment  to  the  state  of  the  claim  for  dam- 
ages against  the  owner  or  owners  of  the  dog  or  dogs  causing  such  damages. 
The  form  of  such  assignment  shall  be  prescribed  by  the  department  of  farms 
and  markets.  The  comptroller  shall  deliver  such  assignment  to  the  depart- 
ment. If  the  owner  of  the  animals  or  fowls  attacked,  chased,  worried,  in- 
jured or  killed  shall  not  present  to  the  comptroller  the  certificate  or  decision 
above  mentioned  within  six  months  after  the  execution  thereof,  he  shall 
be  deemed  to  have  rejected  the  determination  of  the  amount  of  compensa- 
tion to  be  paid  for  the  damages  incurred,  and  shall  be  liable  to  the  assessors 
for  their  fees,  and  the  amount  thereof  shall  not  be  paid  by  the  state,  except 
that  such  fees  shall  be  paid  by  the  state  if  such  person  fails  to  pay  the  same 
within  one  year  from  the  time  such  claim  is  filed.  [Agricultural  Law, 

§ 139f,  as  added  by  L.  1917,  ch.  800,  and  amended  by  L.  1918,  ch.  439. 1 


662  DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

Agricultural  Law,  §§  139g,  139h. 

§ 10.  REPORT  AS  TO  DOG  KILLED. 

Any  person  who  shall  kill  a dog  under  the  provisions  of  this  article  shall 
forthwith  report  in  writing  such  fact  to  the  town  or  city  clerk  or  to  a justice 
of  the  peace,  police  justice  or  other  magistrate  having  jurisdiction  of  the 
town  or  city  in  which  such  killing  took  place.  Such  report  shall  state  the 
name  and  address  of  the  person  who  killed  the  dog,  a description  of  the 
dog  killed,  together  with  the  time,  place  and  circumstances  of  the  killing 
and  the  disposition  made  of  the  carcass  of  the  dog.  Such  reports  shall  be 
open  to  public  inspection  at  any  reasonable  time  during  the  regular  office 
hours  of  the  office  in  which  they  are  filed.  A person  killing  a dog  under 
the  provisions  of  this  article  shall  dispose  of  the  carcass.  Any  person  fail- 
ing to  make  a report  shall  be  subject  to  a.  penalty  of  five  dollars  to  be  re- 
covered in  an  action  brought  therefor  as  provided,  in  this  article.  [Agri- 
cultural Law,  §139g,  as  added  by  L.  1917,  ch.  800,  and  amended  by  L.  1918, 
ch.  439.] 

§11.  DISPOSITION  or  FEES,  PENALTIES  AND  DAMAGES  RECOV- 
ERED. 

On  or  before  the  fifth  day  of  each  month  the  town  or  city  clerk  shall  re- 
mit to  the  department  of  farms  and  markets  the  amount  of  all  license  fees 
received  by  such  clerk  during  the  preceding  calendar  month,  except  that  in 
a city  or  village  where  under  the  laws  existing  at  the  time  of  the  taking 
effect  of  this  act,  any  portion  of  the  license  fees  for  licensing  dogs  is  paid 
into  the  police  pension  fund  in  such  city  or  village,  in  which  case  an  amount 
equal  to  the  amount  payable  from  license  fees  to  such  pension  fund  under 
the  laws  existing  prior  to  the  taking  effect  of  this  act  shall  be  deducted 
therefrom  and  be  paid  into  such  police  pension  fund.  He  shall  at  the  same 
time  transmit  to  the  department  of  farms  and  markets  a statement  show- 
ing the  number  of  dogs  of  each  sex  licensed  and  the  total  amount  of  license 
fees  received  for  each  sex.  Such  statement  shall  be  in  the  form  prescribed 
by  the  department  and  shall  contain  such  other  information  as  it  may  re- 
quire. The  amount  remitted  shall  not  include  the  tag  fees  collected  by  such 
clerk  as  compensation  for  his  services.  Such  tag  fees  shall  be  retained  by 
the  clerk  unless  his  office  be  salaried,  in  which  case  such  fees  shall  be  dis- 
posed of  as  provided  by  law. 

All  moneys  received  for  license  fees  and  all  penalties  recovered  under 
this  article  and  all  moneys  recovered  by  the  department  of  farms  and  mar- 
kets in  actions  brought  against  owners  of  dogs  on  account  of  assigned  claims 
for  damages  to  domestic  animals  or  fowls,  and  all  moneys  realized  on  the 
sale  of  unlicensed  dogs,  as  provided  in  this  chapter,  shall  be  paid  into  the 
state  treasury.  The  moneys  paid  into  the  state  treasury  under  this  sec- 
tion shall  so  far  as  necessary  be  apportioned  by  the  legislature  to  be  ex- 
pended for  the  enforcement  of  the  provisions  of  this  chapter  and  for  the 


DOGS;  DUTIES  OE  TOWN  AND  COUNTY  OFFICERS. 


663 


Agricultural  Law,  §§  1391,  139j. 

payment  of  compensation  for  damages  caused  by  dogs  to  domestic  animals 
or  fowls,  as  hereinbefore  provided.  [Agricultural  Law,  § 139h,  as  added 
by  L.  1917,  eh.  800,  and  amended  by  L.  1918,  ch.  439.] 

§ 12.  RECOVERY  OF  PENALTIES;  ACTIONS  FOR  DAMAGES. 

Penalties  imposed  by  this  chapter  shall  be  recovered  in  actions  brought 
by  the  department  of  farms  and  markets  in  a court  of  competent  jurisdic- 
tion. The  department  shall  when  it  deems  it  for  the  best  interests  of  the 
state,  cause  an  action  to  be  brought  in  the  name  of  the  department  against 
the  proper  parties  upon  a claim  for  damages  assigned  to  the  state  as  pro- 
vided in  this  chapter,  by  the  owner  of  domestic  animals  or  fowls.  The 
department  may  by  proper  written  authority  authorize  an  inspector  to 
bring  an  action  in  the  name  of  the  department  upon  such  assigned  claim 
or  for  the  recovery  of  such  penalties.  The  department  may,  in  its  discre- 
tion, compromise  or  settle  any  such  assigned  claim  for  damages.  [Agricul- 
tural Law,  § 139i,  as  added  by  L.  1917,  ch.  800,  and  amended  by  L.  1918, 
ch.  439.] 

§ 13.  APPORTIONMENT  TO  TOWNS  AND  CITIES  OF  SURPLUS 
MONEYS. 

In  the  month  of  January  in  each  year,  the  department  of  farms  and 
markets  shall  report  to  the  legislature  the  total  amount  paid  into  the  state 
treasury  pursuant  to  this  chapter  during  the  preceding  fiscal  year,  the  total 
amount  appropriated  by  the  legislature  for  the  enforcement  of  the  provisions 
of  this  act,  the  total  amount  expended  therefor,  the  total  amount  expended 
for  fees  of  assessors  as  provided  in  section  one  hundred  and  thirty-nine-f 
and  the  amount  paid  out  as  compensation  for  damages  to  owners  of  domestic 
animals  and  fowls  killed,  injured  or  damaged  by  dogs.  The  surplus  shall 
be  distributed  during  the  month  of  July  in  each  year  among  the  several 
towns  and  cities  of  the  state,  on  the  basis  of  and  in  proportion  to  the 
contributions  made  by  such  towns  and  cities  on  account  of  the  provisions 
of  this  chapter.  In  determining  the  share  of  such  surplus  to  be  distributed 
to  a town  or  city,  amounts  expended  in  a town  under  sections  one  hundred 
and  thirty-nine-b  and  one  hundred  and  thirty-nine-d  and  any  amount  paid 
on  account  of  damages  caused  by  dogs  owned  in  such  town  or  city  shall 
be  deducted  from  its  distributive  share.  If  the  distributive  share  of  a 
town  or  city  for  any  year  shall  be  less  than  the  total  of  the  amounts  so  ex- 
pended under  such  sections  and  paid  on  account  of  such  damages  in  such 
town  or  city  for  such  year,  the  excess  of  such  total  amount  over  such  dis- 
tributive share  shall  be  deducted  from  the  distributive  shares  of  such  town 
or  city  for  subsequent  years  until  such  excess  is  fully  paid.  If  damage  be 
done  by  unknown  dogs  it  shall  be  deducted  from  the  share  of  the  town  or 
city  in  which  the  damage  was  done.  The  department  of  farms  and  mar- 
kets shall  determine  the  amounts  to  be  apportioned  to  such  towns  and 
cities  and  the  same  shall  be  paid  to  the  proper  financial  officers  of  such 
towns  and  cities.  The  moneys  when  paid  to  any  such  city  or  town,  after 


664  DIVISION  FENCES;  STRAYED  ANIMALS;  DOGS. 

Agricultural  Law,  §§  139k,  1391. 

deducting  the  amount  required  to  be  paid  into  the  police  pension  fund  in 
a city  or  village  as  provided  in  section  one  hundred  and  thirty-nine-h,  shall 
be  first  applied  to  the  payment  of  any  valid  claims  arising  before  the  enact- 
ment of  this  article  against  such  city  or  town  for  damages  to  sheep  by  dogs 
and  otherwise;  the  balance,  if  any,  to  be  disposed  of  according  to  existing 
provisions  of  law  relating  to  the  dog  fund  in  force  before  the  enactment 
of  this  article.  [Agricultural  Law,  § 139j,  as  added  by  L.  1917,  ch.  800, 
and  amended  by  L.  1918,  ch.  439.] 

§ 14.  ENFORCEMENT  OF  PROVISIONS  OF  CHAPTER. 

The  department  of  farms  and  markets  shall  enforce  the  provisions  of  this 
chapter.  It  may  appoint  three  or  more  inspectors  who  shall,  under  the 
supervision  and  direction  of  the  department,  cause  such  provisions  to  be 
carried  into  effect  and,  for  such  purpose,  shall  have  the  powers  and  per- 
form the  duties  prescribed  by  him.  Each  inspector  shall  receive  an  annual 
salary  of  fifteen  hundred  dollars  and  his  necessary  expenses.  The  depart- 
ment may  designate  representatives  for  the  enforcement  of  the  provisions 
of  this  chapter,  and  shall  fix  their  compensation,  within  the  appropriations 
available  therefor.  [Agricultural  Law,  § 139k,  as  added  by  L.  1917,  ch. 
800,  and  amended  by  L.  1918,  ch.  439.] 

§ 15.  POUNDS  AND  DOG  CATCHERS  IN  CERTAIN  COUNTIES. 

The  board  of  supervisors  of  any  county  having  a population  of  over  one 
hundred  thousand,  according  to  the  last  preceding  federal  or  state  census 
or  enumeration,  exclusive  of  the  population  of  any  city  or  cities  in  such 
county,  may  establish  and  maintain  a pound  or  pounds  therein,  for  the  im- 
pounding of  dogs  under  the  provisions  of  this  article.  The  board  of  super- 
visors of  any  such  county  may  also  create  the  position  of  dog  catcher  and 
appoint  one  or  more  persons  thereto,  to  be  removable  at  the  pleasure  of  the 
board.  Any  such  dog  catcher  shall  have  all  the  powers  of  a constable,  police- 
man or  police  officer  with  respect  to  seizing,  killing  or  impounding  dogs  un- 
der the  provisions  of  this  article,  and  the  order  provided  for  in  section  one 
hundred  and  thirty-nine-d  may  be  directed  and  issued  to  any  dog  catcher 
with  the  same  force  and  effect  as  though  issued  to  a constable,  policeman  or 
police  officer.  The  board  may  provide  either  that  the  compensation  of  such 
dog  catchers  shall  consist  of  the  fees  provided  for  a constable,  policeman  or 
police  officer  under  this  article  or  that  they  receive  monthly  or  annual  sal- 
aries. The  expense  of  establishing  and  maintaining  a pound  or  pounds  shall 
be  a general  county  charge,  and  provided  for  by  tax,  in  the  same  manner  as 
other  county  charges.  [Agricultural  Law,  § 1391,  as  added  by  L.  1918,  ch. 
439.] 


DOGS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


665 


Conservation  Law,  § 193. 

§ 16.  DOGS  RUNNING  AT  LARGE  IN  FOREST  PRESERVE. 

No  dog  of  either  sex  shall  be  taken  into  the  Adirondack  or  the  Catskill 
Park,  or  into  forests  inhabited  by  deer,  or  harbored  or  possessed  therein, 
unless  the  owner  shall  first  obtain  a license  for  such  dog  from  the  commis- 
sion, and  pay  a fee  of  one  dollar  therefor.  The  license  shall  be  issued  by  the 
commission  in  its  discretion  and  under  such  rules  and  regulations  as  it  may 
deem  advisable,  and  shall  terminate  with  the  calendar  year  in  which  issued. 
A metal  tag  marked  with  a number  corresponding  to  the  number  of  the 
license  shall  be  issued  with  said  license,  and  shall  be  attached  to  a collar 
and  shall  be  at  all  times  worn  by  the  dog  so  licensed.2  [Conservation  Law, 
§ 193,  as  added  by  L.  1912,  ch.  318,  and  amended  by  L.  1915,  ch.  176,  and 
L.  1916,  ch.  521.] 


2.  Constitutionality;  action  to  recover  penalty.  The  enactment  of  the  provision 
of  this  section,  as  it  existed  prior  to  the  amendment,  which  prohibited  the  keeping 
or  possession  of  dogs  in  the  Adirondack  park  and  requiring  every  game  protector 
to  kill  any  dog  found  therein,  was  within  the  power  of  the  legislature.  The  com- 
plaint, in  an  action  to  recover  a penalty  for  a violation  of  said  section,  which  alleges 
that  defendant  on  or  about  a certain  date  wrongfully  and  unlawfully  kept  and  pos- 
sessed a dog  which  he  owned  or  harbored  and  permitted  to  run  at  large  in  the  public 
highway  in  the  town  of  Lake  Pleasant,  Hamilton  county,  in  this  state,  within  the 
Adirondack  park,  as  defined  by  section  51  of  chapter  444  of  the  Laws  of  1912,  states 
& cause  of  action.  People  v.  Call  (1914),  86  Misc.  246,  149  N.  Y.  Supp.  168. 


PART  VII. 


RELIEF  OF  POOR. 

CHAPTER  XLIV. 

SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES. 

EXPLANATORY  NOTE. 

Superintendents  of  the  Poor. 

Superintendents  of  the  poor  are  county  officers.  They  are  elected  by 
the  electors  of  the  county  in  the  same  manner  as  other  county  officers.. 
The  number  of  superintendents  varies  in  the  several  counties.  Nearly 
all  counties  have  but  one.  If  there  are  three  or  more  superintendents, 
the  board  of  supervisors  may  determine  that  thereafter  there  shall  be 
but  one ; so  also  where  there  is  one  superintendent  the  number  may  be 
changed  to  three.  All  vacancies  are  tilled  by  the  board  of  supervisors 
until  the  thirty-first  day  of  December  following  the  appointment,  or 
until  successors  are  elected  and  have  qualified. 

Powers  and  Duties  of  Superintendents  of  the  Poor. 

If  there  are  three  or  more  superintendents  of  the  poor  a majority 
may  act.  Such  superintendents  have  the  general  supervision  and  care 
of  poor  persons  in  the  county,  either  in  or  out  of  alms-houses.  They  do 
not  supersede  town  overseers  of  the  poor,  but  may,  unless  otherwise 
provided  by  law,  direct  and  advise  them  in  the  performance  of  their 
duties.  The  superintendent  is  directly  responsible  for  the  maintenance 
of  the  county  alms-house  and  the  care  and  government  of  the  inmates 
thereof.  His  chief  duties  pertain  to  such  alms-house,  and  unless  the 
board  of  supervisors  has  provided  for  a keeper  thereof,  he  occupies 
that  position. 


666 


SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES. 


6G7 


Explanatory  note. 

The  county  superintendent  is  to  settle  all  disputes  as  to  the  settle- 
ment of  poor  persons,  and  may  conduct  hearings  for  such  purpose.  The 
procedure  on  such  hearings  is  regulated  by  statute,  and  is  considered  in 
the  chapter  entitled  u Settlement  and  Place  of  Relief  of  Poor  Persons,” 
post. 

Where  poor  persons  are  maintained  at  the  entire  expense  of  the 
county,  the  superintendent  must  audit  and  settle  all  accounts  for  serv- 
ices relating  to  their  support,  relief  or  transportation.  County  poor 
are  as  a general  rule  to  be  supported  at  the  alms-house.  But  temporary 
assistance  may  be  afforded  by  the  superintendent,  and  such  poor  persons 
may,  when  they  may  be  properly  provided  for  elsewhere,  be  supported 
outside  of  the  alms-house  but  not  at  a greater  expense  than  they  may  be 
supported  at  the  alms-house. 

The  superintendent  may  direct  the  overseers  of  the  poor  of  the  sev- 
eral towns  to  support  county  poor  persons  within  their  towns,  where  no 
alms-house  is  provided. 

Alms-houses. 

The  county  superintendent  of  the  poor  is  responsible  for  the  main- 
tenance of  the  county  alms-house,  and  for  the  care  and  control  of  the 
inmates  thereof.  County  poor  persons  are  maintained  therein  at  the 
expense  of  the  county.  Where  poor  persons  residing  in  towns  are  sup- 
ported at  the  expense  of  towns,  the  superintendent  must  keep  accounts 
of  the  expense  of  maintaining  such  persons  in  the  alms-house,  and  the 
cost  thereof  is  chargeable  against  the  several  towns.  Only  the  amount 
actually  expended  can  be  charged  to  the  towns.  ISTo  charge  may  be 
made  for  the  products  of  the  county  farm.  The  farm  and  buildings 
are  for  the  benefit  of  the  towns  as  well  as  the  county.  The  superintend- 
ent must  annually  account  to  the  board  of  supervisors  for  the  amounts 
expended  in  behalf  of  the  town  poor,  and  the  towns  are  chargeable  with 
their  just  proportion  thereof,  which  amount  must  be  added  to  the  taxes 
to  be  levied  and  collected  in  each  town. 

Temporary  or  Out-T)oor  Relief  of  Poor  Persons. 

The  board  of  supervisors  may  make  rules  and  regulations  in  regard 
to  the  manner  of  furnishing  temporary  or  out  door  relief  to  the  poor  in 
the  several  towns.  If  the  board  of  supervisors  has  failed  to  make  such 


668 


RELIEF  OF  POOR. 


County  Law,  § 220. 

rules  and  regulations,  the  town  board  may  make  them.  Such  rules  and 
regulations  may  specify  the  amount  which  overseers  of  the  poor  may 
expend  for  the  relief  of  each  person  or  family.  Where  such  provision 
is  made  it  is  unnecessary  for  the  overseer  of  the  poor  to  procure  an 
order  for  the  supervisor  of  the  town  for  relief  of  such  person  or  family. 


Section  1.  Election,  appointment,  qualifications  and  terms  of  office  of  super- 
intendent of  the  poor. 

2.  Undertaking,  how  executed  and  approved;  contents. 

3.  Powers  and  duties  of  county  superintendents  of  the  poor. 

4.  One  of  superintendents  of  the  poor  may  be  appointed  as  keeper  of 
One  of  superintendents  of  the  poor  may  be  appointed  as  keeper  of 

almshouse;  compensation. 

5.  County  superintendent  may  direct  overseers  of  the  poor  to  take 

charge  of  county  poor. 

6.  Superintendents  to  provide  for  support  of  idiots  and  lunatics. 

7.  Pestilence  in  almshouse;  inmates  to  be  removed. 

8.  County  treasurer  to  keep  accounts  with  towns  for  moneys  paid  on 

account  of  poor;  superintendent  to  furnish  statement. 

9.  Superintendents  to  make  annual  apportionment  to  towns  of  amount 

expended  for  support  of  poor. 

10.  Amount  chargeable  to  towns  to  be  added  to  tax  levy. 

11.  Superintendent’s  estimate  for  expense  of  maintaining  county  poor; 

supervisors  to  cause  sufficient  amount  to  be  raised. 

12.  Superintendent  to  make  report  to  state  board  of  charities;  contents 

of  report. 

13.  Almshouse  register;  what  to  contain;  officers  to  furnish  information. 

14.  Board  of  supervisors  or  town  board  may  make  rules  and  regulations 

as  to  furnishing  temporary  relief. 

15.  Failure  of  officer  required  to  make  statement  or  report  as  to  the 

poor,  how  punished. 

16.  Poor  children  not  to  be  committed  to  almshouse  as  vagrants;  truants 

or  disorderly  persons;  support  of  poor  children  in  families  or 
charitable  institutions. 


§ 1.  ELECTION,  APPOINTMENT,  QUALIFICATIONS  AND  TERMS  OF 
OFFICE  OF  SUPERINTENDENT  OF  THE  POOR. 

There  shall  continue  to  be  elected  or  appointed  in  each  of  the  counties 
except  Kings,  Queens,  and  Richmond,  one  or  more  superintendents  of  the 
poor  as  heretofore;  but  no  supervisor  of  a town,  or  county  treasurer,  shall 
he  elected  or  appointed  to  such  office.1  The  board  of  supervisors  of  any 


1.  Removal  of  superintendents.  A county  superintendent  of  the  poor  is 


SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES. 


669 


County  Law,  § 220. 

county  having,  or  entitled  to  have  three  or  more  superintendents  of  the 
poor,  may,  at  an  annual  meeting  thereof,  determine  by  resolution  that 
thereafter  only  one  county  superintendent  of  the  poor  shall  be  elected; 
but  no  superintendent  of  the  poor  shall  be  elected  or  appointed  in  such 
county  until  the  general  election  next  preceding  the  expiration  of  the 
terms  of  the  superintendents  in  office,  or  the  office  shall  be  vacant.2  The 
term  of  any  superintendent  in  office,  or  of  any  person  duly  elected  thereto 
on  the  passage  of  such  resolution,  shall  not  be  affected  thereby.  Such 
board  may  also,  in  counties  having  and  entitled  to  have  but  one  superin- 
tendent of  the  poor,  in  like  manner  determine  that  thereafter  three 
superintendents  of  the  poor  be  elected  for  such  county.  After  the  passage 
of  a resolution,  as  herein  provided,  the  powers  herein  conferred  shall  not 
be  again  exercised  within  a period  of  five  years.  Such  resolution  shall  not 
take  effect  until  the  next  calendar  year  succeeding  its  adoption. 


removable  by  the  governor  after  an  opportunity  has  been  given  him  to  be  heard 
in  his  defense.  Public  Officers  Law,  sec.  33,  ante. 

The  expense  of  such  removal  is  a county  charge.  See  County  Law,  sec.  240, 
sub.  16,  ante. 

As  to  proceedings  before  the  governor  for  removal,  see  Public  Officers  Law, 
secs.  34,  35,  ante. 

Supervisor  not  to  be  superintendent  of  the  poor.  The  disqualification  of  a 
supervisor  to  the  office  of  a superintendent  of  the  poor  applies  to  supervisors  of 
wards  of  cities.  People  ex  rel.  Furman  v.  Clute,  50  N.  Y.  451. 

In  this  case  it  was  also  held  that  the  prohibition  makes  a supervisor  not  only 
ineligible  to  hold  office  of  superintendent,  but  also  ineligible  to  an  election  or 
appointment  thereto.  It  was  also  contended  in  this  case  that  the  restriction 
imposed  upon  a supervisor  and  a county  treasurer  was  unconstitutional,  since 
it  impairs  the  right  of  suffrage  by  limiting  the  right  of  the  elector  to  select  and 
vote  for  a candidate  from  the  whole  body  of  electors,  and  thus  interfered  with 
his  constitutional  right  to  vote;  but  the  court  held  that  the  act  permitting  the 
election  of  superintendents  of  the  poor  having  been  passed  after  the  adoption 
of  the  constitutional  provision,  the  right  to  vote  for  such  officers  was  a privilege 
granted  by  the  legislature,  and  could  be  limited  by  it. 

Provision  of  the  Constitution  (§5,  art.  10)  declaring  that  “ in  case  of  elective 
officers  no  person  appointed  to  fill  a vacancy  shall  hold  his  office  longer  than  the 
commencement  of  the  political  year,  next  succeeding  the  first  annual  election 
after  the  happening  of  the  vacancy  ” has  no  application  to  office  of  superin- 
tendent of  the  poor.  People  ex  rel.  Hatfield  v.  Comstock,  78  N.  Y.  356;  People 
ex  rel.  Furman  v.  Clute,  59  N.  Y.  451. 

2.  Determining  number  of  superintendents.  In  the  case  of  People  ex  rel. 
Hatfield  v.  Comstock,  78  N.  Y.  356,  it  was  held  that  superintendents  of  the  poor 
are  county  officers  whose  appointment  or  election  may  be  provided  for  by  the 
board  of  supervisors  as  the  legislature  shall  direct,  under  art.  10,  sec.  2 of  the 
Constitution.  The  delegation  to  the  board  of  supervisors  of  the  power  of 
determining  the  number  of  superintendents  and  of  filing  vacancies  is  con- 
stitutional. 


RELIEF  OF  POOR. 


g;o 


County  Law,  § 220. 


There  shall  continue, 

1,.  To  be  elected  annually  in  each  of  the  counties  so  having  and  being 
entitled  to  three  county  superintendents,  one  county  superintendent  of 
the  poor,  who  shall  hold  his  office  for  three  years  from  and  including  the 
first  day  of  January  succeeding  his  election,  and  until  his  successor  is 
duly  elected  and  qualifies; 

2.  To  be  appointed  by  the  board  of  supervisors,  if  in  session,  otherwise 
by  the  county  judge,  a county  superintendent  of  the  poor,  when  a vacancy 
shall  occur  in  such  office,  and  the  person  so  appointed  shall  hold  the  office 
until  and  including  the  last  day  of  December  succeeding  his  appointment, 
and  until  his  successor  shall  be  elected  and  qualifies; 

3.  To  be  elected  a county  superintendent  of  the  poor  in  a county  when 
a vacancy  shall  occur  in  such  office,  and  the  term  of  which  shall  not  expire 
on  the  last  day  of  the  next  succeeding  December,  and  the  person  so 
elected  shall  hold  the  office  for  such  unexpired  term,  which  shall  be 
designated  upon  the  ballots  of  the  electors,  or  until  his  successor  shall  be 
elected  and  qualifies; 

4.  To  be  elected  in  each  of  the  counties  so  having,  and  entitled  to  have 
but  one  superintendent,  a superintendent  of  the  poor,  who  shall  hold  his 
office  for  three  years  from  and  including  the  first  day  of  January  succeeding 
his  election,  and  until  his  successor  is  duly  elected  and  qualifies ; 

5.  To  be  appointed  by  the  board  of  supervisors,  if  in  session,  otherwise 
by  the  county  judge,  a superintendent  of  the  poor,  in  a county  having 
and  being  entitled  to  but  one  superintendent,  when  a vacancy  shall  occur 
in  such  office;  and  the  person  so  appointed  shall  hold  the  office  until  and 
including  the  last  day  of  December  succeeding  his  appointment,  and  until 
his  successor  shall  be  elected  and  qualifies; 

6.  To  be  elected  in  the  succeeding  year  after  the  board  of  supervisors 
of  a county  having  but  one  superintendent  of  the  poor,  shall  have  adopted 
a resolution  to  have  three  superintendents,  if  the  term  of  the  superinten- 
dent in  office  expires  with  such  year,  three  superintendents  of  the  poor 
for  such  county,  for  the  terms  of  one,  two  and  three  years  respectively, 
which  terms  shall  be  respectively  designated  upon  the  ballots  of  the 
electors  voting  for  such  officers.  If  the  term  of  the  superintendent  in 
office  will  not  expire  with  such  succeeding  year,  there  shall  be  elected 
two  superintendents  of  the  poor  for  such  county,  for  such  terms,  to  be  so 
designated  upon  the  ballots  of  the  electors  voting  for  such  officers,  as  will- 
make  the  terms  of  one  of  the  three  superintendents  expire  with  each 
succeeding  year,  and  one  superintendent  of  the  poor  shall  thereafter  be. 
annually  elected.  Such  persons  so  elected  shall  hold  the  office  from  and 
including  the  first  day  of  January  succeeding  his  election,  and  until  and 
including  the  last  day  of  December  of  the  year  in  which  his  term  shall 
so  expire,  and  until  his  successor  is  duly  elected  and  qualifies.  When 


SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES.  671 

County  Law,  § 221. 

ballots  are  voted  without  designating  the  term,  the  first  name  on  the 
ballot  shall  be  deemed  as  intended  for  the  full  or  longer  term  of  the 
officer  voted  for;  the  second  name  for  the  next  longer  term,  and  the 
third  name  for  the  shorter  term.  [County  Law,  § 220;  B.  C.  & G. 
Cons.  L.,  p.  814'.] 

§ 2.  UNDERTAKING,  HOW  EXECUTED  AND  APPROVED;  CONTENTS. 

Every  person  elected  or  appointed  to  the  office  of  superintendent  of  the 
poor  shall,  before  he  enters  upon  the  duties  of  his  office,  and  if  appointed, 
within  fifteen  days  after  notice  thereof,  execute  and  deliver  to  the  clerk 
of  the  county,  to  be  filed  in  his  office,  his  undertaking  to  the  county, 
with  two  or  more  sufficient  sureties,  with  the  approval  of  the  board  of 
supervisors,  if  in  session,  indorsed  thereon  by  the  clerk;  otherwise  by 
the  county  judge  of  his  county,  or  a justice  of  the  Supreme  Court  of  his 
judicial  district,  and  in  such  sum  as  such  board,  judge  or  justice  approv- 
ing the  same  shall  direct,  to  the  effect  that  he  will  faithfully  discharge 
the  duties  of  his  office  as  such  superintendent  of  the  poor,  and  pay 
according  to  law  all  moneys  that  shall  come  into  his  hands  as  such 
superntendent,  and  render  a just  and  true  account  thereof  to  the  board 
of  supervisors  of  his  county.3  [County  Law,  § 221,  as  amended  by  L. 
1914,  ch.  62;  B.  C.  & G.  Cons.  L.,  p.  816.] 

§ 3.  POWERS  AND  DUTIES  OF  COUNTY  SUPERINTENDENTS  OF 
THE  POOR. 

The  county  superintendents  of  the  poor  shall : 4 

1.  Have  the  general  superintendence  and  care  of  poor  persons  who  may 
be  in  their  respective  counties.5 


3.  As  to  other  statutory  requirements  of  official  undertakings,  see  Public 
Officers  Law,  secs.  11,  12,  ante.  The  requirements  of  the  above  section  are  con- 
trolling in  so  far  as  they  are  inconsistent  with  the  general  provisions  of  the 
Public  Officers  Law,  but  the  other  provisions  of  those  sections  are  applicable. 

4.  Powers  of  a majority  of  board  of  superintendents.  Where  there  are  three 
superintendents  a majority  can  perform  and  exercise  any  power,  authority  or 
duty  imposed  by  statute  or  otherwise  upon  them.  See  General  Construction 
Law,  sec.  41. 

The  powers  of  a majority  of  the  superintendents  to  transact  business  was 
considered  in  the  case  of  Johnson  v.  Dodd,  56  N.  Y.  76.  It  was  there  decided 
that  the  majority  could  exercise  the  power  of  the  board  irrespective  of  and 
without  consultation  with  the  minority. 

5.  General  superintendence  of  poor  persons.  By  sub.  1 of  the  above  section 
superintendents  are  now  given  the  general  superintendence  of  all  matters  relat- 
ing to  the  poor.  Under  the  old  law  they  only  had  control  of  county  poor  persons, 
and  a general  supervisory  jurisdiction  over  all  questions  relating  to  the  settle- 
ment of  the  poor  and  of  the  respective  liabilities  of  the  towns  and  counties;  and 
all  the  powers  conferred  upon  county  superintendents  to  support  and  maintain 
the  county  poor,  were  required  to  be  exercised  at  the  county  poorhouse,  or  at 


672 


RELIEF  OF  POOR. 


Poor  Law,  § 3. 

2.  Provide  and  keep  in  repair  suitable  alms-houses  when  directed  by 
the  board  of  supervisors  of  their  county. 

3.  Establish  rules  and  by-laws  for  the  government  and  good  order  of 
such  alms-houses,  and  for  the  employment,  relief,  management  and  govern- 
ment of  the  poor  therein;  but  such  rules  and  regulations  shall  not  be 
valid  until  approved  by  the  county  judge  of  the  county,  in  writing. 

4.  Unless  a keeper  be  appointed  by  the  board  of  supervisors,  as  provided 
by  section  four  of  this  article,  employ  suitable  persons  to  be  keepers  of 
such  houses,  and  physicians,  matrons  and  all  other  necessary  officers  and 
servants,  and  vest  such  power  in  them  for  the  government  of  such  houses, 
and  the  poor  therein,  as  shall  be  necessary,  reserving  to  such  poor  persons 
who  may  be  placed  under  the  care  of  such  keepers,  matrons,  officers  or  serv- 
ants, the  right  of  appeal  to  the  superintendents.* * * * * 6 

5.  Purchase  all  necessary  furniture,  implements,  food  and  materials  for 
the  maintenance  of  the  poor  in  such  houses,  and  for  their  employment  in 
labor,  and  use,  sell  and  dispose  of  the  proceeds  of  such  labor  as  they  shall 
deem  expedient. 


such  other  places  as  might  have  been  provided  for  that  purpose  by  the  direction 
of  the  board  of  supervisors.  People  ex  rel.  Commissioners  of  Emigration,  27 

Barb.  562. 

Employment  of  agent  by  superintendent  of  poor  to  place  out  children.  An 
agent  employed  by  a superintendent  of  the  poor,  under  a resolution  adopted  by 
the  board  of  supervisors,  to  place  out  or  provide  homes  for  indigent  children, 
need  not  be  licensed  by  the  state  board  of  charities  under  L.  1898,  ch.  264;  and 

his  expenses  are  a proper  charge  against  the  county.  People  ex  rel.  Spaulding 
v.  Supervisors,  66  App.  Div.  117,  72  N.  Y.  Supp.  782,  modf.  170  N.  Y.  93. 

Action  may  be  brought  by  superintendents  of  the  poor,  in  their  individual 
names  with  the  addition  of  their  name  of  office.  Alger  v.  Miller,  56  Barb.  227. 

6.  Appointment  of  keeper  by  board  of  supervisors.  Section  4 of  the  Poor 
Law,  post,  authorizes  the  board  of  supervisors  to  appoint  one  of  the  superin- 
tendents of  the  poor  as  keeper  of  the  county  almshouse.  Unless  one  of  such 
superintendents  has  been  appointed  by  the  board  of  supervisors  as  provided 
in  that  section,  the  above  sub-division  authorizes  the  county  superintendents 
to  employ  such  a keeper. 

Whenever  the  board  of  supervisors  exercises  this  power  and  appoints  one  of 
the  superintendents  as  such  keeper,  the  term  of  office  of  the  keeper  previously 
appointed  by  the  superintendents  terminates,  although  the  year  for  which  he 
was  employed  has  not  expired.  People  ex  rel.  McCormick  v.  Weldon,  14  N.  Y. 
Supp.  447;  39  N.  Y.  St.  Rep.  49. 

Term  of  office  of  keeper.  The  superintendents  of  the  poor  have  no  power  to 
fix  by  contract  the  duration  of  the  keeper’s  term.  He  holds  his  position  only 
during  the  pleasure  of  the  appointing  power.  Abrams  v.  Horton,  18  App.  Div. 
208,  45  N.  Y.  Supp.  887.  A keeper  of  the  almshouse  appointed  by  the  super- 
intendents of  the  poor,  is  removable  at  their  pleasure;  and  such  superintendents 
have  no  power  to  fix  by  contract  the  duration  of  his  term.  Abrams  v.  Horton, 
18  App.  Div.  208,  45  N.  Y.  Supp.  887. 


SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES.  673 

Poor  Law,  §'3. 

6.  Prescribe  the  rate  of  allowance  to  be  made  for  bringing  poor  persons 
to  the  county  alms-house,  subject  to  such  alterations  as  the  board  of 
supervisors  may  by  general  resolution  make. 

7.  Authorize  the  keepers  of  such  houses  to  certify  the  amount  due  for 
bringing  such  poor  persons;  which  amount  shall  be  paid  by  the  county 
treasurer  on  the  production  of  such  certificate,  countersigned  and  allowed 
by  the  county  superintendents  of  the  poor. 

8.  Summarily  decide  any  dispute  that  shall  arise  concerning  the  settle- 
ment of  any  poor  person,  upon  hearing  of  the  parties,  and  for  that  purpose 
may  issue  subpoenas  to  compel  the  attendance  of  witnesses,  with  the  like 
powers  to  enforce  such  process,  as  is  given  to  a justice  of  the  peace  in  an 
.action  pending  before  him;  their  decisions  shall  be  filed  in  the  office  of 
the  county  clerk  within  thirty  days  after  they  are  made,  and  shall  be 
conclusive  and  final  upon  all  parties  interested,  unless  an  appeal  therefrom 
shall  be  taken,  as  provided  in  this  chapter. 

9.  Direct  the  commencement  of  suits  by  any  overseer  of  the  poor  who 
shall  be  entitled  to  prosecute  for  any  penalties,  or  upon  any  recognizance, 
bonds  or  securities  taken  for  the  indemnity  of  any  town  and  in  the  case  of 
the  neglect  of  any  such  overseer,  to  commence  and  conduct  such  suits,  with- 
out the  authority  of  such  overseer,  in  the  name  of  such  superintendents. 

10.  Draw  on  the  county  treasurer  for  all  necessary  expenses  incurred 
in  the  discharge  of  their  duties,  including  their  necessary  personal  ex- 
penses while  in  the  discharge  of  such  duties  and  their  necessary  expenses 
in  attending  the  midwinter  and  annual  state  conventions  of  county 
superintendents  of  the  poor,  which  draft  shall  be  paid  by  such  treasurer 
out  of  the  moneys  placed  in  his  hands  for  the  support  of  the  poor.7 
[Subd.  as  amended  by  L.  1916,  ch.  275.] 

11.  Audit  and  settle  all  accounts  of  overseers  of  the  poor,  justices  of 
the  peace,  and  all  other  persons,  for  services  relating  to  the  support,  relief 


7.  Draft  on  county  treasurer.  The  board  of  supervisors  of  a county  have 
no  right  to  direct  a county  treasurer  not  to  recognize  the  draft  of  a superin- 
tendent of  the  poor  payable  to  his  order,  nor  to  pay  any  such  draft  unless  the 
object  for  which  the  money  was  to  be  paid  was  specified  in  the  order.  People  ex  rel. 
Serven  v.  Demarest,  16  Hun,  123.  The  court  in  this  case  said:  “ The  superintendents 

give  security  that  they  will  render  a true  account  of  all  moneys  received  and  expended 
to  the  supervisors,  and  the  supervisors  audit  the  account.  It  will  be  seen  that  the 
superintendents  are  an  independent  board.  They  can  purchase  independently,  and 
draw  moneys  from  the  county  treasurer  independently.  The  expenditure  is  to  be 
submitted  to  the  board  of  supervisors.  If,  after  the  settlement  of  the  accounts,  there 
is  any  sum  due  to  the  people  from  the  superintendents,  the  bond  will  be  enforced.” 
The  above  sub-division  should  be  considered  in  connection  with  the  provision  con- 
tained at  the  end  of  this  section  to  the  effect  that  the  board  of  supervisors  may 
fix  the  maximum  sum  which  may  be  expended  by  the  superintendent  during  the 
year,  and  that  when  such  limitation  is  fixed,  the  county  treasurer  cannot  pay  orders 
in  excess  of  such  sum  without  the  approval  of  the  chairman  of  the  board  of  super- 


674 


RELIEF  OF  POOR. 


Poor  Law,  § 3. 

or  transportation  of  the  county  poor;  and  draw  on  the  county  treasurer 
for  the  amount  of  the  accounts  which  they  shall  so  audit  and  settle.8 

12.  Furnish  necessary  relief  to  such  of  the  county  poor  as  may  require 
only  temporary  assistance,  or  are  so  disabled  that  they  cannot  be  properly 
provided  for  elsewhere  than  at  the  county  alms-house  at  an  expense  not 
exceeding  that  of  their  support  at  such  alms-house.9 


8.  Audit  of  accounts.  It  was  intimated  in  the  case  of  Hayes  v.  Simonds,  9 
Barb.  266,  that  the  purchase  of  material  and  employment  of  labor  by  super- 
intendents, for  which  they  are  authorized  to  contract,  were  not  the  class  of 
accounts  to  which  the  statute  from  which  the  above  sub-division  was  taken  had 
reference.  It  is  not  reasonable  to  suppose  that  the  statute  can  be  so  interpreted 
as  to  allow  the  superintendents  to  audit  accounts  arising  from  their  own  con- 
tracts and  so  make  them  sit  as  judges  upon  questions  relating  to  their  own 
conduct,  and  their  own  corporate  liability.  Neary  v.  Robinson,  98  N.  Y.  84. 

In  the  latter  case  it  was  held  that  the  superintendents  could  not  audit  the 
account  of  an  attorney  retained  by  them  for  services  rendered  in  bastardy  pro- 
ceedings instituted  by  them.  The  superintendent  may  properly  employ  profes- 
sional assistance  in  such  cases,  but  the  costs  incurred  are  a charge  against  the 
county  and  must  be  audited  by  the  board  of  supervisors. 

Superintendents  of  the  poor  are  not  bound  to  audit  the  accounts  of  physicians 
and  others  for  services  rendered  in  aid  of  county  paupers  by  request  of  over- 
seers of  the  poor  of  the  several  towns,  although  the  services  were  rendered  in 
pursuance  of  orders  for  temporary  relief.  Such  accounts  may  be  very  numerous, 
and  occasionally  very  trifling;  and  it  is  peculiarly  fit  that  they  should  first  be 
adjusted  by  the  overseer,  and  charged  by  him  in  a general  account.  Ex-parte 
Gieen  and  Brown,  4 Hill,  558. 

If  superintendents  refuse  to  audit  and  settle  the  accounts  specified  in  this 
sub-division  the  proper  remedy  is  by  writ  of  certiorari.  It  follows  then  that  the 
proceedings  to  determine  such  accounts  are  judicial  in  their  nature.  Yedder  v. 
Superintendents  of  Schenectady  County,  5 Denio,  564. 

Accounts  of  superintendents.  Superintendents  must  account  to  board  of 
supervisors  for  all  moneys  received  and  paid  out.  City  of  Rochester  v.  Super- 
visors of  Monroe,  22  Barb.  248. 

County  poor  are  defined  in  section  2 of  the  Poor  Law  as  such  persons  as  are 
required  by  law  to  be  supported  at  the  expense  of  the  county.  The  distinction 
between  town  and  county  poor  may  be  abolished  by  a resolution  of  the  board  of 
supervisors;  in  such  case  the  poor  of  the  county  are  to  be  maintained  at  the 
expense  of  the  county  and  thus  become  county  poor;  see  Poor  Law,  sec.  138, 
post.  If  a poor  person  has  not  gained  a settlement  in  a town  or  city,  he  is  a 
county  poor  person,  and  maintainable  at  the  expense  of  the  county.  Poor  Law, 
sec.  42,  sub.  2,  post. 

9.  Temporary  relief.  Under  the  law  as  it  existed  prior  to  the  Poor  Law  of 
1896,  the  county  poor  requiring  temporary  relief  could  not  be  supported  by  the 
superintendents  at  a place  other  than  the  county  almshouse.  Galup  v.  Bell,  29 
Hun,  172;  People  v.  Commissioners  of  Emigration,  27  Barb.  562.  This  rule  is 
changed  by  the  provisions  of  the  above  sub-division,  and  now  the  superin- 
tendent may  furnish  support,  in  certain  cases,  to  poor  persons  at  their  homes. 


SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES. 


675 


Poor  Law,  § 4. 

13.  Render  to  the  board  of  supervisors  of  their  county,  at  their  annual  meeting, 
a verified  account  of  all  moneys  received  and  expended  by  them,  or  under  their  direc- 
tion, and  of  all  of  their  proceedings  in  such  manner  and  form  as  may  be  required 
by  the  board., 

14.  Pay  over  to  the  county  treasurer  on  the  first  day  of  each  month  all  moneys 
received  by  him  from  any  source  in  his  official  capacity,  or  otherwise  received  by  him 
and  belonging  to  the  county  since  the  date  of  the  preceding  payment,  except  such 
moneys  as  are  paid  out  by  him  for  incidental  expenses  in  connection  with  the  duties 
of  his  office,  for  which  expenditure  he  shall  present  with  such  monthly  report  vouchers 
and  itemized  statements  showing  dates  and  purposes  of  such  expenditures.  All  pay- 
ment which  he  is  authorized  to  make  under  this  chapter,  except  as  herein  specified, 
shall  be  made  only  by  orders  drawn  on  the  county  treasurer,  payable  to  the  person 
entitled  thereto  and  showing  upon  the  face  thereof  the  purpose  for  which  the  order 
is  given.aa  [Subd.  amended  by  L.  1912,  ch.  75,  and  L.  1916,  ch.  275.] 

15.  Administer  oaths  and  take  affidavits  in  all  matters  pertaining  to  their  office, 

and  elicit,  by  examination  under  oath,  statements  of  facts  from  applicants  for  re- 
lief. Expenditures  by  the  superintendent  of  the  poor  in  the  administration  of  his 
department  are  subject  to  the  following  limitations:  The  board  of  supervisors,  at 

its  annual  meeting,  may  fix  the  maximum  sum  which  may  be  expended  by  the  su- 
perintendent, at  his  discretion,  during  the  next  ensuing  year,  and  may  provide  that 
expenditures  in  excess  of  that  sum  shall  be  made  only  with  the  written  approval 
of  the  chairman  of  the  board  of  supervisors,  or  of  a committee  of  the  board,  com- 
posed of  not  exceeding  three  members.  If  such  limitation  is  fixed  and  such  pro- 
vision made  the  county  treasurer  shall  not  pay  any  draft  or  order  of  the  super- 
intendent in  excess  of  the  sum  so  fixed  by  the  board,  unless  it  is  accompanied  with 
the  written  approval  of  such  chairman  or  committee.  [Poor  Law,  § 3;  B.  C.  & G. 
Cons.  L.,  p.  4231.] 


§ 4.  ONE  OF  SUPERINTENDENTS  OF  THE  POOR  MAY  BE  AP- 
POINTED AS  KEEPER  OF  ALMS-HOUSE;  COMPENSATION. 

The  board  of  supervisors  of  any  county  may,  by  resolution,  appoint  as  keeper  of 
its  county  alms-house  one  of  the  superintendents  of  the  poor  of  such  county,  who 
shall  hold  such  office  until  the  expiration  of  his  term  as  superintendent  or  until  the 
board  of  supervisors,  by  resolution,  shall  determine  that  he  shall  no  longer  act  in  such 
capacity.10  The  board  of  supervisors  may  fix  the  compensation  such  superintendent 
shall  receive  for  acting  as  such  keeper  and  such  compensation  shall  be 
a county  charge.11  While  a resolution  of  the  board  of  supervisors  directing  such 


Matter  of  Connellan,  25  Misc.  592,  56  N.  Y.  Supp.  157 ; County  of  Herkimer  v.  Town 
of  Sangerfield,  29  Misc.  213,  61  N.  Y.  Supp.  114;  People  ex  rel.  French  v.  Lyke, 
159  N.  Y.  149,  153. 

9-a.  The  right  of  a superintendent  of  the  poor  to  draw  drafts  on  the 
county  treasurer  for  his  personal  expenses,  if  it  ever  existed,  has  been  taken 
away  by  chapter  75  of  the  Laws  of  1912  (amending  this  section),  providing  that  the 
superintendent  of  the  poor  shall  pay  over  to  the  county  treasurer  all  moneys  received 
by  him,  etc.,  and  make  payments  only  by  orders  drawn  on  the  county  treasurer  payable 
to  the  person  entitled  thereto  and  showing  upon  the  face  thereof  the  purpose  for 
which  the  order  is  given.  Said  statute  makes  it  unlawful  for  the  superintendent  to 
disburse  moneys  himself  directly  and  he  cannot  draw  a draft  to  his  own  order  for 
personal  expenses.  A superintendent  of  the  poor  asking  a writ  of  mandamus  to 
cortipel  the  payment  of  the  draft  drawn  by  him  on  the  county  treasurer  for  per- 
sonal expenses  is  under  the  burden  of  showing  that  such  expenses  were  a county 
charge.  Strong  v.  Williams  (1915),  167  App.  Div.  714,  153  N.  Y.  Supp.  175. 

10.  A keeper  of  a county  alms-house  may  be  appointed  by  the  superin- 
tendents of  the  poor  in  case  the  supervisors  do  not  appoint  one  of  such  super- 
intendents asi  keeper  as  provided  in  the  above  section.  See  Poor  Law,  sec.  3, 
sub.  4,  ante. 

11.  Compensation  of  all  superintendents  of  the  poor  is  to  be  fixed  by  the 


676 


RELIEF  OF  POOR. 


Poor  Law,  §§  5,  6. 

superintendent  to  act  as  keeper  of  the  county  alms-house  is  in  force, 
the  superintendents  shall  not  employ  a keeper  thereof.  [Poor  Law,  § 
4;  B.  C.  & G.  Cons.  L.,  p.  4234.] 

§ 5.  COUNTY  SUPERINTENDENT  MAY  DIRECT  OVERSEERS  OF 
POOR  TO  TAKE  CHARGE  OF  COUNTY  POOR. 

Whenever  the  county  superintendents  take  charge  of  the  support  of  any 
county  poor  person,  in  counties  where  no  alms-house  is  provided,  they 
may  authorize  the  overseers  of  the  poor  of  the  town  in  which  such  poor 
person  may  be,  to  continue  to  support  him,  on  such  terms  and  under  such 
regulations  as  they  shall  prescribe;  and  thereafter  no  moneys  shall  be 
paid  to  such  overseers  for  the  support  of  such  poor  person,  without  the 
order  of  the  superintendents;  or  the  superintendents  may  remove  such 
poor  person  to  any  other  town,  and  there  provide  for  his  support,  in 
such  manner  as  they  shall  deem  expedient.  [Poor  Law,  § 5;  B.  C.  & G. 
Cons.  L.,  p.  4234.] 

§ 6.  SUPERINTENDENTS  TO  PROVIDE  FOR  SUPPORT  OF  IDIOTS 
AND  LUNATICS. 

The  superintendents  of  the  poor  shall  provide  for  the  support  of  poor 
persons  that  may  be  idiots  or  lunatics,  at  other  places  than  in  the  alms- 
house, in  such  manner  as  shall  be  provided  by  law  for  the  care,  support 
and  maintenance  of  such  poor  persons.12  [Poor  Law,  § 6;  B.  C.  & G. 
Cons.  L.,  p.  4235.] 


board  of  supervisors  as  provided  in  sec.  12,  sub.  5,  of  the  County  Law.  If  the 
superintendent  is  also  keeper  of  the  almshouse,  his  compensation  may  be  made 
to  include  his  compensation  as  such  keeper. 

12.  Support  of  insane.  Lunatics  cannot  now  be  maintained  at  an  almshouse. 
All  pauper  insane  must  be  transferred  to  a state  hospital.  The  superintendents 
of  the  poor  are  bound  to  see  that  all  such  insane  are  so  transferred.  People  ex 
rel  State  Commission  v.  Superintendents,  20  N.  Y.  Supp.  10;  47  N.  Y.  St.  Rep. 
367. 

By  the  Insanity  Law,  the  poor  and  indigent  insane  of  the  county  are  to  be 
committed  to  the  state  hospitals  for  the  insane  and  there  maintained  at  a state 
expense.  Incanity  Law,  sec.  85,  post. 

If  an  applicant  for  relief  as  a poor  person,  is,  in  the  opinion  of  the  super- 
intendent insane,  it  would  be  his  duty  to  investigate  the  facts  and  take  pro- 
ceedings under  secs.  80-82  of  the  Insanity  Law,  post,  for  his  commitment  to  a 
state  hospital  for  the  insane.  If  an  inmate  of  an  almshouse  becomes  insane, 
the  superintendent  should  take  the  necessary  steps  to  secure  his  transfer  to  a 
state  hospital. 

Maintenance  of  idiots.  There  are  three  state  institutions  for  the  care  and 


SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES.  577 

Poor  Law,  §§  7,  8. 

§ 7.  PESTILENCE  IN  ALMS-HOUSE;  INMATES  TO  BE  REMOVED. 

Whenever  any  pestilence  of  infectious  or  contagious  disease  shall  exist 
in  any  county  alms-house  or  in  its  vicinity,  and  the  physician  thereof  shall 
certify  that  such  pestilence  or  disease  is  likely  to  endanger  the  health  of 
the  persons  supported  thereat,  the  superintendents  of  the  poor  of  such 
county  shall  cause  the  persons  supported  at  such  alms-house  or  any  of 
them,  to  be  removed  to  such  other  suitable  place  in  the  same  county  as 
shall  be  designated  by  the  board  of  health  of  the  city,  town  or  village 
within  which  such  alms-house  shall  be,  there  to  be  maintained  and  pro- 
vided for  at  the  expense  of  the  county,  with  all  necessary  medical  care  and 
attendance,  until  they  can  be  safely  returned  to  the  county  alms-house 
from  which  they  were  taken,  or  otherwise  discharged.  [Poor  Law,  § 7; 
B.  C.  & G.  Cons.  L.,  p.  4235.] 


§ 8.  COUNTY  TREASURER  TO  KEEP  ACCOUNTS  WITH  TOWNS  FOR 
MONEYS  PAID  ON  ACCOUNT  OF  POOR;  SUPERINTENDENT 
TO  FURNISH  STATEMENT. 

In  counties  where  there  are  town  poor,  the  county  treasurer  thereof  shall 
open  and  keep  an  account  with  each  town,  in  which  the  town  shall  be 
credited  with  all  the  moneys  received  from  the  same,  or  from  its  officers, 
and  shall  be  charged  with  the  moneys  paid  for  the  support  of  its  poor. 
If  there  be  a county  alms-house  in  such  county,  the  superintendents  of 
the  poor  shall,  each  year,  before  the  annual  meeting  of  the  board  of 
supervisors,  furnish  to  the  county  treasurer  a statement  of  the  sums  charged 
by  them  as  herein  directed,  to  the  several  towns  for  the  support  of  their 
poor,  which  shall  be  charged  to  such  towns,  respectively,  by  the  county 


custody  of  idiots;  the  Syracuse  State  Institution  for  Feeble  Minded  Children 
(State  Charities  Law,  sec.  60);  State  Custodial  Asylum  for  Feeble  Minded 
Women  at  Newark  (State  Charities  Law,  sec.  80) ; and  the  Rome  State  Custodial 
Asylum  (State  Charities  Law,  sec.  90).  Idiots  who  are  residents  in  a county 
may  be  transferred  to  such  institutions  and  either  supported  as  a state  charge, 
or  at  a county  expense  as  provided  by  law,  or  the  rules  and  regulations  of  the 
institution.  See  Cumming  & Gilbert’s  Poor,  Insanity  and  State  Charities  Laws, 
pp.  278-289.  See,  also,  post.  Chapter  XLVI. 

Epileptics.  The  Craig  Colony  for  Epileptics,  established  at  Sonyea,  Livinsrs- 

ton  county,  and  Letchworth  Village,  established  at by  L.  1909, 

ch.  440,  are  for  the  purpose  of  caring  for  and  treating  poor  and  indigent  persons 
suffering  from  epilepsy  to  the  extent  of  the  accommodations  there  provided.  See 
State  Charities  Law,  secs.  100-115.  It  is  the  duty  of  the  county  superintendent  to 
provide  for  the  commitment  of  such  persons  to  such  colony.  Application  may  he 
made  to  the  county  superintendent  of  the  poor  for  placing  a child  in  such  colony 
and.  upon  compliance  with  the  terms  of  the  statute  it  is  the  duty  of  the  superin- 
tendent to  place  such  child  therein. 


678 


RELIEF  OF  POOR. 


Poor  Law,  § 9. 

treasurer  in  his  account.13  [Poor  Law,  § 8;  B.  C.  & G.  Cons.  L.,  p. 

4235. ] 

§ 9.  SUPERINTENDENTS  TO  MAKE  ANNUAL  APPORTIONMENT  TO 
TOWNS  OF  AMOUNT  EXPENDED  FOR  SUPPORT  OF  POOR. 

In  counties  having  an  alms-house,  and  where  there  are  town  poor,  the 
superintendents  shall  annually,  and  during  the  week  preceding  the  annual 
meeting  of  the  board  of  supervisors,  make  out  a statement  of  all  the 
expenses  incurred  by  them  the  preceding  year  for  the  support  of  the  town 
poor,  and  of  the  moneys  received  therefor,  exhibiting  the  deficiency,  if 
any,  in  the  funds  provided  for  defraying  such  expenses,  and  they  shall 
apportion  the  deficiency  among  the  several  towns  in  proportion  to  the 
number  and  expenses  of  the  town  poor  of  such  towns,  respectively,  who 
shall  have  been  provided  for  by  the  superintendents,  and  shall  charge  the 
towns  with  such  proportion,  which  statement  shall  be  by  them  delivered 
to  the  county  treasurer.14  [Poor  Law,  § 9;  B.  C.  & G.  Cons.  L.,  p. 

4236. ] 


§ 10.  AMOUNT  CHARGEABLE  TO  TOWNS  TO  BE  ADDED  TO  TAX 
LEVY. 

At  the  annual  meeting  of  the  board  of  supervisors,  the  county  treasurer 


13.  Town  accounts.  The  money  to  be  credited  to  the  towns  is  the  money 
which  is  received  from  the  county  or  its  officers.  People  v.  Harris,  16  How. 
256. 

The  amount  to  be  charged  to  the  towns  on  account  of  their  poor  main- 
tained at  the  county  almshouse  is  to  be  determined  by  the  amount  actually 
expended  by  the  county  for  such  maintenance.  The  statute  contemplates 
that  the  benefits  resulting  from  the  almshouse  and  the  property  connected 
therewith,  shall  be  given  to  the  county  and  towns,  in  respect  to  the  poor 
supported  at  such  almshouse  without  regard  to  the  general  obligation  of  the 
towns  to  support  their  own  poor.  The  towns  cannot  be  charged  with  the 
products  of  the  almshouse  farm,  the  labor  of  the  poor  in  carrying  on  the 
business  of  the  almshouse  and  the  occupancy  by  the  town  poor.  They  are 
only  chargeable  with  their  pro  rata  of  the  deficiency.  City  of  Rochester  v. 
Supervisors  of  Monroe  County,  22  How.  Pr.  248. 

All  orders  made  for  the  payment  of  expenses  incurred  in  the  main- 
tenance of  the  county  poor  should  be  drawn  upon  the  fund  created  by  this 
section.  No  action  will  lie  against  the  superintendents  for  failure  to  pay 
such  expenses  until  a demand  is  made  of  them  for  such  an  order. 

14.  Statement  of  expenses  to  be  made  out  annually.  City  of  Rochester  v. 
Supervisors,  22  Barb.  248,  252. 

Review.  The  acts  of  supervisors  in  assessing  a town  for  the  support  of  its 
poor  are  legislative  and  not  judicial,  and  cannot  be  reviewed  by  certiorari. 


SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES. 


679 


Poor  Law,  §§  10,  11,  12. 

shall  lay  before  them  the  account  kept  by  him;  and  if  it  shall  appear 
that  there  is  a balance  against  any  town,  the  board  shall  add  the  same 
to  the  amount  of  taxes  to  be  levied  and  collected  upon  such  town,  with 
the  other  contingent  expenses  thereof,  together  with  such  sum  for  interest 
as  will  reimburse  and  satisfy  any  advances  that  may  be  made,  or  that  may 
have  been  made,  by  the  county  treasurer  for  such  town,  which  moneys, 
when  collected,  shall  be  paid  to  the  county  treasurer.15  [Poor  Law,  § 10 : 
B.  C.  & G.  Cons.  L.,  p.  4236.] 

§11.  SUPERINTENDENT’S  ESTIMATE  FOR  EXPENSE  OF  MAIN- 
TAINING COUNTY  POOR;  SUPERVISORS  TO  CAUSE  SUF- 
FICIENT AMOUNT  TO  BE  RAISED. 

The  superintendents  of  the  poor  shall  annually  present  to  the  board  of 
supervisors,  at  their  annual  meeting,  an  estimate  of  the  sum  which,  in 
their  opinion,  will  be  necessary  during  the  ensuing  year  for  the  support 
of  the  county  poor;  and  such  board  of  supervisors  shall  cause  such  sum 
as  they  may  deem  necessary  for  that  purpose,  to  be  assessed,  levied  and 
collected,  in  the  same  manner  as  other  contingent  expenses  of  the  county, 
to  be  paid  to  the  county  treasurer  and  to  be  by  him  kept  as  a separate 
fund,  distinct  from  the  other  funds  of  the  county.16  [Poor  Law,  § 11; 
B.  C.  & G.  Cons.  L.,  p.  4236.] 

§ 12.  SUPERINTENDENT  TO  MAKE  REPORT  TO  STATE  BOARD  OF 
CHARITIES;  CONTENTS  OF  REPORT. 

The  superintendents  of  the  poor  of  every  county  shall,  on  or  before  the 
first  day  of  August  in  each  year,  make  reports  covering  the  year  ending  June 
thirtieth,  to  the  state  board  of  charities  in  such  form  as  the  board  shall 
direct,  showing  the  number  of  the  town  poor  and  the  county  poor  that  have 
been  relieved  or  supported  in  their  county  the  year  preceding  July  first; 
the  whole  expense  of  such  support,  the  amount  paid  for  transportation  of 
poor  persons,  and  any  other  items  not  part  of  the  actual  expenses  of  main- 
taining the  poor,  and  the  allowance  made  to  superintendents,  overseers, 


People  ex  rel.  Allen  v.  Supervisors  of  Westchester  Co.,  113  App.  Div.  773,  99 
N.  Y.  Supp.  348. 

15.  Balance  against  any  town  shall  be  added  to  the  taxes.  City  of  Rochester 
v.  Supervisors,  22  Barb.  248,  253. 

16.  Estimates  to  be  furnished  by  superintendents.  City  of  Rochester  v. 
Supervisors,  22  Barb.  248. 

Fund  for  support  of  county  poor.  Orders  for  support  of  county  poor  must  be 
drawn  upon  fund  created  as  provided  in  this  section  for  such  support.  Hayes  v. 
Symonds,  9 Barb.  260,  269. 


680 


RELIEF  OF  POOR. 


Poor  Law,  § 142. 

justices,  keepers,  matrons,  officers  and  other  employes  of  the  superintedents ; 
the  actual  value  of  the  labor  of  the  poor  persons  maintained,  and  the  esti- 
mated amount  saved  in  the  expense  of  their  support  in  consequence  of  their 
labor ; the  sex  and  native  country  of  every  such  poor  person,  with  the  causes, 
either  direct  or  indirect,  which  have  operated  to  render  such  persons  poor, 
so  far  as  the  same  can  be  ascertained;  and  shall  include  in  such  reports  a 
statement  of  the  name  and  age  of,  and  of  the  names  and  residence  of  the 
parents  of,  every  poor  child  who  has  been  placed  by  them  in  a family  during 
the  year,  with  the  name  and  residence  of  the  family  with  whom  every  such 
child  was  placed,  and  the  occupation  of  the  head  of  the  family,  together  with 
such  other  items  of  information  in  respect  to  their  character  and  condition 
as  the  state  board  of  charities  shall  direct.17  [Poor  Law,  § 12,  as  amended 
by  L.  1917,  ch.  570;  B.  C.  & G.  Cons.  L.,  p.  4237.] 


§ 13.  ALMS-HOUSE  REGISTER;  WHAT  TO  CONTAIN;  OFFICERS  TO 
FURNISH  INFORMATION. 

In  addition  to  the  general  register  of  the  inmates  of  the  various  alms- 
houses, there  shall  be  kept  a record  of  the  sex,  age,  birth  place,  birth  of 
parents,  education,  habits,  occupation,  condition  of  ancestors  and  family 
relations,  and  cause  of  dependence  of  each  person  at  the  time  of  admission, 
with  such  other  facts  and  particulars  in  relation  thereto  as  may  be  re- 
quired by  the  state  board  of  charities,  upon  forms  prescribed  and  furnished 
by  such  board.  Superintendents  and  overseers  of  the  poor,  and  other 
officers  charged  with  the  relief  and  support  of  poor  persons,  shall  furnish 
to  the  keepers  or  other  officers  in  charge  of  such  alms-houses,  as  full 
information  as  practicable  in  relation  to  each  person  sent  or  brought  by 
them  to  such  alms-house,  and  such  keepers  or  other  officers  shall  record 
the  information  ascertained  at  the  time  of  the  admission  of  such  person, 
on  the  forms  so  furnished.  All  such  records  shall  be  preserved  in  such 
alms-houses,  and  the  keepers  and  other  officers  in  charge  thereof  shall 
make  copies  of  the  same  on  the  first  day  of  each  month,  and  immediately 
forward  such  copies  to  the  state  board  of  charities.  [Poor  Law,  § 142; 
B.  C.  & G.  Cons.  L.,  p.  4282.] 

§ 14.  BOARD  OF  SUPERVISORS  OR  TOWN  BOARD  MAY  MAKE 
RULES  AND  REGULATIONS  AS  TO  FURNISHING  TEMPO- 
RARY RELIEF. 

The  board  of  supervisors  of  any  county  may  make  such  rules  and 


17.  Forms  of  reports  to  be  made  by  superintendent  to  the  state  board  of 
charities  are  prescribed  and  furnished  by  such  board. 


SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES. 


681 


Poor  Law,  §§  13,  14. 

regulations  as  it  may  deem  proper  in  regard  to  the  manner  of  furnishing 
temporary  or  out  door  relief  to  the  poor  in  the  several  towns  in  said 
county,  and  provided  the  board  of  supervisors  shall  have  failed  to  make 
any  such  rules  and  regulations,  the  town  board  of  any  town  may  make 
such  rules  and  regulations  as  it  may  deem  proper  in  regard  to  furnishing 
temporary  or  out  door  relief  to  the  poor  in  their  respective  towns,  by  the 
overseer  or  the  overseers  of  the  poor  thereof,  and  also  in  regard  to  the 
amount  such  overseer  or  overseers  of  the  poor  may  expend  for  the  relief 
of  each  person  of  family,  and  after  the  board  of  supervisors  of  any  county, 
or  the  town  board  of  any  town,  shall  have  made  such  rules  and  regulations, 
it  shall  not  be  necessary  for  the  overseers  of  the  poor  of  the  towns  in  said 
county,  where  such  rules  and  regulations  were  made  by  the  board  of 
supervisors,  or  if  in  a town,  by  the  said  town  board,  to  procure  an  order 
from  the  supervisor  of  the  town,  or  the  sanction  of  the  superintendent  of 
the  poor  to  expend  money  for  the  relief  of  any  person  or  family,  unless 
the  board  of  supervisors  of  such  county  or  the  town  board  of  such  town 
shall  so  direct;  but  this  section  shall  not  apply  to  the  counties  of  New  York 
and  Kings.  [Poor  Law,  § 13 ; B.  C.  & G.  Cons.  L.,  p.  4237.] 


§ 15.  FAILURE  OF  OFFICER  REQUIRED  TO  MAKE  STATEMENT  OR 
REPORT  AS  TO  THE  POOR,  HOW  PUNISHED. 

Any  superintendent  of  the  poor  or  other  officer  or  person  having  been 
an  officer,  who  shall  neglect  or  refuse  to  render  any  account,  statement 
or  report  required  by  this  chapter  [the  Poor  Law],  or  shall  wilfully  make 
any  false  report,  or  shall  neglect  to  pay  over  any  moneys  within  the  time 
required  by  law,  shall  forfeit  two  hundred  dollars  to  the  town  or  county 
of  which  he  is  or  was  an  officer,  and  shall  be  liable  to  an  action  for  all 
moneys  which  shall  be  in  his  hands  after  the  time  the  same  should  have 
been  paid  over,  with  interest  thereon  at  the  rate  of  ten  per  centum  per 
annum  from  the  time  the  same  should  have  been  paid  over.  The  state 
hoard  of  charities  shall  give  notice  to  the  district  attorney  of  the  county 
of  every  neglect  to  make  the  report  required  to  be  made  to  that  board, 
and  every  officer  or  board  to  whom  any  such  account,  statement,  report  or 
payment  should  have  been  made,  shall  give  notice  to  such  district  attorney 
of  every  neglect  or  failure  to  make  the  same;  and  such  district  attorney 
shall,  on  receiving  such  notice  or  in  any  way  receiving  satisfactory  evidence 
of  such  default,  prosecute  for  the  recovery  of  such  penalties  or  moneys 
in  the  name  of  the  town  or  county  entitled  thereto,  and  the  sum  recovered, 
if  for  the  benefit  of  the  town,  shall  be  paid  to  the  overseer  of  the  poor 
thereof,  and  if  for  the  benefit  of  the  county,  shall  be  paid  into  the  county 
treasury,  to  be  expended  by  the  overseer  or  superintendent  of  the  poor  for  the* 


682 


RELIEF  OF  POOR. 


Poor  Law,  § 56. 

support  of  the  poor  of  such  town  or  county.18  TPoor  Law,  § 14;  B.  C. 
& G.  Cons.  L.,  p.  4238.] 


§ 16.  POOR  CHILDREN  NOT  TO  BE  COMMITTED  TO  ALMS-HOUSE 
AS  VAGRANTS,  TRUANTS  OR  DISORDERLY  PERSONS; 
SUPPORT  OF  POOR  CHILDREN  IN  FAMILIES  OR  CHAR- 
ITABLE INSTITUTIONS. 

Xo  justice  of  the  peace,  board  of  charities,  police  justice,  or  other  magis- 
trate or  court,  shall  commit  any  child  under  sixteen  years  of  age,  as  a 
vagrant,  truant  or  disorderly  person,  to  any  jail  or  county  alms-house, 
but  to  some  reformatory,  or  other  institution,  as  provided  for  in  the  case 
of  juvenile  delinquents;  and  when  such  commitments  are  made,  the  jus- 
tice of  the  peace,  board  of  charities,  police  justice,  or  other  magistrate  or 
court  making  the  same,  shall  immediately  give  notice  to  the  superintendents 
of  the  poor  or  other  authorities  having  charge  of  the  poor  of  the  county 
in  which  the  commitment  was  made,  giving  the  name  and  age  of  the 
person  committed,  to  what  institution,  and  the  time  for  which  committed; 
nor  shall  any  county  superintendents,  overseers  of  the  poor,  board  of  charity, 
or  other  officer,  send  any  child  under  the  age  of  sixteen  years,  as  a poor 
person,  to  any  county  alms-house,  for  support  and  care,  or  retain  any  such 
child  in  such  alms-house,  but  shall  provide  for  such  child  or  children  in 
families,  orphan  asylums,  hospitals,  or  other  appropriate  institutions  for 
the  support  and  care  of  children  as  provided  by  law,  except  that  a child 
under  two  years  of  age  may  be  sent  with  its  mother,  who  is  a poor  person, 
to  any  county  alms-house,  but  not  longer  than  until  it  is  two  years  of  age.19 
The  boards  of  supervisors  of  the  several  counties,  and  board  of  estimate 
and  apportionment  of  the  city  of  Xew  York,  and  the  appropriate  board 


18.  Application  of  section.  This  section  applies  to  all  officers  required  under 
the  Poor  Law  to  make  an  account,  statement  or  report.  The  statements,  ac- 
counts and  reports  of  superintendents  are  required  by  sec.  3,  sub.  1,  3,  8,  14,  ante , 
p.  671,  sec.  8,  ante , p.  677,  sec.  9,  ante.  p.  677,  sec.  11,  ante , p.  679,  and  sec.  12, 
ante , p.  679.  Those  of  overseers  of  poor  are  prescribed  under  sec.  25,  post . p. 
679,  sec.  26,  post,  p.  721,  sec.  27,  post.  p.  722.  By  this  section  the  penalty  is 
made  uniform  and  applies  to  all  violations  of  the  sections  specified. 

19.  No  proceedings  necessary.  Pauper  children  between  the  ages  of  three 
and  sixteen  years  may  be  committed  to  an  orphan  asylum  or  other  charitable  or 
reformatory  institution  by  the  supervisor  of  a town  on  the  recommendation  of 
the  overseer  of  the  poor  of  the  town,  and  no  judicial  proceeding  before  a magis- 
trate is  necessary.  People  ex  rel.  Horton  v.  Fuller,  41  App.  404,  58  N.  Y. 
Supp.  835. 

Children  between  two  and  sixteen  years  cannot  be  sent  to  a county  poorhouse- 
Nuns  of  St.  Dominick  v.  Long  Island  City,  48  Hun  306,  1 N.  Y.  Supp.  415. 


SUPERINTENDENT  OF  THE  POOR;  ALMS-HOUSES. 


683 


Poor  Law,  § 56. 

or  body  in  other  cities  and  towns  shall  take  such  action  in  the  matter 
as  may  be  necessary  to  carry  out  the  provisions  of  this  section.  When 
any  such  child  is  committed  to  an  orphan  asylum  or  reformatory,  it  shall, 
when  practicable,  be  committed  to  an  asylum  or  reformatory  that  is  gov- 
erned or  controlled  by  persons  of  the  same  religious  faith  as  the  parents 
of  such  child.  When  any  child  who  shall  have  been  placed  in  an  asylum, 
or  other  institution,  as  a poor  person,  in  pursuance  of  this  section,  shall 
remain  therein  at  the  expense  of  the  county  or  town  to  which  such  poor 
child  is  chargeable,  the  superintendents  of  the  poor  of  such  county,  or  the 
overseer  of  the  poor  of  such  town,  may  remove  such  child  from  such 
asylum  or  other  institution  and  place  such  child  in  some  similar  institu- 
tion or  make  such  other  disposition  of  such  child  as  is  provided  by  law.20 
[Poor  Law,  § 56,  as  amended  by  L.  1909,  ch.  347 ; B.  C.  & G.  Cons.  L.,  p. 
4256.] 


tO.  Placing  out  destitute  children  by  poor  officer.  A local  officer  charged 
with  the  relief  of  the  poor  cannot  place  out  a destitute  child  unless  duly  licensed  by 
the  State  Board  of  Charities.  State  Charities  Law,  § 301,  as  amended  by  L 1909 
ch  258.  and  L.  1910,  ch.  449. 


RELIEF  OF  POOR. 


(184 


Explanatory  note. 


CHAPTER  XLIY. 

ALMS-HOUSES;  POWERS  OF  STATE  BOARD  OF  CHARITIES. 

EXPLANATORY  NOTE. 

State  Board  of  Charities. 

The  state  board  of  charities  have  certain  statutory  powers  and 
duties  relative  to  the  relief  of  poor  persons,  which  must  he  recognized 
by  local  officers.  They  are  required  to  advise  with  officers  having 
charge  of  alms-houses  in  respect  to  their  official  duties.  Such  board 
or  any  of  its  officers  may  visit  and  inspect  alms-houses,  and  are  to  be 
given  full  and  free  access  to  the  grounds,  buildings,  books  and  papers 
relating  thereto,  and  may  compel  the  giving  of  information  by  the 
officers  and  persons  in  charge  of  such  alms-houses. 

The  board  may  investigate  the  officers  of  such  alms-houses  and  their 
conduct  of  the  affairs  of  such  alms-houses,  and  may  subpoena  and  swear 
witnesses  upon  any  such  investigation.  If  inmates  appear,  upon  such 
investigation,  to  have  been  improperly  treated,  the  board  may  direct 
the  modification  of  such  treatment,  and  its  orders  in  respect  thereto 
are  enforceable,  when  approvel  by  the  supreme  court. 


Section  1.  Duties  of  the  state  board  of  charities  relating  to  the  poor. 

2.  Visitation  and  inspection  of  almshouses  by  state  board;  commis- 

sioners and  officers  to  be  admitted. 

3.  Investigation  by  board  or  committee;  orders  thereon  as  to  treatment 

of  inmates,  &c, 

4.  Almhouse  construction  and  administration;  approval  of  plans  by 

board. 

5.  Attorney  general  and  district  attorneys  to  aid  board  in  legal 

investigations. 

6.  State,  non-resident  and  alien  poor  in  county  almshouses. 

7.  Visit  of  almshouses  by  tlie  state  charities  aid  association. 


ALMS-HOUSES;  POWERS  OF  STATE  BOARD  OF  CHARITIES.  685 
Poor  Law,  §§  115,  116. 

§ 1.  DUTIES  OF  THE  STATE  BOARD  OF  CHARITIES  RELATING  TO 
THE  POOR. 

The  State  Board  of  Charities  shall : 

1.  Investigate  the  condition  of  the  poor  seeking  public  aid  and  devise 
measures  for  their  relief. 

2.  Administer  the  laws  providing  for  the  care,  support  and  removal  of 
state  and  alien  poor  and  the  support  of  Indian  poor  persons. 

3.  Advise  the  officers  of  alms-houses  in  the  performance  of  their  official 
duties. 

4.  Collect  statistical  information  in  respect  to  the  property,  receipts  and 
expenditures  of  all  alms-houses,  and  the  number  and  condition  of  the 
inmates  thereof.  [Poor  Law,  § 115;  B.  C.  & G.  Cons.  L.,  p.  4273.] 

^ 2.  VISITATION  AND  INSPECTION  OF  ALMS-HOUSES  BY  STATE 
BOARD;  COMMISSIONERS  AND  OFFICERS  TO  BE  AD- 
MITTED. 

Any  commissioner  or  officer  of  the  State  Board  of  Charities,  or  any 
inspector  duly  appointed  by  it  for  that  purpose,  may  visit  and  inspect  any 
alms-house  in  this  state.  On  such  visits  inquiry  shall  be  made  to  ascertain : 

1.  Whether  the  rules  and  regulations  of  the  board,  in  respect  to  such 
alms-house,  are  fully  complied  with. 

2.  Its  methods  of  industrial,  educational  and  moral  training,  if  any, 
and  whether  the  same  are  best  adapted  to  the  needs  of  its  inmates. 

3.  The  condition  of  its  finances  generally. 

4.  The  methods  of  government  and  discipline  of  its  inmates. 

5.  The  qualifications  and  general  conduct  of  its  officers  and  employes. 

6.  The  condition  of  its  grounds,  buildings  and  other  property. 

7.  Any  other  matter  connected  with,  or  pertinent  to,  its  usefulness  and 
good  management. 

Any  commissioner  or  officer  of  the  board,  or  inspector  duly  appointed 
by  it,  shall  have  free  access  to  the  grounds,  buildings,  books  and  papers 
relating  to  such  alms-house,  and  may  require  from  the  officers  and  persons 
in  charge,  any  information  it  may  deem  necessary.  Such  board  may 
prepare  regulations  according  to  which,  and  provide  blanks  and  forms 
upon  which  such  information  shall  be  furnished,  in  a clear,  uniform  and 
prompt  manner  for  the  use  of  the  board ; any  such  officer  or  inspector  who 
shall  divulge  or  communicate  to  any  person  without  the  knowledge  and 
consent  of  such  board,  any  facts  or  information  obtained  in  pursuance  of 
the  provisions  of  this  chapter,  shall  be  guilty  of  a misdemeanor,  and  shall 
at  once  he  removed  from  office.  The  annual  reports  of  each  year  shall  give 
the  results  of  such  inquiry,  with  the  opinion  and  conclusions  of  the  board 
relating  to  the  same.  Any  officer,  superintendent  or  employe  of  any  such 


686 


RELIEF  OF  POOR. 


Poor  Law,  §§  117,  118. 

alms-house  who  shall  wilfully  refuse  to  admit  any  member,  officer  or 
inspector  of  the  board,  for  the  purpose  of  visitation  and  inspection,  and  who 
shall  refuse  or  neglect  to  furnish  the  opinion  required  by  the  board,  or 
any  of  its  members,  officers  or  inspectors,  shall  be  guilty  of  a misdemeanor, 
and  subject  to  a fine  of  one  hundred  dollars  for  each  such  refusal  or 
neglect.  The  rights  and  powers  hereby  conferred  may  be  enforced  by  an 
order  of  the  Supreme  Court  after  such  notice  as  the  court  may  prescribe, 
and  an  opportunity  to  be  heard  thereon,  or  by  indictment  by  the  grand 
jury  of  the  county,  or  both.  [Poor  Law,  § 116;  B.  C.  & G.  Cons.  L.,  p. 
4274.] 

§ 3.  INVESTIGATION  BY  BOARD  OR  COMMITTEE;  ORDERS 
THEREON  AS  TO  TREATMENT  OF  INMATES,  ETC. 

The  board  may,  by  order,  direct  an  investigation  by  a committee  of 
one  or  more  of  its  members,  of  the  officers  and  managers  of  any  alms- 
house, or  of  the  conduct  of  its  officers  and  employees ; and  the  commissioner 
or  commissioners  so  designated  to  make  such  investigation  may  issue 
compulsory  process  for  the  attendance  of  witnesses  and  the  production  of 
books  and  papers,  administer  oaths,  examine  persons  under  oath,  and 
exercise  the  same  powers  in  respect  to  such  proceeding  as  belong  to  referees 
appointed  by  the  Supreme  Court. 

If  it  shall  appear,  after  such  investigation,  that  the  inmates  of  the 
alms-house  are  cruelly,  negligently  or  improperly  treated,  or  inadequate 
provision  is  made  for  their  sustenance,  clothing,  care  and  supervision,  or 
other  condition  necessary  to  their  comfort  and  well  being,  such  board  may 
issue  an  order  in  the  name  of  the  people,  and  under  its  official  seal,  directed 
to  the  proper  officer  of  such  alms-house,  requiring  him  to  modify  such 
treatment  or  apply  such  remedy,  or  both,  as  shall  therein  be  specified. 
Before  such  order  is  issued  it  must  be  approved  by  a justice  of  the  Supreme 
Court,  after  such  notice  as  he  may  prescribe,  and  an  opportunity  to  be 
heard  thereon,  and  any  person  to  whom  such  an  order  is  directed  who  shall 
wilfully  refuse  to  obey  the  same  shall,  upon  conviction,  be  deemed  guilty 
of  a misdemeanor.  [Poor  Law,  § 117;  B.  C.  & G.  Cons.  L.,  p.  4275.] 

§ 4.  ALMS-HOUSE  CONSTRUCTION  AND  ADMINISTRATION;  AP- 
PROVAL OF  PLANS  BY  BOARD. 

No  alms-house  shall  be  built  or  reconstructed,  in  whole  or  in  part, 
except  on  plans  and  designs  approved  in  writing  by  the  state  board  of 
charities,  provided,  however,  that  such  approval  in  writing  as  to  alms- 
houses to  be  constructed  by  the  city  of  New  York  shall  be  by  the  board 
of  estimate  and  apportionment  of  said  city.  It  shall  be  the  duty  of  such 
board  to  call  the  attention,  in  writing  or  otherwise,  of  the  board  of  su- 
pervisors and  the  superintendent  of  the  poor,  or  other  proper  officer,  in 
any  county,  of  any  abuses,  defects  or  evils,  which,  on  inspection,  it  may 


ALMS-HOUSES;  POWERS  OF  STATE  BOARD  OF  CHARITIES.  687 
Poor  Law,  §§  119,  120. 

find  in  the  alms-house  of  such  county,  or  in  the  administration  thereof, 
and  such  county  officer  shall  take  proper  action  thereon,  with  a view 
to  proper  remedies,  in  accordance  with  the  advice  of  such  hoard.  [Poor 
Law.  § 118,  as  amended  bv  L.  1913,  ch.  251;  P.  C.  & G.  Cons.  L. 
p.  4275.1 

§ 5.  ATTORNEY-GENERAL  AND  DISTRICT  ATTORNEYS  TO  AID 
BOARD  IN  LEGAL  INVESTIGATIONS. 

If,  in  the  opinion  of  the  state  board  of  charities,  or  any  three  members 
thereof,  any  matter  in  regard  to  the  management  or  affairs  of  any  such 
alms-house,  or  any  inmate  or  person  in  any  way  connected  therewith, 
require  legal  investigation  or  action  of  any  kind,  notice  thereof  may  be 
given  by  the  board,  or  any  three  members  thereof,  to  the  attorney-general, 
who  shall  thereupon  make  inquiry  and  take  such  proceedings  in  the 
premises  as  he  may  deem  necessary  and  proper.  It  shall  be  the  duty  of  the 
attorney-general  and  of  every  district  attorney  when  so  required  to  furnish 
such  legal  assistance,  counsel  or  advice  as  the  board  may  require  in  the 
discharge  of  its  duties  under  this  chapter.  [Poor  Law,  § 119;  B.  C. 
& G.  Cons.  L.,  p.  4275.] 


§ 6.  STATE,  NONRESIDENT  AND  ALIEN  POOR  IN  COUNTY  ALMS- 
HOUSES. 

The  state  board  of  charities,  and  any  of  its  members  or  officers,  may, 
at  any  time,  visit  and  inspect  any  alms-house  to  ascertain  if  any  inmates 
are  state  charges,  nonresidents,  or  alien  poor;  and  it  may  cause  to  be 
removed  to  the  state  or  country  from  which  he  came,  any  such  nonresident 
or  alien  poor  found  in  any  such  alms-house.  [Poor  Law,  § 120;  B.  C. 
& G.  Cons.  L.,  p.  4276.] 


§ 7.  VISIT  OF  ALMS-HOUSES  BY  THE  STATE  CHARITIES  AID 
ASSOCIATION. 

Any  justice  of  the  Supreme  Court,  on  written  application  of  the  state 
charities  aid  association,  through  its  president  or  other  officer  designated 
by  its  board  of  managers,  may  grant  to  such  persons  as  may  be  named  in 
such  application,  orders  to  enable  such  persons,  or  any  of  them,  as  visitors 
of  such  association,  to  visit,  inspect  and  examine,  in  behalf  of  such  asso- 
ciation, any  alms-house  within  the  state.  The  person  so  appointed  to  visit, 
inspect  and  examine  such  alms-house  or  alms-houses,  shall  reside  in  the 
county  or  counties  from  which  such  alms-house  or  alms-houses  receive  their 
or  some  of  their  inmates,  and  such  appointment  shall  be  made  by  a justice 
of  the  Supreme  Court  of  the  judicial  district  in  which  such  visitors  reside. 
Bach  order  shall  specify  the  alms-house  to  be  visited,  inspected  and  ex- 
amined, and  the  name  of  each  person  by  whom  such  visitation,  inspection 


6 88 


RELIEF  OF  POOR. 


Poor  Law,  § 121. 

and  examination  shall  be  made,  and  shall  be  in  force  for  one  year  from  the 
date  on  which  it  shall  have  been  granted,  unless  sooner  revoked. 

All  persons  in  charge  of  any  such  alms-house  shall  admit  each  person 
named  in  any  such  order  into  every  part  of  such  alms-house,  and  render 
to  such  person  every  possible  facility  to  enable  him  to  make  in  a thorough 
manner  such  visit,  inspection  and  examination,  which  are  hereby  declared 
to  be  for  a public  purpose  and  to  be  made  with  a view  to  public  benefit. 
Obedience  to  the  orders  herein  authorized  shall  be  enforced  in  the  same 
manner  as  obedience  is  enforced  to  an  order  or  mandate  of  a court  of 
record. 

Such  association  shall  make  an  annual  report  to  the  state  board  of 
charities  upon  matters  relating  to  the  alms-house  subject  to  its  visitation. 
Such  reports  shall  be  made  on  or  before  the  first  day  of  November  for  each 
preceding  fiscal  year.  [Poor  Law,  § 121;  B.  C.  & G.  Cons.  L.,  p.  4276.] 


SUPPORT  OF  THE  INSANE,  IDIQTS  AND  EPILEPTICS.  689 

Insanity  Law,  § 82. 


CHAPTER  XL VI. 

SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS. 


Section  1.  Application  by  poor  officers  for  commitment  of  the  insane. 

2.  Costs  of  commitment  of  insane  persons  charge  on  county,  city  or 

town  securing  commitment;  care  and  treatment  prior  to  transfer. 

3.  Poor  and  indigent  insane  supported  by  state;  patients  committed 

by  order  of  criminal  court  charge  on  county. 

4.  Relatives  to  support  insane  other  than  the  poor  and  indigent;  duties 

of  poor  officers. 

5.  Superintendent  and  overseers  of  the  poor  to  see  that  insane  poor  be 

granted  relief;  hospitals  to  which  insane  to  be  committed. 

6.  Apprehension  and  confinement  of  dangerous  insane;  duties  of 

superintendents  and  overseers  of  the  poor. 

7.  Discharge  of  patients;  duties  of  superintendents  of  the  poor. 

8.  Manner  of  receiving  pupils  at  the  Syracuse  State  Institution  for 

Feeble  Minded  Children. 

9.  Discharge  of  state  pupils  from  such  institution;  expense  of  return  to 

be  audited  by  superintendent  of  the  poor. 

10.  Expense  of  clothing  state  pupils  to  be  paid  by  county;  support  of 

pupils  to  be  paid  by  parents  and  relatives;  expense  of  removal. 

11.  Commitments  to  Rome  State  Custodial  Asylum;  duties  of  super- 

intendent of  the  poor. 

12.  Admission  of  patients  to  Craig  Colony  for  Epileptics;  applications 

by  superintendents  of  the  poor;  poor  epileptics  to  be  placed  in 
colony. 

13.  Support  of  state  patients  at  Craig  Colony;  payment  of  expense  of 

clothing  by  counties. 

14.  Apportionment  of  state  patients  among  counties. 

15.  State,  non-resident  and  alien  poor  not  to  be  admitted  to  certain 

institutions. 


§ 1.  APPLICATION  BY  POOR  OFFICERS  FOR  COMMITMENT  OF  THE 
INSANE. 

An  overseer  of  the  poor  of  a town  or  a superintendent  of  the  poor  of  a 
county  in  which  an  alleged  insane  person  may  he,  may  apply  to  a judge 
of  a court  of  record  for  an  order  committing  such  person  to  a state  hos- 
pital for  the  insane.  Notice  of  an  application  for  such  commitment  by 
such  officer  must  be  served  personally  on  the  alleged  insane  person,  and 


690 


RELIEF  OF  POOR. 


Insanity  Law,  § 84. 

upon  u th©  husband  or  wife,  father  or  mother  or  next  of  kin  of  such 
alleged  insane  person,  if  there  he  any  such  known  to  be  residing  within 
the  county,  and  if  not,  upon  the  person  with  whom  such  alleged  insane 
person  may  reside,  or  at  whose  house  he  may  be.”  The  proceedings  to 
determine  the  question  of  insanity  of  the  person  alleged  to  be  insane  are 
then  to  be  conducted  the  same  in  all  respects  as  where  the  commitment 
is  sought  by  other  persons.  [See  Insanity  Law,  § 82,  as  amended  by 
L.  1912,  cb.  121,  and  L.  1914,  ch.  307;  B.  C.  & G.  Cons.  L.,  p.  2476.’] 

§ 2.  COSTS  OF  COMMITMENT  OF  INSANE  PERSONS  CHARGE  ON 
COUNTY,  CITY  OR  TOWN  SECURING  COMMITMENT;  CARE 
AND  TREATMENT  PRIOR  TO  TRANSFER. 

The  costs  necessarily  incurred  in  determining  the  question  of  the  in- 
sanity of  a poor  or  indigent  or  other  person  under  this  chapter,  or  under 
section  twenty-six  of  chapter  four  hundred  and  forty-six  of  the  laws  of 
eighteen  hundred  and  seventy-four,  including  the  fees  allowed  by  the  judge 
or  justice  ordering  the  commitment  to  the  medical  examiners  or  medical 
witnesses  called  by  him  and  other  necessary  expenses,  and  in  securing  the 
admission  of  such  person  into  a state  hospital  and  the  expense  of  providing 
proper  clothing  and  proper  medical  care  and  nursing,  for  such  person  in 
accordance  with  the  rules  and  regulations  adopted  by  the  commission,  shall 
be  a charge  upon  the  town,  city  or  county  securing  the  commitment; 
but  in  the  city  of  New  York  all  fees  of  medical  examiners  and  medical 
witnesses  appointed  or  called  by  a judge  of  any  court  in  said  city  for 
the  purpose  of  determining  the  question  of  the  insanity  of  any  such  person, 
and  not  heretofore  paid,  may  be  audited  and  allowed  in  the  first  instance 
either  by  the  judge  or  justice  appointing  the  medical  examiners  or  by  the 
comptroller  of  said  city  and  shall  be  paid  by  the  chamberlain  of  said 
city  on  the  warrant  of  the  comptroller  from  the  court  fund  and  charged 
to  the  proper  county  within  said  city.  If  the  person  sought  to  be  com- 
mitted is  not  a poor  or  indigent  person,  the  costs  and  expenses  of  the 
proceeding  to  determine  his  insanity  and  secure  his  commitment  paid 
by  any  town,  city  or  county  may  be  collected  by  it  from  the  estate  of 
such  person,  or  from  the  persons  legally  liable  for  his  maintenance, 
and  the  same  shall  be  a charge  upon  the  estate  of  such  person,  or 
the  same  shall  be  paid  by  the  persons  legally  liable  for  his  maintenance. 
The  compensation  or  fees  and  expenses  of  health  officers  for  duties  per- 
formed in  respect  to  the  examination,  confinement,  care  and  treatment  of 
insane  or  alleged  insane  persons,  as  required  by  this  act,  shall  in  each 
case  be  determiqed  and  allowed  by  the  judge  or  justice  ordering  the  coim 
mitment  or  hearing  the  application,  and  shall  be  a charge  upon  the  town 
city  or  county  in  which  such  persons  reside  or  may  be.  If  the  fees  and 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS.  091 


Insanity  Law,  § 85. 

-expenses  so  determined  and  allowed  are  a charge  upon  the  county  or  town, 
such  judge  or  justice  shall  issue  a certificate  stating  the  amount  thereof, 
to  whom  to  be  paid,  and  whether  a charge  upon  the  county  or  a town,  and 
if  the  latter,  the  name  of  the  town,  which  shall  be  presented  to  the  county 
treasurer  and  be  paid  by  him  out  of  any  moneys  available  for  such  pur- 
pose. The  county  treasurer  shall  report  the  amount  paid  by  him  on 
account  of  such  fees  and  expenses  to  the  board  of  supervisors,  and  the 
amount  thereof  which  is  chargeable  against  any  town  in  the  county  shall 
be  levied  against  the  taxable  property  thereof  in  the  same  manner  as 
other  town  charges  are  levied.  If  there  is  no  money  in  the  county 
treasury  available  for  the  payment  of  such  fees  and  expenses,  the  county 
treasurer  is  hereby  authorized  and  directed  to  borrow  on  the  credit  of 
the  county  a sum  sufficient  to  pay  such  fees  and  expenses,  and  may 
issue  certificates  of  indebtedness  therefor,  the  principal  and  interest  of 
which,  at  a rate  not  exceeding  six  per  centum,  shall  be  binding  upon  the 
county,  and  shall  be  paid  in  the  same  manner  as  other  county  obliga- 
tions. If  the  compensation  or  fees  and  expenses  of  health  officers  as 
so  determined  and  allowed  are  a charge  upon  a city  they  shall  be  paid  in 
the  same  manner  as  the  other  expenses  of  the  health  department  or 
bureau  in  such  city.1  [Insanity  Law,  § 84,  as  amended  by  L.  1910,  ch. 
608,  in  effect  Oct.  1,  1910.] 

§ a.  POOR  AND  INDIGENT  INSANE  SUPPORTED  BY  STATE;  PATIENTS 
COMMITTED  BY  ORDER  OF  CRIMINAL  COURT  CHARGE  ON 
COUNTY. 

All  poor  and  indigent  insane  persons  not  in  confinement  under  crimi- 
nal proceedings,  shall,  without  unnecessary  delay,  be  transferred  to  a 
state  hospital  and  there  wholly  supported  by  the  state.  The  costs  neces- 
sarily incurred  in  the  transfer  of  patients  to  state  hospitals  shall  be  a 
charge  upon  the  state.  The  commission  shall,  except  as  hereinafter  pro- 
vided, secure  from  the  patient’s  estate  and  from  relatives  or  friends  who 
are  liable  or  may  be  willing  to  assume  the  costs  of  support  of  inmates  of 
state  hospitals  supported  by  the  state,  reimbursement  at  the  rate  fixed 
by  the  commission,  in  whole  or  in  part,  of  the  money  thus  expended, 
either  directly  or  through  the  superintendents  or  treasurers  of  the  re- 
spective hospitals,  as  provided  in  section  fifty-four  of  this  chapter.  The 
commission  may,  in  its  discretion,  waive  the  whole  or  a portion  of  the 
claim  of  the  state  for  the  cost  of  the  support  of  a patient  against  the 
estate  of  such  patient,  whenever  the  court  by  which  a committee  was 
appointed  shall  have  directed  such  committee  to  apply  any  part  of  the 
patient’s  estate  for  the  maintenance  of  his  family.  The  commission  may 
appoint  agents,  whose  duty  it  shall  be  to  secure  from  relatives  and 
friends  who  are  liable  therefor,  or  who  may  be  willing  to  assume  the 

Fees  specified  in  this  section  may  be  allowed  to  a health  officer  in  addition 
to  his  salary.  Rept.  of  Atty.  Genl.,  March  27,  1911. 

Stenographer’s  fees  at  the  rate  of  twenty  cents  a folio  for  taking  and  tran- 
scribing 1,984  folios  of  testimony  will  be  approved.  Matter  of  Murtaugh,  71 
Misc.  513. 


692 


RELIEF  OF  POOR. 


Insanity  Law,  § 86. 

cost  of  support  of  any  inmate  of  a state  hospital  who  is  being  supported  by 
the  state,  reimbursement,  in  whole  or  in  part,  of  the  money  so  expended. 
The  compensation  of  each  agent  shall  not  exceed  six  dollars  a day,  except 
the  agent  in  charge  of  collections  in  New  York  city  which  shall  not  exceed 
two  thousand  dollars  per  annum.  Each  agent  shall  receive  his  necessary 
traveling  and  other  incidental  expenses  incurred  by  him,  to  be  approved  by 
the  comptroller.  The  commission  may  fix  the  rate  to  be  paid  for  the  sup- 
port of  an  inmate  of  a state  hospital  by  the  committee  of  such  inmate  or 
by  relatives  liable  for  such  support  or  by  those  not  liable  for  such  support, 
but  willing  to  assume  the  cost  thereof;  but  such  rate  shall  be  sufficient  to 
cover  a proper  proportion  of  the  cost  of  maintenance  and  of  necessary  repairs 
and  improvements.  The  maintenance  of  any  inmate  of  a state  hospital, 
committed  thereto  upon  a court  order  arising  out  of  any  criminal  action, 
shall  be  paid  by  the  county  from  which  such  inmate  was  committed.la 
[Insanity  Law,  § 85,  as  amended  by  L.  1910,  ch.  389,  L.  1911,  ch.  768,  L. 
1917,  ch.  355,  and  L.  1918,  ch.  568.] 

§ 4.  RELATIVES  TO  SUPPORT  INSANE  OTHER  THAN  THE  POOR 
AND  INDIGENT;  DUTIES  OF  POOR  OFFICERS. 

The  father,  mother,  husband,  wife  and  children  of  an  insane  person,  if 
of  sufficient  ability,  and  the  committe  or  guardian  of  his  person  and 
estate,  if  his  estate  is  sufficient  for  the  purpose,  shall  cause  him  to  be 
properly  and  suitably  cared  for  and  maintained.* 2  The  commission  and 
the  health  officer  of  the  city,  town  or  village  where  any  such  insane  per- 
son may  be,  or  in  the  city  of  New  York  and  in  the  county  of  Albany, 
the  commissioners  of  public  charities,  may  inquire  into  the 


la.  Recovery  for  past  support.  A person  receiving  aid  as  a poor  person  from  the 
officers  of  the  poor,  in  the  absence  of  representation  on  his  part  as  to  his  responsi- 
bility or  physical  condition,  incurs  no  liability  to  repay  the  amount  expended  in 
his  behalf;  but  after  commitment  to  a state  hospital  for  the  insane,  the  state  may 
recover  for  cost  of  his  maintenance,  from  time  of  his  reception  at  such  institution 
from  a committee  appointed  subsequent  to  such  commitment.  City  of  Albany  v. 
McNamara,  117  N.  Y.  168;  County  of  Oneida  v.  Bartholomew,  82  Hun,  80,  31  N.  Y. 
Supp.  106,  affd.  151  N.  Y.  655;  Agricultural  Ins.  Co.  v.  Barnard,  96  N.  Y.  525. 

2.  Relatives  of  poor  and  indigent  persons  who  are  insane  may  be  com- 
pelled to  support  such  insane  persons.  Code  Criminal  Proc.,  sec.  914-920,  post, 
p.  755.  But  in  Long  Island  Hospital  v.  Stuart,  22  Misc.  48,  49  N.  Y.  Supp.  372,  it 
was  held  that  the  Insanity  Law  does  not  make  the  relative  liable  for  the  cost 
of  the  support  and  maintenance  of  an  insane  person  in  a state  hospital.  By  the 
preceding  section  of  the  Insanity  Law,  sec.  85,  the  commission  in  lunacy  or  the 
treasurer  of  each  state  hospital  are  authorized  to  secure  from  the  patient’s 
estate  or  from  his  relatives,  reimbursement  for  the  whole  or  a part  of  the  money 
expended  by  the  state  in  the  care  and  maintenance  of  such  patient. 

Contract  for  support.  Where  the  father  of  a lunatic  who  was  not  a pauper 
for  whose  support  the  county  was  chargeable,  but  whom  he  was  himself  bound 
to  support  and  maintain,  took  her  to  the  county  poorhouse,  under  an  agreement 
made  by  him  with  the  superintendents  of  the  poor  to  pay  them  a specified  sum 
per  week,  for  her  board,  it  was  held  that  this  was  a valid  contract  enforceable 
against  the  father.  Alger  v.  Miller,  56  Barb.  227. 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS.  693 


Insanity  Law,  § 87. 

manner  in  which  any  such  person  is  cared  for  and  maintained ; and  if,  in 
the  judgment  of  any  of  them,  he  is  not  properly  or  suitably  cared  for, 
may  apply,  or  cause  application  to  be  made,  to  a judge  of  a court  of 
record  for  an  order  to  commit  him  to  a state  hospital  under  the  provisions 
of  this  article,  but  such  order  shall  not  be  made  unless  the  judge  finds  and 
certifies  in  the  order  that  such  insane  person  is  not  properly  or  suitably 
cared  for  by  such  relative  or  committee,  or  that  it  is  dangerous  to  the 
public  to  allow  him  to  be  cared  for  and  maintained  by  such  relative  or 
committee.  The  costs  and  charges  of  the  commitment  and  transfer  of  such 
insane  person  to  a state  hospital  shall  be  paid  by  the  committee,  or  the 
father,  mother,  husband,  wife  or  children  of  such  person,  to  be  recovered 
in  an  action  brought  in  the  name  of  the  people  by  the  commission,  or  in 
the  name  of  the  county,  city  or  town,  where  such  insane  person  resides 
or  mav  be,  by  the  proper  officer  thereof,  or  in  the  city  of  New  York  or  in  the 
county  of  Albany  in  the  name  of  the  commissioner  of  public  charities. 
In  all  claims  of  the  state  upon  relatives  liable  for  the  support  of  a 
patient,  or  upon  moneys  or  property  held  by  said  patient,  the  state  shall 
be  deemed  a preferred  creditor.  [Insanity  Law,  § 86,  as  amended  by  L. 
1910,  ch.  608,  in  effect  Oct.  1,  1910.] 


9 k SUPERINTENDENTS  AND  OVERSEERS  OF  THE  POOR  TO  SEE  THAT 
INSANE  POOR  BE  GRANTED  RELIEF;  HOSPITALS  TO  WHICH 
INSANE  TO  BE  COMMITTED. 

All  county  superintendents  of  the  poor,  overseers  of  the  poor,  health  officers  and 
other  city,  or  county  authorities,  having  duties  to  perform  relating  to  the  poor,  are 
charged  with  the  duty  of  seeing  that  all  poor  and  indigent  insane  persons  within 
th.  ir  respective  municipalities,  are  timely  granted  the  necessary  relief  conferred  by 
this  chapter.  The  poor  officers  or  authorities  above  specified,  except  in  the  city  of 
New  York  and  in  the  county  of  Albany,  shall  notify  the  health  officer  of  the  town, 
city  or  village  of  any  poor  or  indigent  insane  or  apparently  insane  person  within 
such  municipality  whom  they  know  to  be  in  need  of  the  relief  conferred  by  this 
chapter.2a  When  so  notified,  or  when  otherwise  informed  of  such  fact,  the  health 
officer  of  the  city,  town  or  village,  except  in  the  city  of  New  York  and  the  county 
of  Albany,  where  sue)'  insane  or  apparently  insane  person  may  be,  shall  see  that 
proceedings  are  taken  for  the  determination  of  Ms  mental  condition  and  for  his 
commitment  to  a state  hospital.  Such  health  officer  may  direct  the  proper  poor 
offic  r to  make  an  application  for  such  commitment,  and,  if  a qualified  medical 
examiner,  may  join  in  making  the  required  certificate  of  lunacy.  When  so  di- 
rected by  such  health  officer  it  shall  be  the  duty  of  the  said  poor  officer  to  make 
such  application  for  commitment.  When  notified  or  informed  of  any  poor 


2-a,  Designation  of  examiners  of  alleged  insane;  duty  to  notify  health  officer 
of  existence  of  indigent  insane.  This  section  does  not  compel  the  designation 
of  a health  officer,  who  is  a qualified  examiner  in  lunacy,  as  one  of  the  physicians  to 
examine  a person  alleged  to  be  insane  and  make  the  required  certificate  of  lunacy. 
All  city,  town  or  county  authorities,  having  duties  to  perform  relating  to  the  poor, 
except  in  the  city  of  New  York  and  the  county  of  Albany,  must  notify  the  health 
officer  of  the  town  or  of  the  village  of  any  poor  or  indigent  insane  or  apparently  in- 
sane person  within  such  municipality  whom  they  know  to  be  in  need  of  the  relief 
conferred  by  the  Insanity  Law.  Rept.  of  Atty.  Genl.  (1912),  vol.  2,  p.  431. 


694 


RELIEF  OF  POOR. 


Insanity  Law,  § 87. 

or  indigent  insane  or  apparently  insane  person  in  need  of  the  relief 
conferred  by  this  chapter,  such  health  officer  shall  provide  for  the  proper 
care,  treatment  and  nursing  of  such  person,  as  provided  by  law  and  the 
rules  of  the  commission,  pending  the  determination  of  his  mental  con- 
dition and  his  commitment  and  until  the  delivery  of  such  insane  person 
t#  the  attendant  sent  to  bring  him  to  the  state  hospital,  as  provided  in 
this  chapter.  In  the  boroughs  of  Manhattan  and  the  Bronx,  in  the  city 
of  New  York,  it  shall  be  the  duty  of  the  trustees  of  Bellevue  and  allied 
hospitals,  and  in  the  boroughs  of  Brooklyn,  Queens  and  Richmond,  in 
the  city  of  New  York  and  also  in  the  county  of  Albany,  it  shall  be  the 
duty  of  the  commissioner  of  public  charities  to  see  that  all  poor  and 
indigent  insane  or  apparently  insane  persons  in  such  boroughs  or 
county,  respectively,  are  properly  cared  for  and  treated.  It  shall  also 
be  the  duty  of  such  trustees  of  Bellevue  and  allied  hospitals,  or  the 
commissioner  of  public  charities  of  the  city  of  New  York  or  the- county 
of  Albany,  to  see  that  proceedings  are  taken  for  the  determination  of 
the  mental  condition  of  any  such  person  in  the  boroughs  or  county 
mentioned,  who  comes  under  their  observation  or  is  reported  to  them  as 
apparently  insane,  and  when  necessary,  to  see  that  proceedings  are  insti- 
tuted for  the  commitment  of  such  person  to  an  institution  for  the  care 
of  the  insane ; provided  that  such  report  is  made  by  any  person  with 
whom  such  alleged  insane  person  may  reside,  or  at  whose  house  he  may 
be,  or  by  the  father,  mother,  husband,  wife,  brother,  sister,  or  child  of 
any  such  person,  or  next  of  kin  available,  or  by  any  duly  licensed  physi- 
cian, or  by  any  peace  officer,  or  by  a representative  of  an  incorporated 
society  doing  charitable  or  philanthropic  work.  When  the  trustees  of 
Bellevue  and  allied  hospitals  are  thus  informed  of  an  apparently  in- 
sane person,  residing  in  the  boroughs  of  Manhattan  or  the  Bronx,  or 
when  the  commissioner  of  public  charities  of  the  city  of  New  York  is 
thus  informed  of  an  apparently  insane  person  residing  in  the  boroughs 
of  Brooklyn,  Queens  or  Richmond,  it  shall  be  the  duty  of  these  authori- 
ties, respectively,  to  send  a nurse  or  a medical  examiner  in  lunacy,  at- 
tached to  the  psychopathic  wards  of  their  respective  institutions,  or  both, 


3.  New  clothing.  A regulation  adopted  by  the  state  commission  in  lunacy  that 
each  patient  be  furnished  by  the  county  with  new  clothing  before  his  admission  into 
a state  hospital  is  reasonable  and  must  be  obeyed.  People  ex  rel.  Croft  v.  Man- 
hattan State  Hospital,  5 App.  Div.  249;  39  N.  Y.  Supp.  158. 

Cost  of  new  clothing  is  a charge  upon  the  county,  or  town  securing  the  patient’s 
commitment.  Insanity  Law,  sec.  84,  ante.  The  cost  of  transfer  is  a state  charge. 
Insanity  Law,  sec.  85,  ante. 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS.  695 
Insanity  Law,  § 87. 

to  the  place  where  the  alleged  insane  person  resides  or  is  to  be  found. 
If,  in  the  judgment  of  the  chief  resident  alienist  of  the  respective 
psychopathic  wards  or  of  the  medical  examiner  thus  sent,  the  person  is 
in  immediate  need  of  care  and  treatment  or  observation  for  the  pur- 
pose of  ascertaining  his  mental  condition,  he  shall  be  removed  to  such 
psychopathic  ward  for  a period  not  to  exceed  ten  days,  and  the  person 
or  persons  most  nearly  related  to  him,  so  far  as  the  same  can  be  readily 
ascertained  by  such  trustees,  or  commissioner,  shall  be  notified  of  such 
removal. 

When  an  order  of  commitment  has  been  made  as  provided  in  this 
chapter,  such  health  officer,  or,  in  the  city  of  New  York  and  in  the 
county  of  Albany,  the  authorities  above  specified  in  their  respective 
boroughs  or  county,  shall  see  that  such  insane  persons  are,  without  un- 
necessary delay,  transferred  to  the  proper  institutions  provided  for  their 
care  and  treatment  as  the  wards  of  the  state.  Before  sending  a person 
to  any  such  institution,  they  shall  see  that  he  is  in  a state  of  bodily  clean- 
liness and  comfortably  clothed  with  suitable  or  new  clothing,  in  accord- 
ance with  the  regulations  prescribed  by  the  commission.  Each  patient 
shall  be  sent  to  the  state  hospital,  within  the  district  embracing  the 
county  from  which  he  is  committed,  except  that  the  commission  may, 
in  its  discretion,  direct  otherwise,  but  private  or  public  insane  patients, 
for  whom  homeopathic  care  and  treatment  may  be  desired  by  their  rela- 
tives, friends  or  guardians,  may  be  committed  to  the  Middletown  state 
homeopathic  hospital,  or  the  Gowanda  state  homeopathic  hospital,  from 
any  of  the  counties  of  the  state,  in  the  discretion  of  the  judge  granting 
the  order  of  commitment  ; and  the  hospital  to  which  any  patient  is  or- 
dered to  be  sent  shall,  by  and  under  the  regulations  made  by  such  com- 
mission, send  a trained  attendant  to  bring  the  patient  to  the  hospital. 
Each  female  committed  to  any  institution  for  the  insane  shall  be  accom- 
panied by  a female  attendant,  unless  accompanied  by  her  father, 
brother,  husband  or  son.  The  commission  may,  by  order,  direct  that 
any  person  it  deems  unsuitable  therefor  shall  not  be  so  employed  or  act 
as  such  attendant.  After  the  patient  has  been  delivered  to  the  proper 
officers  of  the  hospital,  the  care  and  custody  of  the  municipality  from 
which  he  is  sent  shall  cease. 

In  no  case  shall  any  insane  person  be  confined  in  any  other  place 
than  a state  hospital  or  duly  licensed  institution  for  the  insane,  for  a 
period  longer  than  ten  days,  nor  shall  such  person  be  committed  as  a 
disorderly  person  to  any  prison,  jail  or  lock-up  for  criminals.  Except 
in  the  city  of  New  York  and  the  county  of  Albany,  the  health  officer  of 
the  town,  village  or  city  wherein  an  insane  or  alleged  insane  person  may 


696 


RELIEF  OF  POOR. 


Insanity  Law,  § 87. 

be  shall  see  that  such  person  is  cared  for  in  a place  suitable  for  the  com- 
fortable, safe  and  humane  confinement  of  such  person,  pending  the  de- 
termination of  the  question  of  his  sanity  and  until  his  transfer  to  a 
state  hospital  or  some  other  proper  institution  for  the  insane  as  pro- 
vided in  this  chapter.  Such  person  shall  not  be  confined  in  any  such 
place  without  an  attendant  in  charge  of  him,  and  the  said  health  officer 
shall  select  some  suitable  person  to  act  as  such  attendant. 

The  proper  authorities  of  any  such  town,  city  or  county  may  provide 
a permanent  place  for  the  reception  and  temporary  confinement,  care 
and  nursing  of  insane  or  alleged  insane  persons  which  shall  conform  in 
all  respects  to  the  rules  and  requirements  of  the  commission;  all  poor 
and  indigent  insane  persons  received  at  any  such  place  for  investigation 
of  their  mental  condition  or  pending  commitment  and  transfer  to  a state 
hospital  shall  be  maintained  therein  at  the  expense  of  such  town,  city  or 
county.  Any  person  apparently  insane,  and  conducting  himself  in  a 
manner  which  in  a sane  person  would  be  disorderly,  may  be  arrested  by 
any  peace  officer  and  confined  in  some  safe  and  comfortable  place  until 
the  question  of  his  sanity  be  determined,  as  prescribed  by  this  chapter. 
The  officer  making  such  arrest  shall  immediately  notify  the  health  officer 
of  the  town,  village  or  city,  except  in  the  city  of  New  York  and  in  the 
county  of  Albany,  who  shall  forthwith  take  proper  measures  for  the  de- 
termination of  the  question  of  the  insanity  of  such  person,  and  for  his 
proper  care  and  treatment  as  provided  in  this  section,  pending  his  trans- 
fer to  an  institution  for  the  insane.  Whenever  in  the  city  of  New  York 
an  information  is  laid  before  a magistrate  that  a person  is  apparently 
insane  the  magistrate  must  issue  a warrant  directed  to  the  sheriff  of  the 
county  in  which  the  information  is  made,  or  any  marshal  or  policeman 
of  the  city  of  New  York,  reciting  the  substance  of  the  information,  and 
commanding  the  officer  forthwith  to  arrest  the  person  alleged  to  be  in- 
sane, and  bring  him  before  the  magistrate  issuing  the  warrant.  If  upon 
arraignment  it  appears  to  the  magistrate  issuing  the  warrant  that  the 
person  so  arraigned  before  him  is  apparently  insane  it  shall  be  the  duty 
of  the  magistrate,  if  such  information  is  laid  in  the  boroughs  of  Man- 
hattan and  the  Bronx,  to  commit  such  apparently  insane  person  to  the 
care  and  custody  of  the  board  of  trustees  of  Bellevue  and  allied  hospitals 
at  Bellevue  hospital,  and  therein  kept  in  a safe  and  comfortable  place 
until  the  question  of  his  sanity  be  determined  as  prescribed  by  this 
chapter,  and  in  the  boroughs  of  Brooklyn,  Queens  and  Richmond  the 
said  magistrate  shall  commit  such  apparently  insane  person  to  the  care 
of  the  commissioner  of  public  charities  who  shall  keep  such  person  in  a 
safe  and  comfortable  place  until  the  question  of  his  sanity  be  determined 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS. 


697 


Insanity  Law,  § 88. 

as  herein  prescribed.  Whenever  in  the  city  of  New  York  a person  is 
committed  as  apparently  insane  as  above  provided  it  shall  be  the  duty 
of  the  board  of  trustees  of  Bellevue  and  allied  hospitals  or  the  commis- 
sioner of  public  charities,  as  the  case  may  be,  to  forthwith  take  proper 
measures  for  the  determination  of  the  question  of  the  insanity  of  such 
person.  [Insanity  Law,  § 87,  as  amended  by  L.  1910,  ch.  608,  and  L. 
1912,  ch.  121.] 

§ 6.  APPREHENSION  AND  CONFINEMENT  OF  DANGEROUS  INSANE; 

DUTIES  OF  SUPERINTENDENTS  AND  OVERSEERS  OF  THE  POOR. 

When  an  insane  person  is  possessed  of  sufficient  property  to  maintain 
himself,  or  his  father,  mother,  husband,  wife  or  children  are  of  sufficient 
ability  to  maintain  him,  and  his  insanity  is  such  as  to  endanger  his  own 
person,  or  the  person  and  property  of  others,  the  committee  of  his  per- 
son or  estate,  or  such  father,  mother,  husband,  wife  or  children  must 
provide  a suitable  place  for  his  confinement,  and  there  maintain  him  in 
such  manner  as  shall  be  approved  by  the  health  officer  of  the  town,  vil- 
lage or  city  where  he  is  confined,  and  in  accordance  with  the  rules  of  the 
commission.*3.  The  health  officers  of  towns,  villages  and  cities,  or  in  the 
boroughs  of  Manhattan  and  the  Bronx  in  the  city  of  New  York  the 
board  of  trustees  of  Bellevue  and  allied  hospitals,  and  in  the  boroughs 
of  Brooklyn,  Queens  arid  Richmond,  in  said  city,  and  also  in  the  county 
of  Albany,  the  commissioner  of  public  charities  are  required  to  see  that 
the  provisions  of  this  section  are  carried  into  effect  in  the  most  humane 
and  speedy  manner. 

Upon  the  refusal  or  neglect  of  a committee,  guardian  or  relative  of  an 
insane  person  to  cause  him  to  be  confined,  as  required  in  this  chapter,  the 
officers  named  in  this  section  shall  apply,  or  cause  application  to  be 
made,  to  a judge  of  a court  of  record  of  the  city  or  county,  or  to  a justice 
of  the  supreme  court  of  the  judicial  district  in  which  such  insane  per- 
son may  reside  or  be  found,  who,  upon  being  satisfied,  upon  proper 
proofs,  that  such  person  is  dangerously  insane  and  improperly  cared  for 
or  at  large,  shall  issue  a precept  to  one  or  more  of  the  officers  named, 
commanding  them  to  apprehend  and  confine  such  insane  person  in  some 
comfortable  and  safe  place;  and  such  officers  in  apprehending  such  in- 
sane person  shall  possess  all  the  powers  of  a peace  officer  executing  a 
warrant  of  arrest  in  a criminal  proceeding.4  Unless  an  order  of  commit- 

3-a.  Where  the  insane  person  is,  or  has  responsible  relatives,  of  sufficient 
ability  to  maintain  him.  the  State  Commission  in  Lunacy  and  the  local  health 
officer,  haAring  upon  inquiry  concluded  that  he  is  being  improperly  cared  for,  may 
apply  to  a judge  of  a court  of  record  for  his  commitment  to  a state  hospital  for  the 
insane.  The  expense,  fees  and  compensation  in  the  performance  of  these  duties  shall 
he  allowed  by  the  judge  before  whom  the  application  is  heard.  Kept,  of  Atty.  Genl., 
Feb.  7.  1912/ 

4.  Arrest  of  a dangerous  insane  person,  force  may  be  used.  Penal  Law,  § 246, 
sub.  6. 


698 


RELIEF  OF  POOR. 


Insanity  Law,  § 94. 

ment  has  been  previously  granted,  such  officers  shall  forthwith  make,  or 
cause  to  be  made,  application  for  the  proper  order  for  his  commitment 
to  the  proper  institution  for  the  care,  custody  and  treatment  of  the  in- 
sane, as  authorized  by  this  chapter,  and  if  such  order  is  granted,  such 
officer  shall  take  the  necessary  legal  steps  to  have  him  transferred  to  such 
institution.  Pending  such  transfer  the  health  officer  of  the  proper  town, 
village  or  city,  and,  in  the  city  of  New  York  and  the  county  of  Albany, 
the  officers  above  named  for  the  respective  boroughs,  or  county,  shall 
see  that  such  insane  person  is  cared  for  in  a suitable  place  and  is  pro- 
vided with  proper  medical  care  and  nursing.5 6  The  cost  and  expense 
incurred  by  the  health  officer  in  the  performance  of  his  duties  under  this 
section  shall,  when  allowed  by  the  judge  or  justice  ordering  the  commit- 
ment, be  a charge  against  the  town,  city  or  county  liable  for  the  costs  of 
the  commitment  of  an  insane  person  under  this  chapter  and  shall  be 
paid  in  the  manner  prescribed  by  section  eighty-four  of  this  chapter.* 
[Insanity  Law,  § 88,  as  amended  by  L.  1910.  eh.  608,  and  L.  1912,  ch. 
121 ; B.  C.  & G.  Cons.  L.,  p.  2483.] 

§ 7.  DISCHARGE  OF  PATIENTS;  DUTIES  OF  SUPERINTENDENT  OF  THE 
POOR. 

The  superintendent  of  a state  hospital,  on  filing  his  written  certifi- 
cate with  the  commission,  may  discharge  any  patient,  except  one  held 
upon  an  order  of  a court  or  judge  having  criminal  jurisdiction  in  an 
action  or  proceeding  arising  out  of  a criminal  offense  at  any  time,  as 
follows : 

1.  A patient  who,  in  his  judgment,  is  recovered. 

2.  A patient  who,  in  his  opinion,  is  a dotard,  not  insane. 


5.  Unlawful  confinement;  harsh  treatment.  A person  who  confines  an  idiot, 

lunatic  or  insane  person,  in  any  other  manner  or  in  any  other  place  than  as  au- 
thorized by  law,  and  a person  guilty  of  harsh,  cruel  or  unkind  treatment  of  or  any 
neglect  of  duty  towards  any  idiot,  lunatic  or  insane  person  under  confinement, 
whether  lawfully  or  unlawfully  confined,  is  guilty  of  a misdemeanor.  Penal  Law. 
§ 1121. 

6.  Application  of  section.  The  above  section  relates  to  dangerously  insane  per- 
sons. The  father  is  therein  required  to  provide  a suitable  place  for  his  lunatic 
son’s  confinement,  and  upon  his  refusal  or  neglect  so  to  do,  legal  proceedings  may 
be  instituted,  and  a commitment  ordered  on  proper  proof.  Long  Island  State  Hos- 
pital v.  Stuart,  22  M'isc.  48,  51;  49  N.  Y.  Supp.  372. 

It  is  the  duty  of  the  committee  or  relatives  of  a lunatic  to  provide  for  his  con- 
finement if  he  be  dangerously  insane;  and  in  case  of  their  neglect  the  duty  is  im- 
posed on  certain  public  officers.  Perkins  v.  Mitchell,  31  Barb.  461.  473. 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS. 


699 


Insanity  Law,  § 94. 

3.  Any  patient  who  is  not  recovered  hut  whose  discharge  in  the  judg- 
ment of  the  superintendent,  will  not  be  detrimental  to  rhe  public  wel- 
fare, or  injurious  to  the  patient;  provided,  however,  that  before  making 
such  certificate,  the  superintendent  shall  satisfy  himself,  by  sufficient 
proof,  that  friends  or  relatives  of  the  patient  are  willing  and  financially 
able  to  receive  and  properly  care  for  such  patient  after  his  discharge. 
When  the  superintendent  is  unwilling  to  certify  to  the  discharge  of  an 
unrecovered  patient  upon  request,  and  so  certifies  in  writing,  giving  his 
reason  therefor,  any  judge  of  a court  of  record  in  the  judicial  district 
in  which  the  hospital  is  situated  may,  upon  such  certificate  and  an  op- 
portunity of  a hearing  thereon  being  accorded  the  superintendent,  and 
upon  such  other  proofs  as  may  be  produced  before  him,  direct,  by  order, 
the  discharge  of  such  patient,  -upon  such  security  to  the  people  of  the 
state  as  he  may  require,  for  the  good  behavior  and  maintenance  of  the 
patient.  The  certificate  and  the  proof  of  the  order  granted  thereon 
shall  be  filed  in  the  clerk’s  office  of  the  county  in  which  the  hospital  is 
situated,  and  a certified  copy  of  the  order  in  the  hospital  from  which 
the  patient  is  discharged.  The  superintendent  may  grant  a parole  to  a 
patient,  not  exceeding  one  year,  under  general  conditions  prescribed  by 
the  commissioner.  The  hospital  paroling  a patient  shall  not  be  liable 
for  his  expenses  while  on  parole.  Such  liability  shall  devolve  upon  the 
relative,  committee  or  person  to  whose  care  the  patient  is  paroled,  or 
the  proper  poor  official  of  the  town  or  county  in  which  he  may  have  found 
domicile. 

The  commission  may,  by  order,  discharge  any  patient  in  its  judgment 
improperly  detained  in  any  institution.  A poor  and  indigent  patient 
discharged  by  the  superintendent,  because  he  is  an  idiot,  or  a dotard  not 
insane,  or  an  epileptic,  not  insane,  or  because  he  is  not  a proper  case  for 
treatment  within  the  meaning  of  this  chapter,  shall  be  received  and 
cared  for  by  the  superintendent  of  the  poor  or  other  authority  having 
similar  powers,  in  the  county  from  which  he  was  committed.  A patient, 
held  upon  an  order  of  a court  or  judge  having  criminal  jurisdiction,  in 
an  action  or  proceeding  arising  from  a criminal  offense,  may  be  dis- 
charged upon  the  superintendent’s  certificate  of  recovery,  approved  by 
any  such  court  or  judge.7 

4.  Discharge  of  patients  from  licensed  institutions.  The  superin- 


7.  The  committee  of  the  person  of  an  incompetent  may  obtain  her  custody  by  a 
writ  of  habeas  corpus  pursuant  to  this  section,  although  she  has  not  been  declared 
sane.  Matter  of  Andrews,  126  App.  Div.  794,  800,  111  N.  Y.  Supp.  417. 


700 


RELIEF  OF  POOR. 


State  Charities  Law,  § 68. 

tendent  or  physician  in  charge  of  a licensed  private  institution,  on  filing 
his  written  certificate  with  the  commission,  may  discharge  any  patient 
who  is  recovered,  or  if  not  recovered,  whose  discharge  will  not  be  detri- 
mental to  the  public  welfare,  or  injurious  to  the  patient.  The  superin- 
tendent or  physician  in  charge  of  such  institution  may,  subject  to  the 
approval  of  the  commission,  refuse  to  discharge  any  patient,  if,  in  his 
judgment,  such  discharge  will  be  detrimental  to  the  public  welfare  or 
injurious  to  the  patient,  and  if  the  committee  or  relatives  of  such  pa- 
tient to  provide  properly  for  his  care  and  treatment,  the  superintendent 
or  physician  in  charge  of  such  institution  may  apply  to  the  commission 
for  the  transfer  of  the  patient  to  a state  hospital,  provided  the  patient 
so  sought  to  be  transferred  is  a legal  resident  of  the  district  in  which  the 
hospital  is  located,  to  which  the  transfer  is  sought. 

The  superintendent  or  physician  in  charge  of  a licensed  private  insti- 
tution may  grant  a parole  to  a patient  not  exceeding  six  months,  under 
general  conditions  prescribed  by  the  commission.  [Insanity  Law,  § 94, 
as  amended  by  L.  1912,  ch.  121,  and  L.  1917,  ch.  335 ; B.  C.  & G.  Cons.  L., 
p.  2487.] 

§ 8.  MANNER  OF  RECEIVING  PUPILS  AT  THE  SYRACUSE  STATE  INSTI- 
TUTION FOR  FEEBLE-MINDED  CHILDREN.8 9 

Feeble-minded  children  may  be  received  into  such  institution  upon 
the  official  application  of  a county  superintendent  of  the  poor,  or  the 
commissioners  of  charity  of  a city  of  the  state  having  such  officers.  In 
the  admission  of  feeble-minded  children,  preference  shall  be  given  to 
poor  or  indigent  children  over  all  others,  and  to  such  as  are  able  or  have 
parents  able  to  support  them  only  in  part,  over  those  who  are  or  who 
have  parents  who  are  able  to  wholly  support  such  children.  [State 
Charities  Law,  § 68,  as  amended  by  L.  1910,  ch.  449;  B.  C.  & G.  Cons. 
L.,  p.  5399.] 


8.  The  Syracuse  State  Institution  for  Feeble-Minded  Children  is  established 

and  managed  pursuant  to  article  5 of  the  State  Charities  Law. 

9.  Audit  of  accounts  by  superintendent  of  the  poor.  See  Poor  Law.  sec.  3,  ante, 
p.  671. 

8.  Audit  of  expense  of  clothing  to  be  paid  by  counties.  See  County  Law,  sec.  12, 
ante,  p.  26.  The  accounts  against  the  several  counties  for  the  expense  of  such  cloth- 
ing should  be  itemized  and  verified  as  provided  in  County  Law,  sec.  24,  ante,  p.  27. 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS.  700a 
State  Charities  Law,  §§  69,  70. 

§ 9.  DISCHARGE  OF  STATE  PUPILS  FROM  SUCH  INSTITUTION;  EX- 
PENSE  OF  RETURN  TO  BE  AUDITED  BY  SUPERINTENDENT  OF 
THE  POOR. 

When  the  manager  shall  direct  a state  pupil  to  he  discharged  from  the 
institution,  the  superintendent  thereof  may  return  him  to  the  county 
from  which  he  was  sent,  and  the  superintendent  of  the  poor  of  the 
county  shall  audit  and  pay  the  actual  and  reasonable  expenses  of  such 
return.9  If  any  town,  county  or  person  is  legally  liable  for  the  support 
of  such  pupil,  such  expenses  may  be  recovered  by  action  in  the  name  of 
the  county  by  such  superintendent  of  the  poor.  If  the  superintendent 
of  the  poor  neglect  or  refuse  to  pay  such  expenses  on  demand,  the  treas- 
urer of  the  institution  may  pay  the  same  and  charge  the  amount  to  the 
county ; and  the  treasurer  of  the  county  shall  pay  the  same  with  interest 
after  thirty  days,  out  of  any  funds  in  his  hands  not  otherwise  appro- 
priated ; and  the  supervisors  shall  raise  the  amount  so  paid  as  other 
county  charges.  [State  Charities  Law,  § 69,  as  amended  by  L.  1910. 
ch.  449 ; B.  C.  & G.  Cons.  L.,  p.  5399.] 

§ 10.  EXPENSE  OF  CLOTHING  STATE  PUPILS  TO  BE  PAID  BY  COUNTY; 

SUPPORT  OF  PUPILS  TO  BE  PAID  BY  PARENTS  AND  RELATIVES; 
EXPENSE  OF  REMOVAL. 

The  supervisors  of  any  county  from  which  state  pupils  may  have  been 
received  shall  cause  to  be  raised  annually,  while  such  pupils  remain  in 
the  institution,  the  sum  of  twenty  dollars  for  each  pupil,  for  the  purpose 
of  furnishing  suitable  clothing,  which  shall  be  paid  to  the  treasurer  of 
the  institution  on  or  before  the  first  day  of  April.10  The  superintendent 
may  agree  with  the  parent,  guardian  or  committee  of  a feeble-minded 
child,  or  with  any  person,  for  the  support,  maintenance  and  clothing  of 
such  a child  at  the  institution,  upon  such  terms  and  conditions  as  may  be 
prescribed,  in  the  by-laws,  or  approved  by  the  managers.  Every  parent, 
guardian,  committee,  or  other  person  applying  for  the  admission  into 
the  institution  of  a feeble-minded  child  who  is  able,  or  whose  parents  or 
guardians  are  of  sufficient  ability  to  provide  for  his  maintenance  therein, 
shall  at  the  time  of  his  admission,  deliver  to  the  superintendent  an  un- 
dertaking, with  one  or  more  sureties,  to  be  approved  by  the  managers, 


9.  The  Rome  State  Custodial  Asylum  is  established  and  managed  pursuant  to 
State  Charities  Law,  art.  7.  See  B.  C.  & G.  Cons.  L.,  p.  5402. 

10.  Craig  Colony  for  Epileptics  was  established  and  is  managed  pursuant  to 
State  Charities  Law.  See  B.  C.  & G.  Cons.  Law,  p.  5405. 


700b 


RELIEF  OF  POOR. 


State  Charities  Law,  § 70. 

conditioned  for  the  payment  to  the  treasurer  of  the  institution  of  the 
amount  agreed  to  be  paid  for  the  support,  maintenance  and  clothing  of 
such  feeble-minded  child,  and  for  the  removal  of  such  child  from  the  in- 
stitution without  expense  thereto,  within  twenty  days  after  the  service 
of  the  notice  hereinafter  provided.  If  such  child,  his  parents  or  guard- 
ians are  of  sufficient  ability  to  pay  only  a part  of  the  expense  of  support- 
ing and  maintaining  him  such  undertaking  shall  be  only  for  his  removal 
from  the  institution  as  above  mentioned;  and  the  superintendent  may 
take  security  by  note  or  other  written  agreement,  with  or  without  sure- 
ties, as  he  may  deem  proper,  for  such  part  of  such  expenses  as  such  child, 
his  parents  or  guardians  are  able  to  pay,  subject,  however,  to  the  ap- 
proval of  the  managers  in  the  manner  that  shall  be  prescribed  in  the 
by-laws.  Notice  to  remove  a pupil  shall  be  in  writing,  signed  by  the 
superintendent  and  directed  to  the  parents,  guardians,  committee  or 
other  person  upon  whose  request  the  pupil  was  received  at  the  institu- 
tion, at  the  place  of  residence  mentioned  in  such  request,  and  deposited 
in  the  post-office  at  Syracuse  with  the  postage  prepaid.  If  the  pupil 
shall  not  be  removed  from  the  institution  within  twenty  days  after  ser- 
vice of  such  notice,  according  to  the  conditions  of  the  agreement  and  un- 
dertaking, he  may  be  removed  and  disposed  of  by  the  superintendent  as 
herein  provided,  in  relation  to  state  pupils,  and  the  provisions  of  this 
article  respecting  the  payment  and  recovery  of  the  expenses  of  the  re- 
moval and  disposition  of  a state  pupil,  shall  be  equally  applicable  to  ex- 
penses incurred  under  this  section.  This  section,  as  amended,  shall 
supersede  and  control  any  other  provision  of  this  chapter  inconsistent 
herewith  in  its  application  to  such  institution.  [State  'Charities  Law, 
§ 70,  as  amended  by  L.  1911,  ch.  609 ; B.  C.  & Gr.  Cons.  L.,  p.  5400.] 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS.  701 
State  Charities  Law,  §§  94,  109. 

§ 11.  COMMITMENTS  TO  ROME  STATE  CUSTODIAL  ASYLUM;  DUTIES 
OF  SUPERINTENDENT  OE  THE  POOR. 

The  superintendents  of  the  poor  of  the  various  counties  of  the  state 
may  commit  to  such  asylum,  if  vacancies  exist  therein,  such  feeble^ 
minded  persons  and  idiots  residing  in  their  respective  counties,  or  who 
are  inmates  of  county  almshouses,  according  to  the  by-laws  and  regula- 
tions of  the  asylum.  All  commitments  shall  be  in  the  form  prescribed 
by  the  board  of  managers.  Insane  idiots  or  epileptics  shall  not  be  com- 
mitted to  such  asylum.  The  maintenance  of  the  institution  and  inmates 
thereof  shall  be  a charge  upon  the  state,  except  that  a feeble-minded 
person  or  idiot  who  is  possessed  of  sufficient  property  to  pay  for  mainte- 
nance in  the  asylum,  or  the  father,  mother,  committee  or  guardian  who 
is  responsible  for  the  care  of  such  feeble-minded  person  and  is  finan- 
cially able  in  the  judgment  of  the  board  of  managers  to  reimburse  the 
state  in  addition  to  a proper  financial  ability  to  support  himself  and 
remaining  family,  shall  pay  the  treasurer  of  the  asylum  yearly  an 
amount  equal  to  the  yearly  per  capita  cost  of  such  maintenance  as  de- 
terminated by  the  board  of  managers  yearly,  and  upon  the  refusal  of  such 
parent,  committee  or  guardian  to  make  payment  as  herein  provided  the 
superintendent  of  such  asylum  may  bring  action  in  the  name  of  the 
asylum  to  recover  for  such  reimbursement  to  the  state  for  such  mainte- 
nance. Where  it  becomes  necessary  to*  have  a committee  of  a feeble- 
minded incompetent  person  appointed  to  legally  settle  an  estate  in  which 
such  incompetent  feeble-minded  person  has  a legal  or  financial  interest, 
the  superintendent  of  the  asylum  is  hereby  empowered  to  make  appli- 
cation to  a court  of  competent  jurisdiction  for  the  appointment  of  such 
committee.  [State  Charities  Law,  § 94,  as  amended  by  L.  1914,  ch. 
165;  B.  C.  & G.  Cons.  L.,  p.  5403.] 


§ 12.  ADMISSION  OF  PATIENTS  TO  ERATO  COLONY  FOR  EPTLEPTTCS: 
APPLICATIONS  BY  SUPERINTENDENTS  OF  THE  POOR;  POOR 
EPILEPTICS  TO  BE  PLACED  IN  COLONY. 

1.  The  superintendent  of  the  poor  or  the  proper  city  poor  law  officer 
shall  have  two  qualified  physicians  examine  each  eligible  candidate  for 
admission  to  the  Craig  Colony  for  Epileptics  as  to  mental  competency 
and  have  them  state  in  writing,  under  affidavit  on  prescribed  forms  the 
results  of  such  examination  of  the  applicant.  Such  examiner  shall  not 


702 


RELIEF  OF  POOR. 


State  Charities  Law,  § 109. 

be  a relative  of  the  applicant  or  a manager,  superintendent  or  be  other- 
wise connected  with  the  Craig  Colony  for  Epileptics  and  shall  be  a 
reputable  physician,  a graduate  of  an  incorporated  medical  school  and 
shall  be  in  the  actual  practice  of  his  profession  for  at  least  three  years. 
The  superintendent  of  the  poor  or  city  poor  law  officer  mentioned  under 
the  laws  governing  the  colony  shall  then  if  the  applicant  appears  in- 
competent make  application  to  a judge  of  a court  of  record  of  the  county 
or  a justice  of  the  supreme  court  of  the  judicial  district  in  which  the 
alleged  incompetent  epileptic  resides  or  may  be,  for  the  purpose  of 
having  the  incompetency  of  such  applicant  determined  in  the  usual 
manner.  If  the  applicant  is  adjudged  incompetent  he  shall  then  be 
committed  by  the  court  to  the  Craig  Colony  for  Epileptics  under  the 
provisions  of  this  act. 

2.  All  applicants  for  admission  to  the  Craig  Colony  for  Epileptics, 
who  are  alleged  to  be  incompetent  mentally  shall  have  an  opportunity 
for  a hearing  before  the  court  to  whom  the  application  is  to  be  made 
for  the  commitment  of  the  applicant  to  the  said  Craig  Colony  for 
Epileptics. 

Notice  of  the  application  for  commitment  shall  be  served  per- 
sonally at  least  three  days  before  making  such  application,  upon  the 
epileptic  alleged  to  be  incompetent  and  also  upon  the  husband  or  wife, 
father  or  mother  or  next  of  kin  to  such  alleged  incompetent  epileptic, 
it  there  be  any  such  known  to  be  residing  within  the  county  and  if  not, 
upon  the  person  with  whom  such  alleged  incompetent  epileptic  may  at 
the  time  reside. 

The  judge,  to  whom  the  application  is  to  be  made,  may  dispense 
with  such  personal  service  or  may  direct  substitute  service  to  be  made 
upon  some  person  to  be  designated  by  him.  He  shall  in  the  certificate 
to  be  attached  to  the  application  form  state  his  reason  for  dispensing 
with  personal  service,  if  such  service  is  not  deemed  necessary  or  advis- 
able. The  judge  to  whom  such  application  is  made,  may  if  no  demand 
is  made  for  a hearing  in  behalf  of  the  alleged  incompetent,  proceed 
forthwith  to  determine  the  question  of  incompetencv  and  if  satisfied 
that  the  alleged  epileptic  is  incompetent  may  issue  an  order  for  the 
commitment  of  such  person  to  the  custody  of  the  Craig  Colony  for 
Epileptics.  Such  judge  may  in  his  discretion  require  other  proofs  in 
addition  to  the  petition  and  certificate  of  the  medical  examiner  and 
before  mentioned  poor  law  officer. 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS.  7Q2a 


State  Charities  Law,  § 109. 

3.  The  order  of  commitment  shall  be  accompanied  by  a written  state- 
ment of  the  judge  as  to  the  financial  condition  of  the  incompetent  epi- 
leptic and  of  the  persons  legally  liable  for  his  maintenance  as  far  as 
can  be  ascertained.  The  superintendent  of  the  Craig  Colony  for  Epi- 
leptics shall,  whenever  a vacancy  exists  in  the  quota  allowed  the  county 
of  which  the  applicant  is  a legal  resident,  admit  the  applicant.  The 
petition  of  the  applicant,  the  certificate  of  the  medical  examiners,  the 
order  directing  a further  hearing  as  provided  in  this  section,  if  one  be 
issued,  and  the  decision  of  the  judge  or  referee,  and  the  order  of  commit- 
ment shall  be  presented  at  the  time  of  the  commitment  to  the  superin- 
tendent of  Craig  Colony  for  Epileptics  and  verbatim  copies  shall  be 
forwarded  by  such  superintendent  and  filed  in  the  office  of  the  state 
board  of  charities.  The  superintendent  of  Craig  Colony  for  Epileptics 
may  refuse  to  receive  any  person  upon  any  such  order,  if  the  papers 
required  to  be  presented  shall  not  comply  with  the  provisions  of  this 
section,  or  if  in  his  judgment,  such  person  is  not  epileptic  within  the 
meaning  of  this  statute,  or  if  received,  such  person  may  be  discharged. 

If  a person  ordered  to  be  committed,  pursuant  to  this  chapter,  or 
any  friend  in  his  behalf,  is  dissatisfied  with  the  final  order  of  a judge 
or  justice  committing  him,  he  may  within  ten  days  after  the  making  of 
such  order  appeal  therefrom  to  a justice  of  the  supreme  court  other  than 
the  justice  making  the  order,  who  shall  cause  a jury  to  be  summoned 
as  in  case  of  proceedings  for  the  appointment  of  a committee  for  the 
incompetent  person,  and  shall  try  the  question  of  such  incompetency 
in  the  same  manner  as  in  proceedings  for  the  appointment  of  a com- 
mittee. If  the  verdict  of  the  jury  be  that  such  person  is  incompetent, 
the  justice  shall  certify  that  fact  and  make  an  order  of  commitment  as 
upon  the  original  hearing.  Such  order  shall  be  presented,  at  the  time 
of  the  commitment  of  such  incompetent  epileptic,  to  the  superintendent 
in  charge  of  said  colony  to  which  the  person  is  committed,  and  a copy 
thereof  shall  be  forwarded  to  the  state  board  of  charities  by  such  super- 
intendent or  person  in  charge  and  filed  in  the  office  thereof.  Proceed- 
ings under  the  order  shall  not  be  stayed  pending  an  appeal  therefrom, 
except  upon  an  order  of  a justice  of  the  supreme  court,  and  made  upon 
a notice,  and  after  a hearing,  with  provisions  made  therein  for  such 
temporary  care  or  confinement  of  the  alleged  incompetent  epileptic  as 
may  be  deemed  necessary.  If  a judge  shall  refuse  to  grant  an  appli- 
cation for  an  order  of  commitment  of  an  incompetent  epileptic  proved 
to  be  dangerous  to  himself  or  others,  if  at  large  he  shall  state  his  reason 


702b 


RELIEF  OF  POOR. 


State  Charities  Law,  § 109. 

for  such  refusal  in  writing,  and  any  person  aggrieved  thereby  may  ap- 
peal therefrom  in  the  same  manner  and  under  like  conditions  as  from 
an  order  of  commitment. 

4.  The  costs  necessarily  incurred  in  determining  the  question  of  the 
incompetency  of  a poor  or  indigent  epileptic  under  this  chapter  includ- 
ing the  fees  allowed  by  the  judge  or  justice  ordering  the  commitment 
to  the  medical  examiner  or  medical  witnesses  called  by  him  and  other 
necessary  expenses,  and  in  securing  the  admission  of  such  person  into 
said  colony  and  the  expense  of  providing  proper  clothing  for  such  person 
in  accordance  with  the  rules  and  regulations  adopted  by  the  state  board 
of  charities,  shall  be  a charge  upon  the  town,  city  or  county  in  which 
the  alleged  incompetent  epileptic  shall  have  gained  a legal  settlement 
under  the  provisions  of  the  poor  law  and  in  case  such  person  has  gained 
no  such  legal  settlement,  then  such  expense  shall  be  a charge  upon  the 
county  in  which  the  incompetent  person  may  be  at  the  time  of  the 
commitment;  but  in  the  city  of  New  York  all  fees  of  medical  examiners 
and  medical  witnesses  appointed  or  called  by  a judge  of  any  court  of 
said  city  for  the  purpose  of  determining  the  question  of  the  ineompe- 
tency  of  such  person,  and  not  heretofore  paid,  may  be  audited  and 
allowed  in  the  first  instance  either  by  the  judge  or  justice  appointing 
the  medical  examiners  or  by  the  comptroller  of  said  city  and  shall  be 
paid  by  the  chamberlain  of  said  city  on  the  warrant  of  the  comptroller 
from  the  court  fund  and  charged  to  the  proper  county  within  said  city. 
If  the  person  sought  to  be  committed  is  not  a poor  or  indigent  person, 
the  costs  and  expenses  of  the  proceeding  to  determine  his  incompetency 
and  secure  his  commitment  paid  by  any  town,  city  or  county  may  be 
collected  by  it  from  the  estate  of  such  person,  or  from  the  persons  legally 
liable  for  his  maintenance. 

5.  It  shall  be  the  duty  of  said  colony,  and  for  that  purpose  it  is  hereby 
vested  with  the  authority  to  detain  all  such  mentally  incompetent  epilep- 
tics as  shall  be  duly  committed  thereto  in  accordance  with  the  provi- 
sions of  law  and  the  rules  and  regulations  of  said  colony  including  the 
right  to  arrest  and  return  any  who  may  escape  therefrom,  until  duly 
discharged  by  the  board  of  managers  of  said  colony,  or  by  an  order  of 
the  supreme  court. 

6.  The  superintendent  of  the  Craig  Colony  for  Epileptics  shall  be 
given  power  under  this  act  to  secure  the  commitment  of  such  of  its  in- 
mates who,  after  being  admitted  in  any  other  manner  than  by  commit- 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS.  702c 
State  Charities  Law,  § 109. 

ment,  prove  after  examination  to  be  mentally  incompetent,  after  an  op- 
portunity has  been  given  the  relatives  or  legal  guardian  of  such  patient 
to  be  heard,  such  commitment  to  be  made  by  the  court  in  the  case  of  such 
an  individual  the  same  as  in  case  of  a person  regularly  committed  at  the 
time  of  admission  to  the  colony. 

7.  It  shall  be  the  duty  of  the  superintendent  of  the  poor  in  every 
county  and  of  the  poor  authorities  of  every  city  to  furnish  annually  to 
the  state  board  of  charities,  a list  of  all  epileptics  in  their  respective  jur- 
isdictions, so  far  as  the  same  can  be  ascertained  with  such  particulars 
as  to  the  condition  of  such  epileptic  as  shall  become  a charge  for  his  or 
her  maintenance  on  any  of  the  towns,  cities  or  counties  of  this  state.  It 
shall  be  the  duty  of  all  poor  authorities  of  such  city,  and  of  the  county 
superintendent  of  the  poor,  and  of  the  supervisors  of  such  county,  to 
place  such  epileptics  in  the  said  colony,  as  soon  as  accommodations  are 
available.  Any  parent,  guardian  or  friend  of  an  epileptic  within  this 
state  may  make  application  to  the  poor  authorities  of  any  city  or  the 
superintendent  of  the  poor  of  any  county  where  such  epileptic  resides, 
showing  by  satisfactory  affidavit  or  other  proof,  that  the  health,  morals, 
comfort  or  welfare  of  such  epileptic  may  be  endangered  or  not  properly 
cared  for,  if  not  placed  in  such  colony ; and  thereupon  it  shall  be  the 
duty  of  such  officer  or  board  to  whom  such  application  may  be  made  to 
place  such  epileptic  in  said  colony  when  accommodations  are  available. 
The  board  of  supervisors  shall  provide  for  the  support  of  such  patients, 
except  those  properly  supported  by  the  state,  and  may  recover  for  the 
same  from  the  parents  or  guardians.13  Preference  shall  always  be  given 
to  poor  or  indigent  epileptics,  or  the  epileptic  children  of  poor  or  indi- 
gent persons,  over  all  others;  and  preference  shall  always  be  given  to 
such  as  are  able  to  support  themselves  only  in  part,  over  those  who  are 
able  or  who  have  parents  who  are  able  wholly  to  furnish  such  support. 

8.  There  shall  be  received  and  gratuitously  supported  in  the  colony, 
epileptics  of  normal  mentality  residing  in  the  state,  who,  if  of  age,  are 
unable,  or  if  under  age  whose  parents -or  guardians  are  unable  to  provide 
for  their  support  therein.  They  shall  be  designated  state  patients.  All 
such  epileptics  of  normal  mentality  shall  be  received  into  the  colony, 
only  upon  the  official  application  of  a county  superintendent  of  the  poor, 

13.  Accounts  for  support  of  patients  chargeable  to  a county  should  be  sub- 
mitted to  the  clerk  of  the  board  of  supervisors  in  the  manner  prescribed  by  the  State 
Charities  Law,  § 47,  as  amended  by  L.  1911,  ch.  405. 

As  to  the  audit  of  such  accounts  by  the  board  of  supervisors,  see  County  Law,  sec. 
12.  arute , p.  24. 


702d 


RELIEF  OF  POOR. 


State  Charities  Law,  §§  109,  110. 

or  the  poor  authorities  of  any  city  upon  forms  approved  by  the  state 
board  of  charities  containing  the  written  request  of  the  persons  desiring 
to  send  them,  stating  the  name,  age,  place  of  nativity,  if  known,  the 
town,  city  or  county  in  which  such  applicants  respectively  reside  and 
the  ability  of  their  respective  parents  or  guardians  or  others  to  provide 
for  their  support  in  whole  or  in  part,  and  if  in  part  only,  stating  what 
part;  and  stating  also  the  degree  of  relationship  or  other  circumstances 
of  connection  between  the  applicant  and  the  persons  requesting  their  ad- 
mission ; which  statement  in  all  cases  must  be  verified  by  the  affidavits 
of  the  petitioners  and  accompanied  by  the  opinions  regarding  epilepsy 
and  mental  competency,  with  affidavit,  of  a qualified  physician ; all  resi- 
dents of  the  same  county  with  the  epileptic  patient  and  all  acquainted 
with  the  facts  and  circumstances  stated.  An  epileptic  of  proved  normal 
mentality  thus  received  shall  not  be  detained  after  he  or  his  relative 
nearest  of  kin  or  legal  guardian,  if  a minor,  shall  have  given  due  notice 
in  writing  of  his  or  their  intention  to  leave  or  remove  him  from  the 
colony.  Such  additional  number  of  epileptics  as  can  be  conveniently  ac- 
commodated shall  be  received  into  the  colony  by  the  managers  on  such 
terms  as  shall  be  just  and  shall  be  designated  as  private  patients.  [State 
Charities  Law,  § 109,  as  added  by  L.  1914,  ch.  39 ; B.  C.  & G.  Cons.  L., 
p.  5411.] 

§ 13.  SUPPORT  OF  STATE  PATIENTS  AT  CRAIG  COLONY:  PAYMENT  OF 
EXPENSE  OF  CLOTHING  BY  COUNTIES. 

State  patients  shall  be  provided  with  proper  board,  lodging,  medical 
treatment,  care  and  tuition ; and  the  managers  of  the  colony  shall  receive 


SUPPORT  OF  THE  INSANE,  IDIOTS  AND  EPILEPTICS,  703 
State  Charities  Law,  §§  111,  17. 

for  each  state  patient  supported  therein  a sum  not  exceeding  two  hundred 
and  fifty  dollars  per  annum ; which  payments,  if  any,  shall  be  made  by  the 
treasurer  of  the  state,  on  the  warrant  of  the  comptroller,  to  the  treasurer 
of  the  said  colony,  on  his  presenting  the  bill  of  the  actual  time  and  number 
of  patients  in  the  colony,  signed  and  verified  by  the  superintendent  and 
treasurer  of  the  colony  and  by  the  president  and  secretary  of  its  board  of 
managers,  and  approved  by  the  fiscal  supervisor.  The  supervisors  of  any 
county  from  which  such  patients  may  have  been  received  into  the  colony 
shall  cause  to  be  raised  annually  while  such  patients  remain  in  the  colony, 
the  sum  of  thirty  dollars  for  each  of  such  state  patients  for  the  purpose  of 
furnishing  suitable  clothing,  and  the  same  shall  be  paid  to  the  treasurer  of 
the  colony  on  or  before  the  first  day  of  April  of  each  year.14  [State  Chari- 
ties Law,  § 110,  as  amended  by  L.  1909,  ch.  149,  B.  C.  & G.  Cons.  L.,  p. 
5412.] 


§ 14.  APPORTIONMENT  OF  STATE  PATIENTS  AMONG  COUNTIES. 

Whenever  applications  are  made  at  one  time  for  admission  of  more  state 
patients  than  can  be  properly  accommodated  in  the  colony,  the  managers 
shall  so  apportion  the  number  received,  that  each  county  may  be  repre- 
sented in  a ratio  of  its  dependent  epileptic  population  to  the  dependent 
epileptic  population  of  the  state,  as  shown  by  statistics  furnished  by  the 
state  board  of  charities.  [State  Charities  Law,  § 111;  B.  C.  & G.  Cons.  L., 
p.  5412.] 


§15.  STATE,  NONRESIDENT  AND  ALIEN  POOR  NOT  TO  BE  AD- 
MITTED TO  CERTAIN  INSTITUTIONS. 

A poor  person  shall  not  be  admitted  as  an  inmate  into  a state  institution 
for  the  feeble-minded,  or  epileptics,  unless  a resident  of  the  state  for  one 
year  next  preceding  the  application  for  his  admission.  The  state  board  of 
charities,  and  any  of  its  members  or  officers,  may  at  any  time,  visit  and 
inspect  any  institution  subject  to  its  supervision  to  ascertain  if  any  inmates 


14.  Clothing  accounts.  The  superintendent  of  the  colony  is  required  by  section 
46  of  the  State  Charities  Law  to  report  to  the  clerk  of  the  board  of  supervisors  of 
each  county  the  number  of  patients  committed  to  such  colony  from  such  county. 
The  accounts  for  such  clothing  are  to  be  itemized  and  verified  as  provided  in 
sec.  24  of  the  County  Law,  post,  p.  27.  Such  accounts  are  then  to  be  audited  by 
the  board  of  supervisors. 


704 


RELIEF  OF  POOR. 


State  Charities  Law,  § 17. 

supported  therein  at  a state,  county  or  municipal  expense  are  state  charges* 
non-residents,  or  alien  poor;  and  it  may  cause  to  be  removed  to  the  state 
or  county  from  which  he  came  any  such  non-resident  or  alien  poor  found  in 
any  such  institution.  [State  Charities  Law*  § 17;  B.  C.  & G.  Cons.  L.,. 
p.  5383.] 


THE  BLIND  AND  THE  DEAF  AND  DUMB. 


705 


Education  Law,  §§  971,  972. 


CHAPTER  XLVn. 

EDUCATION  AND  SUPPORT  OF  THE  BLIND,  AND  THE  DEAF  AND 

DUMB. 


Section  1. 


2. 

3. 

4. 

5. 

6. 


7. 

8. 

9. 


Appointment  as  state  pupils  in  schools  for  the  blind  and  the  deaf  and 
dumb. 

Clothing  for  state  pupils  admitted  to  deaf  and  dumb  institutions. 

Admission  of  pupils  to  New  York  State  School  for  the  Blind  at  Batavia; 
application  for  admission. 

Clothing  and  traveling  expenses  of  those  admitted  to  State  School  for  the 
Blind ; when  to  be  furnished  or  paid  for  by  the  county. 

Itemized  accounts  against  counties,  payment  of  such  accounts. 

Indigent  deaf-mutes  to  be  placed  in  institutions ; application  for  admis- 
sion; when  expense  a charge  against  county. 

Pupils  may  be  sent  to  Western  New  York  Institution  for  Deaf-Mutes. 

Admission  of  pupils  to  Northern  New  York  Institution  for  Deaf-Mutes 
at  Malone. 

Verification  of  bills  for  support  of  pupils  at  New  York  Institution  for  the 
Instruction  of  the  Deaf  and  Dumb. 


§ L APPOINTMENT  AS  STATE  PUPILS  IN  SCHOOLS  FOR  THE  BLIND  AND 
THE  DEAF  AND  DUMB. 

All  deaf  and  dumb  persons  resident  in  this  state  and  upwards  of  twelve 
years  of  age,  who  shall  have  been  resident  in  this  state  for  one  year  imme- 
diately preceding  the  application,  or,  if  a minor,  whose  parent  or  parents,  or,  if 
an  orphan,  whose  nearest  friend  shall  have  been  resident  in  this  state  for  one 
year  immediately  preceding  the  application,  shall  be  eligible  to  appointments 
as  state  pupils  in  one  of  the  deaf  and  dumb  institutions  of  this  state,  author- 
ized by  law  to  receive  such  pupils.  [Education  Law,  § 971,  as  amended  by  L. 
1910,  ch.  140.] 

All  blind  persons  of  suitable  age  and  possessing  the  other  qualifications  pre- 
scribed for  deaf  and  dumb  state  pupils  under  section  nine  hundred  seventy-one 
shall  be  eligible  to  appointment  to  the  Institution  for  the  Blind  in  the  city  of 
New  York,  or  in  the  village  of  Batavia,  as  follows: 

1.  All  such  as  are  residents  of  the  counties  of  New  York,  Kings,  Queens,  Suf- 
folk, Nassau,  Richmond,  Westchester,  Putnam  and  Rockland,  shall  be  sent  to 
the  Institution  for  the  Blind  in  the  city  of  New  York. 

2.  All  such  who  reside  in  other  counties  of  the  state  shall  be  sent  to  the 
institution  for  the  blind  in  the  village  of  Batavia.  Blind  babies  and  children, 
not  residing  in  the  city  of  New  York,  of  the  age  of  twelve  years  and  under  and 
possessing  the  other  qualifications  prescribed  in  the  preceding  section  of  this 
chapter  and  requiring  kindergarten  training  and  instruction  shall  be  eligible 
to  appointment  as  state  pupils  in  one  of  the  homes  for  blind  babies  and  chil- 
dren maintained  by  the  International  Sunshine  Society,  Brooklyn  Home  for  the 
Blind,  Crippled  and  Defective  Children  and  the  Catholic  Institute  for  the  Blind 
and  any  such  child  may  be  transferred  to  the  institution  for  the  blind  in  the 


706 


RELIEF  OF  POOR. 


Education  Law,  § 975. 

city  of  New  York  or  village  of  Batavia,  to  which  he  or  she  would  otherwise 
be  eligible  to  appointment,  upon  arriving  at  suitable  age,  in  the  discretion  of 
the  commissioner  of  education.  All  such  appointments,  with  the  exception  of 
those  to  the  institution  for  the  blind  in  the  village  of  Batavia,  shall  be  made 
by  the  commissioner  of  education  upon  application,  and  in  those  cases  in  which, 
in  his  opinion,  the  parents  or  guardians  of  the  applicants  are  able  to  bear  a 
portion  of  the  expense,  he  may  impose  conditions  whereby  some  proportionate 
share  of  expense  of  educating  and  clothing  such  pupils  shall  be  paid  by  their 
parents,  guardians  or  friends,  in  such  manner  and  at  such  times  as  the  com- 
missioner shall  designate,  which  conditions  he  may  modify  from  time  to  time, 
if  he  shall  deem  it  expedient  to  do  so.  [Education  Law,  § 972,  as  amended  by 
L.  1910,  ch.  140,  and  L.  1912,  ch.  60.] 


§ 2.  CLOTHING  F OR  STATE  PUPILS  ADMITTED  TO  DEAF  AND 
DUMB  INSTITUTIONS. 

1.  The  supervisors  of  any  county  in  this  state  from  which  county  state 
pupils  may  be  hereinafter  appointed  to  any  institution  for  the  instruction 
of  the  deaf  and  dumb,  whose  parents  or  guardians  are  unable  to  furnish 
them  with  suitable  clothing,  are  hereby  authorized  and  required  to  raise 
in  each  year  for  each  such  pupil  from  said  county,  the  sum  of  thirty 
dollars. 

2.  The  supervisors  of  any  count}?-  in  this  state  from  which  state  pupils 
shall  be  sent  to  and  received  in  the  New  York  institution  for  the  blind, 
whose  parents  or  guardians  shall,  in  the  opinion  of  the  commissioner  of 
education,  be  unable  to  furnish  them  with  suitable  clothing  are  hereby 
authorized  and  directed,  in  every  year  while  such  pupils  are  in  said  insti  - 
tution, to  raise  and  appropriate  thirty  dollars  for  each  of  said  pupils,  and 
to  pay  the  sum  so  raised  to  the  said  institution,  to  be  by  it  applied  to  fur- 
nishing such  pupils  with  suitable  clothing  while  in  said  institution. 

3.  If  in  any  case  all  or  any  of  said  moneys  are  not  expended  before  the 
expiration  of  the  periods  of  appointment  of  such  pupils,  as  provided  in  the 
foregoing  subdivisions  of  this  section,  then  the  unexpended  residue  shall  go 
into  the  general  clothing  fund  of  the  said  institutions,  to  be  devoted  to  fur- 
nishing state  pupils  with  suitable  clothing.  [Subd.  amended  by  L.  1917,  ch. 
179.] 

4.  If  said  sums  shall  not  be  paid  to  the  said  institutions,  as  required  in 
subdivisions  one  and  two  of  this  section,  within  six  months  after  the  annual 
meeting  of  the  supervisors  of  any  of  said  counties,  the  sums  so  unpaid  shall 
bear  interest  at  the  rate  of  seven  per  centum  per  annum,  from  the  expira- 
tion of  said  six  months  until  the  same  be  paid.  [Subd.  amended  by  L.  1917, 
ch.  179.] 

5.  The  supervisors  of  any  county  in  this  state  from  whose  pauper  institu- 
tions pupils  shall  be  sent  to  the  said  institution  for  the  blind,  shall  raise, 
appropriate  and  pay  to  the  order  of  the  comptroller  of  the  state,  towards 
the  expense  of  educating  and  clothing  such  pupils,  a sum  equal  to  that  which 
the  county  would  have  to  pay  to  support  the  pupils  as  paupers  at  home. 
This  subdivision  does  not  apply  to  the  counties  of  New  York,  Kings,  Queens, 
Nassau  and  Suffolk. 


THE  BLIND  AND  THE  DEAF  AND  DUMB.  707 

Education  Law,  §§  975,  991-993. 

C.  The  supervisors,  or  officers  corresponding  thereto,  of  the  counties  of 
New  York,  Kings,  Queens,  Nassau  and  Suffolk,  from  which  state  pupils 
shall  be  sent  to  and  received  in  the  New  York  institution  for  the  blind, 
whose  parents  or  guardians  shall,  in  the  opinion  of  the  commissioner  of 
education,  be  unable  to  furnish  them  with  suitable  clothing,  are  hereby 
authorized  and  directed,  in  every  year  while  such  pupils  are  in  said  insti- 
tution, to  raise  and  appropriate  fifty  dollars  for  each  of  said  pupils  from 
said  counties  respectively,  and  to  pay  the  sum  so  raised,  to  the  said  in- 
stitution, to  be  by  it  applied  to  furnishing  such  pupils  with  suitable  cloth- 
ing while  in  said  institution. 

7.  If  in  any  year  hereafter  there  shall  be  any  surplus  of  the  amount 
above  required  to  be  paid  yearly  by  the  said  counties  for  clothing  for  pupils 
from  said  counties,  respectively,  then  such  surplus  shall  be  deducted  pro 
rata  the  ensuing  year  from  the  amount  above  required  to  be  paid  by  the 
said  counties  respectively.  [Education  Law,  § 975,  as  amended  by  L. 
1910,  ch.  140.] 


§ 3.  ADMISSION  OF  PUPILS  TO  NEW  YORK  SCHOOL  FOR  THE 
BLIND  APPLICATION  FOR  ADMISSION. 

All  blind  persons  of  suitable  age  and  capacity  for  instruction,  who  are 
legal  residents  of  the  state,  shall  be  entitled  to  the  privileges  of  the  New 
York  state  school  for  the  blind,  without  charge,  and  for  such  a period  of 
time  in  each  individual  case  as  may  be  deemed  expedient  by  the  board  of 
trustees  of  said  school ; provided,  that  whenever  more  persons  apply  for  ad- 
mission at  one  time  than  can  be  properly  accommodated  in  the  school,  the 
trustees  shall  so  apportion  the  number  received,  but  each  county  may  be 
represented  in  the  ratio  of  its  blind  population  to  the  total  blind  population 
of  the  state;  and  provided  further,  that  the  children  of  citizens  who  died 
in  the  United  States  service,  or  from  wounds  received  therein  during  the 
late  rebellion,  shall  take  precedence  over  all  others.  [Education  Law, 
§ 991,  as  amended  by  L.  1910,  ch.  140.] 

Blind  persons  from  without  the  state  may  be  received  into  the  school 
upon  the  payment  of  an  adequate  sum,  fixed  bv  the  trustees,  for  their  board- 
ing and  instruction;  provided  that  such  applicant  shall  in  no  case  exclude 
those  from  the  state  of  New  York.  [Education  Law,  § 992,  as  amended 
by  L.  1910,  ch.  140.] 

Applications  for  admission  into  the  school  shall  be  made  to  the  board 
of  trustees  in  such  manner  as  they  may  direct,  but  the  board  shall  require 
such  application  to  be  accompanied  by  a certificate  from  the  county  judge 
or  county  clerk  of  the  county  or  the  supervisor  or  town  clerk  of  the  town, 
or  the  mayor  of  the  city  where  the  applicant  resides,  setting  forth  that 


708 


RELIEF  OF  POOR. 


Education  Law,  §§  1004-1006. 

the  applicant  is  a legal  resident  of  the  town,  county  and  state  claimed  as 
his  residence.  [Education  Law,  § 993,  as  amended  by  L.  1910,  ch.  140.] 

§ 4.  CLOTHING  AND  TRAVELING  EXPENSES  OF  THOSE  ADMITTED 
TO  STATE  SCHOOL  FOR  THE  BLIND;  WHEN  TO  BE 
FURNISHED  OR  PAID  FOR  BY  THE  COUNTY. 

1.  When  any  blind  person  shall,  upon  proper  application,  be  admitted 
into  the  school,  it  shall  be  the  duty  of  his  parents,  guardians  or  other 
friends,  to  suitably  provide  such  person  with  clothing  at  the  time  of  entrance 
and  during  continuance  therein,  and  likewise  to  defray  his  traveling  ex- 
penses  to  and  from  the  school,  at  the  time  of  entrance  and  discharge,  as 
well  as  at  the  beginning  and  close  of  each  session  of  the  school,  and  at 
any  other  time  when  it  shall  become  necessary  to  send  such  person  home  on 
account  of  sickness  or  other  exigency. 

2.  And  whenever  it  shall  be  deemed  necessary  by  the  trustees  to  have  such 
person  permanently  removed  from  the  school,  in  accordance  with  the  by- 
laws and  regulations  thereof,  the  same  shall  be  promptly  removed  upon  their 
order,  by  his  parents,  guardians  or  other  friends.  [Education  Law,  § 1004, 
as  amended  by  L.  1910,  ch.  140.] 

1.  If  the  friends  of  any  pupil  from  within  the  state  of  New  York  shall 
fail  through  neglect  or  inability  to  provide  the  same  with  proper  clothing  or 
with  funds  to  defray  his  necessary  traveling  expenses  to  and  from  the  school, 
or  to  remove  him  therefrom,  as  required  in  the  preceding  section,  the  trus- 
tees shall  furnish  such  clothing,  pay  such  traveling  expenses,  or  remove  such 
pupil  to  the  care  of  the  overseers  of  the  poor  of  his  township,  and  charge 
the  cost  of  the  same  to  the  county  to  which  the  pupil  belongs,  provided  that 
the  annual  amount  of  such  expenditures  on  account  of  any  one  pupil  shall 
not  exceed  the  sum  of  sixty  dollars. 

2.  And  in  case  of  the  death  of  any  pupil  at  the  school,  whose  remains 
shall  not  be  removed  or  funeral  expenses  borne  by  the  friends  thereof,  the 
trustees  shall  defray  the  necessary  burial  expenses,  and  charge  the  same  to 
his  county  as  aforesaid. 

3.  Upon  the  completion  of  their  course  of  training  i:i  the  industrial  de- 
partment, the  trustees  may  furnish  to  such  worthy  poor  pupils  as  may  need 
it,  an  outfit  of  machinery  and  tools  for  commencing  business,  at  a cost  not 
exceeding  seventy-five  dollars  each,  and  charge  the  same  to  the  proper 
county  as  aforesaid.  [Education  Law,  § 1005,  as  amended  by  L.  1910,  ch. 
140.] 


§ 5.  ITEMIZED  ACCOUNTS  AGAINST  COUNTIES,  PAYMENT  OF 
SUCH  ACCOUNTS. 

On  the  first  day  of  October  in  each  year,  the  trustees  shall  cause  to  he 
made  out  against  the  respective  counties  concerned,  itemized  accounts, 


THE  BLIND  AND  THE  DEAF  AND  DUMB. 


Education  Law,  §§  1007,  977. 


70-9 


separate  in  each  case,  of  the  expenditures  authorized  by  the  preceding 
section,  and  forward  the  same  to  the  board  of  supervisors  chargeable  with 
the  account.1  The  board  shall  thereupon  direct  the  county  treasurer  to  pay 
the  amount  so  charged  to  the  treasurer  of  the  institution  for  the  blind, 
on  or  before  the  first  day  of  March  next  ensuing.  [Education  Law,  § 100G, 
as  amended  by  L.  1910,  ch.  140.] 

The  counties  against  which  said  accounts  shall  be  made  out  as  aforesaid, 
shall  cause  their  respective  treasurers,  in  the  name  of  their  respective 
counties,  to  collect  the  same,  by  legal  process,  if  necessary,  from  the  parents 
or  estates  of  the  pupils  who  have  the  ability  to  pay,  on  whose  account  the 
said  expenditures  shall  have  been  made ; provided  that  at  least  five  hundred 
dollars'  value  of  the  property  of  such  parents  or  estate  shall  be  exempt 
from  the  payment  of  the  accounts  aforesaid.2  [Education  Law,  § 1007. 
as  amended  by  L.  1910,  ch.  140.] 


§ 6.  INDIGENT  DEAF-MUTES  TO  BE  PLACED  IN  INSTITUTIONS; 

APPLICATION  FOR  ADMISSION;  WHEN  EXPENSE  A 
CHARGE  AGAINST  COUNTY. 

Whenever  a deaf-mute  child  under  the  age  of  twelve  years  shall  become 
a charge  for  its  maintenance  on  any  of  the  towns  or  counties  of  this  state, 
or  shall  be  liable  to  become  such  charge,  it  shall  be  the  duty  of  the  overseers 
of  the  poor  of  such  town  or  of  the  board  of  supervisors  of  such  county  to 
place  such  child  in  one  of  the  institutions  enumerated  in  the  next  section. 
[Education  Law,  § 977,  as  amended  by  L.  1910,  ch.  140.] 

Upon  the  application  of  any  parent,  guardian  or  friend  of  a deaf-mute 
child,  within  this  state,  over  the  age  of  five  years  and  under  the  age  of 
twelve  years,  the  overseer  of  the  poor  or  the  supervisor  of  the  town  where 
such  child  may  be,  shall  place  such  child  in  one  of  the  institutions  author- 
ized by  the  laws  of  eighteen  hundred  and  ninety-two,  chapter  thirty-six,  to 
receive  such  pupils  as  follows: 

1.  The  New  York  institution  for  the  deaf  and  dumb;  or, 

2.  The  institution  for  the  improved  instruction  of  deaf-mutes;  or, 

3.  The  Le  Couteulx  Saint  Mary’s  institution  for  the  improved  instruc- 
tion of  deaf-mutes  in  the  city  of  Buffalo;  or, 

4.  The  Central  New  York  institution  for  deaf-mutes  in  the  city  of 
Borne ; or, 


1.  As  to  presentation  of  accounts  against  a county,  and  the  audit  thereof  by  the 
hoard  of  supervisors,  see  Ch.  Ill,  ante. 

2.  Money  raised  by  towns  and  counties  for  the  care  and  support  of  inmates  of 
charitable  institutions,  see  General  Municipal  Law,  § 87,  post. 


710 


RELIEF  OF  POOR. 


Education  Law,  §§  978,  980;  L.  1876,  ch.  331,  § 2. 

5.  The  Albany  home  school  for  the  oral  instruction  of  the  deaf  at 
Albany;  or, 

6.  To  any  other  institution  in  the  state  for  the  education  of  deaf-mutes 
as  to  which  the  state  board  of  charities  shall  have  filed  with  the  commis- 
sioner of  education  a certificate  to  the  effect  that  said  institution  has  been 
duly  organized  and  is  prepared  for  the  reception  and  instruction  of  such 
pupils.  [Education  Law,  § 978,  as  amended  by  L.  1910,  ch.  140.] 

The  children  placed  in  said  institutions,  in  pursuance  of  the  last  two 
sections,  shall  be  maintained  therein  at  the  expense  of  the  county  from  where 
they  came,  but  such  expense  shall  not  exceed  three  hundred  and  fifty  dollars 
each  per  year,  until  they  attain  the  age  of  twelve  years,  unless  the  directors 
of  the  institution  to  which  a child  has  been  sent  shall  find  that  such  child 
is  not  a proper  subject  to  remain  in  said  institution,  provided,  however,  that 
during  the  continuance  of  the  war  with  the  German  empire  and  its  allies 
and  until  the  thirtieth  day  of  June  following  the  termination  thereof,  such 
expense  for  each  child  may  be  at  the  rate  of  not  to  exceed  four  hundred 
dollars  per  year.  [Education  Law,  § 979,  as  amended  by  L.  1910,  chs.  140, 
322,  and  by  L.  1917,  ch.  179,  and  L.  1918,  ch.  243.] 

The  expenses  for  the  board,  tuition  and  clothing  for  such  deaf-mute 
children,  placed  as  aforesaid  in  said  institutions  not  exceeding,  for  each 
child,  the  amount  of  expense  for  maintenance  allowed  by  the  preceding  sec- 
tion, shall  be  raised  and  collected  as  are  other  expenses  of  the  county  from 
which  such  children  shall  be  received;  and  the  bills  therefor,  properly 
authenticated  by  the  principal  or  one  of  the  officers  of  the  institution,  shall 
be  paid  to  said  institution  by  the  said  county;  and  its  county  treasurer  or 
-chamberlain,  as  the  case  may  be,  is  hereby  directed  to  pay  the  same  on 
presentation,  so  that  the  amount  thereof  may  be  borne  by  the  proper  county. 
[Education  Law,  § 980,  as  amended  by  L.  1910,  chs.  140,  322,  L.  1917,  ch. 
179,  and  L.  1918,  ch.  243.] 

§ 7.  PUPILS  MAY  BE  SENT  TO  WESTERN  NEW  YORK  INSTITU- 
TION FOR  DEAF  MUTES. 

Supervisors  of  towns  and  wards  and  overseers  of  the  poor  are  hereby 
authorized  to  send  to  the  Western  New  York  Institution  for  Deaf-Mutes, 
deaf  and  dumb  persons  between  the  age  of  six  and  twelve  years,  in  the  same 
manner  and  upon  the  same  conditions  as  such  persons  may  be  sent  to  the 
New  York  Institution  for  the  Instruction  of  the  Deaf  and  Dumb,  under  the 
provisions  of  chapter  three  hundred  and  twenty-five  of  the  laws  of  eighteen 
hundred  and  sixty-three.  [L.  1876,  ch.  331,  § 2.] 

§ 8.  ADMISSION  OF  PUPILS  TO  NORTHERN  NEW  YORK  INSTITU- 
TION FOR  DEAF  MUTES  AT  MALONE. 

The  Northern  New  York  Institution  for  Deaf-Mutes  at  Malone,  is  hereby 
authorized  to  receive  deaf  and  dumb  persons,  between  the  ages  of  twelve 
and  twenty-five  years,  eligible  to  appointment  as  state  pupils,  and  who 
may  be  appointed  to  it  by  the  superintendent  of  public  instruction,  and  the 


THE  BLIND  AND  THE  DEAF  AND  DUMB. 


711 


L.  1884,  ch.  275,  §§  1,  2;  L.  1894,  cli.  93,  § 1. 

superintendent  of  public  instruction  is  authorized  to  make  appointments 
to  the  aforesaid  institution.  [L.  1884,  ch.  275,  § 1.] 

Supervisors  of  towns  and  wards  and  overseers  of  the  poor  are  hereby 
authorized  to  send  to  the  Northern  New  York  Institution  for  Deaf-Mutes, 
deaf  and  dumb  persons  between  the  ages  of  six  and  twelve  years,  under  the 
provisions  of  chapter  three  hundred  and  twenty-five  of  the  laws  of  eighteen 
hundred  and  sixty-three,  as  amended  by  chapter  two  hundred  and  thirteen 
of  the  laws  of  eighteen  hundred  and  seventy-five.  Provided  that  before 
any  pupils  are  sent  to  said  institution  the  board  of  state  charities  shall 
have  made  and  filed  with  the  superintendent  of  public  instruction  a certi- 
ficate to  the  effect  that  said  institution  has  been  duly  organized  and  is 
prepared  for  the  reception  and  instruction  of  such  pupils.  [Idem,  § 2.] 

§ 9.  VERIFICATION  OF  BILLS  FOR  SUPPORT  OF  PUPILS  AT  NEW 
YORK  INSTITUTION  FOR  THE  INSTRUCTON  OF  THE  DEAF 
AND  DUMB. 

Hereafter  any  bill  for  board,  lodging,  clothing  or  tuition  of  pupils,  in 
the  aforesaid  institution,  shall  be  signed  and  verified  by  the  principal  and 
steward  of  said  institution,  instead  of  its  president  and  secretary,  any 
existing  law  to  the  contrary  notwithstanding.  [L.  1894,  ch.  93,  § 1.] 


RELIEF  OF  POOR. 


112 


Explanatory  note. 


CHAPTER  XL VIII. 

GENERAL  POWERS  AND  DUTIES  OF  OVERSEER  OF  THE  POOR  IN 
RESPECT  TO  RELIEF  OF  POOR. 

EXPLANATORY  NOTE. 

Overseers  of  the  Poor. 

Overseers  of  the  poor  are  town  officers.  The  number,  election  and 
qualifications  of  such  officers  are  considered  in  chapter  xx.  In  this 
chapter  we  will  treat  of  their  powers  and  duties  in  respect  to  the  relief 
of  the  poor.  Subsequent  chapters  will  treat  of  their  duties  as  to  the 
settlement  of  poor  persons,  the  care  of  bastards  and  other  subjects. 

Relief  of  Poor  Persons  in  County  Alms-house. 

The  theory  of  the  law  is  that  all  poor  persons  who  require  permanent 
relief,  and  who  may  he  safely  removed,  shall  be  relieved  and  provided 
for  in  the  county  alms-house.  The  overseer  must  consider  the  circum- 
stances of  each  person  requiring  relief,  and  remove  him  to  the  alms- 
house or  support  him  in  the  town,  as  seems  most  suitable. 

Relief  of  Poor  Persons  Generally. 

A person  needing  relief,  either  temporary  or  permanently,  must  apply 
to  the  overseer  of  the  poor.  After  investigation  the  overseer  is  to 
furnish  such  relief  as  the  necessities  of  the  person  may  require.  If 
the  person  relieved  resides  in  the  town,  the  cost  of  the  relief  is  a charge 
upon  the  town.  If  he  does  not  reside  in  the  town,  the  overseer  is 
allowed  such  sums  as  he  necessarily  expends,  to  he  paid  by  the  county 
treasurer,  on  the  order  of  the  county  superintendent.  If  it  appears 
that  the  person  applying  for  relief  should  be  relieved  and  cared  for  at 
bis  home,  or  is  in  such  physical  condition  that  he  cannot  be  removed 
to  the  alms-house,  the  overseer  must  apply  to  the  supervisor  of  the 
town  for  an  order  to  expend  such  sum  as  may  be  required  for  such 


POWERS  AND  DUTIES  OF  OVERSEERS  OF  THE  POOR.  713 


Explanatory  note. 

relief.  Such  order  entitles  the  overseer  to  receive,  either  from  the  county 
treasurer  or  the  supervisor,  the  amount  expended  or  contracted  to  he  paid 
by  such  overseer  in  giving  such  relief.  Unless  rules  and  regulations  have 
been  adopted  by  the  board  of  supervisors,  as  provided  by  section  13  of 
the  Poor  Law,  ante , page  680,  not  more  than  ten  dollars  can  be  ex- 
pended by  the  overseer  for  the  temporary  relief  of  a poor  person,  with- 
out the  written  sanction  of  the  superintendent  of  poor. 

Where  there  is  no  alms-house  in  a county,  the  overseer  may,  with  the 
written  approval  of  the  supervisor,  make  an  order  in  writing  for  such 
allowance,  weekly  or  otherwise,  as  the  necessities  of  the  poor  persons 
require. 

The  overseer  must  examine  monthly  into  the  conditions  and  neces- 
sities of  each  person  supported  by  the  town  out  of  the  alms-house,  and 
provide  for  such  allowances,  weekly  or  otherwise,  as  the  circumstances 
may  in  his  judgment  require. 


Settlement  of  Accounts  ; Books  to  be  Kept. 

All  accounts  for  care,  support,  supplies  or  attendance  must  be  settled 
once  in  three  months  and  paid,  if  there  are  available  funds.  All 
accounts  must  be  verified  before  audit  by  the  overseer. 

The  overseer  must  keep  a book  in  which  he  must  enter  the  name,  etc., 
of  each  poor  person  relieved  by  him,  and  a statement  of  the  causes, 
direct  or  indirect,  which  operated  to  render  relief  necessary.  He 
must  also  enter  the  moneys  paid  out  and  received  on  account  of  each 
person  relieved.  Such  book  must  be  laid  before  the  town  board  at  its 
first  annual  meeting,  together  with  an  itemized  account  of  moneys 
received  and  paid  out. 

Estimates  of  Expenditures. 

Overseers  of  the  poor  must  present  to  the  town  board  at  its  meeting 
held  on  the  Thursday  before  the  annual  meeting  of  the  board  of 
supervisors,  an  estimate  of  the  sum  which  they  shall  deem  necessary  to 
he  raised  for  the  support  of  the  poor  for  the  ensuing  year.  They  should 
include  in  such  estimate  any  deficiency  in  the  town  poor  fund.  The 
board  of  supervisors  must  cause  the  amount  estimated  to  be  raised  by 
tax  upon  the  town. 


714 


RELIL,.  Q^  FOOR. 

Poor  Law,  § 20. 


Section  1.  When  poor  persons  to  be  relieved  in  county  alms-house ; duties  of  overseer 
of  the  poor  in  respect  thereto. 

2.  Care  of  poor  persons  not  to  be  put  up  at  auction. 

3.  Expense  of  removal  and  temporary  relief  prior  to  removal  to  be  paid  to 

overseer  by  county  treasurer. 

4.  Persons  removed  to  county  alms-house,  how  supported  and  when  dis- 

charged. 

5.  Temporary  relief  of  poor  persons  who  cannot  be  removed  to  alms-houses ; 

order  of  supervisor. 

6.  Relief  of  poor  persons  in  counties  having  no  alms-house. 

7.  Overseer  to  examine  monthly  the  needs  of  the  poor  supported  in  his 

town;  settlement  of  accounts;  form  of  accounts  and  verification. 

8.  Books  to  be  kept  by  overseers  of  the  poor ; overseers  to  present  books  to 

the  town  board ; duties  of  the  town  board ; overseer  to  have  books  of 
accounts  present  at  town  meeting. 

9.  Statement  of  accounts  and  estimate  of  overseer  of  the  poor  to  be  made  to 

town  board;  approval  of  estimate  by  town  board;  if  approved  to  be 
presented  to  board  of  supervisors. 

10.  Accounts  of  town  officers. 

11.  Supervisor  to  report  to  clerk  of  board  of  supervisors,  abstract  of 

accounts  of  overseers  of  tlie  poor. 

12.  Treatment  of  poor  persons  in  hospitals. 


§ 1.  WHEN  POOR  PERSONS  TO  BE  RELIEVED  IN  COUNTY  ALMS- 
HOUSE; DUTIES  OF  OVERSEER  OF  THE  POOR  IN  RESPECT 
THERETO. 

When  any  person  shall  apply  for  relief  to  an  overseer  of  the  poor,  in  a 
county  having  an  alms-house,  such  overseer  shall  inquire  into  the  state 
and  circumstances  of  the  applicant;  and  if  it  shall  appear  that  he  is  a 
poor  person,  and  requires  permanent  relief  and  support,  and  can  be  safely 
removed,  the  overseer  shall,  by  written  order,  cause  such  poor  person  to  be 
removed  to  the  county  alms-house,  or  to  be  relieved  and  provided  for,  as  the 
necessities  of  the  applicant  may  require.1  If  the  county  be  one  where  the 


1.  Who  are  poor  persons.  A poor  person  is  one  unable  to  maintain  himself,  and 
such  person  shall  be  maintained  by  the  town,  city,  county  or  state  according  to  the 
provisions  of  the  Poor  Law.  Poor  Law,  sec.  2. 

Permanent  relief  for  poor  persons.  The  above  section  of  the  Poor  Law  was 
derived  from  R.  S.,  pt.  1,  ch.  20,  tit.  1.  sec.  39.  Under  the  former  law  it  was  provided 
that  a poor  person  who  “ is  in  such  indigent  circumstances  as  to  require  permanent 
relief  and  support,  and  can  be  easily  removed,  the  overseer  shall,  by  a written  order, 
cause  the  poor  person  to  be  removed  to  the  county  poor  house,  or  to  the  place  provided 
as  aforesaid  to  be  relieved  and  provided  for  as  the  necessities  of  such  applicant  may 
require.”  But  the  above  section  has  modified  the  law,  and  a poor  person  may  now  he 
removed  to  the  alms-house  or  be  relieved  and  provided  for  elsewhere  as  his  necessities 
may  require.  It  is  doubtful,  however,  if  the  change  thus  made  in  this  section  wns 


POWERS  AND  DUTIES  OF  OVERSEERS  OF  THE  POOR.  745 
Poor  Law,  § 20. 

respective  towns  are  required  to  support  their  own  poor,  the  overseer 
shall  designate  in  such  order  of  removal,  whether  such  person  be  chargeable 


for  the  purpose  of  permitting  the  permanent  relief  of  poor  persons  in  a county  having  a 
county  alms-house  at  a place  other  than  such  alms-house.  Section  23  of  the  Poor  Law* 
post,  prescribes  the  method  of  granting  temporary  relief  to  poor  persons  at  a place  outside 
of  an  alms-house  and  permits  the  granting  of  relief  to  a poor  person  who  is  sick,  lame 
or  otherwise  disabled  so  that  he  cannot  be  removed  to  the  county  alms-house.  The  law 
would  therefore  seem  to  contemplate  the  granting  of  permanent  relief  in  the  county 
alms-house  in  all  cases  except  where  temporary  relief  only  is  required,  and  where  the 
poor  person  who  seeks  relief  is  sick,  lame  or  disabled. 

Under  the  old  law  it  was  held  unless  the  poor  person  was  an  idiot  or  lunatic,  the 
proper  place  for  his  maintenance  was  at  the  county  alms-house.  City  of  Rochester  v. 
Supervisors  of  Monroe  County,  22  Barb.  252;  Nuns  of  the  Order  of  St.  Dominick  v. 
Long  Island  City,  48  Hun,  306;  Robbins  v.  Walcott,  66  Barb.  63. 

In  counties  where  there  is  no  county  poor  house,  and  the  towns  are  severally 
liable  for  the  support  of  their  own  poor,  moneys  raised  for  the  support  of  the 
poor  are  placed  in  the  hands  of  the  overseers  of  the  poor;  and  when  an  overseer 
pays  out  money  for  the  support  of  a pauper,  or  contracts  for  his  support,  he  is 
entitled  to  appropriate  the  money,  in  the  first  case,  and  retain  it  in  his  own 
hands  in  the  other.  He  has  absolute  control  of  the  fund  and  is  liable  only  for 
moneys  not  lawfully  appropriated.  Robbins  v.  Wolcott,  66  Barb.  63. 

In  the  absence  of  express  statutory  provisions,  there  is  no  obligation  or 
duty  imposed  upon  towns  to  contribute  to  the  support  of  persons  residing 
within  their  limits.  People  ex  rel.  Blenheim  v.  Supervisors,  121  N.  Y.  345; 
24  N.  E.  830. 

Duties  of  overseer  as  to  relief.  The  overseers  are  authorized  by  sec.  25 
of  the  Poor  Law,  post . to  examine  into  the  condition  and  necessities  of  poor 
persons  supported  outside  of  county  alms-houses.  Under  the  above  section 
the  overseer  is  directed  to  investigate  the  state  and  circumstances  of  a person 
requiring  permanent  relief.  The  circumstances  which  control  the  exercise  of 
the  power  to  grant  relief  to  poor  persons  are  so  various  in  the  cases  of  different 
persons,  and  are  so  incapable  of  being  defined  by  strict  rules,  that  much  must 
be  left  to  the  judgment  and  discretion  of  the  officers.  It  was  held  in  the  case  of 
City  of  Albany  v.  McNamara,  117  N.  Y.  168;  22  N.  E.  931,  that  the  question  as  to 
the  propriety  of  granting  relief  to  a poor  person  is  confided  to  the  discretion 
of  the  poor  authorities,  and  if  they  grant  it,  the  presumption  is  that  they  have 
made  such  investigations  as  they  deemed  necessary  and  determined  the  question 
as  to  the  right  of  the  party  to  relief,  and  therefore  their  determination  cannot 
be  reviewed.  In  this  case  it  was  also  held  that  where  money  had  been  supplied 
to  a poor  person  by  the  officer  without  expectation  of  reimbursement,  that  such 
officer’s  misjudgment  as  to  the  necessities  of  the  person  relieved,  raised  no  im- 
plied promise  on  the  part  of  such  poor  person  to  repay  the  moneys  expended  in 
his  behalf;  and  further,  that  the  possession  of  some  property  by  a person 
does  not  always  and  necessarily  preclude  him  from  a just  claim  for  relief. 

The  public  benefit  conferred  by  the  poor  laws  is  personal  to  the  individual. 
It  is  contemplated  that  he  shall  apply  for  the  relief  afforded  thereby.  It  is  no 
part  of  the  duty  of  the  overseer  to  seek  him  out  and  press  these  benefits 


716 


RELIEF  OF  POOR. 


Poor  Law,  §§  143,  21,  22. 

to  the  county  or  not ; and  if  no  such  designation  be  made,  such  person  shall 
be  deemed  to  belong  to  the  town  whose  overseer  made  such  order.* 2  [Poor 
Law,  § 20;  B.  C.  & G.  Cons.  L.,  p.  4239.] 

§ 2.  CARE  OF  POOR  PERSONS  NOT  TO  BE  PUT  UP  AT  AUCTION. 

No  officer  or  persons  whose  duty  it  may  be  to  provide  for  the  main- 
tenance, care  or  support  of  poor  persons  at  public  expense,  shall  put  up  at 
auction  or  sale,  the  keeping,  care  or  maintenance  of  any  such  poor  persons 
to  the  lowest  bidder,  and  every  contract  which  may  be  entered  into  in 
violation  of  this  provision  shall  be  void.  [Poor  Law,  § 143;  B.  C.  & G. 
Cons.  L.,  p.  4282.] 


§ 3.  EXPENSE  CF  REMOVAL  AND  TEMPORARY  RELIEF  PRIOR  TO 
REMOVAL  TO  BE  PAID  TO  OVERSEER  BY  COUNTY  TREAS- 
URER. 

Unless  such  poor  person  is  properly  chargeable  to  the  town,  the  overseer, 
in  addition  to  the  expense  of  such  removal,  shall  be  allowed  such  sum  as 
may  have  been  necessarily  paid  out,  or  contracted  to  be  paid,  for  the  relief 
or  support  of  such  poor  person,  previous  to  such  removal  and  as  the 
superintendent  shall  judge  w^as  reasonably  expended  while  it  was  improper 
or  inconvenient  to  remove  such  poor  person,  which  sum  shall  be  paid  by  the 
county  treasurer,  on  the  order  of  the  superintendent.3  [Poor  Law,  § 21 ; 
B.  C.  & G.  Cons.  L.,  p.  4239.] 


§ 4.  PERSONS  REMOVED  TO  COUNTY  ALMS-HOUSE,  HOW  SUP- 
PORTED AND  WHEN  DISCHARGED. 

The  person  so  removed  shall  be  received  by  the  superintendents,  or 
their  agents,  and  be  supported  and  relieved  in  a county  alms-house  until 
it  shall  appear  to  them  that  such  person  is  able  to  maintain  himself,  or, 
if  a minor,  until  he  is  bound  out  or  otherwise  cared  for,  as  hereinafter 


upon  him.  The  poor  person  is  not  the  chooser  of  the  place  and  manner  of 
his  support,  and  must  take  what  is  to  he  had  in  the  way  the  law  confers  it. 
Smith  v.  Williams,  13  Misc.  761;  35  N.  Y.  Supp.  236. 

2.  For  form  of  order  of  overseers  of  a town  to  remove  a poor  person  to  the 
county  poor  house,  see  Form  No.  74,  post. 

3.  For  form  of  superintendent’s  order  to  pay  expenses  incurred  by  overseers 
for  the  removal  of  a poor  person,  see  Form  No.  75,  post. 

Money  paid  for  temporary  relief  of  a pauper  is  the  money  of  the  county  and 
not  of  the  town.  Robbins  v.  Wolcott,  66  Barb.  63. 


POWERS  AND  DUTIES  OF  OVERSEERS  OF  THE  POOR. 


717 


Poor  Law,  § 23. 

provided,  when  they  may,  in  their  discretion,  discharge  him.  [Poor  Law, 
§ 22;  B.  C.  & G.  Cons.  L.,  p.  4240.] 


§ 5.  TEMPORARY  RELIEF  OF  POOR  PERSONS  WHO  CANNOT  BE 
REMOVED  TO  AIMS-HOUSES;  ORDER  OF  SUPERVISOR. 

If  it  shall  appear  that  the  person  so  applying  requires  only  temporary 
relief,  or  is  sick,  lame  or  otherwise  disabled  so  that  he  cannot  be  con- 
veniently removed  to  the  county  alms-house,  or  that  he  is  a person  who 
should  be  relieved  and  cared  for  at  his  home  under  article  six,4  of  this  chap- 
ter [the  Poor  Law],  the  overseers  shall  apply  to  the  supervisor  of  the  town, 
who  shall  examine  into  the  facts  and  circumstances,  and  shall,  in  writing, 
order 5 such  sums  to  be  expended  for  the  temporary  relief  of  such  poor 
person,  as  the  circumstances  of  the  case  shall  require,  which  order  shall 
entitle  the  overseer  to  receive  any  sum  he  may  have  paid  out  or  contracted 
to  pay,  within  the  amount  therein  specified,  from  the  county  treasurer, 
to  be  by  him  charged  to  the  county,  if  such  person  be  a county  charge,  if 
not,  to  be  charged  to  the  town  where  such  relief  was  afforded;  but  no 
greater  sum  than  ten  dollars  shall  be  expended  or  paid  for  the  relief 
of  any  one  poor  person,  or  one  family,  without  the  sanction,  in  writing,6  of 
one  of  the  superintendents  of  the  poor  of  the  county,  which  shall  be  pre- 
sented to  the  county  treasurer,  with  the  order  of  the  supervisor,  except 
when  the  board  of  supervisors  or  town  board  has  made  rules  and  regulations 
as  prescribed  in  section  thirteen  of  this  chapter.7  [Poor  Law,  § 23 ; B.  C. 
& G.  Cons.  L.,  p.  4240.] 


4.  Article  6 of  the  Poor  Law  relates  to  the  relief  of  poor  or  indigent  soldiers, 
sailors  and  marines,  and  their  families. 

5.  For  form  of  supervisor’s  order  for  the  expenditure  of  money  for  the 
temporary  relief  of  a poor  person,  see  Form  No.  76,  post. 

6.  For  form  of  the  written  sanction  of  a county  superintendent  of  the 
poor  for  the  expenditure  of  a greater  sum  than  $10  in  the  temporary  relief 
of  a poor  person,  see  Form  No.  77,  post. 

7.  Power  of  overseer  as  to  temporary  relief.  The  question  of  the  propriety 
of  granting  relief  is  primarily  in  the  sound  discretion  of  the  overseer.  If 
the  overseer  applies  for  an  order  for  the  granting  of  relief  to  a poor  per- 
son, and  the  order  is  given  by  the  supervisor,  the  presumption  is  that  both 
the  overseer  and  the  supervisor  examined  into  the  necessities  of  the  par- 
ticular case,  and  that  the  condition  of  the  poor  person  was  such  as  to  war- 
rant the  issuing  of  the  order,  and  that  the  poor  person  was  entitled  to  relief. 
Matter  of  Chamberlain,  73  Misc.  256.  See  also  City  of  Albany  v.  McNamara, 
117  N.  Y.  168,  22  N.  E.  931.  A liability  in  excess  of  $10  cannot  be  in- 
curred by  the  overseer  without  the  sanction  of  one  of  the  superintendents 
of  the  poor,  but  except  in  such  a case,  the  overseer’s  power  of  granting 
temporary  relief  is  independent  of  the  control  of  the  superintendents  of  the 


718 


RELIEF  OF  POOR. 


Poor  Law,  § 24. 

§ 6.  RELIEF  OF  POOR  PERSONS  IN  COUNTIES  HAVING  NO  ALMS- 
HOUSE. 

If  application  for  relief  be  made  in  any  county  where  there  is  no  county 
alms-house,  the  overseer  of  the  town  where  such  application  is  made  shall 
inquire  into  the  facts  and  circumstances  of  the  case,  and  with  the  written 
approval  of  the  supervisor  of  such  town,  make  an  order  in  writing  for 
such  allowance,  weekly  or  otherwise,  as  they  shall  think  required  by  the 
necessities  of  such  poor  person.  If  such  poor  person  has  a legal  settlement 
in  such  town,  or  in  any  other  town  in  the  same  county,  the  overseer  shall 
apply  the  moneys  so  allowed  to  the  relief  and  support  of  such  poor  person. 
The  moneys  so  paid  by  him,  or  contracted  to  be  paid,  when  the  poor  person 
had  no  legal  settlement  in  the  town,  and  charged  to  the  town  in  which 
he  had  legal  settlement,  shall  be  drawn  by  such  overseer  from  the  county 
treasurer  on  producing  such  order.  If  such  person  has  no  legal  settlement 
in  such  county,  the  overseer  shall,  within  ten  days  after  granting  to  him 


poor.  Gere  v.  Supervisors,  7 How.  Pr.  255;  Nuns  of  St.  Dominick  t.  Long  Island 
City,  48  Hun,  306,  1 N.  Y.  Supp.  415. 

Where  an  overseer  refuses  or  neglects  to  apply  for  an  order  for  the  relief  of  a poor 
person  settled  in  his  town,  an  action  will  not  lie  against  such  overseer  in  behalf  of 
a person  who  has  supported  such  poor  person  at  his  own  expense,  voluntarily,  and 
without  request  from  such  overseer.  Milklaer  v.  Rockfeller,  6 Cow.  276. 

A family  which  has  been  receiving  poor  relief  from  their  town,  should,  upon  their 
confinement  under  quarantine  by  the  health  board  of  the  village  within  which  they 
reside,  be  supported  at  town  expense.  Opinion  of  Atty.  Genl.,  Feb.  14,  1913. 

Order  for  relief.  Under  the  law  as  it  existed  prior  to  1896  the  order  was  to 
be  issued  by  a justice  of  the  peace;  under  the  present  law  such  order  is  issued 
by  the  supervisor.  The  requirement  of  an  order  is  a statutory  protection  against 
extravagant  or  improper  expenditure  by  overseers  of  the  poor.  Osterhoudt  v. 
Rigney,  98  N.  Y.  222,  237. 

If  no  fraud  is  shown  and  no  injury  results  to  a taxpayer,  such  taxpayer 
cannot  maintain  an  action  against  an  overseer  of  the  poor  for  expending 
more  than  $10  for  the  relief  of  a poor  person  without  the  written  consent 
of  the  supervisor.  Cobb  v.  Remsdell,  14  N.  Y.  Supp.  93;  37  N.  Y.  St.  Rep. 
457.  The  inquiry  as  to  the  necessity  of  the  order  need  not  be  made  jointly 
by  the  overseer  and  supervisor.  The  order  is  the  act  of  the  supervisor  and 
may  be  based  upon  his  own  examination.  As  has  been  already  stated,  it 
is  presumed  that  the  overseer  has  determined  as  to  the  necessity  of  the 
relief  before  making  his  application  for  an  order.  See  Adams  v.  Supervisors 
of  Columbia  County,  8 Johns.  323. 

The  overseer  of  a town  under  this  section  cannot  expend  more  than  $10 
for  the  temporary  relief  of  a person  who  cannot  be  removed  to  the  alms- 
house, unless  he  is  authorized  to  do  so  by  the  order  of  the  supervisor  of  the  town 
and  the  written  sanction  of  one  of  the  superintendents  of  the  poor  of  the  county; 
he  cannot  compel  the  supervisor  to  make  the  order,  and  he  has  performed  his 
entire  duty  when  he  has  made  the  application  therefor;  he  cannot  be  made 
liable  for  a neglect  of  duty  where  he  has  applied  for  the  order  and  it  has  not 
been  granted.  Brazee  v.  Stewart,  59  App.  Div.  476,  69  N.  Y.  Supp.  231. 


POWERS  AND  DUTIES  OF  OVERSEERS  OF  THE  POOR.  ?19 


Poor  Law,  § 25. 

any  relief,  give  notice  thereof,  and  that  such  person  has  no  legal  settlement 
in  such  county,  to  one  of  the  county  superintendents,  and  until  the  county 
superintendents  shall  take  charge  of  the  support  of  such  poor  person,  the 
overseer  shall  provide  for  his  relief  and  support,  and  the  expense  thereof 
from  the  time  of  giving  such  notice  shall  be  paid  to  such  overseer  by  the 
county  treasurer,  on  the  production  of  such  order  and  of  proof  by  affidavit 
of  the  time  of  the  giving  of  such  notice,  and  shall  be  by  him  charged  to 
the  county.8  [Poor  Law,  § 24;  B.  C.  & G.  Cons.  L.,  p.  4241.] 


§ 7.  OVERSEER  TO  EXAMINE  MONTHLY  THE  NEEDS  OF  THE  POOR 
SUPPORTED  IN  HIS  TOWN;  SETTLEMENT  OF  ACCOUNTS; 
FORM  OF  ACCOUNTS  AND  VERIFICATION. 

The  overseer  of  the  poor  of  a town  or  city  shall  at  least  once  each  month, 
examine  into  the  condition  and  necessities  of  each  person  supported  by  the 
town  or  city  out  of  the  county  alms-house,  and  provide  within  the  provisions 
of  this  chapter  for  such  allowances,  weekly  or  otherwise  as  the  circum- 
stances may  in  his  judgment  require.9  All  accounts  for  care,  support, 
supplies  or  attendance,  connected  with  the  maintenance  of  such  poor  person 
or  family,  shall  be  settled,  once  in  three  months,  and  paid  if  there  be  funds 
for  that  purpose.  No  bill,  claim  or  account  for  care,  support,  supplies  or 
attendance,  furnished  to  poor  persons,  by  order  of  the  overseer  of  the  poor, 
or  otherwise,  shall  be  audited  or  allowed  by  the  overseer,  unless  such  bill. 


8.  Relief  in  counties  having1  no  alms-house.  The  law  as  it  existed  prior 
to  1896  was  construed  in  the  case  of  Robbins  v.  Walcott,  66  Barb.  62,  where  the 
court  used  the  following  language:  “ In  those  counties  in  which  there  is  no 
poor  house  an  overseer  is  authorized  to  make  an  order  for  the  allowance  of  such 
sum,  weekly  or  otherwise,  as  the  necessities  of  the  poor  person  may  require. 
If  such  pauper  has  a legal  settlement  in  the  town  where  the  application  is  made, 
or  in  any  other  town  of  the  same  county,  the  overseer  is  required  to  apply  the 
money  to  the  relief  of  such  pauper.  The  money  paid  by  the  overseer,  or 
contracted  to  be  paid  pursuant  to  such  order,  shall  be  drawn  by  him  from  the 
county  treasury  on  producing  the  order.  If  such  pauper  has  not  a legal  settle- 
ment in  some  town  of  the  county  in  which  the  application  is  made,  then  notice 
is  to  be  given  to  the  superintendent  of  the  poor,  and  the  overseer  may  support 
the  pauper  after  such  notice  and  until  the  superintendent  assumes  his  support, 
and  the  overseer  is  to  be  paid  therefor  from  the  county  treasury.” 

9.  The  poor  persons  to  whom  allowances  may  be  made  as  provided  in  this 
section,  are  those  who,  under  sec.  20  of  the  Poor  Law,  ante,  are  relieved  and 
provided  for  at  a place  other  than  an  alms-house;  those  under  sec.  23  of  the 
Poor  Law,  ante,  requiring  temporary  relief;  those  under  sec.  24  of  the  Poor 
Law,  ante,  supported  by  towns  in  counties  having  no  alms-house;  and  poor 
and  indigent  soldiers,  sailors  and  marines,  supported  as  provided  in  secs.  80-83  of 
the  Poor  Law,  post. 


720 


RELIEF  OF  POOR. 


Poor  Law,  § 26. 

claim,  or  account  be  verified  by  the  claimant,  to  the  effect  that  such  care, 
support,  supplies  or  attendance  have  been  actually  furnished  for  such  pom- 
persons,  that  such  poor  persons  have  actually  received  the  same,  and  that 
the  prices  charged  therefor  are  reasonable  and  not  above  the  usual  market 
rates.10  [Poor  Law,  § 25;  B.  C.  & G.  Cons.  L.,  p.  4242.] 

§ 8.  BOOKS  TO  BE  KEPT  BY  OVERSEERS  OF  THE  POOR;  OVER- 
SEERS TO  PRESENT  BOOKS  TO  THE  TOWN  BOARD;  DUTIES 
OF  THE  TOWN  BOARD;  OVERSEER  TO  HAVE  BOOKS  OF 
ACCOUNTS  PRESENT  AT  TOWN  MEETING. 

Overseers  of  the  poor,  who  receive  and  expend  money  for  the  relief 
and  support  of  the  poor  in  their  respective  towns  and  cities,  shall  keep 
books  to  be  procured  at  town  or  city  expense,  in  which  they  shall  enter 
the  name,  age,  sex  and  native  country  of  every  poor  person  who  shall  be 
relieved  or  supported  by  them,  together  with  a statement  of  the  causes, 
either  direct  or  indirect,  which  shall  have  operated  to  render  such  relief 


10.  For  form  of  order  for  supplies  furnished  to  poor  persons,  and  for 
verification  of  accounts  for  audit,  see  Form  No.  78,  post. 

Powers  of  overseers  to  contract.  Overseers  of  the  poor  may  contract  for 
the  support  of  poor  persons  within  the  scope  of  their  authority;  and  con- 
tracts so  made  are  valid  and  obligatory  upon  them  in  their  official  capacity 
and  upon  their  successors;  but  if  they  transcend  their  authority,  though  they 
may  be  individually  responsible,  their  successors  are  not.  Palmer  v.  Vanden- 
bergh,  3 Wend.  193.  If  an  overseer  makes  a contract  for  the  relief  of  a poor 

person,  without  the  order  or  approval  of  the  supervisor  or  other  authority 

granted  by  statute,  he  may  be  held  personally  liable  on  such  contract.  King 
v.  Butler,  15  Johns.  281.  But  the  case  of  Olney  v.  Wicks,  18  Johns.  122, 

seems  to  hold  a contrary  doctrine.  In  that  case  it  was  held  that,  while  the 

overseer  contracts  in  his  official  capacity,  and  expressly  intends  in  such 
capacity  to  bind  the  town,  he  is  not  personally  responsible,  and  an  action 
will  not  lie  against  him  personally.  And  in  the  case  of  Holmes  v.  Brown,  13 
Barb.  599,  it  was  held  that  “the  cases  where  an  action  has  been  held  to  lie 
against  an  overseer  of  the  poor  for  the  support  of  paupers,  are  placed  upon 
the  ground  that  the  credit  was  given  to  the  person  individually,  in  his  private 
capacity,  and  not  as  the  officer  or  agent  of  the  town.” 

In  the  case  of  Overseers  of  the  Poor  of  Norwich  v.  Overseers  of  Pharsalia, 
15  N.  Y.  341,  the  town  of  Pharsalia  was  liable  for  the  support  of  certain 
paupers  who  were  for  the  time  being  in  the  town  of  Norwich.  The  overseer  of 
Pharsa^a  promised  the  overseers  of  Norwich,  that  if  they  would  provide 
for  such  paupers,  he  would  pay  the  expenses  incurred.  It  was  held  that  it 
was  not  within  the  official  power  of  the  overseer  of  Pharsalia  to  make  such 
a contract,  and  that  the  plaintiffs  were  confined  to  the  remedy  given  by 
statute,  viz.,  the  audit  of  the  account  by  the  superintendents  of  the  poor 
and  the  levying  of  the  amount  by  the  board  of  supervisors  on  the  town  of 
Pharsalia  for  the  benefit  of  Norwich.  This  case  did  not  involve  the  question 


POWERS  AND  DUTIES  OF  OVERSEERS  OF  THE  POOR. 

Poor  Law,  § 26. 

necessary,  so  far  as  the  same  can  be  ascertained.* 11  They  shall  also  enter 
upon  such  books  a statement  of  the  name  and  age,  and  of  the  names  and 
residences  of  the  parents  of  every  child  who  is  placed  by  them  in  a family, 
with  the  name  and  address  of  the  family  with  whom  every  such  child  is 
placed,  and  the  occupation  of  the  head  of  the  family.  They  shall  also 
enter  upon  books  so  procured,  a statement  of  all  moneys  received  by  them, 
when  and  from  whom,  and  on  what  account  received,  and  of  all  moneys 
paid  out  by  them,  when  and  to  whom  paid  and  on  what  authority,  and 
whether  to  town,  city  or  county  poor ; also  a statement  of  all  debts  con- 
tracted by  them  as  such  overseers,  the  names  of  the  persons  with  whom  such 
debts  were  contracted,  the  amount  and  consideration  of  each  item,  the 
names  of  the  persons  for  whose  benefit  the  debts  were  contracted,  and  if 
the  same  have  been  paid,  the  time  and  manner  of  such  payment.  The  over- 
seer shall  lay  such  books  before  the  board  of  town  auditors  or  the  common 
council  of  the  city,  at  its  first  annual  meeting  in  each  year  and,  upon 
being  given  ten  days’  notice  thereof,  at  any  adjourned  or  special  meeting 
of  such  board  or  council,  together  with  a just,  true  and  verified  itemized 
account,  of  all  moneys  received  and  expended  by  them  for  the  use  of  the 
poor  since  the  last  preceding  annual  meeting  of  said  board,  and  a verified 
statement  of  debts  contracted  by  them  as  such  overseers  and  remaining 
unpaid.12  The  board  or  council  shall  compare  said  account  with  the  entries 


of  the  personal  liability  of  the  overseers,  but  it  was  intimated  that  if  the 
contract  was  not  within  the  scope  of  the  official  power  of  the  overseer,  no 
action  would  lie  thereon  against  the  town. 

Under  section  10  of  the  Town  Law,  post,  contracts  of  overseers  are  deemed 
the  contracts  of  the  town.  This  section  has  shifted  the  direct  liability  of 
town  officers  for  contracts  made  by  them  to  the  town,  and  makes  the  town 
the  proper  party  defendant  or  plaintiff  in  actions  or  special  proceedings  upon 
contracts  in  which  the  town  is  interested,  and  it  has  been  held  under  that 
section  that  the  contracts  of  overseers  of  the  poor  in  the  discharge  of  their 
official  duties  are  the  contracts  of  the  town  which  alone  may  be  sued  upon 
them.  Miller  v.  Bush,  87  Hun,  507;  34  N.  Y.  Supp.  286. 

11.  For  form  of  overseer’s  book  showing  statistics  relating  to  poor  persons’ 
relief,  and  of  book  of  accounts  to  be  kept  by  overseers  of  the  poor,  see  Forms 
Nos.  79,  80,  post. 

12.  For  form  of  accounts  of  overseers  of  the  poor  to  be  rendered  to  town 
boards,  see  Form  No.  81,  post. 

For  penalty  for  failure  of  overseers  of  the  poor  to  render  accounts  as 
provided  by  law,  see  Poor  Law,  sec.  14,  ante. 

The  omission  of  an  overseer  to  lay  his  books  of  account  before  the  town 
board,  and  the  audit  of  his  accounts  by  the  board  without  a comparison  of 
the  items  in  the  account  with  the  items  in  the  book  is  a mere  irregularity, 
and  does  not  deprive  the  board  of  the  power  to  audit  the  claim.  Osterhoudt 
v.  Rigney,  98  N.  Y.  222,  237. 


RELIEF  OF  POOR. 


Poor  Law,  § 27. 

in  the  book  and  shall  examine  the  vouchers  in  support  thereof,  and  may 
examine  the  overseers  of  the  poor,  under  oath,  with  reference  to  such 
account.  They  shall  thereupon  audit  and  settle  the  same,  and  state  the 
balance  due  to  or  from  the  overseer,  as  the  case  may  be.  Such  account 
shall  be  filed  with  the  town  or  city  clerk,  and  at  every  annual  town  meet- 
ing, the  town  clerk  shall  produce  such  town  accounts  for  the  next  preceding 
year,  and  read  the  same,  if  it  be  required  by  the  meeting.  The  overseers 
of  the  town  shall  have  such  books  present  each  year  at  the  annual  town 
meeting,  subject  to  the  inspection  of  the  voters  of  the  town,  and  the 
entries  thereon  for  the  preceding  year  shall  .there  be  read  publicly  at 
the  time  reports  of  other  town  officers  are  presented,  if  required  by  a 
resolution  of  such  meeting.  No  credit  shall  be  allowed  to  any  overseers 
for  moneys  paid,  unless  it  shall  appear  that  such  payments  were  made 
necessarily  or  pursuant  to  a legal  order.  [Poor  Law,  § 26;  B.  C.  & G.  Cons. 
L.,  p.  4242.] 


§ 9.  STATEMENT  OF  ACCOUNTS  AND  ESTIMATE  OF  OVERSEER  OF 
THE  POOR  TO  BE  MADE  TO  TOWN  BOARD;  APPROVAL  OF 
ESTIMATE  BY  TOWN  BOARD;  IF  APPROVED  TO  BE  PRE- 
SENTED TO  BOARD  OF  SUPERVISORS. 

Such  overseers  shall  make  to  the  town  board,  at  its  second  annual  meeting 
in  each  year,13  a written  report,  stating  their  account  as  provided  in  the  last 
section,  continued  to  that  date,  and  any  deficiency  that  may  then  exist  in 
the  town  poor  fund,  with  their  estimate  of  the  sum  which  they  shall 
deem  necessary  for  the  temporary  and  out  door  relief  and  support  of  the 
poor  in  their  town  for  the  ensuing  year,  and  in  counties  where  there  is 
no  county  alms-house,  their  estimate  of  such  sum  as  they  shall  deem 


Reports  of  overseers  as  evidence  in  action  against  sureties.  In  an  action 
against  sureties  upon  the  official  bond  of  an  overseer  of  the  poor  to  recover  the 
money  misappropriated  by  such  overseer,  the  reports  made  by  the  overseer 
under  the  provisions  of  this  section  are  competent  against  the  sureties  as  proof 
of  the  condition  of  his  accounts,  both  as  to  receipts  and  disbursements.  Town 
of  Goshen  v.  Smith,  61  App.  Div.  461,  70  N.  Y.  Supp.  623,  affd.  173  N.  Y.  597. 

13.  The  second  annual  meeting  of  the  town  board  of  a town  is  held  on 
the  Thursday  preceding  the  annual  meeting  of  the  board  of  supervisors.  Town 
Law,  sec.  133,  ante.  The  accounts  of  overseers  of  the  poor  are  to  be  presented  to  the 
town  board  at  its  first  meeting  held  on  the  Tuesday  preceding  the  biennial  meeting 
and  on  a corresponding  date  in  each  alternate  year  (Town  Law,  sec.  132,  ante),  at 
the  same  time  as  the  accounts  of  other  town  officers.  The  object  of  the  report  pro* 
vided  for  by  this  section  is  to  enable  the  town  board  to  make  an  estimate  of  the 
amount  that  will  be  required  during  the  ensuing  year  for  the  support  of  the  poor. 


POWERS  AND  DUTIES  OF  OVERSEERS  OF  THE  POOR.  723 
Poor  Law,  § 27. 

necessary  to  be  raised  and  collected  therein  for  the  support  of  the  poor 
for  the  ensuing  year.  If  such  board  shall  approve  the  statement  and  esti- 
mate so  made  or  any  part  thereof,  they  shall  so  certify  in  duplicate,  one 
of  which  certificates  shall  be  filed  in  the  office  of  the  town  clerk,  and  the 
other  shall  be  laid  by  the  supervisor  of  the  town,  before  the  board  of  super- 
visors of  the  county,  on  the  first  day  of  its  next  annual  meeting.  If  such 
overseers  of  any  town  shall  fail  or  neglect  to  estimate  the  sum  to  be  raised 
and  collected  for  the  support  of  the  poor  of  their  town  for  the  ensuing  year, 
or  the  supervisor  of  any  town  shall  fail  or  neglect  to  present  such  estimate 
for  the  support  of  the  poor  of  their  town  to  the  board  of  supervisors,  the 
the  board  of  supervisors  shall  estimate  the  sum  to  be  raised  and  collected  by 
such  town  for  the  support  of  the  poor  of  such  town,  which  estimate  shall 
be  based  upon  the  amount  of  the  cost  of  the  support  of  the  poor  of  such 
town  for  the  preceding  year.  The  board  of  supervisors  shall  cause  the 
amount  of  such  deficiency  and  estimates,  as  so  certified,  or  the  sum  esti- 
mated by  such  board  of  supervisors,  together  with  the  sums  voted  by  such 
town,  for  the  relief  of  the  poor  therein  to  be  levied  and  collected  in  such 
town,  in  the  same  manner  as  other  town  charges,  to  be  paid  to  the  overseers 
of  the  poor  of  such  town,  and  the  warrants  attached  to  the  tax-rolls  in 
such  county  shall  direct  accordingly.  The  moneys  so  raised  shall  be  re- 
ceived by  such  overseers,  and  applied  toward  the  payment  of  such  defi- 
ciency, and  for  the  maintenance  and  support  of  the  poor,  for  whose  relief 
such  estimates  were  made.  The  town  board  shall  also,  on  or  before 


14.  Where  estimates  are  not  made.  Under  ch.  334,  L.  1845,  from  which 
in  part  the  above  section  was  derived,  it  appeared  that  an  overseer  of  the  poor 
instead  of  pursuing  the  system  provided  by  the  above  section,  procured  supplies 
upon  his  own  credit  and  presented  his  accounts  annually  to  the  board  of  audit 
for  allowance,  the  amount  audited  being  put  in  the  schedule  of  accounts  and 
levied  by  the  board  of  supervisors  with  other  town  charges.  It  was  held  that 
the  failure  to  follow  the  requirements  of  the  statute  did  not  deprive  the  overseer 
of  his  power  to  provide  for  the  relief  of  the  poor,  and  that  the  advances  made 
by  him  were  properly  audited  and  charged  against  the  town;  that  while  the 
overseer  was  not  bound  to  furnish  supplies  upon  his  own  credit,  and  the  act 
contemplates  that  he  shall  be  put  in  funds  in  advance,  under  the  provisions  of 
the  section,  authorizing  the  town  board  to  include  in  its  estimate  such  sum  as 
shall  be  necessary  “ to  supply  any  deficiency  in  a preceding  year,”  it  had  power 
to  audit  all  sums  expended  where  no  provision  had  been  made  therefor  the 
preceding  year.  Osterhoudt  v.  Rigney,  98  N.  Y.  222. 

Special  town  meetings  may  be  called  for  the  purpose  of  raising  money 
for  the  support  of  the  poor.  Town  Law,  sec.  46c  ante. 

For  form  of  report  of  overseer  of  the  poor  and  of  estimate  of  amounts 
required  to  be  raised,  for  the  support  ot  the  poor  during  the  ensuing  year, 
see  Form  No.  82,  post. 


724-726 


RELIEF  OF  POOR. 


Poor  Law,  §§  28,  30,  141. 

the  first  day  of  December,  annually  certify  to  the  county  superintendents,  the  name, 
age,  sex  and  native  country,  of  every  poor  person  relieved  and  supported  by  such 
overseers  during  the  preceding  year,  with  the  causes  which  shall  have  operated  to 
render  them  such  poor  persons,  the  amount  expended  for  the  use  of  such  person,  as 
allowed  by  the  board,  and  the  amount  allowed  to  each  overseer  for  the  services  ren- 
dered in  relation  to  temporary  or  town  relief.  The  town  board  shall  include  in  such 
annual  statement  to  the  county  superintendents  and  the  county  superintendents  shall 
include  in  their  own  report  to  the  state  board  of  charities  a statement  of  the  name 
and  age,  and  of  the  names  and  residence  of  the  parents  of  every  child  who  has  been 
placed  by  such  overseers  in  a family  during  the  preceding  year,  with  the  name  and 
address  of  the  family  with  whom  such  child  is  placed,  and  the  occupation  of  the 
head  of  the  family.  [Poor  Law,  § 27,  as  amended  by  L.  1909,  ch.  429;  B.  C.  & G. 
Cons.  L.,  p.  4245.] 

§ 10.  ACCOUNTS  OF  TOWN  OFFICERS. 

The  accounts  of  any  town  officer  for  personal  or  official  services  rendered  by  him, 
in  relation  to  the  town  poor,  shall  be  audited  and  settled  by  the  town  board  charged 
to  such  town.  But  no  allowance  for  time  of  services  shall  be  made  to  any  officer  for 
attending  any  board  solely  for  the  purpose  of  having  his  account  audited  or  paid.is- 
[Poor  Law,  § 28;  B.  C.  & G.  Cons.  L.,  p.  4244.] 

§ 11.  SUPERVISOR  TO  REPORT  TO  CLERK  OF  BOARD  OF  SUPER- 
VISORS, ABSTRACT  OF  ACCOUNTS  OF  OVERSEERS  OF  THE 
POOR. 

The  supervisor  of  every  town  in  counties  where  all  the  poor  are  not  a county 
charge,  shall  report  to  the  clerk  of  the  board  of  supervisors,  within  fifteen  days  after 
the  accounts  of  the  overseers  of  the  poor  have  been  settled  by  the  town  board  at  its 
first  annual  meeting  in  each  year,  an  abstract  of  all  such  accounts,  which  shall 
exhibit  the  number  of  poor  persons  that  have  been  relieved  or  supported  in  such 
town  the  preceding  year,  specifying  the  number  of  county  poor,  and  town  poor,  the 
whole  expense  of  such  support,  the  allowance  made  to  overseers,  justices,  constables 
or  other  officers,  which  shall  not  comprise  any  part  of  the  actual  expense  of  main- 
taining the  poor.is  [Poor  Law,  §141;  B.  C.  & G.  Cons.  L.,  p.  4282.] 

§ 12.  TREATMENT  OF  POOR  PERSONS  IN  HOSPITALS. 

1.  Any  city  or  county,  in  which  a hospital  duly  incorporated  is  situated,  may  send 
to  and  support,  in  the  same,  such  sick  and  disabled  indigent  persons  as  require  medi- 
cal or  surgical  treatment,  and  when  admitted  the  authorities  of  such  city  or  county 
shall  pay  to  such  hospital  such  sum  per  week  as  may  be  agreed  upon  or  found  to  be 
just  during  the  period  in  which  such  person  shall  remain  in  such  hospital. 

2.  In  all  counties  of  this  state  in  which  there  are  not  adequate  hospital  accommo- 
dations for  indigent  persons  requiring  medical  or  surgical  care  and  treatment,  or  in 
which  no  appropriations  of  money  are  made  for  this  specific  purpose,  it  shall  be  the 
duty  of  county  superintendents  of  the  poor,  upon  the  certificate  of  a physician 
approved  by  the  board  of  supervisors,  or  of  the  overseers  of  the  poor  in  the  several 
towns  of  such  counties,  upon  the  certificate  of  a physician  approved  by  the  supervisor 
of  the  town,  as  their  jurisdiction  over  the  several  cases  may  require,  to  send  all 
such  indigent  persons  requiring  medical  or  surgical  care  and  treatment  to  the  nearest 
convenient  and  suitable  hospital,  the  incorporation  and  management  of  which  have 
been  approved  by  the  state  board  of  charities,  provided  transportation  to  such  hos- 
pital can  be  safely  accomplished.  The  authorities  of  such  county  or  town  shall  pay 
to  such  hospital  such  reasonable  sum  per  week,  for  the  care  and  treatment  of  such 
indigent  persons,  as  may  be  agreed  upon  by  the  authorities  of  the  county  or  town 
and  the  directors  of  such  hospital,  and  provision  for  the  payment  for  such  care  and 
treatment  shall  be  made  in  the  annual  budgets  of  such  county  or  town.  [Poor  Law, 
§ 30,  as  amended  by  L.  1912,  ch.  309*,  and  L.  1916,  ch.  483;  B.  C.  & G.  Cons.  L.,  p.  4245.] 

15.  Accounts  of  town  officers  for  services  rendered  in  relation  to  the  town  poor  are 
to  be  audited  at  the  second  meeting  of  the  town  board,  held  on  the  Thursday  pre- 
ceding the  annual  meeting  of  the  board  of  supervisors.  The  form  of  accounts  and 
the  verification  thereof  by  affidavit  are  to  be  made  in  accordance  with  the  provisions 
of  sec.  175,  post,  of  the  Town  Law. 

16.  For  form  of  report  of  supervisor  to  the  clerk  of  the  board  of  supervisors  of 
abstracts  of  overseer’s  accounts,  see  Form  No.  83,  post. 


SETTLEMENT  AND  PLACE  OF  RELIEF. 


727 


Explanatory  note. 


CHAPTER  XLIX. 

SETTLEMENT  AND  PLACE  OF  RELIEF  OF  POOR  PERSONS. 

EXPLANATORY  NOTE. 

Settlement  of  Poor  Persons. 

Settlement  in  this  connection  has  much  the  same  meaning  as  residence. 
A poor  person  acquires  a settlement  in  a town,  so  as  to  make  the  cost  of 
his  relief  a charge  against  such  town,  by  residing  therein  for  one  year. 
A settlement  so  acquired  is  not  lost  except  by  a continuous  residence  in 
another  place  for  a period  of  one  year.  A minor  son  or  daughter  has 
the  same  settlement  as  his  or  her  father,  unless  the  son  is  married  and 
has  resided  apart  from  his  father  for  one  year,  or  unless  the  daughter 
has  married  and  is  living  with  her  husband,  in  which  case  her  settle- 
ment is  that  of  her  husband.  A married  woman  cannot  gain  a settle- 
ment apart  from  her  husband. 

Relief  of  Poor  as  Affected  by  Settlement. 

The  law  requires  every  poor  person  to  be  relieved  in  the  place  where 
he  may  be.  If  he  has  a settlement  in  a town  or  city  in  the  county,  he 
must  be  maintained  at  the  expense  of  such  town  or  city.  If  he  has  not 
gained  a settlement  in  the  county  he  must  be  supported  and  relieved  by 
the  superintendent  of  the  poor  at  the  expense  of  the  county.  If  a poor 
person  has  a settlement  in  one  town  and  is  in  another  town  where  he 
requires  relief,  the  overseer  of  the  poor  of  the  latter  town  must  give 
him  the  necessary  relief,  and  then  give  notice  to  the  overseer  of  the 
former  town  requiring  him  to  provide  relief  for  such  poor  person. 

Determination  of  Dispute  as  to  Settlement. 

Within  ten  days  after  the  service  of  such  notice,  the  overseer  of  the 
poor  served  therewith,  may  notify  the  overseer  of  the  poor  of  the  town 
where  the  poor  person  may  be,  that,  at  a time  and  place  specified,  he  will 
appear  before  the  county  superintendent  of  the  poor  to  contest  the  alleged 


RELIEF  OF  POOR. 


728 

Explanatory  note. 

settlement.  The  county  superintendent  then  hears  and  determines  the 
controversy.  The  decision  of  the  superintendent  is  final  and  conclusive. 

Failure  to  Care  for  Poor  Person. 

After  the  decision  is  given  the  proper  overseer  must  provide  for  the 
poor  person  in  accordance  with  such  decision.  If  he  fails  to  do  so,  the 
overseer  of  the  poor  of  the  town  where  the  poor  person  may  be,  must 
give  the  necessary  relief  and  report  the  expense  thereof  to  the  hoard  of 
supervisors,  who  must  levy  the  amount  thereof  upon  the  town  where  such 
poor  person  has  a settlement. 

Unlawful  Removal  of  Poor  Person. 

It  is  a crime  to  send,  remove,  or  entice  to  remove,  or  bring  or  cause 
to  he  sent,  removed  or  brought  any  poor  or  indigent  person  to  any  other 
town.  A poor  person  so  brought,  removed,  or  enticed,  or  who  shall  come 
of  his  own  accord  from  one  town,  city  or  county  into  another,  not  charge- 
able with  his  support,  must  be  maintained  by  the  county  superintendent 
of  the  county  where  he  may  be.  Such  superintendent  must  then  notify 
the  proper  officer  of  the  removal  of  such  poor  person,  and  require  him 
forthwith  to  take  charge  of  such  poor  person.  The  law  then  provides 
the  procedure  for  determining  as  to  the  town,  city  or  county  liable  for 
the  support  of  such  poor  person. 


Section  1.  Settlements  of  poor  persons,  how  gained;  separate  settlement  of 
minor. 

2.  Settlement  of  married  women;  when  determined  by  that  of  parents. 

3.  Poor  person  not  to  be  removed,  but  supported  in  the  town  where 

he  may  be. 

4.  Proceedings  to  determine  settlement;  notice  to  appear  before  county 

superintendents. 

5.  Hearing  before  superintendents;  decision. 

6.  Effect  of  failure  of  overseer  to  provide  for  poor  person,  when 

notified  by  overseer  of  other  town;  board  of  supervisors  to  charge 
support  of  poor  person  to  proper  town. 

7.  Superintendent  to  determine  who  are  county  poor;  proceedings  for 

such  determination. 

8.  Support  of  county  poor  in  counties  having  no  alms-house;  proceedings 


to  determine  who  are  county  poor. 

9.  All  decisions  of  superintendents  of  the  poor  to  be  entered  in  books; 
copy  to  be  filed  with  county  clerk. 

10.  Appeals  to  county  court  from  decisions  of  county  superintendents 
of  the  poor;  decision  on  appeal. 


SETTLEMENT  AND  PLACE  OF  RELIEF. 


729 


Poor  Law,  § 40. 


Section  11. 


12. 


13. 


14. 


15. 


16. 


Unlawfully  removing  or  enticing  a poor  person  from  one  town  to  another 
a misdemeanor. 

Proceedings  where  a person  has  been  enticed  or  has  come  from  one  town 
or  county  to  another. 

Upon  receipt  of  notice  superintendent  or  overseer  to  take  poor  person  or 
serve  denial  of  removal. 

In  case  of  neglect  to  deny  removal,  support  of  poor  person  to  be  a charge 
upon  the  town  and  county  from  which  removed ; actions  to  recover. 

Actions  to  recover,  to  be  brought  within  three  months  from  service  of 
denial. 

Penalty  for  bringing  foreign  poor  into  state ; action  to  recover  penalty ; 
person  found  guilty,  to  transport  poor  person  out  of  state. 


§ 1.  SETTLEMENTS  OF  POOR  PERSONS,  HOW  GAINED;  SEPARATE 
SETTLEMENT  OF  MINOR. 

Every  person  of  full  age,  who  shall  be  a resident  and  inhabitant  of 
any  town  or  city  for  one  year,  and  the  members  of  his  family  who  shall 
not  have  gained  a separate  settlement,  shall  be  deemed  settled  in  such 
town  or  city,  and  shall  so  remain  until  he  shall  have  gained  a like  settle- 
ment in  some  other  town  or  city  in  this  state,  or  shall  remove  from  this 
state  and  remain  therefrom  one  year.1  A minor  may  be  emancipated 
from  his  or  her  father  or  mother  and  gain  a separate  settlement : 


1.  Settlement  in  general.  It  is  the  purpose  of  the  law  that  the  settle- 
ment of  a poor  person  is  gained  by  his  residence  in  a town  or  city  for  a period  of 
one  year.  Such  settlement  continues  until  he  has  gained  a like  settlement  in  some 
other  town  or  city.  L.  1897,  ch.  203,  added  a new  sec.  57  to  art.  3 of  the  Poor  Law, 
which  provided  that  a person  who  has  gained  a settlement  in  a town  or  city  loses  the 
same  by  continuous  residence  elsewhere  for  one  year.  This  provision  radically  changed 
the  existing  law  by  relieving  a town  or  city  from  the  obligation  of  supporting  a poor 
person  after  he  has  finally  left  its  boundaries  and  has  resided  continuously  for  one 
year  in  other  municipalities.  People  ex  rel.  May  v.  Maynard,  160  N.  Y.  453;  55  N.  E. 
9;  Matter  of  Connellan,  25  Misc.  592;  56  N.  Y.  Supp.  157.  But  the  act  of  1897,  ch. 
203,  was  repealed  by  L.  1900,  ch.  345,  the  effect  of  which  was  to  restore  the  law  as 
it  existed  prior  to  the  enactment  of  the  act  of  1897. 

The  question  of  the  settlement  of  any  poor  person  or  pauper  is  to  be  considered, 
in  determining  the  question  of  liability  for  his  support  only  as  between  two  towns 
of  the  same  county  which  are  liable  for  the  support  of  their  own  poor,  or  as  between 
such  a town  and  the  county  to  which  it  belongs.  Every  poor  pen  on  who  has  not  a 
settlement  in  some  town  of  the  county  in  which  he  becomes  poor  must  be  supported 
or  relieved  at  the  expense  of  that  county.  Bellows  v.  Courter,  6 N.  Y.  Supp.  73,  74. 

Settlement  lost  by  removal  to  another  state  or  county,  remains  where  it  wasi 
acquired.  Matter  of  Chapman,  15  Misc.  296,  37  N.  Y.  Supp.  763.  Where  an  alleged 
poor  person  had  resided  in  the  city  of  Amsterdam  for  some  five  years  prior  to  her 
removal  to  the  city  of  Syracuse,  and  within  four  months  of  her  arrival  at  Syracuse 
became  a public  charge,  without  in  any  way  attaining  a residence  in  the  latter  place, 
the  city  of  Amsterdam  is  liable  to  the  county  of  Onondaga,  from  which  county  the 
relief  was  forthcoming,  for  her  support,  where  due  and  timely  service  is  made  upon 
the  overseer  of  the  poor  of  Amsterdam.  Onondaga  County  v.  City  of  Amsterdam, 
64  Misc.  181,  117  N.  Y.  Supp.  1121. 

The  words  “ resident  and  inhabitant,”  as  used  in  this  section,  mean  the  local- 
ity of  existence,  permanently  and  firmly  fixed,  as  is  legally  conveyed  by  the  word 
“ domicile.”  Matter  of  Town  of  Hector,  24  N.  Y.  Supp.  475.  In  the  case  of  City  of 
Syracuse  v.  County  of  Onondaga,  25  Misc.  370;  55  N.  Y.  Supp.  634,  it  was  held  that 


730 


RELIEF  OF  POOR. 


Poor  Law,  § 40. 

1.  If  a male,  by  being  married  and  residing  one  year  separately  from 
the  family  of  his  father  or  mother. 


a person  who  comes  to  a city  in  January,  and  then  rents  a house  to  which,  in  March 
following,  he  takes  his  wife,  his  family  and  household  goods  and  resides  there  with 
them  until  February  in  the  year  following,  when  he  leaves  the  city  and  disappears, 
has  gained  a settlement  in  the  city  within  the  meaning  of  the  above  section.  Italian 
laborers  temporarily  employed  in  constructing  a railroad,  do  not  by  their  presence 
in  a town  gain  a settlement  therein.  Matter  of  Town  of  Hector,  24  N.  Y.  Supp.  475. 

Settlement  remains  until  another  is  gained.  A person  cannot  gain  a 
settlement  in  any  town  until  he  shall  have  resided  there  for  at  least  one  year;  when 
a settlement  is  thus  legally  gained  in  a town  it  must  necessarily  remain  there  until 
one  is  subsequently  established  in  some  other  town  or  county.  Sitterly  v.  Murray, 
63  How.  Pr.  367.  In  the  case  of  Matter  of  Town  of  Hector,  24  N.  Y.  Supp.  475,  it 
was  said:  “ It  has  long  been  settled  law  that  every  person  has  a domicile  somewhere. 
If  he  has  not  acquired  one  elsewhere  he  retains  his  domicile  of  origin,  and  to  effect 
a change  of  domicile  the  fact  and  intent  must  concur ; that  is,  there  must  be  not 
only  a change  of  residence,  but  an  intention  to  abandon  the  former  domicile,  and 
acquire  another  as  the  sole  domicile.” 

The  continuous  absence  of  a poor  person  from  a city,  without  proof  of  his  actual 
residence  or  intention,  is  not  such  a continuous  residence  elsewhere  for  one  year 
as  deprives  him  of  his  settlement  in  the  city,  and  such  city  is,  therefore,  liable  to 
support  the  wife  of  such  poor  person.  City  of  Syracuse  v.  County  of  Onondaga,  25 
Misc.  371;  55  N.  Y.  Supp.  634. 

Persons  who  are  natives  of  a town  and  reside  there  without  material  interruption 
have  a legal  settlement  in  the  town  and  county  under  this  section,  which  continues 
until  they  gain  a like  settlement  in  some  other  town  or  city  by  a residence  of  a year. 
County  of  Broome  v.  County  of  Cortland  (1912),  154  App.  Div.  349. 

C,  a laborer  of  full  age  but  of  nomadic  habits,  came  into  this  state  in  which  he 
never  had  a place  called  home,  and  after  working  on  April  2,  1914,  in  Ontario  county, 
where  there  is  no  distinction  between  town  and  county  poor,  became  ill  and  was  taken 
by  the  superintendent  of  the  poor  of  that  county  to  the  county  hospital,  and  upon  his 
recovery  several  weeks  later  went  to  work  and  continued  to  be  employed  in  said  county 
for  several  months,  being  self-supporting  all  of  that  time.  Thereafter  he  went  to 
Groton,  Tompkins  county,  where  the  distinction  between  town  and  county  poor  is 
still  maintained  and  while  at  a hotel  before  securing  employment  he  was  taken  with 
pneumonia  and  given  temporary  relief  and  furnished  with  medical  care  by  the  super- 
intendent of  the  poor  of  Tompkins  county,  and  being  unable  to  work  was  assisted 
by  said  superintendent  for  four  or  five  weeks.  He  had  not  lived  in  any  one  place  in 
the  county  of  Ontario  for  a year  prior  to  1914.  In  an  action  by  the  county  of 
Tompkins  to  charge  the  county  of  Ontario  with  the  support  of  C,  held  that  when  he 
left  Ontario  county  with  money  and  still  had  money  when  he  went  to  Groton  in 
Tompkins  county  he  was  not  a “ poor  person  ” straying  from  one  county  to  another, 
and  that  he  became  so  only  when  he  was  again  overtaken  by  misfortune  and  became 
ill  and  then  that  the  same  duty  devolved  upon  plaintiff  to  care  for  him  in  the 
emergency  as  had  devolved  upon  defendant  county  on  the  occasion  of  his  previous 
sickness,  and  that  he  was  entitled  under  this  section  to  bei  supported  by  plaintiff, 
he  not  having  a settlement  in  any  city  or  town.  County  of  Tompkins  v.  County  of 
Ontario  (1915),  92  Misc.  272,  156  N.  Y.  Supp.  335. 

Change  of  domicile.  To  effect  a change  of  domicile  there  must  be  both  resi- 
dence in  the  alleged  adopted  domicile  and  intention  to  adopt  such  place  of  residence 
as  the  sole  domicile.  Residence  alone  has  no  effect  per  se,  though  it  may  be  most 
important,  as  a ground  from  which  to  infer  intention.  Length  of  residence  will  not 
alone  effect  the  change.  Intention  alone  will  not  do  it,  but  the  two  taken  together 
constitute  a change  of  domicile.  Dupuy  v.  Wurtz,  53  N.  Y.  556,  561. 

Settlement  of  children.  A place  of  birth  of  an  infant  pauper  is  prima  facie  his 
place  of  settlement,  but  it  may  be  removed  to  the  last  legal  settlement  of  the 
parents  when  discovered.  Overseers  of  Vernon  v.  Overseers  of  Smithville,  17 


SETTLEMENT  AND  PLACE  OF  RELIEF. 


731 


Poor  Law,  § 41. 

2.  If  a female,  by  being  married  and  having  lived  with  her  husband?  in  which 
case  the  husband’s  settlement  shall  be  deemed  that  of  the  wife.* 2 

3.  By  being  bound  as  an  apprentice  and  serving  one  year  by  virtue  of  such 
indentures.3 

4.  By  being  hired  and  actually  serving  one  year  for  wages,  to  be  paid  such 
minor.  [Poor  Law,  § 40;  B.  C.  & G.  Cons.  L.,  p.  4246.] 

§ 2.  SETTLEMENT  OF  MARRIED  WOMEN;  WHEN  DETERMINED  BY  THAT 
OF  PARENTS. 

A woman  of  full  age,  by  marrying,  shall  acquire  the  settlement  of  her 
husband.  Until  a poor  person  shall  have  gained  a settlement  in  his  or 
her  own  right,  his  or  her  settlement  shall  be  deemed  that  of  the  father, 
if  living,  if  not,  then  of  the  mother;  but  no  child  born  in  any  alms-house 


Johns.  89;  and  see,  also  Delavergne  v.  Noxon,  14  Johns.  333;  Overseers  of  Berne 
v.  Overseers  of  Knox,  6 Cow.  433. 

Minors,  who  reside  with  their  father  for  more  than  a year  in  the  same  town, 
in  a county  in  which  the  several  towns  support  their  own  poor,  gain  a settle- 
ment in  that  town,  and  where,  after  removing  to  a new  town  in  the  same  county 
and  before  gaining  a settlement  there,  they  require  and  receive  relief  as  poor 
persons,  the  expense  of  their  relief  is  chargeable  to  the  town  from  which  they 
removed.  Matter  of  Chamberlain,  73  Misc.  256. 

The  settlement  of  a child  follows  that  of  the  father,  if  he  have  any;  if  not, 
the  settlement  of  the  mother.  Overseers  of  Miskayuna  v.  Overseers  of  Albany, 

2 Cow.  537.  No  act  of  the  father  of  a minor  son  can  divest  the  son  of  his 
derivative  settlement.  Adams  v.  Foster,  20  Johns.  452.  Until  a poor  person 
acquires  a settlement  in  his  own  right,  his  settlement  is  that  of  his  father  or 
mother;  and  when  his  mother  becomes  a resident  of  a city  and  he  follows 
her  to  that  place,  a residence  and  settlement  are  initiated.  Stillwell  v.  Kennedy, 
51  Hun,  114,  5 N.  Y.  Supp.  407.  Although  the  child  does  not  reside  with  his 
father  and  is  not  under  his  immediate  charge  or  control,  such  child  never- 
theless has  a derivative  settlement  in  the  same  town  as  his  father.  Adams  v. 
Oaks,  20  Johns.  282. 

Settlement  of  married  woman  is  that  of  her  husband.  Overseers  of  Sherburne 
v.  Overseers  of  Norwich,  16  Johns.  186.  Under  the  former  law  it  was  held  that 
if  the  husband  has  no  settlement,  his  wife  retains  the  settlement  had  by  her 
before  marriage.  Overseers  of  Otsego  v.  Overseers  of  Smithfield,  6 Cow.  760. 

A married  woman  cannot  gain  a settlement  separate  from  that  of  her  hus- 
band. City  of  Syracuse  v.  County  of  Onondaga,  25  Misc.  371,  55  N.  Y.  Supp.  634; 
Supt.  Poor  of  Cattaraugus  v.  Supt.  of  Poor  of  Erie,  50  N.  Y.  St.  Rep.  347,  21 
N.  Y.  Supp.  729. 

Where  a poor  person  after  abandonment  by  her  husband  had  received  aid 
from  the  overseer  of  the  poor  of  the  city  where  she  resided,  and  on  her  hus- 
band’s return  went  with  him  to  a city  in  another  county  where  after  a subse- 
quent abandonment  she  received  aid  from  the  overseers  of  the  poor,  but  did  not 
reside  in  the  latter  county  long  enough  to  gain  a settlement  under  the  statute, 
she  must  still  be  deemed  a poor  person  in  the  city  where  she  originally  resided 
and  can  gain  no  settlement  in  another  city  as  a poor  person.  Onondaga  County 
v.  City  of  Amsterdam,  139  App.  Div.  877,  124  N.  Y.  Supp  558. 

3.  Settlement  of  apprentices.  If  with  the  privity  and  consent  of  his  master, 
rn  apprentice  serves  another  person  two  years,  he  thereby  gains  a settlement. 
Overseers  of  Guilderland  v.  Overseers  of  Knox,  5 Cow.  363.  The  fact  that  the 
indenture  by  which  an  apprentice  was  bound  out  is  void  is  not  material;  if 
an  apprentice  has  served  one  year  by  virtue  of  such  indenture,  he  has  gained 
a separate  settlement.  Overseers  of  Hudson  v.  Overseers  of  Taghkanac,  13 
Johns.  245;  Overseers  of  Owasco  v.  Overseers  of  Oswegatchie,  5 Cow.  527; 
Overseers  of  Hamilton  v.  Overseers  of  Eaton,  6 Cow.  658. 


32 


RELIEF  OF  POOR. 


Poor  Law,  § 42. 

shall  gaih  any  settlement  merely  by  reason  of  the  place  of  such  birth; 
neither  shall  any  child  born  while  the  mother  is  such  poor  person,  gain 
any  settlement  by  reason  of  the  place  of  its  birth.  No  residence  of  any 
such  poor  person  in  any  alms-house,  while  such  person,  or  any  member  of 
his  or  her  family,  is  supported  or  relieved  at  the  expense  of  any  other  town, 
city,  county  or  state,  shall  operate  to  give  such  poor  person  a settlement 
in  the  town  where  such  actual  residence  may  be.4  [Poor  Law,  § 41 ; B.  C. 
& G.  Cons.  L.,  p.  4248.] 


§ 3.  POOR  PERSON  NOT  TO  BE  REMOVED,  BUT  SUPPORTED  IN 
THE  TOWN  WHERE  HE  MAY  BE. 

No  person  shall  be  removed  as  a poor  person  from  any  city  or  town  to 
any  other  city  or  town  of  the  same  or  any  other  county,  nor  from  any 
county  to  any  other  county  except  as  hereinafter  provided ; but  every  poor 
person,  except  the  state  poor,  shall  be  supported  in  the  town  or  county 
where  he  may  be,5  as  follows: 


4.  Construction  of  section.  The  disjunctive  “ or  ” is  to  he  understood  after 
the  word  “ alms-house  ” in  the  last  sentence  of  the  above  section.  Thus 
read,  the  revision  of  the  Poor  Law  in  1896  did  not  so  change  the  conditions  of 
settlement  that  a poor  person  residing  in  a town  or  city  for  more  that  one  year, 
while  relieved  at  the  expense  of  the  county,  ceases  to  be  a county  charge,  and 
becomes  thereafter  chargeable  to  the  town  or  city.  People  ex  rel.  French  v. 
Lyke,  159  N.  Y.  149;  53  N.  E.  802. 

Settlement.  A poor  person  does  not  gain  or  lose  a settlement  once  estab- 
lished, by  agreement,  or  after  contest  by  the  superintendent  of  the  poor  until 
he  again  maintains  himself  and  ceases  to  be  a public  charge.  Matter  of  Mc- 
Cutcheon,  25  Misc.  650,  56  N.  Y.  Supp.  370.  Since  the  enactment  of  the  above 
section,  a person  supported  by  the  county,  if  not  an  inmate  of  an  alms-house, 
may  gain  a settlement  in  a town  by  a residence  therein  for  one  year.  Matter 
of  Connellan,  25  Misc.  592;  56  N.  Y.  Supp.  157. 

Settlement  cannot  be  gained  in  the  town  where  the  actual  residence  may  be 
so  long  as  the  poor  person  or  any  member  of  his  family  is  supported  or  re- 
lieved at  the  expense  of  any  other  municipality.  People  ex  rel.  v.  Maynard, 
160  N.  Y.  453,  460. 

5.  The  place  of  support  of  a poor  person  is  in  the  town  or  county  where  he 
may  be.  Overseers  of  Norwich  v.  Overseers  of  Pharsalia,  15  N.  Y.  341;  Matter 
of  McCutcheon,  25  Misc.  592;  56  N.  Y.  Supp.  370.  And  when  a settlement  is 
once  legally  gained  in  any  town  it  must  necessarily  remain  there  until  one  is 
subsequently  established  in  some  other  town  or  county.  Sitterly  v.  Murray,  63 
How.  Pr.  367. 

Lapse  of  one  year  between  the  time  when  county  aid  was  given,  and  the  date 
when  aid  is  applied  for,  to  the  town,  is  sufficient  to  make  a poor  person  a 
resident  of  the  town.  Rept.  of  Atty.  Genl.  (1897)  84. 


SETTLEMENT  AND  PLACE  OF  RELIEF. 


733 


Poor  Law,  § 42. 

1.  If  he  has  gained  a settlement  in  any  town  or  city  in  such  county, 
he  shall  be  maintained  by  such  town  or  city. 

2.  If  he  has  not  gained  a settlement  in  any  town  or  city  in  the  county 
in  which  he  shall  become  poor,  sick  or  infirm,  he  shall  be  supported  and 
relieved  by  the  superintendents  of  the  poor  at  the  expense  of  the  county.6 

3.  If  such  person  be  in  a county  where  the  distinction  between  town 
and  county  poor  is  abolished,  he  shall,  in  like  manner,  be  supported  at 
the  expense  of  the  county,  and  in  both  cases,  proceedings  for  his  relief 
shall  be  had  as  herein  provided. 

4.  If  such  poor  person  be  in  a county  where  the  respective  towns  are 
liable  to  support  their  poor,  and  has  gained  a settlement  in  some  town 
of  the  same  county  other  than  that  in  which  he  may  then  be,  he  shall 
be  supported  at  the  expense  of  the  town  or  city  where  he  may  be,  and  the 
overseers  shall,  within  ten  days  after  the  application  for  relief,  give  notice 
in  writing  to  an  overseer  of  the  town  to  which  he  shall  belong,  requiring 
him  to  provide  for  the  support  and  relief  of  such  poor  person.7  [Poor 
Law,  § 42;  B.  C.  & G.  Cons.  L.,  p.  4248.] 


6.  Effect  of  settlement.  If  a poor  person  has  gained  a settlement  in  a town 
or  city,  he  is  to  be  maintained  at  the  expense  of  such  town  or  city,  except  in  a 
county  where  the  distinction  between  the  town  and  county  poor  has  been 
abolished.  If  he  has  not  gained  a settlement  in  the  town  where  he  may  be,  he 
is  to  be  supported  and  relieved  by  the  county  superintendents  of  the  poor  at 
the  expense  of  the  county.  See,  also.  Matter  of  Town  of  Hector,  24  N.  Y.  Supp. 
475;  Matter  of  Connellan,  25  Misc.  592. 

Where  a person  who  had  gained  a settlement  in  a county  where  the  distinc- 
tion between  town  and  county  poor  exists,  moved  from  that  town  to  a city  in 
the  same  county  and  he  there  became  poor,  and  was  relieved  by  the  overseer  of 
the  poor  of  the  city,  where  he  continued  to  reside,  the  bill  for  his  maintenance 
being  paid  by  the  town  from  which  he  came,  until  a year  from  the  taking 
effect  of  the  act  of  1897,  which  has  since  been  repealed,  he  then  became  a county 
charge  by  force  of  subdivision  2 of  the  above  section.  People  ex  rel.  May  v. 
Maynard,  160  N.  Y.  453;  55  N.  E.  9. 

7.  For  form  of  notice  to  be  given  by  the  overseers  of  one  town  to  those  of 
another,  requiring  the  overseers  of  the  town  in  which  the  poor  person  has  a 
residence  to  provide  for  his  support,  see  Form  No.  84,  post. 

Notice.  Subd.  4 of  the  above  section  in  regard  to  time  within  which  notices, 
to  be  given  by  towns  contesting  the  settlement  of  a poor  person,  must  be  served 
is  mandatory  and  a failure  to  comply  with  the  statute  must  result  in  defeat. 
Matter  of  Merville,  23  Misc.  398,  52  N.  Y.  Supp.  254. 

Settlement  of  poor  person  in  another  town.  A man  moved  his  wife  and 
infant  children  from  a town  where  he  had  resided  for  six  years,  to  another  town 
where  he  remained  for  over  a year  without  being  supported  or  relieved  at  the 
expense  of  the  latter  town.  It  was  held  that  he  had  obtained  a settlement  therein 
within  the  meaning  of  the  Poor  Law.  This  settlement  was  not  affected  by  a 
notice  mailed  by  the  overseer  of  the  poor  of  the  latter  town  to  the  overseer  of 


734 


RELIEF  OF  POOR. 


Poor  Law,  §§  43,  44. 

§ 4.  PROCEEDINGS  TO  DETERMINE  SETTLEMENT;  NOTICE  TO  APt 
PEAR  BEFORE  COUNTY  SUPERINTENDENTS. 

If,  within  ten  days  after  the  service  of  such  notice,  the  overseer  to 
whom  ihe  same  was  directed,  shall  not  proceed  to  contest  the  allegation 
of  the  settlement  of  such  poor  person,  by  giving  the  notice  hereinafter 
directed,  he  or  his  successors,  and  the  towTn  which  he  or  they  represent, 
shall  be  precluded  from  contesting  or  denying  such  settlement.  He  may, 
within  the  time  mentioned,  give  written  notice  to  the  overseer  of  the  town 
where  such  person  may  be,  and  from  whom  he  has  received  the  notice 
specified  in  the  last  section,  that  he  will  appear  before  the  county  super- 
intendents, at  a place  and  on  a day  therein  to  be  specified,  which  day  shall 
be  at  least  ten  days  and  not  more  than  thirty  days  from  the  time  of  the 
service  of  such  notice  of  hearing,  to  contest  the  alleged  settlement.  If 
the  county  superintendents  fail  to  appear  at  the  time  and  place  so 
appointed,  they  shall,  at  the  request  of  the  overseers  of  either  town,  appoint 
some  place,  and  some  other  day,  for  the  hearing  of  such  allegations,  and 
cause  at  least  five  days’  notice  thereof  to  be  given  to  such  overseers;  and 
no  poor  person  shall  be  deemed  to  have  gained  a settlement,  when  the 
proper  notices  to  contest  the  settlement  have  been  served,  until  there 
has  been  a hearing  before  the  superintendent  thereof,  and  an  order  by  them 
made  and  filed  in  the  office  of  the  county  clerk,  fixing  the  settlement  of 
such  poor  person.* * * * * * * 8  [Poor  Law,  § 43;  B.  C.  & G.  Cons.  L.,  p.  4249.] 

§ 5.  HEARING  BEFORE  SUPERINTENDENTS;  DECISION. 

The  county  superintendent  shall  convene  whenever  required  by  any 


the  poor  for  the  town  from  which  the  poor  person  had  removed,  soon  after 

the  removal,  stating  that  relief  had  been  afforded,  when  in  fact  it  had  not  been 

afforded  at  the  time.  Matter  of  Kelly,  46  Misc.  548,  95  N.  Y.  Supp.  53. 

Where  residents  of  a town  not  poor  persons  within  the  statute  remove  to 

another  town  in  the  same  county  and  receive  aid  there  within  a year  from  the 

time  of  their  removal,  the  expense  is  charged  to  the  town  from  which  they 

came.  Matter  of  Porter,  68  Misc.  124,  124  N.  Y.  Supp.  102. 

8.  Object  of  proceedings.  In  speaking  of  the  sections  of  the  old  revised 
statutes  from  wrhich  this  and  the  succeeding  section  were  derived,  Judge  West- 
brook said  in  the  case  of  Sitterly  v.  Murray,  63  How.  Pr.  370:  “The  object 

and  scheme  of  the  statute  seems  to  be  to  provide  for  the  settlement  of  all  per- 
sons under  the  poor  laws,  no  matter  what  their  previous  financial  condition 
may  have  been,  and  whether  they  were  ever  paupers  before  or  not,  and  to  fix 
the  liability  of  the  proper  town  for  their  support  and  maintenance,  whenever 
by  misfortune  or  otherwise,  they  should  become  a charge  upon  the  public.  This 
is  the  reasonable  and  natural  conclusion  to  be  drawn  from  the  various  pro- 
visions of  the  statute  and  from  the  language  of  these  particular  sections.” 

The  provisions  of  this  section  in  regard  to  the  time  within  which  such  notice 
must  be  served  are  mandatory,  and  a failure  to  comply  with  the  statute  will 
result  in  the  defeat  of  the  town  so  failing.  Matter  of  Merville,  23  Misc.  398; 
52  N.  Y.  Supp.  254. 

For  form  of  notice  of  overseers  of  the  poor  to  appear  before  the  county 


SETTLEMENT  AND  PLACE  OF  RELIEF. 


735 


Poor  Law,  § 45. 

overseer  pursuant  to  such  notice,  and  shall  hear  and  determine  the  con- 
troversy, and  may  award  costs,  not  exceeding  fifteen  dollars,  to  the  pre- 
vailing party,  which  may  be  recovered  in  an  action  in  a court  of  competent 
jurisdiction.9  Witnesses  may  be  allowed  fees  as  in  courts  of  record.10 
The  decision  of  the  superintendent  shall  be  final  and  conclusive,  unless 
an  appeal  therefrom  shall  be  taken  as  provided  by  this  chapter.* 11  [Poor 
Law,  § 44 ; B.  C.  & G.  Cons.  L.,  p.  4250.] 

§ 6.  EFFECT  OF  FAILURE  OF  OVERSEER  TO  PROVIDE  FOR  POOR 
PERSON,  WHEN  NOTIFIED  BY  OVERSEER  OF  OTHER  TOWN; 
BOARD  OF  SUPERVISORS  TO  CHARGE  SUPPORT  OF  POOR 
PERSON  TO  PROPER  TOWN. 

The  overseers  of  the  poor  of  the  town  in  which  it  may  be  alleged  any 
poor*  person  has  gained  a Settlement,  may,  at  any  time  after  receiving 
such  notice  requiring  them  to  provide  for  such  person,  take  and  receive 
such  poor  person  to  their  town,  and  there  support  him  ;12  if  they  omit  to 
do  so,  or  shall  fail  to  obtain  the  decision  of  the  county  superintendents, 
so  as  to  exonerate  them  from  the  maintenance  of  such  poor  person,  the 
charge  of  giving  such  notice,  and  the  expense  of  maintaining  such  person, 
after  being  allowed  by  the  county  superintendents,  shall  be  laid  before  the 
board  of  supervisors  at  their  annual  meetings  from  year  to  year,  as  long 
as  such  expenses  shall  be  incurred,  and  the  supervisors  shall  annually  add 
the  amount  of  such  charges  to  the  tax  to  be  laid  upon  the  town  to  which 
such  poor  person  belongs,  together  with  such  sum  in  addition  thereto, 


superintendent  of  the  poor  and  contest  the  alleged  settlement  of  a poor  person, 
see  Form  No.  85,  post. 

9.  Duty  of  county  superintendent.  The  county  superintendent  represents 
not  only  the  county  at  large  but  also  every  town  in  the  county.  He  is  required 
to  see  that  each  has  its  rights,  and  to  settle,  upon  evidence,  by  judicial  de- 
termination, various  conflicts  of  interest  between  the  different  towns  as  well  as 
between  the  county  and  any  town.  People  ex  rel.  Russell  v.  Supervisors  of 
Herkimer,  20  Abb.  N.  C.  123,  130. 

10.  For  form  of  subpoena  in  case  of  dispute  concerning  settlement  of  poor 
persons,  see  Form  No.  86,  post. 

11.  For  form  of  decision  of  superintendents  concerning  the  settlement  of 
poor  persons,  see  Form  No.  87,  post. 

12.  Personal  liability  of  overseer.  Where  overseers  of  the  poor  relieved  and 
supported  paupers  belonging  to  another  town,  at  the  request  of  the  overseers 
of  the  poor  of  the  town  in  which  the  paupers  belonged,  and  the  latter  over- 
seer, after  such  support  had  been  furnished,  on  the  presentation  of  the  bill 
therefor,  agreed  to  pay  the  same,  it  was  held  that  he  was  not  personally  liable 
on  the  contract.  Holmes  v.  Brown,  13  Barb.  599;  Overseers  of  Norwich  v. 
Overseers  of  Pharsalia,  15  N.  Y.  341. 


736 


RELIEF  OF  POOR. 


Poor  Law,  §§  46,  47. 

-as  will  pay  the  town  incurring  such  expense,  the  interest  thereon,  from 
the  time  of  expenditure  to  the  time  of  repayment,  which  sum  shall  be 
assessed,  levied  and  collected  in  the  same  manner  as  other  charges  of  such 
town.  Such  moneys  when  collected  shall  be  paid  to  the  county. treasurer 
and  be  by  him  credited  to  the  account  of  the  town  which  incurred  the 
expenses.  [Poor  Law,  § 45;  B.  C.  & G.  Cons.  L.,  p.  4250.] 

§ 7.  SUPERINTENDENT  TO  DETERMINE  WHO  ARE  COUNTY  POOR; 

PROCEEDINGS  FOR  SUCH  DETERMINATION. 

The  support  of  any  poor  person  shall  not  be  charged  to  the  county, 
without  the  approval  of  the  superintendents.  If  a poor  person  be  sent 
to  the  county  alms-house  as  a county  poor  person,  the  superintendents,  in 
-counties  where  there  are  town  poor,  shall  immediately  inquire  into  the  facts, 
and  if  they  are  of  opinion  that  such  person  has  a legal  settlement  in  any 
town  of  the  county,  they  shall,  within  thirty  days  after  such  poor  person 
shall  have  been  received,  give  notice  to  the  overseers  of  the  poor  of  the 
town  to  which  such  poor  person  belongs  that  the  expenses  of  such  support 
will  be  charged  to  such  town  unless  the  overseers  within  such  time  as  the 
superintendents  shall  appoint,  not  less  than  twenty  days  thereafter,  show 
that  such  town  ought  not  to  be  so  charged.13  On  the  application  of  the 
overseers,  the  superintendents  shall  re-examine  the  matter  and  take  testi- 
mony in  relation  thereto,  and  decide  the  question;  which  decision  shall  be 
conclusive,  unless  an  appeal  therefrom  shall  be  taken  in  the  manner  pro- 
vided in  this  chapter.14  [Poor  Law,  § 46;  B.  C.  & G.  Cons.  L.,  p.  4251.] 


§ 8.  SUPPORT  OF  COUNTY  POOR  IN  COUNTIES  HAVING  NO  ALMS- 
HOUSE; PROCEEDINGS  TO  DETERMINE  WHO  ARE  COUNTY 
POOR. 

In  counties  having  no  alms-house,  no  person  shall  be  supported  as  a 
county  poor  person,  without  the  direction  of  at  least  one  superintendent. 
In  such  cases  the  overseers  of  the  poor,  where  such  person  may  be,  shall, 
within  ten  days  after  granting  him  relief,  give  notice  thereof  and  that  such 
person  is  not  chargeable  to  their  town,  to  one  of  the  superintendents  who 
shall  inquire  into  the  circumstances,  and  if  satisfied  that  such  poor  person 
has  not  gained  a legal  settlement  in  any  town  of  the  county,  and  is  not  a 


13.  For  form  of  superintendent’s  notice  that  poor  persons  will  be  supported 
at  the  expense  of  a town  in  a county  where  the  town  support  their  own  poor,  see 
Form  No.  88,  post. 

14.  For  form  of  decision  of  superintendents  after  re-examining  settlement 
of  poor  person  on  application  of  overseers,  see  Form  No.  89,  post. 


SETTLEMENT  AND  PLACE  OF  RELIEF. 


737 


Poor  Law,  §§  48,  49. 

state  poor  person,  he  shall  give  a certificate  to  that  effect,  and  that  such 
poor  person  is  chargeable  to  the  county.  He  shall  report  every  such  case 
to  the  board  of  superintendents  at  their  next  meeting,  who  shall  affirm 
such  certificate,  or,  on  giving  at  least  eight  days’  notice  to  the  overseers 
of  the  poor  of  the  town  interested,  may  annul  the  same.  After  hearing 
the  allegations  and  proofs  in  the  premises,  if  the  superintendent  to  whom 
the  overseers  have  given  such  notice  shall  neglect  or  refuse  to  give  such 
certificate,  the  overseers  may  apply  to  the  board  of  superintendents,  who 
shall  summarily  hear  and  determine  the  matter,  and  whose  decision  shall 
be  conclusive,  unless  an  appeal  therefrom  shall  be  taken  in  the  manner 
provided  in  this  chapter.  Such  appeal  may  also  be  taken  from  the 
refusal  of  one  superintendent  to  grant  such  certificate  when  there  is  but 
one  superintendent  in  the  county.  [Poor  Law,  § 47;  B.  C.  & G.  Cons. 
L.,  p.  4251.] 

§ 9.  ALL  DECISIONS  OF  SUPERINTENDENTS  OF  THE  POOR  TO  BE 
ENTERED  IN  BOOKS;  COPY  TO  BE  FILED  WITH  COUNTY 
CLERK. 

The  decisions  of  county  superintendents  in  relation  to  the  settlement 
of  poor  persons,  or  to  their  being  a charge  upon  the  county,  shall  be 
entered  in  books  to  be  provided  for  that  purpose,  and  certified  by  the 
signature  of  such  of  the  superintendents  as  make  the  same ; and  a dupli- 
cate thereof,  certified  in  the  same  manner,  shall  be  filed  in  the  office  of 
the  county  clerk  within  thirty  days  after  making  such  decision.  [Poor 
Law,  § 48;  B.  C.  & G.  Cons.  L.,  p.  4252.] 


§ 10.  APPEALS  TO  COUNTY  COURT  FROM  DECISIONS  OF  COUNTY 
SUPERINTENDENTS  OF  THE  POOR;  DECISION  ON  APPEAL. 

Any  or  either  of  the  parties  interested  in  a decision  of  the  superinten- 
dent of  the  poor,  or  in  any  dispute  that  shall  arise  concerning  the  settle- 
ment of  any  poor  person,  may  appeal  from  such  decision  to  the  County 
Court  of  the  county  in  which  such  decision  shall  be  made,  by  serving  upon 
the  other  parties  interested  therein,  within  thirty  days  after  service  upon 
the  appellant  of  a notice  of  the  same,  a notice  of  appeal,  which  shall  be 
signed  by  the  appellant  or  his  attorney,  and  which  shall  specify  the  grounds 
of  the  appeal.15  The  hearing  of  such  appeal  may  be  brought  on  by  either 
party  in  or  out  of  term,  upon  notice  of  fourteen  days.  Upon  such  appeal 


15.  For  form  of  notice  of  decision  of  superintendents  as  to  settlement  of 
poor  persons,  and  of  appeal  to  county  court  from  decision  of  superintendents, 
see  Forms  Nos.  90,  91,  post. 


738 


RELIEF  OF  POOR. 


Poor  Law,  §§  50,  51. 

a new  trial  of  the  matters  in  dispute  shall  be  had  in  the  County  Court 
without  a jury,  and  a decision  of  the  County  Court  therein  shall  be  final 
and  conclusive,  and  the  same  costs  shall  be  awarded  as  are  allowed  on 
appeals  to  said  court. 

For  the  purposes  of  this  chapter  the  County  Court  shall  be  deemed  open 
at  all  times.  [Poor  Law,  § 49;  B.  C.  & G.  Cons.  L.,  p.  4252.] 


§11.  UNLAWFULLY  REMOVING  OR  ENTICING  A POOR  PERSON 
FROM  ONE  TOWN  TO  ANOTHER  A MISDEMEANOR. 

Any  person  who  shall  send,  remove  or  entice  to  remove,  or  bring,  or 
cause  to  be  sent,  removed  or  brought,  any  poor  or  indigent  person,  from 
any  city,  town  or  county,  to  any  other  city,  town  or  county,  without  legal 
authority,  and  there  leave  such  person  for  the  purpose  of  avoiding  the 
charge  of  such  poor  or  indigent  person  upon  the  city,  town  or  county  from 
which  he  is  so  sent,  removed  or  brought,  or  enticed  to  remove,  shall  forfeit 
fifty  dollars,  to  be  recovered  by  and  in  the  name  of  the  town,  city  or 
county  to  which  such  poor  person  shall  be  sent,  brought  or  removed,  or 
enticed  to  remove,  and  shall  be  guilty  of  a misdemeanor.16  [Poor  Law, 
§ 50;  B.  C.  & G.  Cons.  L.,  p.  4252.] 


§ 12.  PROCEEDINGS  WHERE  A PERSON  HAS  BEEN  ENTICED  OR 
HAS  COME  FROM  ONE  TOWN  OR  COUNTY  TO  ANOTHER. 

A poor  person  so  removed,  brought  or  enticed,  or  who  shall  of  his  own 
accord  come  or  stray  from  one  city,  town  or  county,  into  any  other  city. 


16.  Unlawful  removal  of  poor  person.  The  criminal  liability  is  also  pro- 
vided for  by  the  following  section  of  the  Penal  Law: 

“ § 1650.  Any  person  who  shall  send,  remove,  or  entice  to  remove,  or  bring, 
or  cause  to  be  sent,  removed  or  brought,  any  poor  or  indigent  person,  from 
any  city,  town  or  county,  to  any  other  city,  town  or  county  without  legal 
authority,  and  there  leave  such  person  for  the  purpose  of  avoiding  the  charge 
of  such  poor  or  indigent  person  upon  the  city,  town  or  county,  from  which  he  is 
so  sent,  removed  or  brought  or  enticed  to  remove,  shall  be  guilty  of  a misde- 
meanor, and  on  conviction,  shall  be  imprisoned  not  exceeding  six  months,  or 
fined  not  exceeding  one  hundred  dollars  or  both.” 

When  action  will  lie.  The  action  will  not  lie  against  a person  removing  a 
poor  person  from  one  county  to  another,  unless  it  appear  that  such  removal  was 
with  the  intent  of  subjecting  such  county  to  the  charge  of  supporting  such  poor 
person.  Coe  v.  Smith,  24  Wend.  341.  It  cannot  be  doubted  but  that  the  intent 
with  which  the  removal  was  effected  is  the  gravamen  of  the  criminal  offense. 
Foster  v.  Cronkhite,  35  N.  Y.  139.  The  penalty  is  incurred  when  any  person 


SETTLEMENT  AND  PLACE  OF  RELIEF. 


739 


Poor  Law,  § 51. 

town  or  county,  not  legally  chargeable  with  his  support,  shall  be  maintained 
by  the  county  superintendents  of  the  county  where  he  may  be.17  They  may 
give  notice  to  either  of  the  overseers  of  the  poor  of  the  town,  or  city  from 
which  he  was  brought  or  enticed,  or  came  as  aforesaid,  if  such  town  or 
city  be  liable  for  his  support,  and  if  there  be  no  town  or  city  in  the  county 
from  which  he  was  brought  or  enticed  or  came  liable  for  his  support,  then 
to  either  of  the  county  superintendents  of  the  poor  of  such  county,  within 
ten  days  after  acquiring  knowledge  of  such  improper  removal,  informing 
them  of  such  improper  removal,  and  requiring  them  forthwith  to  take 


removes,  or  entices  the  pauper  to  remove,  without  legal  authority,  with  intent 
to  make  the  county  to  which  the  removal  shall  be  made,  chargeable  with  the 
pauper’s  support.  Cortland  Co.  v.  Herkimer  Co.,  44  N.  Y.  42. 

In  the  latter  case  it  was  held  that  the  superintendent  might  testify  directly 
as  to  the  intent  with  which  he  did  an  act  when  the  intent  is  a fact  material 
to  the  issue. 

17.  Effect  of  revision.  The  above  section  of  the  Poor  Law  was  derived  from 
R.  S.,  pt.  1,  ch.  20,  tit.  1,  sec.  59,  as  amended  by  L.  1885,  ch.  546;  L.  1888,  ch.  486. 
The  commissioners  in  the  revision  disregarded  the  amendment  of  1888  and 
retained  the  law  as  amended  by  the  act  of  1885.  As  the  law  now  stands  pro- 
ceedings to  compel  the  support  of  a poor  person  who  has,  of  his  own  accord, 
moved  to  a county  not  legally  chargeable  with  his  support,  may  be  instituted 
against  the  county  properly  chargeable  with  his  support. 

This  change  vitiates  the  doctrine  laid  down  in  the  case  of  Coe  v.  Smith,  24 
Wend.  341,  and  followed  in  Foster  v.  Cronkhite,  35  N.  Y.  141,  and  Cortland  Co.  v. 
Herkimer  Co.,  44  id.  22,  that:  “ An  action  will  not  lie  by  the  superintendents 

of  the  poor  of  one  county  against  the  superintendents  of  another  county  for  the 
maintenance  of  a pauper  removed  from  the  county  of  the  latter  without  legal 
authority,  into  the  county  of  the  former,  when  the  removal  is  made  at  the  re- 
quest of  the  pauper,  so  that  he  may  be  under  the  care  of  his  family  and  friends, 
and  without  any  intent  on  the  part  of  the  person  removing  him  to  make  the 
county  into  which  he  is  removed  chargeable  with  his  support.”  But  the  pro- 
visions of  L.  1885,  ch.  546,  from  which  this  section  is  taken,  did  not  authorize 
an  action  by  the  superintendent  of  the  poor  for  the  support  of  a pauper  against 
a county  from  which  he  voluntarily  removed  at  a time  when  he  was  not  a 
pauper.  Bellows  v.  Counter,  6 N.  Y.  Supp.  73. 

The  term  “ poor  person  ” as  used  in  this  section  does  not  mean  an  able- 
bodied  man  who  has  always  maintained  himself  and  family  by  his  own  exer- 
tions, and  who  has  come  into  another  county  and  there,  without  fault  upon  his 
part,  by  means  of  an  accident  become  unable  to  support  himself.  Such  a man 
is  many  degrees  removed  from  the  condition  of  a pauper.  It  is  only  where  a 
poor  person,  who  at  the  time  of  his  coming  into  another  county  was  a poor 
person  that  the  liability  of  the  town  or  county  from  whence  he  came  exists. 
Wood  v.  Simmons,  51  Hun,  325;  4 N.  Y.  Supp.  368.  It  may  be  questioned  as  to 
whether  this  case  would  now  apply  under  the  definition  of  a poor  person  given 
in  section  2 of  the  Poor  Law. 

Poor  person  to  be  supported.  A superintendent  of  the  poor  who  finds  a 


740 


RELIEF  OF  POOR. 


Poor  Law,  § 52. 

charge  of  such  poor  person.18  If  there  be  no  overseers  or  superintendents 
of  the  poor  in  such  town,  city  or  county,  such  notice  shall  be  given  to  the 
person,  by  whatever  name  known,  who  has  charge  and  care  of  the  poor 
in  such  locality.  [Poor  Law,  § 51;  B.  C.  & G.  Cons.  L.,  p.  4253.] 


§ 13.  UPON  RECEIPT  OF  NOTICE  SUPERINTENDENT  OR  OVER- 
SEER TO  TAKE  POOR  PERSON  OR  SERVE  DENIAL  OF  RE- 
MOVAL. 

The  county  superintendents,  or  overseers,  or  other  persons  to  whom  such 
notice  may  be  directed  may,  after  the  service  of  such  notice,  take  and 
remove  such  poor  person  to  their  county,  town  or  city,  and  there  support 
him,  and  pay  the  expense  of  such  notice,  and  of  the  support  of  such 
person  ;19  or  they  shall,  within  thirty  days  after  receiving  such  notice, 
by  a written  instrument  under  their  hands,  notify  the  county  superinten- 

pauper  in  his  county  has  no  right  to  remove  him  to  another  county  where  he  be- 
lieves he  belongs;  he  must  provide  for  his  support  and  then  pursue  his  remedy  against 
the  other  county.  Smith  v.  Brundage,  17  Wk.  Dig.  266. 

It  is  the  duty  of  the  superintendent  of  the  poor  of  a county  to  which  a poor  per- 
son has  removed  to  furnish  her  with  necessary  relief  and  he  cannot  refrain  from 
doing  so  because  she  had  a settlement  in  another  city,  nor  can  he  against  her  will 
remove  her  to  her  original  residence.  Onondaga  County  v.  City  of  Amsterdam,  139 
App.  Div.  877 ; 124  N.  Y.  Supp.  558. 

If  a poor  person,  not  having  a settlement  in  this  state,  is  illegally  moved  by  the 
overseers  of  one  town  into  another  town,  and  is  there  supported,  the  overseers  of 
the  town  into  which  he  was  moved  may  maintain  an  action  against  the  overseers  of 
the  town  procuring  his  illegal  removal,  for  the  amount  expended  in  the  support  of 
such  poor  person,  upon  the  principle  that  the  burden  of  supporting  such  poor  person 
was  unjustly  thrown  upon  such  town,  and  such  town  should  be  exonerated  by  the 
town  benefiting  from  such  illegal  removal.  Pittstown  v.  Plattsburgh,  15  Johns.  436. 

Removal  from  county.  Where  a person  removes  from  the  town  and  county 
in  which  he  has  gained  a settlement,  into  another  town  and  county,  and  while  in 
the  town  and  county  to  which  he  has  removed,  and  before  he  has  gained  a settle- 
ment therein,  he  becomes  a “ poor  person,”  the  latter  county  is  not  entitled  to  re- 
imbursement from  the  town  or  county  from  which  he  came.  County  of  Delaware 
v.  Town  of  Delaware,  105  App.  Div.  129,  93  N.  Y.  954. 

Liability  of  town  to  which  poor  persons  temporarily  remove.  Where  natives 
of  a town,  being  poor  persons  within  the  meaning  of  the  statute,  leave  their  native 
town  and  county  but  return  within  one  year,  said  county  cannot,  under  this  section, 
charge  the  county  to  which  they  temporarily  removed  with  support  furnished.  This 
because  they  did  not  come  into  a town  or  county  not  chargeable  with  their  support, 
but  on  the  contrary,  came  back  to  the  county  legally  chargeable  therewith.  County 
of  Broome  v.  County  of  Cortland  (1912),  154  App.  Div.  349. 

18.  Sufficiency  of  notice.  Notice  by  a superintendent  of  the  poor  to  an  over- 
seer of  another  county  that  a person,  who  has  gained  a settlement  in  the  latter 
county,  is  supported  as  a pauper  in  the  county  of  the  superintendent  giving  such 
notice,  but  does  not  aver  that  the  person  was  a pauper  while  in  the  county  from 
which  he  moved  or  that  his  change  of  habitation  was  improper,  is  insufficient  to  sus- 
tain an  action  for  the  amount  of  his  support.  McKay  v.  Welsh,  6 N.  Y.  Supp.  358. 

A notice  served  by  mail,  and  a reply  thereto  served  in  the  same  manner,  is  a 
sufficient  compliance  with  this  statute.  Stilwell  v.  Coons,  122  N.  Y.  242. 

For  form  of  notice  of  improper  removal  of  a poor  person  from  a town,  city 
or  county,  see  Form  No.  92,  post. 

19.  Expense  of  support.  When  a poor  person  removes  or  is  removed  from 
a town  in  one  county  to  a town  in  another  county,  not  chargeable  with  his 
support,  and  is  there  necessarily  relieved  by  the  overseer  of  the  poor  of  that 


SETTLEMENT  AND  PLACE  OF  RELIEF. 


741 


Poor  Law,  § 53. 

dents  from  whom  such  notice  was  received,  or  either  of  them,  that  they 
deny  the  allegation  of  such  improper  enticing  or  removal,  or  that  their 
town,  city  or  county  is  liable  for  the  support  of  such  poor  person.20 
Upon  the  application  of  such  county  superintendent,  overseer  or  other 
person  so  notified,  and  upon  proper  proof,  the  county  judge  of  the  county 
wherein  such  superintendent,  overseer  or  other  person  to  whom  such 
notice  shall  have  been  directed,  resides,  shall  issue  a warrant  directed 
to  the  sheriff  of  the  county,  or  to  some  other  proper  person  or  persons, 
directing  him  or  them  to  take  and  remove  such  poor  person  from  the 
place  where  he  may  be,  to  the  county,  city  or  town  legally  chargeable 
for  his  support.  [Poor  Law,  § 52,  as  amended  by  L.  1916,  ch.  175; 
B.  C.  & G.  Cons.  L.,  p.  4254.] 

§ 14.  IN  CASE  OF  NEGLECT  TO  DENY  REMOVAL,  SUPPORT  OF 
POOR  PERSON  TO  BE  A CHARGE  UPON  THE  TOWN  AND 
COUNTY  FROM  WHICH  REMOVED;  ACTIONS  TO  RECOVER. 

If  there  shall  he  a neglect  to  take  and  remove  such  poor  person  and  to 
serve  notice  of  such  denial  within  the  time  above  prescribed,  the  county 
superintendents  and  overseers,  respectively,  whose  duty  it  was  so  to  do, 
their  successors,  and  their  respective  counties,  cities  or  towns,  shall  he 
deemed  to  have  acquiesced  in  the  allegations  contained  in  such  first 
notice,  and  shall  he  forever  precluded  from  contesting  the  same,  and 
their  counties,  cities  and  towns,  respectively,  shall  he  liable  for  the 
expenses  of  the  support  of  such  poor  person,  which  may  he  recovered 
from  time  to  time,  by  county  superintendents  incurring  such  expenses, 
in  the  name  of  their  county  in  actions  against  the  county,  city  or  town 
so  liable.21  [Poor  Law,  § 53;  B.  C.  & G.  Cons.  L.,  p.  4254.] 


town,  the  expense  incurred  and  the  burden  of  thereafter  maintaining  such  poor  per- 
son is,  as  between  that  town  and  its  county,  a charge  on  the  county,  provided  the 
overseer  gives  the  superintendent  of  the  poor  of  his  county  notice  of  the  circum- 
stances of  the  case,  as  provided  by  law.  Stillwell  v.  Goons,  122  N.  Y.  242;  25  N.  E. 
316. 

20.  Denial  of  removal.  For  form  of  notice  of  denial  of  removal  of  poor  per- 
sons, see  Form  No.  93,  post. 

The  denial  of  liability  need  not  follow  the  language  of  the  section,  but  it  is  sufficient 
if  it  contains  an  unequivocal  denial  of  the  liability  asserted  in  the  notice  of  im- 
proper removal.  Stillwell  v.  Coons,  122  N.  Y.  242;  25  N.  E.  316.  If  such  denial  be 
■served  by  mail,  and  is  received  and  retained  by  the  party  upon  whom  it  is  served 
without  objection,  the  service  is  sufficient.  Stillwell  v.  Kennedy,  51  Hun  114;  5 N. 
Y.  Supp.  407. 

21.  Acquiescence  implied  if  poor  person  is  not  removed.  Foster  v.  Cronkhite, 
35  N.  Y.  139. 

Liability  for  support  absolute  unless  allegations  of  notice  are  denied.  McKay  v. 
Welch,  24  N.  Y.  St.  Rep.  838,  6 N.  Y.  Supp.  358. 


742 


RELIEF  OF  POOR. 


Poor  Law,  §§  54,  55. 

§ 15.  ACTIONS  TO  RECOVER,  TO  BE  BROUGHT  WITHIN  THREE 
MONTHS  FROM  SERVICE  OF  DENIAL.. 

Upon  service  of  any  such  notice  of  denial  the  county  superintendents 
upon  whom  the  same  may  be  served,  shall,  within  three  months  com- 
mence an  action  in  the  name  of  their  county,  against  the  town,  city  or 
county  so  liable  for  the  expense  incurred  in  the  support  of  such  poor 
person,  and  prosecute  the  same  to  effect;  if  they  neglect  to  do  so,  their 
town,  city  or  county,  shall  be  precluded  from  all  claim  against  the  town, 
city  or  county  to  whose  officers  such  first  notice  was  directed.  Such 
action  shall  be  tried  in  the  county  in  which  the  cause  of  action  arose, 
subject  to  the  power  of  the  court  to  change  the  place  of  trial  in  the  cases 
provided  by  law.22  [Poor  Law,  § 54,  as  amended  by  L.  1916,  ch.  203  • 
B.  C.  & G.  Cons.  L.,  p.  4255.] 


§ 16.  PENALTY  FOR  BRINGING  FOREIGN  POOR  INTO  STATE;  AC- 
TION TO  RECOVER  PENALTY;  PERSON  FOUND  GUILTY, 
TO  TRANSPORT  POOR  PERSON  OUT  OF  STATE. 

Any  person  who  shall  knowingly  bring  or  remove,  or  cause  to  be  brought 
or  removed,  any  poor  person  from  any  place  without  this  state,  into  any 
county,  city  or  town  within  it,  and  there  leave  or  attempt  to  leave  such 
poor  person,  with  intent  to  make  any  such  county,  city  or  town,  or  th^ 
state  wrongfully  chargeable  with  his  support,  shall  forfeit  fifty  dollars, 
to  be  recovered  by  an  action  in  a court  of  competent  jurisdiction  in  the 
county,  and  in  the  name  of  the  county,  city  or  town  into  which  such  poor 
person  shall  be  brought,  and  shall  be  obliged  to  convey  such  person  out 
of  the  state,  or  support  him  at  his  own  expense,  and  shall  be  guilty  of  a mis- 
demeanor, and  the  court  or  magistrate  before  whom  any  person  shall  be 
convicted  for  a violation  of  this  section  shall  require  of  such  person  satis- 
factory security  that  he  will  within  a reasonable  time,  to  be  named  by 
the  court  or  magistrate,  transport  such  person  out  of  the  state,  or  indemnify 
the  town,  city  or  county  for  all  charges  and  expenses  which  may  be  in- 
curred in  his  support ; and  if  such  person  shall  refuse  to  give  such  security 
when  so  required,  the  court  or  magistrate  shall  commit  him  to  the  common 
jail  of  the  county  for  a term  not  exceeding  three  months.23  [Poor  Law, 
§ 55 ; B.  C.  & G.  Cons.  L.,  p.  4255.] 


Action  must  be  commenced  within  three  months  after  service  of  notice. 
Stilwell  v.  Coons,  122  N.  Y.  242;  Cortland  Co.  v.  Herkimer  Co.,  44  N.  Y.  22; 
Foster  v.  Cronkhite,  35  N.  Y.  139. 

23.  Penalty.  Action  for  penalty  will  not  lie  unless  person  removing  poor 
person  into  the  state  act  in  bad  faith.  Thomas  v.  Ross  & Shaw,  8 Wend.  672. 

Action  will  not  lie  against  person  bringing  pauper  within  the  state  for  cost 
of  maintenance  of  pauper,  but  must  be  for  penalty.  Crouse  v.  Mabbett,  11 
Johns.  167. 

It  is  no  defense  in  such  action,  that  the  poor  person  formerly  had  a settle- 
ment in  the  place  to  which  he  was  brought,  and  had  not  subsequently  gained  one 
elsewhere.  Winfield  v.  Mapes,  4 Den.  571. 


SUPPORT  OF  BASTARDS. 


Explanatory  note. 


7U 


CHAPTER  L. 

SUPPORT  OF  BASTARDS. 

EXPLANATORY  NOTE. 


Support  of  Bastards. 

Both  the  mother  and  a bastard  child  are  in  the  eyes  of  the  law  poor 
persons,  from  the  fact  that  they  are  liable  to  become  chargeable  to 
the  town  or  county.  It  is  made  the  duty  of  superintendents  and  over- 
seers of  the  poor  to  take  necessary  proceedings,  as  prescribed  in  the 
Code  of  Criminal  Procedure,  to  compel  a putative  father  of  a bastard 
to  support  the  mother  during  her  confinement,  and  the  child  after  its 
birth. 

Duties  of  Poor  Officers. 

The  mother  of  a bastard,  during  her  confinement,  and  the  bastard, 
after  its  birth,  are  to  be  supported  and  cared  for  in  the  same  manner 
as  other  poor  persons.  The  superintendents  of  the  poor  of  the  county 
and  the  overseers  of  the  poor  of  the  several  towns  have  the  same  duties 
to  perform  in  respect  to  such  mother  and  her  bastard  child,  as  in  respect 
to  other  poor  persons.  Tf  such  mother  has  a settlement  in  the  town 
where  she  may  be,  that  town  is  chargeable  with  her  support,  in  case  poor 
persons  are  supported  therein  at  the  expense  of  the  town.  If  the  mother 
have  a settlement  in  any  other  town  or  city  in  the  same  county,  such 
support  is  chargeable  to  such  town  or  city.  In  any  other  case  the 
support  is  chargeable  to  the  county.  The  same  proceedings  are  taken 
to  determine  the  settlement  of  the  mother  and  the  proper  town,  city  or 
county  chargeable  with  her  support,  as  in  the  case  of  other  poor  persons. 

An  overseer  of  the  poor  of  the  town  where  a mother  may  be  must 
provide  for  her  support  and  comfort  during  her  confinement  and  re- 
covery therefrom,  whether  she  has  a settlement  in  the  town  or  not. 


744 


RELIEF  OF  POOR. 


Poor  Law,  § 60. 

She  cannot  be  removed  from  one  town  or  city,  or  from  one  county  to 
another  without  her  consent. 

Moneys  Received  from  Father. 

The  overseer  of  the  poor  of  a town  may  apply  moneys  received  from 
the  putative  father  of  a bastard  in  the  support  and  sustenance  of  the 
mother  and  child,  without  paying  the  same  into  the  county  treasury. 
The  overseer  must  account  to  the  town  hoard  for  the  moneys  so  received 
and  expended. 


Section  1.  Penalty  for  removal  of  mother  of  bastard;  support  of  mother. 

2.  Definition  of  bastard. 

3.  Who  liable  for  support  of  bastard. 

4.  Mother  and  child  poor  persons;  proceedings  in  case  of  removal  of 

mother  from  one  town  or  county  to  another. 

5.  Mother  and  bastard  to  be  supported  as  other  poor  persons. 

6.  Mother  and  child  not  to  be  removed  without  her  consent. 

7.  Overseers  to  notify  superintendent  of  cases  of  bastardy,  when 

county  is  chargeable. 

8.  Superintendents  to  provide  for  mother  and  child. 

9.  Until  taken  charge  of  by  superintendents,  to  be  supported  by  over- 

seers. 

10.  Overseers  of  town  to  support  bastard  and  mother,  whether  charge- 

able or  not. 

11.  Moneys  received  by  overseers  from  parents  of  bastards,  how  applied 

and  accounted  for. 

12.  "When  moneys  received  on  account  of  bastard  chargeable  to  county; 

how  to  be  disposed  of. 

13.  Disputes  concerning  settlement  of  bastard,  how  determined. 

14.  Proceedings  "when  bastard  is  chargeable  to  another  town. 

15.  Mode  of  ascertaining  sum  to  be  allowed  for  support  of  bastard. 

16.  When  mother  and  child  to  be  removed  to  county  alms-house. 

17.  Superintendents  and  overseers  may  compromise  with  father  of  bas- 

tard; wiien  mother  may  receive  money. 


§ 1.  PENALTY  FOR  REMOVAL  OF  MOTHER  OF  BASTARD;  SUP- 
PORT OF  MOTHER. 

If  the  mother  of  any  bastard,  or  of  any  child  likely  to  be  born  a bastard, 
shall  be  removed,  brought  or  enticed  into  any  county,  city  or  town  from 
any  other  county,  city  or  town  of  this  state,  for  the  purpose  of  avoiding 
the  charge  of  such  bastard  or  child  upon  the  county,  city  or  town  from 
which  she  shall  have  been  brought  or  enticed  to  remove,  the  same  penalties 
shall  be  imposed  on  every  such  person  so  bringing,  removing  ‘or  enticing 
such  mother  to  remove,  as  are  provided  in  the  case  of  the  fraudulent  re- 


SUPPORT  OF  BASTARDS. 


745 


Code  Crim.  Proc.,  §§  838,  839. 

moval  of  a poor  person.1  Such  mother,  if  unable  to  support  herself,  shall 
be  supported  during  her  confinement  and  recovery  therefrom,  and  her  child 
shall  be  supported,  by  the  county  superintendents  of  the  poor  of  the  county 
where  she  shall  be,  if  no  provision  be  made  by  the  father  of  such  child.2 
[Poor  Law,  § 60 ; B.  C.  & GL  Cons.  L.,  p.  4257.] 

§ 2.  DEFINITION  OF  BASTARD. 

A bastard  is  a child  who  is  begotten  and  born, 

1.  Out  of  lawful  matrimony; 

2.  While  the  husband  of  its  mother  was  separate  from  her,  for  a whole 
year  previous  to  its  birth;  or, 

3.  During  the  separation  of  its  mother  from  her  husband,  pursuant  to 
a judgment  of  a competent  court.  [Code  Crim.  Pro.,  § 838.] 

§ 3.  WHO  LIABLE  FOR  SUPPORT  OF  BASTARD. 

The  father  and  mother  of  a bastard  are  liable  for  its  support.  In  case 
of  their  neglect  or  inability,  it  must  be  supported  by  the  county,  city 
or  town  chargeable  therewith  under  the  provisions  of  the  Poor  Law.3 
[Code  Crim.  Pro.,  § 839.] 


§ 4.  MOTHER  AND  CHILD  POOR  PERSONS;  PROCEEDINGS  IN  CASE 
OF  REMOVAL  OF  MOTHER  FROM  ONE  TOWN  OR  COUNTV 
TO  ANOTHER. 

Such  mother  and  her  child  shall,  in  all  respects,  be  deemed  poor  per- 
sons ; and  the  same  proceedings  may  be  had  by  the  county  superintend- 
ents to  charge  the  town,  city  or  county  from  which  she  was  removed  or 
enticed,  or  shall  have  of  her  own  accord  come  or  strayed,  for  the  expense 
of  supporting  her  and  her  child,  as  are  provided  in  the  case  of  poor 


1.  Penalties  for  removal  of  poor  person  from  one  town  or  city  to  another.  See 
Poor  Law,  sec.  50,  ante.  The  unlawful  removal  of  a poor  person  from  one  town  or 
city  to  another  is  a misdemeanor.  Penal  Law,  § 1650;  see  ante. 

2.  The  mother  and  child,  in  all  cases  relating  to  bastardy,  are  deemed  poor 
persons  from  the  fact  that  they  are  likely  to  become  chargeable  to  the  county  as 
poor  persons.  Neary  v.  Robinson,  27  Ilun  145. 

3.  Proceedings  to  compel  support  of  bastard  by  father.  Title  5 of  the 
Code  of  Criminal  Procedure  (secs.  838-886),  prescribe  a method  of  compelling  a pu- 
tative father  of  a bastard  to  support  the  mother  during  her  confinement  and  the 
bastard  after  birth.  It  is  made  the  duty  of  the  superintendent  of  the  poor  or  the 
overseer  in  case  a woman  is  delivered  of  a bastard  or  is  pregnant  with  a child  likely 
to  become  a bastard,  and  which  is  chargeable  to  the  county  or  town,  to  apply  to  a 
justice  of  the  peace  or  police  justice  to  inquire  into  the  facts.  Code  Crim.  Proc.,  § 840. 

Putative  father  is  not  required  to  pay  for  medical  services  rendered  to  the  child 
in  the  absence  of  an  agreement  or  of  an  order  of  filiation.  Bissell  v.  Myton,  160 
App.  Div.  280,  145  N.  Y.  Supp.  591. 


746 


RELIEF  OF  POOR. 


Poor  Law.  §§  61-63. 

persons ; and  an  action  may  be  maintained  in  the  same  manner  for  said 
expenses  and  for  all  expenses  properly  incurred  in  apprehending  the 
father  of  such  child,  or  in  seeking  to  compel  its  support  by  such  father 
or  its  mother.  [Poor  Law,  § 61,  as  amended  by  L.  1916,  ch.  .205; 
B.  C.  & G.  Cons.  L.,  p.  4258.] 


§ 5.  MOTHER  AND  BASTARD  TO  BE  SUPPORTED  AS  OTHER  POOR 
PERSONS. 

The  mother  of  every  bastard,  who  shall  be  unable  to  support  herself, 
during  her  confinement  and  recovery  therefrom,  and  every  bastard,  after 
it  is  born,  shall  be  supported  as  other  poor  persons  are  required  to  be 
supported  by  the  provisions  of  this  chapter,  at  the  expense  of  the  city  or 
town  where  such  bastard  shall  be  born,  if  the  mother  have  a legal  settle- 
ment in  such  city  or  town,  and  if  it  be  required  to  support  its  own  poor; 
if  the  mother  have  a settlement  in  any  other  city  or  town  of  the  same 
county,  which  is  required  to  support  its  own  poor,  then  at  the  expense  of 
such  other  city  or  town ; in  all  other  cases,  they  shall  be  supported  at  the 
expense  of  the  county  where  such  bastard  shall  be  born.4  [Poor  Law, 
§ 62;  B.  C.  & G.  Cons.  L.,  p.  4258.] 


§ 6.  MOTHER  AND  CHILD  NOT  TO  BE  REMOVED  WITHOUT  HER 
CONSENT. 

The  mother  and  her  child  shall  not  be  removed  from  any  city  or  town 
to  any  other  city  or  town  in  the  same  county,  nor  from  one  county  to 
any  other  county,  in  any  case  whatever,  unless  voluntarily  taken  to  the 
county,  city  or  town  liable  for  their  support,  by  the  county  superintendents 
of  such  county  or  the  overseers  of  the  poor  of  such  city  or  town.  [Poor 
Law,  § 63 ; B.  C.  & G.  Cons.  L.,  p.  4259.] 


4.  Proceedings  to  compel  support  of  mother  or  child  by  proper  county  or  town, 
see  Poor  Law,  secs.  51-54,  ante. 

The  settlement  of  a bastard  child  is  the  last  legal  settlement  of  the  mother, 
however  such  settlement  may  have  been  acquired.  There  is  in  this  respect  no 
distinction  between  an  acquired  settlement,  and  one  that  is  merely  derivative. 
Overseers  of  Canajoharie  v.  Overseers  of  Johnstown,  17  Johns.  41.  If  the  mother 
has  no  settlement  within  the  state,  her  bastard  child  must  be  adjudged  settled 
where  it  was  born.  Wynkoop  v.  Overseers  of  New  York,  3 Johns.  15. 

A bastard  child  is  settled  in  the  town  where  it  was  born,  until  it  acquires 
a settlement  for  itself,  and  the  justices  of  the  peace  of  such  a town  may  make 
an  order  of  filiation  and  maintenance,  though  the  legal  settlement  of  the  mother 
be  elsewhere.  Delavergue  v.  Noxon,  14  Johns.  333. 


SUPPORT  OF  BASTARDS. 


747 


Poor  Law,  §§  64-67. 

§ 7.  OVERSEERS  TO  NOTIFY  SUPERINTENDENTS  OF  CASES  OF 
BASTARDY,  WHEN  COUNTY  IS  CHARGEABLE. 

The  overseers  of  the  poor  of  any  city  or  town  where  a woman  shall  be 
pregnant  with  a child,  likely  to  born  a bastard,  or  where  a bastard  shall 
be  born,  which  child  or  bastard  shall  be  chargeable,  or  likely  to  become 
chargeable  to  the  county,  shall,  immediately  on  receiving  information  of 
such  fact,  give  notice  thereof  to  the  county  superintendents,  or  one  of  them. 
[Poor  Law,  § 64;  B.  C.  & G.  Cons.  L.,  p.  4259.] 

§ 8.  SUPERINTENDENTS  TO  PROVIDE  FOR  MOTHER  AND  CHILD. 

The  county  superintendents  shall  provide  for  the  support  of  such  bastard 
and  its  mother,  in  the  same  manner  as  for  the  poor  of  such  county.5 
[Poor  Law,  § 65;  B.  C.  & G.  Cons.  L.,  p.  4259.] 


§ 9.  UNTIL  TAKEN  CHARGE  OF  BY  SUPERINTENDENTS,  TO  BE 
SUPPORTED  BY  OVERSEERS. 

Until  the  county  superintendents  take  charge  of  and  provide  for  the 
support  of  such  bastard  and  its  mother  so  chargeable  to  the  county,  the 
overseers  of  the  poor  of  the  city  or  town  shall  maintain  and  provide  for 
them;  and  for  that  purpose,  the  same  proceedings  shall  be  had  as  for  the 
support  of  a poor  person  chargeable  to  the  county,  who  cannot  be  con- 
veniently removed  to  the  county  alms-house.  [Poor  Law,  § 66;  B.  C.  & 
G.  Cons.  L.,  p.  4259.] 

§ 10.  OVERSEERS  OF  TOWN  TO  SUPPORT  BASTARD  AND  MOTHER, 
WHETHER  CHARGEABLE  OR  NOT. 

Where  a woman  shall  be  pregnant  of  a child  likely  to  be  born  a bastard, 
or  to  become  chargeable  to  a city  or  town,  or  where  a bastard  shall  be 
born  chargeable,  or  likely  to  become  chargeable,  to  a city  or  town,  the 
overseers  of  the  poor  of  the  city  or  town  where  such  bastard  shall  be  born. 


5.  Neglect  of  duty  by  poor  officers.  The  neglect  of  the  superintendent  to 
provide  for  the  support  of  a bastard  and  its  mother  is  a misdemeanor.  The 
following  section  of  the  Penal  Law  provides  the  punishment: 

§ 1843.  Neglect  of  duty  "by  superintendent  or  overseer  of  the  poor.  The 
county  superintendent  of  the  poor,  or  any  overseer  of  the  poor,  whose  duty  it 
shall  be  to  provide  for  the  support  of  any  bastard  and  the  sustenance  of  its 
mother,  who  shall  neglect  to  perform  such  duty,  shall  be  guilty  of  a misde- 
meanor, and  shall,  on  conviction,  be  liable  to  a fine  of  two  hundred  and  fifty 
dollars,  or  to  imprisonment  not  exceeding  one  year,  or  both  such  fine  and  im- 
prisonment. 


748 


RELIEF  OF  POOR. 


Poor  Law,  § 68. 

or  likely  to  be  born,  whether  the  mother  have  a legal  settlement  therein 
or  not,  shall  provide  for  the  support  of  such  child  and  the  sustenance  of 
its  mother  during  her  confinement  and  recovery  therefrom,  in  the  same 
manner  as  they  are  authorized  by  this  chapter  to  provide  for  and  support 
the  poor  of  their  city  or  town.6  [Poor  Law,  § 67;  B.  C.  & G.  Cons.  L., 
p.  4259.] 

§11.  MONEYS  RECEIVED  BY  OVERSEERS  FROM  PARENTS  OF 
BASTARD,  HOW  APPLIED  AND  ACCOUNTED  FOR. 

Where  any  money  shall  be  paid  to  any  overseer,  pursuant  to  the  order 
of  any  two  justices,  by  any  putative  father,  or  by  the  mother  of  any 
bastard,  the  overseers  may  expend  the  same  directly,  in  the  support  of  such 
child,  and  the  sustenance  of  its  mother  as  aforesaid,  without  paying  the 
same  into  the  county  treasury.7  They  shall  annually  account,  on  oath. 


6.  The  neglect  of  an  overseer  of  the  poor  to  provide  for  the  support  of  the 
bastard  and  its  mother  is  a misdemeanor.  See  Penal  Law,  § 1843,  in  preceding 
note. 

7.  Order  of  filiation.  If  a person  has  been  adjudged  to  be  the  father  of  a 
bastard  by  the  magistrates  before  proceedings  have  been  instituted,  the  order 
of  filiation  must  specify  the  sum  to  be  paid  weekly  by  the  father  for  the  support 
of  the  bastard;  and  if  the  mother  be  indigent  the  sum  to  be  paid  for  her 
support  during  her  confinement  and  recovery.  See  Code  Crim.  Procedure,  sec. 
850.  Such  father  must  thereupon  give  an  undertaking  to  the  effect  that  he 
will  pay  the  amounts  for  the  support  of  the  bastard  and  mother,  as  specified  in 
the  order.  Code  Crim.  Procedure,  sec.  851. 

If  the  mother  is  possessed  of  property  in  her  own  right  she  may  be  com- 
pelled to  pay  for  the  support  of  the  child.  Code  of  Crim.  Procedure,  sec.  857. 

Prosecution  of  undertaking.  The  following  sections  of  the  Code  of  Criminal 
Procedure  authorize  superintendents  of  the  poor  and  overseers  of  the  poor  to 
compel  the  support  of  a bastard  and  of  its  mother: 

“ Sec.  881. — If  an  undertaking  for  the  appearance  at  the  County  Court  of  a 
person  charged  as  the  father  or  mother  of  a bastard,  be  forfeited,  the  court 
may  order  it  to  be  prosecuted;  and  the  sum  mentioned  therein  may  be  re- 
covered, and  when  collected,  must,  except  in  the  city  of  New  York,  be  paid  to 
the  county  treasurer,  and  by  him  credited  to  the  town  in  the  same  county,  liable 
to  the  support  of  the  bastard,  or  if  there  be  none,  to  the  county.  In  the  city  of 
New  York,  the  court  must  order  the  undertaking  to  be  prosecuted  by  the  com- 
missioners of  charities  and  corrections,  and  when  collected,  it  must  be  paid 
into  the  city  treasury.  In  every  other  county,  it  must  be  prosecuted  by  the 
district  attorney. 

“ Sec.  882. — When  an  undertaking  to  obey  an  order,  in  relation  to  the  support 
of  a bastard,  or  of  a child  likely  to  be  born  a bastard,  or  of  its  mother,  is  for- 
feited, it  may  be  prosecuted  in  the  name  of  the  county  superintendents  of  the 
county,  or  the  overseers  of  the  poor  of  the  town,  which  was  liable  for  the  support 
of  the  bastard,  or  which  may  have  incurred  any  expense  in  the  support  of  the 


SUPPORT  OF  BASTARDS. 


749 


Poor  Law,  § 69. 

to  the  board  of  town  auditors,  or  to  the  proper  auditing  board  of  a city, 
at  the  same  time  that  other  town  or  city  officers  are  required  to  account 
for  expenditures  of  all  moneys  so  received  by  them,  and  shall  pay  over  the 
balance  in  their  hands,  and  under  like  penalties,  as  are  provided  by  this 
chapter,  in  respect  to  the  poor  moneys  in  their  hands.8  [Poor  Law,  § 68 ; 
B.  C.  & G.  Cons.  L.,  p.  4260.] 


§ 12.  WHEN  MONEYS  RECEIVED  ON  ACCOUNT  OF  BASTARD 
CHARGEABLE  TO  COUNTY;  HOW  TO  BE  DISPOSED  OF. 

All  moneys  which  shall  be  ordered  to  be  paid  by  the  putative  father, 


bastard,  or  of  its  mother,  during  her  confinement  or  recovery;  or  in  the  city  of 
New  York,  in  the  name  of  the  corporation  of  that  city.” 

Action  on  undertaking.  A bond  to  indemnify  a town  concerning  a bastard 
child  is  broken,  and  an  action  may  be  maintained  upon  it  as  soon  as  the  town 
becomes  liable  or  bound  to  maintain  the  child;  and  an  action  may  be  main- 
tained upon  it  without  actual  disbursement,  advance  or  payment  by  the  town. 
Rockefeller  v.  Donnelly,  8 Cow.  623. 

Evidence  that  the  mother  is  of  sufficient  ability  to  support  the  bastard  child 
is  not  admissible  in  discharge  of  the  defendants,  but  proof  of  her  having  in 
fact  maintained  the  child  would  be  proper.  People  v.  Corbett  & Easton,  8 Wend. 
620. 

An  order  of  filiation  is  conclusive,  unless  it  has  been  appealed  from,  and  an 
undertaking  given  as  provided  in  subdivision  2 of  section  851  of  the  Code  of 
Criminal  Procedure.  The  order  of  filiation  is  equivalent  to  a judgment  that  the 
defendant  should  pay  the  weekly  sum  mentioned  therein.  It  rests  with  the 
defendant  to  show  himself  exonerated  from  the  payment  in  order  to  avoid  the 
recovery  against  him.  Wallsworth  v.  Mead,  9 Johns.  367. 

This  case  was  followed  in  Rockefeller  v.  Donnelly,  8 Cow.  623.  This  case  is  an 
important  and  leading  one  and  disposes  of  the  whole  question  of  the  liability  of 
a father  to  support  his  bastard  child. 

The  extent  of  the  liability  of  the  defendants  is  definitely  settled  by  the  order 
and  recognizance;  no  assessment  of  damages  is  necessary,  and  the  defendants 
have  no  right  to  inquire  what  amount  has  been  expended.  The  People  v.  Cor- 
bett & Easton,  8 Wend.  520. 

Action  on  order.  Section  886  of  the  Code  of  Criminal  Procedure  provides 
that: 

“ An  action  may  be  maintained  by  the  parties  authorized  by  section  882,  upon 
an  order  made  by  two  magistrates,  or  a County  Court,  for  the  payment  of  a sum 
weekly  or  otherwise,  for  the  support  of  the  bastard  or  its  mother,  notwithstand- 
ing an  undertaking  may  have  been  given  to  comply  with  the  order;  and  in 
case  of  the  death  of  the  person  against  whom  the  order  was  made,  an  action 
may  be  maintained  thereon  against  his  executors  or  administrators.  But  when 
an  undertaking  is  given  to  appear  at  the  next  term  of  the  County  Court,  no 
action  can  be  brought  on  the  order  until  it  is  affirmed  by  the  court.” 

8.  Accounts  of  overseers  of  the  poor  are  to  be  rendered  in  the  manner  pro- 


750 


RELIEF  OF  POOR. 


Poor  Law,  § 70. 

or  by  the  mother  of  a bastard  chargeable  to  any  county,  shall  be  collected 
for  the  benefit  of  such  county;  and  all  overseers  of  the  poor,  superinten- 
dents, sheriffs,  and  other  officers,  shall  within  fifteen  days  after  the 
receipt  of  any  such  moneys,  pay  the  same  into  the  county  treasury.  Any 
officer  neglecting  to  make  such  payment  shall  be  liable  to  an  action  by  and 
in  the  name  of  the  county,  for  all  moneys  so  received  and  withheld,  with 
interest  from  the  time  of  receipt,  at  the  rate  of  ten  per  centum;  and  shall 
forfeit  a sum  equal  to  that  so  withheld,  to  be  sued  for  and  recovered  by 
and  in  the  name  of  the  county.  [Poor  Law,  § 69;  B.  C.  & G.  Cons.  L., 
p.  4260.] 

§ 13.  DISPUTES  CONCERNING  SETTLEMENT  OF  BASTARD,  HOW 
DETERMINED. 

When  a dispute  shall  arise  concerning  the  legal  settlement  of  the  mother 
of  a bastard,  or  of  a child  born  or  likely  to  be  born  a bastard,  in  any  city 
or  town,  the  same  shall  be  determined  by  the  county  superintendents  of 
the  poor,  upon  a hearing  of  the  parties  interested,  in  the  same  manner  and 
with  the  same  effect  as  they  are  authorized  to  determine  the  settlement  of 
a poor  person  under  this  chapter.9  [Poor  Law,  § 70;  B.  C.  & G.  Cons. 
L.,  p.  4260.] 


§ 14.  PROCEEDINGS  WHEN  BASTARD  IS  CHARGEABLE  TO  AN- 
OTHER TOWN. 

When  a bastard  shall  be  born,  or  be  likely  to  be  born  in  a town  or  city, 
when  the  legal  settlement  of  the  mother  is  in  another  town  or  city  of  the 
same  county,  which  is  required  by  law  to  support  its  own  poor,  the  overseers 
of  the  poor  of  the  town  or  city  where  such  bastard  shall  be  born,  or  be 
likely  to  be  born,  shall  give  the  like  notice  to  the  overseers  of  the  town 
or  city  where  the  mother’s  settlement  may  be,  as  is  required  in  the  case 
of  a person  becoming  a poor  person,  under  the  like  circumstances,  and  the 
same  proceedings  shall  be  had,  in  all  respects,  to  determine  the  liability  of 
such  town  or  city  as  in  the  case  of  poor  persons.10 


vided  by  section  26  of  the  Poor  Law,  ante,  p.  720;  for  penalties  for  failure  to 
account,  see  Poor  Law,  sec.  14,  ante . p.  681. 

For  form  of  accounts  of  overseers  for  moneys  received  and  paid  out  for  sup- 
port of  bastards,  see  Form  No.  94,  post. 

9.  Settlement  of  poor  persons,  proceedings  relating  to  disputes  as  to.  See 
Poor  Law,  secs.  43-45,  ante,  p.  734. 

10.  Proceedings  to  determine  place  of  settlement  of  poor  person  are  pre- 
scribed by  Poor  Law,  secs.  43,  44,  ante,  p.  734.  See  Forms  Nos.  84-87,  post. 


SUPPORT  OF  BASTARDS. 


751 


Poor  Law,  §§  71-73. 

The  overseers  of  the  town  or  city  to  which  the  mother  of  such  bastard 
belongs  may,  before  the  confinement  of  such  mother,  or  at  any  time  after 
the  expiration  of  two  months  after  her  delivery,  if  her  situation  will  permit 
it,  take  and  support  such  mother  and  her  child. 

If  they  omit  to  do  so,  and  fail  to  obtain  the  determination  of  the  county 
superintendents  in  their  favor  on  the  question  of  settlement,  the  town 
or  city  to  which  the  mother  belongs  shall  be  liable  to  pay  all  the  expenses 
of  the  support  of  such  bastard,  and  of  its  mother  during  her  confinement 
and  recovery  therefrom ; which  expenses,  after  being  allowed  by  the  county 
superintendents,  shall  be  assessed,  together  with  the  lawful  interest  on 
the  moneys  expended,  on  the  town  or  city  to  which  such  mother  belongs, 
and  shall  be  collected  in  the  same  manner  as  provided  for  poor  persons 
supported  under  the  same  circumstances,  and  the  moneys  so  collected  shall 
be  paid  to  the  county  treasurer,  for  the  benefit  of,  and  to  be  credited  to, 
the  town  which  incurred  such  expenses.  [Poor  Law,  § 71;  B.  C.  & G. 
Cons.  L.,  p.  4261.] 

§ 15.  MODE  OF  ASCERTAINING  SUM  TO  BE  ALLOWED  FOR  SUP- 
PORT OF  BASTARD. 

When  any  town  is  required  to  support  a bastard,  and  its  mother,  whether 
the  mother  have  a settlement  in  such  town  or  not,  and  no  moneys  shall 
be  received  from  the  putative  father  or  from  the  mother,  to  defray  the 
expenses  of  such  support,  the  overseers  of  the  poor  shall  apply  to  the  super- 
visor of  the  town,  and  obtain  an  order  11  for  the  support  of  such  bastard, 
and  the  sustenance  of  its  mother  during  her  confinement  and  recovery 
therefrom,  and  the  sum  to  be  allowed  therefor,  in  the  same  manner  as  is 
required  in  the  case  of  poor  persons,  and  the  moneys  paid  or  contracted  to 
be  paid  by  the  overseer,  pursuant  to  such  order,  shall  be  paid  by  the  county 
treasurer  in  the  same  manner  as  for  poor  persons,  and  be  charged  to  the 
town  to  whose  officers  such  payment  shall  be  made.  [Poor  Law,  § 72; 
B.  C.  & G.  Cons.  L.,  p.  4261.] 

| 16.  WHEN  MOTHER  AND  CHILD  TO  BE  REMOVED  TO  COUNTY 
ALMS-HOUSE. 

Tf  there  be  a county  alms-house  in  any  county  where  the  towns  are  re- 
quired to  support  their  own  poor,  the  overseers  of  the  poor  of  a town  where 
a bastard  shall  be  born,  or  shall  be  likely  to  be  born,  may,  with  the  approval 
of  the  county  superintendents  or  any  two  of  them,  and  when  the  situation 


11.  Order  of  supervisor  for  support  of  poor  person  is  to  be  obtained  as  pro- 
vided in  section  23  of  the  Poor  Law,  ante,  p.  717. 


752 


RELIEF  OF  POOR. 


Poor  Law,  § 74. 

of  the  mother  will  allow  it,  remove  the  mother  of  such  bastard,  with  her 
child,  to  such  alms-house,  in  the  same  manner  as  poor  persons  may  be 
removed ; the  expenses  of  which  removal  shall  be  defrayed  in  like  manner, 
and  such  mother  and  her  child  shall  be  considered  as  poor  of  the  town  so 
liable  for  their  support,  and  the  expense  shall  in  like  manner  be  estimated 
and  paid.12  [Poor  Law,  § 73;  B.  C.  & G.  Cons.  L.,  p.  4261.] 


§ 17.  SUPERINTENDENTS  AND  OVERSEERS  MAY  COMPROMISE 
WITH  FATHER  OF  BASTARD;  WHEN  MOTHER  MAY  RE- 
CEIVE MONEY. 

Superintendents  and  overseers  of  the  poor  may  make  such  compromise 
and  arrangements  with  the  putative  father  of  any  bastard  child  within  their 
jurisdiction,  relative  to  the  support  of  such  child,  as  they  shall  deem  equi- 
table and  just,  and  thereupon  discharge  such  putative  father  from  all 
further  liability  for  the  support  of  such  bastard.13 

Whenever  a compromise  is  made  with  the  putative  father  of  a bastard 
child,  the  mother  of  such  child,  on  giving  security  for  the  support  of  the 
child,  and  to  indemnify  the  city  and  county  or  the  town  and  county,  from 
the  maintenance  of  the  child,  to  the  satisfaction  of  the  officers  making  the 
compromise,  shall  be  entitled  to  receive  the  moneys  paid  by  such  putative 
father  as  the  consideration  of  such  compromise.14  If  the  mother  of  such 


12.  Removal  of  poor  persons  to  alms-house  regulated  by  Poor  Law,  sec.  20, 
ante , p.  714. 

13.  For  form  of  agreement  upon  compromise  with  putative  father,  see  Form 
No.  95,  post. 

An  action  will  not  lie  by  the  county  superintendents  of  the  poor  against  the 
putative  father  of  a bastard  child  on  a promise  to  indemnify  the  county,  made 
by  him  to  the  supervisor  of  the  town  in  which  the  child  was  born,  where  it  is 
not  shown  that  the  supervisor,  in  obtaining  the  promises,  acted  in  the  premises 
at  the  request  or  with  the  privity  of  the  county  superintendents.  Birdsall  v. 
Edgerton  et  al.,  25  Wend.  619. 

Money  paid  upon  a compromise  to  a superintendent  of  the  poor  by  a person 
charged  with  being  the  father  of  an  unborn  bastard  may  be  recovered,  upon  its 
appearing  that  the  supposed  mother  was  not  pregnant.  The  statute  authorizes 
a compromise  and  arrangement  with  the  putative  father  relative  to  the  support 
of  the  child.  The  compromise  is  merely  a mode  of  getting  indemnity  on  the 
part  of  the  county  for  the  support  of  the  bastard.  Whether  the  superintendent 
takes  a bond  or  a sum  of  money,  he  but  indemnifies  the  county  against  an 
actual  or  impending  expense;  and  when  there  has  been  no  expense  to  the  county, 
and  there  is  to  be  none,  against  which  the  money  was  paid  as  an  indemnity, 
then  the  money  belongs  to  the  person  paying  it.  Rheel  v.  Hicks,  25  N.  Y.  289. 

14.  Mother  of  child  entitled  to  money  on  giving  security  for  support  of  child. 
People  ex  rel.  Allen  v.  Superintendent,  etc.,  of  Cayuga,  3 Hill  116. 


SUPPORT  OF  BASTARDS. 


?53~ 


Poor  Law,  § 74. 

child  shall  be  unable  to  give  the  security,  but  shall  be  able  and  willing  to 
nurse  and  take  care  of  the  child,  she  shall  be  paid  the  same  weekly  allow- 
ance for  nursing  and  taking  care  of  the  child,  out  of  the  moneys  paid  by 
the  father  on  such  compromise,  as  he  shall  have  been  liable  to  pay  by  the 
order  of  filiation;  such  weekly  sum  to  be  paid  the  mother,  may  be  pre- 
scribed, regulated  or  reduced,  as  in  the  case  of  an  order  of  filiation.  [Poor 
Law,  § 74 ; B.  C.  & G.  Cons.  L.t  p.  4262.] 


754 


RELIEF  OF  POOR. 


Explanatory  note. 


CHAPTER  LI. 


SUPPORT  OF  POOR  PERSONS  BY  RELATIVES;  ABSCONDING  PARENTS 

OR  HUSBAND. 


EXPLANATORY  NOTE. 

Liability  for  Support  of  Poor  Relatives. 

A father  or  mother  must  support  his  or  her  children,  and  children 
must  support  their  parents,  assuming  that  they  are  able  to  do  so.  A 
person  cannot  be  made  a charge  upon  the  town  or  county  if  he  have  a 
father  or  mother,  or  a son  or  daughter  able  to  support  him.  The 
liability  thus  imposed  by  statute  may  be  enforced  by  the  overseer  by 
proceedings  instituted  as  provided  in  this  chapter. 

Abandonment  of  Wife  or  Children. 

The  Code  of  Criminal  Procedure  provides  that  a person  who  actually 
abandons  his  wife  or  children,  without  adequate  support,  so  that  they  are 
in  danger  of  becoming  a burden  upon  the  public,  is  a disorderly  person. 
Upon  such  a person  being  arrested  he  is  required  to  give  a bond  for  the 
support  of  his  wife  and  children.  If  the  husband  fails  to  support  his 
wife  and  children,  such  bond  may  be  prosecuted  by  the  superintendent 
of  poor  of  the  county  or  the  overseer  of  the  poor  of  the  towTn,  and  the 
sum  collected  is  to  be  paid  into  the  county  treasury.  The  procedure  is 
prescribed  by  the  sections  of  the  Code  of  Criminal  Procedure  included 
in  this  chapter. 


Section  1.  Who  may  be  compelled  to  support  poor  relatives. 

2.  Overseers  to  apply  to  court  for  order  compelling  support  of  poor 

person  by  relatives. 

3.  Court  to  hear  cause  and  make  order  of  support. 

4.  Support;  when  to  be  apportioned  among  different  relatives. 

5.  Order  to  prescribe  time  during  which  support  is  to  continue,  or  may 

be  indefinite;  when  and  how  order  may  be  varied. 


SUPPORT  OF  POOR  PERSONS  BY  RELATIVES. 


755 


Code  Crim.  Proc.,  § 914. 

Section  6.  Costs  by  whom  paid,  and  how  enforced. 

7.  Action  on  the  order  or  failure  to  comply  therewith. 

8.  Husbands  abandoning  wives  or  children  are  disorderly  persons. 

9 Absconding  parents  or  husband,  seizure  of  property  of,  for  support 
of  children  or  wife;  application  for  warrant. 

10.  Overseer  may  seize  property;  sale  or  transfer  void;  inventory  of 

property  seized. 

11.  Warrant  and  seizure,  when  confirmed  or  discharged  by  court. 

12.  Warrant  to  be  discharged  upon  return  of  parent  or  husband,  or  upon 

security. 

13.  Sale  of  property  seized,  and  application  of  its  proceeds. 

14.  When  superintendent  of  poor  has  power  of  overseer. 

15.  Sale  of  property  of  absconding  parents;  application  to  court;  ap- 

plication of  proceeds  for  benefit  of  minors;  accounting  of 
guardians. 

16.  Superintendent  or  overseer  may  redeem  real  property  of  abscond- 

ing father  or  husband,  sold  at  sheriff’s  sale. 

17.  How  superintendent  or  overseer  may  acquire  title. 

18.  Money  used  for  redemption;  how  repaid. 

19.  When  warrant  of  seizure  may  be  discharged. 


§ 1.  WHO  MAY  BE  COMPELLED  TO  SUPPORT  POOR  RELATIVES. 

The  father,  mother  and  children,  if  of  sufficient  ability,  of  a poor  person 
who  is  insane,  blind,  old,  lame,  impotent  or  decrepit,  so  as  to  be  unable 
by  work  to  maintain  himself,  must,  at  their  own  charge,  relieve  and  main- 
tain him  in  a manner  to  be  approved  by  the  overseers  of  the  poor  of  the 
town  where  he  is,  or  in  the  city  of  New  York,  by  the  commissioners  of 
public  charities.1  If  such  poor  person  be  insane,  he  shall  be  maintained 
in  the  manner  prescribed  by  the  insanity  law.  The  father,  mother,  hus- 
band, wife  or  children  of  a poor  insane  person  legally  committed  to  and 
confined  in  an  institution  supported  in  whole  or  in  part  by  the  state,  shall 
be  liable,  if  of  sufficient  ability,  for  the  support  and  maintenance  of  such 
insane  person  from  the  time  of  his  reception  in  such  institution.2  [Code 
Crim.  Pro.,  § 914.] 


1.  Liability  of  relatives.  The  duties  of  children  to  their  parents  arise  from 
a principle  of  natural  justice  and  retribution.  For  to  those  who  gave  us  exist- 
ence we  naturally  owe  subjection  and  obedience  during  our  minority  and  honor 
and  reverence  ever  after;  they  who  protected  the  weakness  of  our  infancy  are 
entitled  to  our  protection  in  the  infirmity  of  their  age;  they  who  by  sustenance 
and  education  have  enabled  their  offspring  to  prosper  ought*  in  return  to  be 
supported  by  that  offspring  in  case  they  stand  in  need  of  assistance.  1 Black- 
stone’s  Com.  453. 

At  common  law  no  legal  duty  rests  upon  a child  to  support  his  indigent 
parent,  and  until  proceedings  to  charge  him  with  such  support  are  taken  as 


756 


RELIEF  OF  POOR. 


Code  Crim.  Proc.,  §§  915,  916. 

§ 2.  OVERSEERS  TO  APPLY  TO  COURT  FOR  ORDER  COMPELLING  SUP- 
PORT OF  POOR  PERSON  BY  RELATIVES. 

If  a relative  of  a poor  person  fail  to  relieve  and  maintain  him,  as 
provided  in  the  last  section,  the  overseers  of  the  poor  of  the  town  where 
he  is,  or  in  the  city  of  Hew  York,  the  commissioners  of  public  charities 
may  apply  to  the  court  of  general  sessions  of  the  county  of  Hew  York, 
or  to  the  supreme  court  of  the  state  of  Hew  York,  or  to  the  county  court 
of  any  other  county  where  the  poor  person  dwells,  for  an  order  to  com- 
pel such  relief,  upon  at  least  five  days’  written  notice,  served  personally, 
or  by  leaving  it  at  the  last  place  of  residence  of  the  person  to  whom  it 
is  directed,  in  case  of  his  absence,  with  a person  of  suitable  age  and  dis- 
cretion. If  such  poor  person  be  insane  and  legally  committed  to  and  con- 
fined in  an  institution  supported  in  whole  or  in  part  by  the  state,  and  his 
relatives  refuse  or  neglect  to  pay  for  his  support  and  maintenance 
therein,  application  may  be  made  by  the  treasurer  of  such  institution  in 
the  manner  provided  in  this  section  for  an  order  directing  the  relatives 
liable  therefor  to  make  such  payment.  [Code  Crim.  Pro.,  § 915,  as 
amended  by  L.  1913,  ch.  143.] 

§ 3.  COURT  TO  HEAR  CAUSE  AND  MAKE  ORDER  OF  SUPPORT. 

At  the  time  appointed  in  the  notice,  the  court  or  a judge  thereof  must 
proceed  summarily  to  hear  the  allegations  and  proofs  of  the  parties,  and 


provided  by  statute,  he  is  not  liable  therefor.  Frazer  v.  DeWitt,  49  Hun,  53;  1 
N.  Y.  Supp.  467;  see,  also,  Edwards  v.  Davis,  16  Johns.  281,  where  it  was  held 
that  the  liability  of  a child  to  support  his  parents  who  are  infirm,  destitute  or 
aged,  is  wholly  created  by  statute,  and  therefore  the  law  does  not  imply  a 
promise  from  the  child  to  pay  for  necessaries  furnished,  without  his  request  to 
an  indigent  parent. 

Liability  of  husband  for  support  of  wife.  The  common  law  affords  no 
means  of  compelling  a husband  to  support  his  wife  otherwise  than  by  making 
him  liable  to  third  persons  who  have  supplied  her  with  necessaries  after  he  has 
improperly  refused  so  to  do,  and  the  statute  providing  for  the  compulsory 
support  of  indigent  relatives  does  not  apply  to  husband  and  wife.  People  ex 
rel.  Kehlbeck  v.  Walsh,  11  Hun,  292.  The  wife  of  a man  who  is  abundantly  able 
to  provide  for  her  cannot  be  deemed  a poor  person.  Superintendents  of  the  poor 
cannot,  therefore,  maintain  an  action  in  their  official  capacities  against  a hus- 
band for  boarding,  clothing  and  medical  aid  furnished  to  his  wife  as  a pauper. 
Norton  v.  Rhodes,  18  Barb.  100. 

2.  Insane  poor.  If  a person  is  insane,  he  is  to  be  committed  to  a state  hospital 
for  the  insane,  to  be  there  supported  at  the  expense  of  the  state.  If  there  is  any 
one  legally  liable  for  his  support  under  the  above  section,  action  may  be  taken 
by  the  poor  officers,  the  commission  in  lunacy,  or  the  hospital  authorities  against 
such  person  to  compel  him  to  support  or  contribute  toward  the  support  of  the 
insane  person  so  maintained.  See  Insanity  Law,  secs.  54,  86-89,  ante,  p. 


SUPPORT  OF  POOR  PERSONS  BY  RELATIVES. 


757 


Code  Crim.  Proc.  § 917. 

must  order  such  of  the  relatives  of  the  poor  person  mentioned  in  section 
nine  hundred  and  fourteen,  as  were  served  with  the  notice  and  are  of 
sufficient  ability,  to  relieve  and  maintain  him,  specifying  in  the  order 
the  sum  to  be  paid  weekly  for  his  support,  and  requiring  it  to  be  paid 
by  the  father,  or  if  there  be  none,  or  if  he  be  not  of  sufficient  ability,  then 
by  the  children,  or  if  there  be  none,  or  if  they  be  not  of  sufficient  ability, 
then  by  the  mother.  If  the  application  be  made  to  secure  an  order 
compelling  relatives  to  pay  for  the  maintenance  of  insane  poor  persons  com- 
mitted to  and  confined  in  an  institution  supported  in  whole  or  in  part  by  the 
state  such  order  shall  specify  the  sum  to  be  paid  for  his  maintenance  by 
his  relatives  liable  therefor,  from  the  time  of  his  reception  in  such  insti- 
tution to  the  time  of  making  such  order,  and  also  the  sum  to  be  paid  weekly 
for  his  future  maintenance  in  such  institution.  The  relatives  served  with 
such  notice  shall  be  deemed  to  be  of  sufficient  ability,  unless  the  contrary 
shall  affirmatively  appear  to  the  satisfaction  of  the  court  or  a judge  there- 
of. [Code  Crim.  Pro.,  § 916.] 

§ 4.  SUPPORT;  WHEN  TO  BE  APPORTIONED  AMONG  DIFFERENT 
RELATIVES. 

If  it  appear  that  any  such  relative  is  unable  to  wholly  maintain  the 
poor  person  or  to  pay  for  his  maintenance  if  confined  in  a state  institution 
for  the  insane  but  is  able  to  contribute  toward  his  support,  the  court 
or  a judge  thereof  may  direct  two  or  more  relatives  of  different  degrees, 
to  maintain  him  or  to  pay  for  his  maintenance  in  such  an  institution  if 
insane,  prescribing  the  proportion  which  each  must  contribute  for  that 
purpose;  and  if  it  appear  that  the  relatives  are  not  of  sufficient  ability 
wholly  to  maintain  him,  or  to  pay  for  his  maintenance  in  such  an  institu- 
tion, if  insane,  but  are  able  to  contribute  something,  the  court  or  a judge 
thereof  must  direct  the  sum,  in  proportion  to  their  ability,  which  they  shall 
pay  weekly  for  that  purpose.  If  it  appears  that  the  relatives  who  are 
liable  for  the  maintenance  of  an  insane  poor  person  confined  in  a state 
institution  for  the  insane  are  not  able  to  pay  the  whole  amount  due  for 
such  maintenance  from  the  time  of  such  poor  person’s  admission  to  such 
institution,  the  court  or  a judge  thereof  must  direct  the  sum  to  be  paid 
for  such  maintenance  in  proportion  to  the  ability  of  the  relatives  liable 
therefor.3  [Code  Crim.  Pro.,  § 917.] 


3.  Contribution,  effect  of.  This  section  authorizes  the  court  to  require  per- 
sons equally  liable  for  the  support  of  an  indigent  parent  to  contribute  toward 
such  support  according  to  their  ability,  and  where  one  of  two  persons  is  unable 
to  contribute  his  entire  proportion  of  such  support,  the  court  is  authorized  to 


758 


RELIEF  OF  POOR. 


Code  Crim.  Proc.,  §§  918,  919. 

§ 5.  ORDER  TO  PRESCRIBE  TIME  DURING  WHICH  SUPPORT  IS 
TO  CONTINUE,  OR  MAY  BE  INDEFINITE;  WHEN  AND  HOW 
ORDER  MAY  BE  VARIED. 

The  order  may  specify  the  time  during  which  the  relatives  must  maintain 
the  poor  person,  or  during  which  any  of  the  sums  directed  by  the  court 
or  a judge  thereof  are  to  be  paid  or  it  may  be  indefinite  or  until  the  further- 
order  of  the  court  or  a judge  thereof.* * * 4  If  the  order  be  for  payment  of 
a weekly  sum  for  the  maintenance  of  an  insane  poor  person  in  a state 
institution,  the  order  shall  specify  that  such  sum  shall  be  paid  as  long 
as  such  insane  poor  person  is  maintained  in  such  institution.  The  court 
or  a judge  thereof  may  from  time  to  time  vary  the  order,  as  circumstances 
may  require,  on  the  application  either  of  any  relative  affected  by  it,  or 
of  any  officer  on  whose  application  the  order  was  made,  upon  ten  days5 
written  notice.  [Code  Crim.  Pro.,  § 918.] 


§ 6.  COSTS,  BY  WHOM  PAID,  AND  HOW  ENFORCED. 

The  costs  and  expenses  of  the  application  must  be  ascertained  by  the 
court,  and  paid  by  the  relatives  against  whom  the  order  is  made;  and  the 
payment  thereof,  and  obedience  to  the  order  of  maintenance,  and  to  any 
order  for  the  payment  of  money,  may  be  enforced  by  attachment.  [Code 
Crim.  Pro.,  § 919.] 


require  him  to  contribute  according  to  bis  ability,  and  to  require  the  other  to  pay 
the  residue.  Stone  v.  Burgess,  47  N.  Y.  521;  2 Lans.  439.  And  an  order  reciting 
that  the  two  are  of  sufficient  ability,  and  directing  the  proportion  each  one  is  to 
pay,  if  the  proportion  is  unequal,  is,  in  effect,  a determination  that  the  one 

required  to  pay  the  less  sum  is  unable  to  pay  his  full  proportion,  but  is  able  to 

pay  the  sum  fixed,  and  such  order  is  valid.  Id. 

4.  Order,  in  effect  a judgment.  So  long  as  an  order,  made  by  a court  of 
sessions,  directing  the  relative  of  a poor  person  to  pay  a specified  sum  period- 
ically to  the  superintendent  of  the  poor  for  the  support  of  such  poor  person, 
remains  unchanged,  such  relative  is  liable  to  pay  the  sum  therein  prescribed. 
If  he  or  she  desires  to  be  relieved  therefrom  application  should  be  made  under 
the  above  section  of  the  code  for  an  amendment  of  the  order.  Aldridge  v. 
Walker,  73  Hun,  281;  57  St.  Rep.  273;  26  N.  Y.  Supp.  296. 

Such  an  order  is  not  void  because  it  gives  no  option  to  such  person  either  to 
support  her  daughter  or  to  pay  the  amount  provided,  and  if  it  is  irregular  the 
remedy  is  by  appeal,  and  the  question  of  its  irregularity  cannot  be  properly 
raised  in  an  action  brought  to  collect  the  amount  directed  to  be  paid  by  such 
person.  While  the  determination  provided  for  by  this  title  is  denominated  an 
order,  it  is  a final  determination  of  the  matter,  and  in  effect  a judgment.  Id. 

Notice.  The  notice  required  by  this  section  should  be  served  upon  the  officer 
making  application  for  the  order  compelling  the  relative  to  support  the  poor 
person. 


SUPPORT  OF  POOR  PERSONS  BY  RELATIVES. 


759 


Code  Crim.  Proc.,  §§  920,  899,  subs.  1,  2. 

§ 7.  ACTION  ON  THE  ORDER  ON  FAILURE  TO  COMPLY  THERE- 
WITH. 

If  a relative,  required  by  an  order  of  the  court  or  a judge  thereof  to 
relieve  and  maintain  a poor  person,  neglect  to  do  so  in  the  manner  ap- 
proved by  the  officers  mentioned  in  section  nine  hundred  and  fourteen, 
and  neglect  to  pay  to  them  weekly  the  sum  prescribed  by  the  court  or 
a judge  thereof,  the  officers  may  maintain  an  action  against  the  relative, 
and  recover  therein  the  sum  prescribed  by  the  court  or  a judge  thereof 
for  every  week  the  order  has  been  disobeyed,  to  the  time  of  the  recovery, 
with  costs,  for  the  use  of  the  poor.5  If  the  order  directs  a relative  to  pay 
for  the  maintenance  of  an  insane  poor  person  in  a state  institution,  and 
such  relative  refuses  or  neglects  to  pay  the  amount  specified  therein,  an 
action  may  be  brought  by  the  treasurer  of  such  institution  in  its  corporate 
name  to  recover  the  amount  due  to  such  institution  by  virtue  of  such 
order.  [Code  Crim.  Pro.,  § 920.] 


§ 8.  HUSBANDS  ABANDONING  WIVES  OR  CHILDREN  ARE  DISOR- 
DERLY PERSONS. 

Persons  who  actually  abandon  their  wives  or  children,  without  adequate 
support,  or  leave  them  in  danger  of  becoming  a burden  upon  the  public, 
or  who  neglect  to  provide  for  them  according  to  their  means;  and  persons 
who  threaten  to  run  away  and  leave  their  wives  or  children  a burden  upon 
the  public  are  disorderly  persons.6  [Code  Crim.  Pro.,  § 899,  subs.  1,  2.] 


5.  When  action  will  lie.  Defendant  is  not  in  default  of  an  order  of  the 
court  requiring  him  to  support  his  mother  at  his  own  house  when  he  has  to 
support  her  for  about  a year,  and  she  leaves  without  any  just  cause  and  does 
not  return,  he  being  willing  to  receive  and  support  her  in  his  family.  Converse 
v.  McArthur,  17  Barb.  410. 

When  an  order  is  made  requiring  the  relative  of  a person  to  support  him, 
and  fixing  a sum  to  be  paid  weekly,  the  relative  may  provide  for  the  support 
of  the  pauper,  at  such  place  and  in  such  manner  as  he  shall  deem  proper,  pro- 
vided the  place  and  manner  are  approved  by  the  overseer,  and  it  is  not  until 
he  has  neglected  or  refused  to  do  this  that  he  is  liable  for  the  sum  directed  to 
be  paid.  Duel  v.  Lamb,  1 T.  & C.  66. 

6.  Object  of  statute.  The  statute  is  designed  to  protect  the  public  against 
the  burden  of  supporting  a wife  and  children  v/ben  the  husband,  without  just 
cause,  neglects  or  refuses  to  perform  his  leg  .1  obligation  in  that  regard.  It 
does  not  impose  any  new  duty  upon  a husband  toward  his  wife,  but  simply 
declares  that  unreasonable  neglect  or  refusal  to  perform  certain  existing  obli- 
gations, in  a case  where  such  conduct  will  result  in  imposing  a burden  upon  the 
public,  shall  be  punishable  as  a crime.  A husband  is  not  to  be  restricted 
by  the  statute  in  his  right  to  determine  the  place  and  manner  of  supporting 
his  wife.  If  he  neglects  or  refuses  to  properly  provide  for  her,  or  so  maltreats 


760 


RELIEF  OF  POOR. 


Code  Crim.  Proc.,  §§  900,  901,  921. 

On  comp]aint  to  a magistrate  that  a husband  is  a disorderly  person, 
a warrant  will  issue  for  his  arrest.  If  the  magistrate  be  satisfied  that 
he  is  a disorderly  person  he  may  require  him  to  give  an  undertaking  to 
the  following  effect: 

1.  If  he  be  a person  described  in  the  first  or  second  subdivision  of  section 
eight  hundred  and  ninety-nine,  that  he  will  pay  to  the  county  superinten- 
dent of  the  poor  or  to  the  overseer  of  the  poor  of  the  town,  city  or  village, 
or  to  a society  for  the  prevention  of  cruelty  to  children,  weekly  for  the 
space  of  one  year  thereafter  a reasonable  sum  of  money  to  be  specified 
by  the  magistrate  for  the  support  of  his  wife  or  children. 

Or  that  the  sureties  will  pay  the  sum  mentioned  in  the  undertaking, 
and  which  must  be  fixed  by  the  magistrate.  [Code  Crim.  Pro.,  §§  900; 
901,  as  amended  by  L.  1917,  ch.  517.] 


§ 9.  ABSCONDING  PARENTS  OR  HUSBAND,  SEIZURE  OF  PROP- 
ERTY OF,  FOR  SUPPORT  OF  CHILDREN  OR  WIFE;  APPLI- 
CATION FOR  WARRANT. 

When  the  father,  or  the  mother  being  a widow  or  living  separate  from 
her  husband,  absconds  from  the  children,  or  a husband  from  his  wife, 
leaving  any  of  them  chargeable  or  likely  to  become  chargeable  upon  the 


her  that  she  would  be  justified  in  refusing  her  submission  to  his  requirements, 
he  may  be  deemed  a disorderly  person  under  the  above  statute.  People  ex  rel. 
Douglas  v.  Naehr,  30  Hun,  461. 

But  a husband  cannot  be  made  a vagrant  and  a disorderly  person  by  not 
complying  with  any  condition  in  respect  to  support  which  the  wife  may 
see  fit  to  impose.  The  husband  has  a right  to  select  his  own  residence  and  the 
support  that  the  statute  was  intended  to  secure  is  the  necessaries  of  life, 
or  such  as  the  party  had  been  accustomed  to  and  the  husband  is  able  to 
provide.  People  v.  Petit,  74  N.  Y.  320;  see,  also,  Lute  v.  Shelley,  40  Hun, 
197. 

If  the  husband  gives  the  undertaking,  he  must  be  discharged,  but  if  not,  the 
magistrate  must  convict  him  as  a disorderly  person  and  take  a certificate 
in  the  form  prescribed  by  the  statute.  (Code  Crim.  Pro.,  § 902.)  Such  certifi- 
cate constitutes  a record  of  conviction  and  the  magistrate  must  by  a warrant 
commit  the  husband  to  a county  jail  or  a penitentiary  for  not  exceeding  six 
months  at  hard  labor,  or  until  he  gives  the  security  prescribed  by  statute.  (Code 
Crim.  Pro.,  § 902;  § 903,  as  amended  by  L.  1916,  ch.  243.)  If  the  husband  fails  to 
support  his  wife  and  children  and  the  undertaking  has  been  given,  such  undertaking 
may  be  prosecuted  by  the  county  superintendents  of  the  poor  or  the  overseers  ef  the 
poor  of  the  town,  and  the  sum  collected  must  be  paid  into  the  county  treasury,  for 
the  benefit  of  the  poor.  (Code  Crim.  Pro.,  § 905.) 


SUPPORT  OF  POOR  PERSONS  BY  RELATIVES. 


Code  Crim.  Proc.,  § 922. 


761 


public,  the  officers  mentioned  in  section  nine  hundred  and  fourteen  may 
apply  to  any  two  justices  of  the  peace  or  police  justices  in  the  county  in 
which  any  real  or  personal  property  of  the  father,  mother  or  husband  is 
situated,  for  a warrant  to  seize  the  same.7  Upon  due  proof  of  the  facts, 
the  magistrate  must  issue  his  warrant,  authorizing  the  officers  so  applying 
to  take  and  seize  the  property  of  the  person  So  absconding.  Whenever 
any  child  shall  be  committed  to  an  institution  pursuant  to  any  provision 
of  law,  any  criminal  court  or  magistrate  may  issue  a warrant  for  the 
arrest  of  the  father  of  the  child,  and  examine  into  his  ability  to  maintain 
such  child  in  whole  or  in  part;  and  if  satisfied  that  such  father  is  able 
to  contribute  toward  the  support  of  the  child,  then  such  court  or  magis- 
trate shall,  by  order,  require  the  weekly  payment  by  such  father  of  such 
sum  and  in  such  manner  as  shall  be  in  said  order  directed,  towards  the 
maintenance  of  such  child  in  such  institution,  which  amount  when  paid 
shall  be  credited  by  the  institution  to  the  city,  town  or  county  against  any 
sums  due  to  it  therefrom  on  account  of  the  maintenance  of  the  child. 
[Code  Crim.  Pro.,  § 921.] 


$ 10.  OVERSEER  MAY  SEIZE  PROPERTY;  SALE  OR  TRANSFER 
VOID;  INVENTORY  OF  PROPERTY  SEIZED. 

The  officers  so  applying  may  seize  and  take  the  property,  wherever 
it  may  be  found  in  the  same  county;  and  are  vested  with  all  the  right 
and  title  thereto,  which  the  person  absconding  then  had.  The  sale  or 
transfer  of  any  personal  property,  left  in  the  county  from  which  be 
absconded,  made  after  the  issuing  of  the  warrant,  whether  in  payment  of 
an  antecedent  debt  or  for  a new  consideration,  is  absolutely  void.  The 


7.  Who  may  maintain  proceedings.  One  of  two  overseers  of  the  poor  is 
authorized  to  institute  and  carry  on  proceedings  for  the  seizure  of  property  of 
one  who  has  absconded,  leaving  his  wife  or  child  chargeable  to  the  town. 
When  only  one  overseer  acts,  the  consent  of  the  other  will  be  presumed. 
Downing  v.  Rugar,  21  Wend.  178. 

Evidence.  It  is  the  duty  of  the  court,  before  confirming  the  warrant  and 
seizure  and  directing  the  sale  of  property,  to  require  the  overseers  to  produce 
some  evidence  to  establish  the  case  charged  in  the  warrant,  against  the  party 
whose  property  is  seized,  and  the  case  may  be  contested  by  such  party.  Read 
v.  Triangle,  23  Barb.  236. 

Sums  paid  to  institution  to  be  credited  to  town,  etc.  In  cases  of  commit- 
ment of  a child  to  an  institution,  the  above  section  authorizes  a magistrate  to 
order  the  father  to  pay  a sum  for  the  child’s  support  which  is  to  be  credited 
by  the  institution  to  the  city,  town  or  county  against  any  sum  due  for 
maintenance.  People  v.  Dickson,  57  Hun,  315. 


RELIEF  OF  POOR. 


G2 


Code  Crim.  Proc.,  §§  923-925. 

officers  must  immediately  make  an  inventory  of  the  property  seized  by  them, 
and  return  it,  together  with  their  proceedings,  to  the  next  County  Court 
of  the  county  where  they  reside,  there  to  be  filed.  [Code  Crim.  Pro., 
§ 922.] 


§11.  WARRANT  AND  SEIZURE,  WHEN  CONFIRMED  OR  DIS- 
CHARGED BY  COURT. 

The  court,  upon  inquiring  into  the  circumstances  of  the  case,  may 
confirm  or  discharge,  the  warrant  and  seizure;  and  if  it  be  confirmed, 
must,  from  time  to  time,  direct  what  part  of  the  personal  property  must 
be  sold,  and  how  much  of  the  proceeds  of  the  sale,  and  of  the  rents  and 
profits  of  the  real  property,  if  any,  are  to  be  applied  toward  the  mainte- 
nance of  the  children  or  wife  of  the  person  abscondnig.  [Code  Crim.  Pro., 
§ 923.] 


§ 12.  WARRANT  TO  BE  DISCHARGED  UPON  RETURN  OF  PARENT 
OR  HUSBAND,  OR  UPON  SECURITY. 

If  the  party  against  whom  the  warrant  issued,  return  and  support  the 
wife  or  children  so  abandoned,  or  give  security  satisfactory  to  any  two 
justices  of  the  peace  or  police  justices  in  the  city,  village  or  town,  to  the 
overseers  of  the  poor  of  the  town,  or  in  the  city  of  New  York,  to  the 
commissioners  of  charities  and  corrections,  that  the  wife  or  children  so 
abandoned  shall  not  be  chargeable  to  the  town  or  county,  then  the  warrant 
must  be  discharged  by  an  order  of  the  magistrates,  and  the  property 
taken  by  virtue  thereof  restored  to  the  party.  [Code  Crim.  Pro.,  § 924.] 


§ 13.  SALE  OF  PROPERTY  SEIZED,  AND  APPLICATION  OF  ITS 
PROCEEDS. 

The  officers  must  sell  at  public  auction  the  property  ordered  to  be  sold, 
and  receive  the  rents  and  profits  of  the  real  property  of  the  person 
absconding,  and  in  those  cities,  villages  or  towns  which  are  required  to 
support  their  own  poor,  the  officers  charged  therewith  must  apply  the  same 
to  the  support  of  the  wife  or  children  so  abandoned ; and  for  that  purpose 
must  draw  on  the  county  treasurer,  or  in  the  city  of  New  York,  upon  the 
comptroller,  for  the  proceeds  as  directed  by  special  statutes.  They  must 
also  account  to  the  County  Court  of  the  county,  for  all  money  so  received 
by  them,  and  for  the  application  thereof,  from  time  to  time,  and  may  be 
compelled  by  that  court  to  render  that  account  at  any  time.  [Code  Crim. 
Pro.,  § 925.] 


SUPPORT  OF  POOR  PERSONS  BY  RELATIVES. 


7G8 


Code  Crim.  Proc.,  § 926;  Poor  Law,  § 130. 

§ 14.  WHEN  SUPERINTENDENT  OF  POOR  HAS  POWER  OF  OVER- 
SEER. 

When  the  poor  person  for  whom  relief  is  sought  is  a charge  upon  a county, 
the  superintendents  of  the  poor  are  vested  with  the  same  powers,  as  are  given 
by  this  title  to  the  overseers  of  the  poor  of  a town,  in  respect  to  compelling 
relatives  to  maintain  poor  persons,  and  in  respect  to  the  seizure  of  the 
property  of  a parent  absconding  and  abandoning  his  family ; and  are  entitled 
to  the  same  remedies  in  their  names,  and  must  perform  the  duties  required 
by  this  title,  of  overseers  and  are  subject  to  the  same  obligations  and  control.8 
[Code  Crim.  Pro.,  § 926,  as  amended  by  L.  1918,  ch.  154.] 


§ 15.  SALE  OF  PROPERTY  OF  ABSCONDING  PARENTS;  APPLICA- 
TION TO  COURT;  APPLICATION  OF  PROCEEDS  FOR  BENE- 
FIT OF  MINORS;  ACCOUNTING  OF  GUARDIANS. 

When  property  of  absconding  persons  to  be  applied  to  support  of 
families ; how  application  made. — Whenever  the  father,  or  the  mother 
being  a widow  or  living  separate  from  her  husband,  has  absconded  or  shall 
abscond  from  his  or  her  children,  or  a husband  from  his  wife,  leaving  any 
of  such  children  or  such  wife  chargeable,  or  likely  to  become  chargeable 
upon  the  public  for  their  support,  and  any  real  or  personal  estate  of  such 
father,  or  mother,  or  husband,  has  been  or  shall  be  seized  by  a superin- 
tendent of  the  poor  or  an  overseer  of  the  poor,  or  by  a board  of  charities, 
or  by  other  officers  authorized  to  make  such  seizure,  by  warrant  of  the 
justices  of  the  peace  of  the  county  where  such  real  or  personal  property 
may  be  situated;  and  the  court  of  sessions  or  county  court  of  the  county 
wherein  such  superintendent  or  overseer  of  the  poor,  or  board  of  charities, 
or  other  officers  authorized  to  make  such  seizure  resides,  has  confirmed, 
or  shall  confirm  said  warrant  and  seizure,  and  has  heretofore  directed  or 
shall  hereafter  direct  what  part  if  any  of  said  personal  property  shall  be 
sold,  and  how  much  if  any  of  the  proceeds  of  such  sale  and  of  the  rents 
and  profits  of  the  real  estate,  if  any,  be  applied  toward  the  maintenance 


8.  For  provisions  relating  to  abolition  or  restoration  of  distinction  between 
town  and  county  poor,  see  Poor  Law,  sec.  138,  post,  p.  779. 

Maintenance  of  actions  by  poor  officers.  An  action  cannot  be  maintained 
by  superintendents  of  the  poor  for  boarding,  clothing  and  medical  aid  fur- 
nished to  his  wife  as  a pauper;  notwithstanding  he  has  maltreated  her  and 
expelled  her  from  his  house  without  just  cause,  and  refused  to  provide  for 
her,  though  of  sufficient  ability  to  do  so.  Norton  v.  Rhodes,  18  Barb.  190. 

It  was  held  proper  for  the  overseers  of  the  town  of  Cazenovia  to  begin  pro- 
ceedings against  a father  to  compel  him  to  support  his  poor  and  infirm  son. 
Tillotson  v.  Smith,  12  N.  Y.  St.  Rep.  331. 


764 


RELIEF  OF  POOR. 


Poor  Law,  §§  130-132. 

of  the  children  or  wife  of  the  person  so  absconding;  then  the  said  superin- 
tendent or  overseer  of  the  poor,  board  of  charities  or  other  officers  so 
authorized  and  directed,  shall  apply  the  said  proceeds  of  sale  of  said 
personal  property,  or  rents  and  profits  of  the  real  estate  as  the  case  may  be, 
first,  to  the  payment  of  such  taxes  and  assessments  as  may  be  outstanding 
and  existing  liens  upon  the  said  real  estate,  and  repairs  necessary  to  be 
made  upon  said  real  estate,  and  premiums  for  insurance  on  the  buildings 
on  said  real  estate;  and  the  balance,  if  any,  directly  to  the  maintaining, 
bringing  up  and  providing  for  the  wife,  child  or  children  so  left  and 
abandoned,  as  the  same  may  be  required  from  time  to  time ; and  for  all  such 
expenditures  they  shall  take  proper  vouchers,  and  from  the  rents  and 
profits  thereafter  received  from  any  real  estate  so  seized  they  shall  first  pay 
all  legal  taxes  and  assessments,  as  they  shall  be  assessed  against  said  real 
estate,  and  such  premiums  for  insurances  and  expenses  for  such  repairs 
thereon  as  they  may  deem  necessary  for  the  protection  and  preservation  of 
said  real  estate,  and  the  balance  of  said  rents  and  profits  shall  be  applied 
by  said  overseers,  superintendents,  boards  of  charities,  or  other  persons 
authorized  to  make  such  seizures,  to  the  maintaining,  bringing  up,  and 
providing  for  the  wife,  child,  or  children  so  left  and  abandoned,  and  proper 
vouchers  shall  be  taken  thereof.  [Poor  Law,  § 130;  B.  C.  & G.  Cons.  L., 
p.  4278.] 

Guardians  for  minors;  proceeds  not  to  be  mingled  with  other  funds ; 
officer  to  give  security  and  to  account. — Whenever  any  child  or  children, 
entitled  to  the  benefits  provided  by  this  article,  shall  be  a minor  or 
minors  whose  mother  is  dead  and  whose  father  has  absconded  from  his 
children,  or  whose  mother,  being  a widow  or  living  apart  from  her  hus- 
band, has  absconded  from  her  children,  and  such  minor  or  minors  shall 
have  no  guardian,  the  court  of  sessions  or  county  court  having  jurisdiction 
of  this  matter  shall  appoint  some  suitable  person  guardian  ad  litem  or 
next  friend  of  such  minor  or  minors,  whose  duty  it  shall  be  to  see  that 
the  provisions  of  this  article  are  carried  into  effect.  The  proceeds  of  the 
sale  of  said  personal  property  and  the  rents  and  profits  of  said  real  estate 
shall  not  be  mingled  or  placed  with  any  other  funds  held  or  owned  by  the 
officer  or  officers  receiving  the  same,  but  shall  be  kept  separate  and  distinct. 
Such  superintendent,  overseer  of  the  poor,  board  of  charities  or  other 
authorized  officer  shall  give  security  for  the  faithful  performance  of  the 
duties  hereby  imposed  in  such  form  and  in  such  sum  as  the  aforesaid 
court  may  direct,  and  shall  account  to  the  court  of  sessions  for  all  moneys 
so  received  by  them  and  for  the  application  thereof  from  time  to  time  and 
may  be  compelled  by  the  said  court  to  vender  such  account  at  any  time. 
[Poor  Law,  § 131 ; B.  C.  & G.  Con*.  L.,  p.  4278.] 

Notice  of  accounting. — Notice  of  such  accounting  shall  be  given  to  the 
wife  or  children,  so  left  and  abandoned,  as  the  case  may  be,  and  to  the 


SUPPORT  OF  POOR  PERSONS  BY  RELATIVES. 


705 


Poor  Law,  §§  133-135. 

guardian  of  such  children,  if  any  of  them  be  minors.  And  in  the  event 
that  no  guardian  or  next  friend  has  been  appointed,  as  hereinbefore  pro- 
vided, the  said  court  shall,  prior  to  such  accounting  being  had,  appoint 
some  suitable  person  to  attend  upon  such  accounting  in  behalf  of  said 
minors,  and  notice  of  such  appointment  and  of  such  accounting  shall  be 
given  to  the  person  so  appointed.  [Poor  Law,  § 132;  B.  C.  & G.  Cons. 
L.,  p.  4279.] 

Penalties;,  how  applied. — All  penalties  received  from  the  prosecution 
of  any  recognizance  given  by  any  person  who  shall  have  abandoned  or 
neglected  his  wife  or  children,  or  who  shall  have  threatened  to  run  away 
and  leave  his  wife  or  children  a burden  on  the  public,  shall  be  retained  by 
the  officer  at  whose  instance  such  recognizance  was  prosecuted,  and  ap- 
plied for  the  same  purpose  and  in  the  same  manner  as  in  section  one  hun- 
dred and  thirty  of  this  chapter  provided  for  the  disposition  of  the  proceeds 
of  the  sale  of  personal  property  and  the  rents  and  profits  of  real  estate 
seized  under  the  provisions  of  this  article.  [Poor  Law,  § 133;  B.  C.  & 
G.  Cons.  L.,  p.  4279.] 

§ 16.  SUPERINTENDENT  OR  OVERSEER  MAY  REDEEM  READ 
PROPERTY  OF  ABSCONDING  FATHER  OR  HUSBAND,  SOLD 
AT  SHERIFF’S  SALE. 

County  superintendents  and  overseers  of  the  poor  may  redeem  real 
property,  which  may  have  been  seized  by  them  pursuant  to  sections  921 
to  926  of  the  Code  of  Criminal  Procedure,  the  same  as  judgment  creditors 
under  section  1430  to  1478  of  the  Code  of  Civil  Procedure.  No  such  re- 
demption shall  be  made,  unless  at  the  time  of  such  redemption,  the  seizure 
of  the  property  sought  to  be  redeemed,  shall  have  been  confirmed  by  the 
County  Court  of  the  county  where  the  premises  may  be  situated,  nor  unless 
such  property  shall,  at  the  time  of  making  such  redemption,  be  held  by 
the  superintendents  or  overseers,  under  and  by  virtue  of  such  seizure. 
[Poor  Law,  § 134;  B.  C.  & G.  Cons.  L.,  p.  4279.'] 


§ 17.  HOW  SUPERINTENDENT  OR  OVERSEER  MAY  ACQUIRE 
TITLE. 

To  entitle  such  superintendents  or  overseers  to  acquire  the  title  of  the 
original  purchaser,  or  to  be  substituted  as  purchaser,  from  any  other 
creditor,  they  shall  present  to  and  leave  with  such  purchaser  or  creditor, 
or  the  officer  who  made  the  sale,  the  following  evidence  of  their  right : 

1.  A copy  of  the  order  of  the  County  Court,  confirming  the  warrant 
and  seizure  of  such  property,  duly  verified  by  the  clerk  of  the  court. 

2.  An  affidavit  of  one  of  the  superintendents  or  overseers  that  such 
property  is  held  by  them  under  such  warrant  and  seizure,  and  that  the 


766 


RELIEF  OF  POOR. 


Poor  Law,  §§  136,  137. 

same  have  not  been  discharged,  but  are  then  in  full  force.  [Poor  Law, 
§ 135 ; B.  C.  & G.  Cons.  L.,  p.  4279.] 

§ 18.  MONEY  USED  FOR  REDEMPTION;  HOW  REPAID. 

The  superintendents  or  overseers  of  the  poor  may,  for  the  purpose  of 
making  such  redemption,  use  any  moneys  in  their  hands  belonging  to 
the  poor  funds  of  their  respective  towns  or  counties,  which  moneys  shall 
be  replaced,  together  with  the  interest  thereon,  out  of  the  first  moneys 
which  may  be  received  by  them  from  the  rent  or  sale  of  the  premises  so 
redeemed.  [Poor  Law,  § 136;  B.  C.  & G.  Cons.  L.,  p.  4280.] 

§ 19.  WHEN  WARRANT  OF  SEIZURE  MAY  BE  DISCHARGED. 

If  such  redemption  shall  be  made,  and  the  person  against  whom  the 
warrant  was  issued  and  seizure  made  shall  apply  to  have  the  warrant 
discharged,  he  shall,  before  such  warrant  and  seizure  are  discharged,  in 
addition  to  the  security  required  to  be  given  by  section  nine  hundred  and 
twenty-four  of  the  Code  of  Criminal  Procedure,  pay  to  such  superinten- 
dents or  overseers  the  sum  paid  by  them  to  redeem  such  property,  together 
with  interest  thereon,  from  the  time  of  such  redemption.  [Poor  Law,, 
§ 137;  B.  C.  & G.  Cons.  L.,  p.  4280.] 


RELIEF  OF  SOLDIERS,  SAILORS  AND  MARINES. 


m 


Poor  Law,  § 80. 


CHAPTER  LII. 

RELIEF  OF  VETERAN  SOLDIERS,  SAILORS  AND  MARINES. 

Section  1.  Relief  to  veteran  soldiers,  sailors  and  marines;  not  to  be  sent  to 
alms-houses;  duty  of  Grand  Army  of  Republic. 

2.  Grand  Army  post  commander  to  file  notice  and  undertaking. 

3.  Poor  or  indigent  soldiers,  etc.,  without  families  to  be  sent  to 

soldiers’  home. 

4.  Board  of  supervisors  to  designate  persons  to  conduct  burial  of 

soldiers,  sailors  or  marines;  where  burial  made. 

5.  Headstones  to  be  provided  for  soldiers’  graves  at  expense  of  county; 

board  of  supervisors  to  audit  cost  thereof. 


§ 1.  RELIEF  TO  VETERAN  SOLDIERS,  SAILORS  AND  MARINES; 

NOT  TO  BE  SENT  TO  ALMS-HOUSES;  DUTY  OF  GRAND  ARMY 

OF  REPUBLIC. 

No  poor  or  indigent  soldier,  sailor  or  marine  who  has  served  in  the  mili- 
tary or  naval  service  of  the  United  States  and  who  has  been  honorably 
discharged  from  such  service  nor  his  family  nor  the  families  of  any  who 
may  be  deceased,  shall  be  sent  to  any  almshouse,  but  shall  be  relieved 
and  provided  for  at  their  homes  in  the  city  or  town  where  they  may 
reside,  so  far  as  practicable,  provided  such  soldier,  sailor  or  marine 
or  the  families  of  those  deceased,  are,  and  have  been,  residents  of  the 
state  for  one  year ; and  the  proper  auditing  board  of  such  city  or  town 
or  in  those  counties  where  the  poor  are  a county  charge,  the  super- 
intendent, if  but  one,  or  superintendents  of  the  poor,  as  such  auditing 
board  in  those  counties,  shall  provide  such  sum  or  sums  of  money  as 
may  be  necessary  to  be  drawn  upon  by  the  commander  and  quarter- 
master of  any  post  of  the  Grand  Army  of  the  Republic,  or  of  any  camp 
of  the  United  Spanish  War  Veterans  of  the  city  or  town,  made  upon  the 
written  recommendation  of  the  relief  committee  of  such  post  or  camp ; 
or  if  there  be  no  post  or  camp  in  a town  or  city  in  which  it  is  necessary 
that  such  relief  should  be  granted,  upon  the  like  request  of  the  com- 
mander and  quartermaster  and  recommendation  of  the  relief  committee 
of  a Grand  Army  post,  or  a camp  of  the  United  Spanish  War  Veterans, 
located  in  the  nearest  town  or  city,  to  the  town  or  city  requested  to  so 
furnish  relief,  and  such  written  request  and  recommendation  shall  be 


768 


RELIEF  OF  POOR. 


Poor  Law,  § 81. 

a sufficient  authority  of  the  expenditures  so  made  and  such  auditing  board 
of  such  city  or  town  or  in  those  counties  where  the  poor  are  a county  charge, 
the  superintendent,  if  but  one,  or  superintendents  of  the  poor,  as  such  audit- 
ing board  in  those  counties  may  also  pay  to  the  chairman  of  the  relief  com- 
mittee of  such  Grand  Army  post  or  camp  of  the  United  Spanish  War 
Veterans,  a reasonable  sum  for  his  services  in  connection  therewith.  [Poor 
Law,  § 80,  as  amended  by  L.  1910,  ch.  102,  in  effect  Apr.  19,  1910,  L.  1915, 
ch.  120,  and  L.  1917,  ch.  129;  B.  C.  & G.  Cons.  L.,  p.  4263.] 


§ 2.  GRAND  ARMY  POST  COMMANDER  TO  FILE  NOTICE  AND  UN- 
DERTAKING. 

The  commander  of  any  such  post  or  camp  which  shall  undertake  to  super- 
vise the  relief  of  poor  veterans  or  their  families,  as  herein  provided,  before 
his  acts  shall  become  operative  in  any  town,  city  or  county,  shall  file  with 
the  clerk  of  such  town,  city  or  county  a notice  that  such  post  or  camp  intends 
to  undertake  such  supervision  of  relief,  which  notice  shall  contain  the  names 
of  the  relief  committee,  commander  and  other  officers  of  the  post  or  camp ; 
and  also  an  undertaking  to  such  city,  town  or  county,  with  sufficient  and 
satisfactory  sureties  for  the  faithful  and  honest  discharge  of  his  duties  under 
this  article ; such  undertaking  to  be  approved  by  the  treasurer  of  the  city  or 
county,  or  the  supervisor  of  the  town,  from  which  such  relief  is  to  be  re- 
ceived.1 2 Such  commander  shall  annually  thereafter,  during  the  month  of 
October,  file  a similar  notice  with  said  city  or  town  clerk,  with  a detailed 
statement  of  the  amount  of  relief  requested  by  him  during  the  preceding 
year,  with  the  names  of  all  persons  for  whom  such  relief  shall  have  been 
requested,  together  with  a brief  statement  in  each  case,  from  the  relief 


1.  The  intention  of  the  Legislature  in  enacting  §§  80-85  was  to  secure  relief  for 
veterans,  even  though  not  honorably  discharged.  Rept.  of  Atty.  Genl.,  Feb.  25,  1911. 

Power  to  determine  who  so  entitled  to  relief.  Under  the  above  section  the  power 
to  determine  who  are  indigent  persons  and  families,  the  necessity  for  their  relief,  the 
measure  thereof,  the  place  where  and  the  circumstances  under  which  the  same  shall  be 
administered,  is  not  vested  exclusively  in  a relief  committee  of  a Grand  Army  post, 
but  the  proper  officers  of  the  town,  city  or  county,  having  jurisdiction  to  raise  and 
appropriate  money  for  the  relief  of  the  poor,  have  jurisdiction  and  control  over  the 
same,  and  may  determine  the  amount  of  money  necessary.  The  Grand  Army  post 
may  apply  to  the  auditing  board  of  the  municipality  for  such  sum  of  money  as  it 
deems  necessary,  and  that  board  may  exercise  its  judgment  and  discretion  as  to  the 
amount  to  be  appropriated;  and  where  it  has  so  done,  its  determination  is  final  and 
not  subject  to  review  by  any  court.  People  ex  rel.  Crammond  v.  Common  Council, 
136  N.  Y.  489;  32  N.  984. 

Order  directing  veteran’s  sons  to  contribute  to  his  support.  Where  an  honorably 
discharged  veteran  eighty  years  of  age  with  poor  eyesight  and  in  feeble  health 
has  no  property  but  his  pension  of  twenty-two  dollars  a month,  which  is  not  suf- 
ficient for  his  support,  and  the  appropriation  made  by  the  town  authorities  under 
this  section  for  the  use  of  its  veteran  relief  committee  is  nearly  or  quite  exhausted, 
and  it  appears  that  the  veteran  has  two  sons,  one  earning  seventeen  dollars  a week 
who  has  a wife  and  two  children,  his  son  being  self-supporting,  the  other  son,  married. 


RELIEF  OF  SOLDIERS,  SAILORS  AND  MARINES. 


769 


Poor  Law,  § 81. 

committee,  upon  whose  recommendation  the  relief  was  requested,  pro- 
vided, however,  that  in  cities  of  the  first  class,  said  notice  and  said 
detailed  statement  shall  be  filed  with  the  comptroller  of  such  city,  and 
said  undertaking  shall  be  approved  by  him,  and  provided  further  that 
in  any  city  of  the  first  class  which  is  now  or  may  hereafter  be  divided 
into  boroughs,  such  notice,  and  such  detailed  statement,  each  in  dupli- 
cate, shall  be  filed  with  the  comptroller,  and  he  shall  forward  one  of 
said  duplicates  to  the  commissioner  or  deputy  commissioner  of  charities 
for  the  borough  in  which  the  headquarters  of  such  post  or  camp  is  situ- 
ated, except  that  in  the  boroughs  of  the  city  of  New  York,  no  undertak- 
ing shall  be  filed  by  the  commander  or  the  committee  of  the  post  or  camp 
nor  shall  any  annual  statement  of  the  amounts  of  relief  granted  be 
required.  And  it  shall  be  the  duty  of  the  commissioner  of  charities 
to  annually  include  in  his  estimate,  of  the  amount  necessary  for  the 
support  of  his  department,  such  sum  or  sums  of  money  as  may  be 
necessary  to  carry  into  effect  the  provisions  of  sections  eighty,  eighty- 
one,  eighty- three,  and  except  in  the  city  of  New  York,  eighty-four  and 
eighty-five  of  this  chapter,  and  the  proper  officers  charged  with  the  duty 
of  making  the  budget  of  any  such  city  shall  annually  include  therein 
such  sum  or  sums  of  money  as  may  be  necessary  for  that  purpose.  Pro- 
vided, further,  that  in  the  city  of  New  York  the  relief  shall  be  paid 
direct  to  the  beneficiaries  by  the  commissioner  of  public  charities  on  a 
written  recommendation  signed  by  the  relief  committee,  the  commander 
and  the  quartermaster  of  such  post  or  camp.  The  comptroller  of  the 
city  of  New  York  shall,  out  of  the  amount  appropriated  for  such  relief, 
provide  a cash  fund  to  be  placed  under  the  control  of  the  commissioner 
of  public  charities  from  which  to  pay  such  relief,  and  he  shall  replenish 
said  fund  upon  presentation  of  properly  receipted  recommendations  for 

and  earning  about  fifteen  dollars  a week  but  without  children',  an  order  will  be 
granted  under  section  914  of  the  Criminal  Code  directing  each  of  the  veteran’s  sons 
to  contribute  two  dollars  a week  to  his  support.  Matter  of  Conklin  (1912),  78 
Misc.  269. 

Disobedience  of  statute;  misdemeanor.  A public  officer  who  wilfully  dis- 
obeys the  statute  relative  to  the  care  and  burial  of  indegent  veterans  is  guilty  of  a 
misdeamor.  Rept.  of  Atty.  Genl.,  March  20,  1911. 

2.  For  form  of  notice  of  commander  of  post  of  Grand  Army  as  to  the  relief 
of  poor  persons,  etc.,  see  Form  No.  95,  post. 

3.  For  form  of  request  of  officers  of  Grand  Army  post  for  the  relief  of  vet- 
erans with  a statement  of  the  relief  committee  upon  whose  recommendation  the 
relief  was  requested  see  Form  No.  96,  post. 


770 


RELIEF  OF  POOR. 


Poor  Law,  § 81. 

the  amounts  paid  out  of  said  fund.  Moneys  actually  laid  out  and  ex- 
pended except  in  the  boroughs  of  the  city  of  New  York  by  any  such 
post  or  camp  for  the  relief  specified  in  section  eighty  of  this  chapter 
shall  be  reimbursed  monthly  to  such  post  or  camp  by  the  comptroller 
on  vouchers  duly  verified  by  the  commander  and  quartermaster  of  said 
post  or  camp,  showing  the  date  and  amount  of  each  payment,  the  cer- 
tificate of  the  post  or  camp  relief  committee,  signed  by  at  least  three 
members,  none  of  whom  shall  have  received  any  of  the  relief  granted  by 
the  post  for  which  reimbursement  is  asked,  showing  that  the  person 
relieved  was  an  actual  resident  of  such  city,  and  that  they  recommend 
each  payment,  and  the  receipt  of  the  recipient  for  each  payment,  or  in 
case  such  receipt  could  not  be  obtained,  a statement  of  such  fact,  with 
the  reason  why  such  receipt  could  not  be  obtained.  Such  vouchers  shall 
be  made  in  duplicate  on  blanks  to  be  supplied  by  the  comptroller  and 
shall  be  presented  to  the  commissioner  of  public  charities  for  the  bor- 
ough in  which  the  headquarters  of  the  post  or  camp  is  situated,  and  if 
such  commissioner  is  satisfied  that  such  moneys  have  been  actually 
expended  as  in  said  voucher  stated,  he  shall  approve  the  same,  and  file 
one  of  said  duplicates  in  his  office  and  forward  the  other  to  the  comp- 
troller, who  shall  pay  the  same  by  a warrant  drawn  to  the  order  of  the 
said  commander.  And  provided  further  that  in  the  city  of  New  York 
if  the  comptroller  is  satisfied  that  a poor  or  indigent  soldier,  sailor  or 
marine,  who  has  served  in  the  military  or  naval  service  of  the  United 
States,  or  his  family,  and  has  been  honorably  discharged  therefrom,  or 
the  families  of  any  who  may  be  deceased,  are  in  actual  want,  and  that 
immediate  relief  is  needed  by  either,  provided  he  or  they  shall  have  been 
residents  of  the  state  for  the  year  last  past,  and  is  or  are  actual  resi- 
dents of  said  city,  he  may  in  his  discretion  authorize  and  empower  the 
commander  of  the  post  or  camp  to  furnish  relief  to  him,  or  them,  in  a 
reasonable  amount,  and  pay  the  amount  by  warrant  to  the  commander 
of  the  post  or  camp,  taking  the  receipt  in  duplicate  of  the  commander 
of  the  post  or  camp  therefor,  and  file  one  of  said  receipts  in  his  office, 
and  forward  the  other  to  the  commissioner  or  deputy  commissioner  of 
charities  for  the  borough  in  which  the  headquarters  of  the  post  or  camp 
is  situated;  and  said  duplicate  receipts  shall  be  the  vouchers  for  the 
payment  of  the  same.  And  provided  further,  that  in  any  city,  county 
or  borough,  in  which  Grand  Army  posts  or  camps  have  organized  or  may 
organize  a memorial  and  executive  committee,  the  latter  shall  be  re- 


RELIEF  OF  SOLDIERS,  SAILORS  AND  MARINES. 


At  At  -i 

i i 1 


Poor  Law,  §§  83,  84. 


garded  as  a post  of  the  Grand  Army  of  the  Republic  or  a camp  of  the 
United  Spanish  War  Veterans.  And  the  chairman,  treasurer,  or 
almoner  and  bureau  of  relief  or  relief  committee  referred  to,  shall 
exercise  the  same  privileges  and  powers  as  the  commander,  quarter- 
master and  relief  committee  of  a post  or  camp,  on  complying  with  the 
requirements  of  this  and  the  preceding  section.  Wilful  false  swearing 
to  such  voucher  shall  he  deemed  perjury  and  shall  he  punishable  as  such. 
[Poor  Law,  § 81,  as  amended  by  L.  1910,  ch.  102,  L.  1913,  ch.  594, 
L.  1915,  ch.  563,  and  L.  1916,  ch.  532.] 

§ 3.  POOR  OR  INDIGENT  SOLDIERS,  ETC.,  WITHOUT  FAMILIES  TO 
BE  SENT  TO  SOLDIERS’  HOME. 

Poor  or  indigent  soldiers,  sailors  or  marines  provided  for  in  this  ar^ 
tide,  who  are  not  insane,  and  who  have  no  families  or  friends  with  whom 
they  may  be  domiciled,  may  he  sent  to  a soldiers’  home.4  Any  poor  or 
indigent  soldier,  sailor  or  marine  provided  for  in  this  chapter,  or  any 
member  of  the  family  of  any  living  or  deceased  soldier,  sailor  or  marine, 
who  may  he  insane,  shall,  upon  recommendation  of  the  commander  and 
relief  committee  of  such  post  of  the  Grand  Army  of  the  Republic  or 
camp  of  the  United  Spanish  War  Veterans,  within  the  jurisdiction  of 
which  the  case  may  occur,  be  sent  to  the  proper  state  hospital  for  the 
insane.  [Poor  Law,  § 83,  as  amended  by  L.  1910,  ch.  102;  B.  C.  & 
G.  Cons.  L.,  p.  4265.] 


§ 4.  BOARD  OF  SUPERVISORS  TO  DESIGNATE  PERSONS  TO  CON- 
DUCT BURIAL  OF  SOLDIERS,  SAILORS  OR  MARINES;  WHERE 
BURIAL  MADE. 

The  board  of  supervisors  in  each  of  the  counties  shall  designate  some 
proper  person  or  commission,  other  than  that  designated  for  the  care  of 
poor  persons,  or  the  custody  of  criminals,  who  shall  cause  to  be  interred 
the  body  of  any  honorably  discharged  soldier,  sailor  or  marine,  who  has 
served  in  the  military  or  naval  service  of  the  United  States,  or  the  body 
of  the  wife  or  widow  of  any  soldier,  sailor  or  marine,  married  to  him 


4.  Soldiers’  Homes.  The  New  York  State  Soldiers’  and  Sailors’  Home  at  Bath 
is  managed  by  a board  of  trustees,  under  the  provisions  of  secs.  60  and  61  of  the 
Public  Buildings  Law,  and  admissions  to  such  home  are  regulated  pursuant  to  sec- 
tion 64,  as  amended  by  L.  1911,  ch.  577,  and  L.  1912,  ch.  190.  The  New  York  State 
Home  for  the  aged  dependent  veteran  and  his  wife,  veterans’  mothers,  widows  and 
army  nurses,  is  located  at  Oxford,  N.  Y.,  and  is  established,  managed,  and  admis- 
sions thereto  are  regulated  by  article  18  of  the  State  Charities  Law. 


771a 


RELIEF  OF  POOR. 


Poor  Law,  § 85. 

previous  to  nineteen  hundred  and  ten,  who  shall  die  such  widow,  and  who 
shall  hereafter  die  without  leaving  sufficient  means  to  defray  his  or  her 
funeral  expenses,  but  such  expenses  shall  in  no  case  exceed  fifty  dollars.5 
If  the  deceased  has  relatives  or  friends  who  desire  to  conduct  the  burial, 
but  are  unable  or  unwilling  to  pay  the  charges  therefor,  such  sum  shall 
be  paid  by  the  county  treasurer  to  the  person  so  conducting  such  burial 
upon  due  proof  of  the  claim,  made  to  such  person,  or  commission  of  the 
death  and  burial  of  the  soldier,  sailor  or  marine,  or  the  wife  or  widow 
of  such  soldier,  sailor  or  marine,  and  audit  thereof.  Such  interment 
shall  not  he  made  in  a cemetery  or  cemetery  plot  used  exclusively  for  the 
burial  of  poor  persons  deceased,  and  the  board  of  supervisors  of  each 
county  is  hereby  authorized  and  empowered  to  purchase  and  acquire 
lands,  or  to  appropriate  money  for  the  purchase  and  acquisition  of  lands, 
for  a cemetery  or  cemetery  plot  for  the  burial  of  any  such  honorably  dis- 
charged soldiers,  sailors  or  marines  and  their  wives  and  widows  and  also 
to  provide  for  the  care,  maintenance,  or  improvement  of  any  cemetery 
or  plot  where  such  honorably  discharged  soldiers,  sailors  or  marines  and 
their  wives  and  widows  are  buried  or  may  hereafter  be  buried.  [Poor 
Law,  § 84,  as  amended  by  L.  1912,  ch.  306,  L.  1914,  ch.  135,  and  L. 
1915,  ch.  445 ; B.  C.  & G.  Cons.  L.,  p.  4266.] 

§ 5.  HEADSTONES  TO  BE  PROVIDED  FOR  SOLDIERS’  GRAVES  AT 
EXPENSE  OF  COUNTY;  BOARD  OF  SUPERVISORS  TO  AUDIT 
COST  THEREOF. 

The  grave  of  any  honorably  discharged  soldier,  sailor  or  marine  who 
served  in  the  army  or  navy  of  the  United  States  or  of  the  wife  or 
widow  of  such  an  honorably  discharged  soldier,  sailor  or  marine,  whose 
body  has  been  heretofore  or  shall  hereafter  he  interred  pursuant  to  the 
last  preceding  section,  the  grave  of  any  honorably  discharged  soldier, 
sailor  or  marine  who  served  in  the  army  or  navy  of  the  United  States 
who  shall  have  been  heretofore  buried  in  any  of  the  counties  of  this 
state,  hut  whose  grave  is  not  marked  by  a suitable  headstone,  and  who 


5.  Burial  expenses  of  soldiers,  sailors  and  marines  who  die  without  sufficient 
means  may  be  a charge  upon  the  county.  So  held  where  the  only  property  of  a 
veteran  who  died  leaving  a widow  was  fifty-four  dollars  in  money.  People  ex  rel. 
Brown  v.  Prendergast,  146  App.  Div.  714.  This  is  so,  although  the  children  of  the 
deceased  are  able  to  pay  the  charge.  Rept.  of  Atty.  Genl.,  May  4,  1910. 

Burial  plots  in  towns.  It  is  provided  by  sec.  336  of  the  Town  Law,  that  town 
boards  shall  purchase  and  maintain  burial  plots  for  use  of  soldiers.  See  ante,  p.  365. 


RELIEF  OF  SOLDIERS,  SAILORS  AND  MARINES. 


771b 


Poor  Law,  § 85. 

died  without  leaving  means  to  defray  the  expense  of  such  headstone; 
or  whose  grave  shall  have  remained  unmarked  for  twenty-five  years,  by 
a suitable  headstone,  shall  be  marked  by  a headstone  containing  the 
name  of  the  deceased,  the  war  in  which  he  served,  and,  if  possible,  the 
organization  to  which  he  belonged  or  in  which  he  served.  The  head- 
stone at  the  grave  of  the  wife  or  widow  of  such  an  honorably  discharged 
soldier,  sailor  or  marine  shall  contain  the  name  of  the  deceased,  the  war 
in  which  her  husband  served,  and,  if  possible,  the  organization  to  which 
he  belonged  or  in  which  he  served.  Such  headstone  shall  not  cost  more 
than  twenty-five  dollars,  and  shall  be  of  such  design  and  material  as 
shall  be  approved  by  the  board  of  supervisors,  and  the  expenses  of  such 
burial  and  headstone  as  above  provided  for,  and  a reasonable  sum  for  the 
services  of  the  person  or  commission  designated  in  section  eighty-four 
and  the  necessary  expenses  of  said  person  or  commission,  shall  be  a 
charge  upon  and  shall  be  paid  by  the  county  in  which  the  said  soldier, 
sailor  or  marine,  or  the  wife  or  widow  of  such  soldier,  sailor  or  marine, 
shall  have  died;  and  the  board  of  supervisors  or  other  board  or  officer 
vested  with  like  powers,  of  the  county  of  which  such  deceased  soldier, 
sailor  or  marine,  or  the  wife  or  widow  of  such  soldier,  sailor  or  marine, 
was  a resident  at  the  time  of  his  or  her  death,  is  hereby  authorized  and 
directed  to  audit  the  account  and  pay  the  expenses  of  such  burial  and 
headstone,  and  a reasonable  sum  for  the  services  of  the  person  or  com- 
mission designated  in  section  eighty-four  and  the  necessary  expenses  of 
said  person  or  commission ; provided,  however,  that  in  case  such  deceased 
soldier,  sailor  or  marine,  or  the  wife  or  widow  of  such  soldier,  sailor  or 
marine,  shall  be  at  the  time  of  his  or  her  death  an  inmate  of  any  state 
institution,  including  state  hospitals  and  soldiers’  homes,  or  any  institu- 
tion, supported  by  the  state  and  supported  by  public  expense  therein, 
the  expense  of  such  burial  and  headstone  shall  be  a charge  upon  the 
county  of  his  or  her  legal  residence.  It  shall  be  the  duty  of  the  person 
or  commission  in  this  article  provided  prior  to  the  annual  meeting  of  the 
board  of  supervisors  to  make  an  annual  report  to  such  board  of  super- 
visors of  all  applications  since  the  last  annual  report  for  burial  and  the 
erection  of  tombstones  .as  provided  herein  together  with  the  amounts 
allowed ; all  applications  herein  referred  to  shall  accompany  said  annual 
report  and  be  placed  and  kept  on  file  with  the  board  of  supervisors. 
[Poor  Law,  § 85,  as  amended  by  L.  1910,  ch.  102,  L.  1914,  ch.  135, 
and  L.  1915,  ch.  147 ; B.  0.  & G.  Cons.  L.,  p.  420G.] 


771c 


RELIEF  OF  POOR. 


Poor  Law,  §§  86,  87. 

§ 6.  RELIEF  OF  WOMEN  NURSES;  PERSONS  ENITLED  TO  RELIEF. 

No  poor  or  indigent  woman  who  served  not  less  than  ninety  days  as  a 
nurse  in  hospital,  field  or  camp  with  the  military  or  naval  service  of  the 
United  States,  in  the  war  of  the  rebellion,  the  Spanish- American  war 
or  the  war  of  the  Philippine  insurrection,  shall  he  sent  to  any  almshouse, 
but  shall  be  relieved  and  provided  for  at  her  home  in  the  city  or  town 
where  she  may  reside,  so  far  as  practicable,  provided  such  woman  nurse 
is,  and  has  been  a resident  of  the  state  for  one  year.  [Poor  Law,  § 86, 
as  added  by  L.  1913,  ch.  595.] 

§ 7.  APPLICATION  FOR  RELIEF;  BY  WHOM  MADE. 

Upon  application  being  made  by  such  woman  nurse  poor  person  to  the 
superintendent  of  the  poor  of  the  county  where  such  woman  nurse  poor 
person  resides,  or  to  any  other  officer  charged  with  the  support  and  relief 
of  the  poor,  and  on  satisfactory  proof  being  made  that  such  woman  nurse 
is  a poor  person  as  defined  in  this  section,  such  superintendent  or  other 
officer  or  such  proper  auditing  board  of  such  city  or  town,  or  in  those 
counties  where  the  poor  are  a county  charge,  the  superintendent,  if  but 
one,  or  superintendents  of  the  poor,  as  such  auditing  hoards  in  those 
counties,  shall  provide  such  sum  or  sums  of  money  as  may  be  necessary 
to  be  drawn  upon  by  the  president  and  treasurer  of  the  New  York  State 
Department  of  the  National  Association  of  Civil  War  Army  Nurses 
made  upon  the  written  recommendation  of  such  relief  committee  of  such 
New  York  State  Department  of  the  National  Association  of  Civil  War 
Army  Nurses,  and  such  written  request  shall  be  sufficient  authority  for 
the  expenditures  to  he  made. 

Immediately  upon  such  relief  and  aid  being  provided  for,  the  written 
recommendation  of  the  relief  committee  of  the  New  York  State  Depart- 
ment of  the  National  Association  of  Civil  War  Army  Nurses,  and  all 
other  testimony  and  all  facts  relating  thereto,  together  with  a verified 
statement  of  the  sum  or  sums  of  money  expended  shall  be  transmitted 
to  the  state  board  of  charities.  Such  board  shall  examine  all  matters 
relating  thereto  and  if  satisfied  that  such  expenditure  was  proper,  and 
that  the  expenses  thereof  were  actually  and  necessarily  incurred  in  such 
care  and  support,  shall  audit  and  allow  the  amount  of  such  expense, 
which  when  so  audited  and  allowed  shall  be  paid  by  the  state  treasurer, 
on  the  warrant  of  the  comptroller,  to  the  person  incurring  the  same  out 
of  any  money  appropriated  therefor.  The  amount  of  such  aid  and  its 


RELIEF  OF  SOLDIERS,  SAILORS  AND  MARINES. 

Poor  Law,  § 87. 

duration  shall  be  determined  by  the  state  board  of  charities.  The  New 
York  State  Department  of  the  National  Association  of  Civil  War  Army 
Nurses  shall  on  the  first  day  of  January  and  the  first  day  of  July  of 
each  year  furnish  to  the  state  board  of  charities  a verified  statement  of 
the  names  and  addresses  of  its  officers,  and  the  names  and  addresses  of 
its  relief  committee.  No  person  shall  be  aided  under  the  provisions  of 
this  act  who  is  receiving  or  may  hereafter  receive  an  annuity  from  this 
state.  [Poor  Law,  § 87,  as  added  by  L.  1913,  ch.  595.] 


172 


RELIEF  OF  POOR. 


Poor  Law,  § 90. 


CHAPTER  LIII. 

THE  STATE  POOR. 


Section 


1.  Who  are  state  poor,  and  how  relieved. 

2.  Notice  to  be  given  to  county  clerks  of  location  of  state  alms- 

houses. 

3.  State  poor  to  be  conveyed  to  state  alms-houses. 

4.  Punishment  for  leaving  alms-house. 

5.  Expenses  for  support. 

6.  Duty  of  keepers;  superintendent  of  state  and  alien  poor  to  keep 

record  of  names. 

7.  Visitation  of  alms-houses  by  superintendent  of  state  and  alien 

poor. 

8.  Insane  state  poor. 

9.  Care  and  binding  out  of  state  poor  children. 

10.  Transfer  to  other  states  or  counties. 

11.  Powers  of  superintendent  of  state  and  alien  poor. 

12.  Indian  poor  persons;  removal  to  county  alms-house. 

13.  Contracts  for  support  of  Indian  poor  persons. 

14.  Expenses  for  support  of  Indian  poor  persons. 

15.  Duty  of  keepers;  superintendent  of  state  and  alien  poor  to 

keep  record. 


§ 1.  WHO  ARE  STATE  POOR,  AND  HOW  RELIEVED. 

Any  poor  person  who  shall  not  have  resided  sixty  days  in  any  county 
in  this  state  within  one  year  preceding  the  time  of  an  application  by  him 
for  aid  to  any  superintendent  or  overseer  of  the  poor,  or  other  officer 
charged  with  the  support  and  relief  of  poor  persons,  shall  be  deemed 
to  be  a state  poor  person,  and  shall  be  maintained  as  in  this  article  pro- 
vided. The  state  board  of  charities  shall,  from  time  to  time,  on  behalf 
of  the  state,  contract  for  such  time,  and  on  such  terms  as  it  may  deem 
proper,  with  the  authorities  of  not  more  than  fifteen  counties  or  cities 
of  this  state,  for  the  reception  and  support,  in  the  alms-houses  of  such 
counties  or  cities  respectively,  of  such  poor  persons  as  may  be  committed 
thereto.  Such  board  may  establish  rules  and  regulations  for  the  discipline, 
employment,  treatment  and  care  of  such  poor  persons,  and  for  their 


THE  STATE  POOR. 


773 


Poor  Law,  §§  91,  92. 

discharge.  Every  such  contract  shall  be  in  writing,  and  filed  in  the  office 
of  such  board.  Such  alms-houses,  while  used  for  the  purposes  of  this 
article,  shall  be  appropriately  designated  by  such  board  and  known  as  state 
alms-houses.  Such  board  may,  from  time  to  time,  direct  the  transfer  of 
any  such  poor  person  from  one  alms-house  to  another,  and  may  give  notice 
from  time  to  time  to  counties,  to  which  alms-houses  they  shall  send  poor 
persons.  [Poor  Law,  § 90;  B.  C.  & G.  Cons.  L.,  p.  4267.] 


§ 2.  NOTICE  TO  BE  GIVEN  TO  COUNTY  CLERKS  OF  LOCATION  OF 
STATE  ALMS-HOUSES. 

Such  board  shall  give  notice  to  the  county  clerks  of  the  several  counties  - 
of  the  location  of  each  of  such  alms-houses,  who  thereupon  shall  cause 
such  notice  to  be  duly  promulgated  to  the  superintendents  and  overseers 
of  the  poor,  and  other  officers  charged  with  the  support  and  relief  of  poor 
persons  in  their  respective  counties.  A circular  from  the  superintendent 
of  state  and  alien  poor  appointed  by  such  board  shall  accompany  such 
notice,  giving  all  necessary  information  respecting  the  commitment,  sup- 
port and  care  of  the  state  poor  in  such  alms-houses,  according  to  the  pro- 
visions of  this  article.  [Poor  Law,  § 91;  B.  C.  & G.  Cons.  L.,  p.  4268.] 


§ 3.  STATE  POOR  TO  BE  CONVEYED  TO  STATE  ALMS-HOUSES. 

County  superintendents  of  the  poor,  or  officers  exercising  like  powers, 
on  satisfactory  proof  being  made  that  the  person  so  applying  for  relief 
as  a state  poor  person,  as  defined  by  this  chapter,  is  such  poor  person,  shall, 
by  a warrant  issued  to  any  proper  person  or  officer,  cause  such  person, 
if  not  a child  under  sixteen  years  of  age,  to  be  conveyed  to  the  nearest 
state  alms-house,  where  he  shall  be  maintained  until  duly  discharged,  but 
a child  under  two  years  of  age  may  be  sent  with  its  mother,  who  is  a 
state  poor  person,  to  such  state  alms-house,  but  not  longer  than  until  it  is 
two  years  of  age.  All  testimony  taken  in  any  such  proceeding  shall  be 
forwarded,  within  five  days  thereafter,  to  the  superintendent  of  state 
and  alien  poor,  and  a verified  statement  of  the  expenses  incurred  by  the 
person  in  making  such  removal,  shall  be  sent  to  such  superintendent. 
Such  board  shall  examine  and  audit  the  same,  and  allow  the  whole,  or 
such  parts  thereof,  as  have  been  actually  and  necessarily  incurred;  pro- 
vided that  no  allowance  shall  be  made  to  any  person  for  his  time  or 
service  in  making  such  removal.  All  such  accounts  for  expense,  when 
so  audited  and  allowed,  shall  be  paid  by  the  state  treasurer,  on  the  warrant 
of  the  comptroller,  to  the  person  incurring  the  same.  [Poor  Law,  § 92; 
B.  C.  & G.  Cons.  L.,  p.  4268.] 


m 


RELIEF  OF  POOR. 


Poor  Law,  §§  93-95. 

§ 4.  PUNISHMENT  FOR  LEAVING  ALMS-HOUSE. 

An  inmate  of  a state  alms-house,  who  shall  leave  the  same  without 
being  duly  discharged,  and  within  one  year  thereafter  is  found  in  any 
city  or  town  of  this  state  soliciting  public  or  private  aid,  shall  be  pun- 
ished by  confinement  in  the  county  jail  of  the  county  in  which  he  is  so 
found,  or  in  any  work-house  of  this  state  in  such  county,  for  a term 
not  exceeding  three  months,  by  any  court  of  competent  jurisdiction;  and 
it  shall  be  the  duty  of  every  superintendent  and  overseer  of  the  poor  and 
other  officers  charged  with  the  support  and  relief  of  poor  persons,  to  cause, 
as  far  as  may  be,  the  provisions  of  this  section  to  be  enforced.  [Poor 
Law,  § 93 ; B.  C.  & G.  Cons.  L.,  p.  4269.] 


§ 5.  EXPENSES  FOR  SUPPORT. 

The  expenses  for  the  support,  treatment  and  care  of  all  poor  persons 
who  shall  be  sent  as  state  poor  to  such  alms-houses,  shall  be  paid  quarterly, 
on  the  first  day  of  January,  April,  July  and  October  in  each  year,  to  the 
treasurer  of  the  county,  or  proper  city  officers  incurring  the  same,  by  the 
treasurer  of  the  state,  on  the  warrant  of  the  comptroller;  but  no  such 
expenses  shall  be  paid  to  any  county  or  city,  until  an  account  of  the 
number  of  persons  thus  supported,  and  the  time  that  each  shall  have  been 
respectively  maintained,  shall  have  been  rendered  in  due  form  and  approved 
by  the  state  board  of  charities.  [Poor  Law,  § 94;  B.  C.  & G.  Cons.  L.„ 
p.  4269.] 


§ 6.  DUTY  OF  KEEPERS;  SUPERINTENDENT  OF  STATE  AND  ALIEN 
POOR  TO  KEEP  RECORD  OF  NAMES. 

The  keeper  or  principal  officer  in  charge  of  such  alms-house  shall  enter 
the  names  of  all  persons  received  by  him  pursuant  to  this  article,  with 
such  particulars  in  reference  to  each  as  the  board  from  time  to  time  may 
prescribe,  together  with  the  name  of  the  superintendent  by  whom  the 
commitment  was  made,  in  a book  to  be  kept  for  that  purpose.  Within 
three  days  after  the  admission  of  any  person,  such  keeper  or  principal 
officer  shall  transmit  the  name  of  such  person,  with  the  particulars  herein- 
before mentioned,  to  the  superintendent  of  state  and  alien  poor;  and 
notice  of  the  death,  discharge  or  absconding  of  any  such  person  shall  in 
like  manner  and  within  the  time  above  named,  be  thus  sent  to  such  super- 
intendent. Such  superintendent  shall  cause  the  name  of  such  persons  in 
each  such  almshouse  furnished  as  above  provided  for,  to  be  entered  in  a 
book  to  be  kept  for  that  purpose  in  the  office  of  such  board,  and  he  shall 
verify  the  correctness  thereof  by  comparison  with  the  books  kept  in  such 
alms-house,  and  by  personal  examination  of  the  several  inmates  thereof. 


THE  STATE  POOR. 


775 


Poor  Law,  §§  96-98. 

and  in  any  other  manner  the  board  may  from  time  to  time  direct;  and 
he  shall  furnish  the  board,  in  tabulated  statements,  on  or  before  the 
second  Tuesday  in  January,  annually,  the  number  of  inmates  maintained 
in  each  and  all  of  such  alms-houses  during  the  preceding  year,  the  number 
discharged,  transferred  to  other  institutions,  bound  out  or  removed  from 
the  state,  and  the  number  who  died  or  left  without  permission  during 
the  year,  with  such  other  particulars  and  information  as  the  board  may 
require.  [Poor  Law,  § 95;  B.  C.  & G.  Cons.  L.,  p.  4269.] 


§ 7.  VISITATION  OF  ALMS-HOUSES  BY  SUPERINTENDENT  OF 
STATE  AND  ALIEN  POOR. 

The  superintendent  of  state  and  alien  poor  shall  visit  and  inspect  each 
of  such  alms-houses,  at  least  once  in  each  three  months,  and  at  such  other 
times  as  he  may  deem  expedient,  or  as  the  board  may  direct.  And  he  shall 
also  visit  and  inspect  all  alms-houses  in  which  are  Indians  who  are  poor 
persons  at  least  once  a year.  For  the  purposes  of  all  such  inspections, 
the  superintendent  shall  possess  all  the  powers  of  a member  of  the  board 
and  the  further  powers  hereinafter  mentioned.  The  officer  in  charge  of 
each  and  every  alms-house  shall  give  to  such  superintendent  free  access 
to  all  parts  of  the  ground,  buildings,  hospitals  and  other  arrangements 
connected  therewith,  and  to  every  inmate  thereof,  and  extend  to  him  the 
same  facilities  for  the  inspection  of  such  alms-house  and  its  inmates,  as 
is  required  by  law  to  be  extended  to  such  board  of  commissioners;  and, 
in  default  thereof  such  officer  shall  be  subject  to  the  same  penalty  as  if 
access  were  denied  to  any  member  of  the  board.  Such  board  shall  also 
cause  each  of  such  alms-houses  to  be  visited  periodically  by  some  of  its 
members,  who  shall  examine  into  their  condition  and  management,  re- 
spectively, and  make  such  report  thereof  to  the  board  as  may  be  deemed 
proper.  [Poor  Law,  § 96;  B.  C.  & G.  Cons.  L.,  p.  4270.] 

§ 8.  INSANE  STATE  POOR. 

If  any  inmate  of  such  alms-house  becomes  insane,  such  superintendent 
of  state  and  alien  poor  shall  cause  his  removal  to  the  appropriate  state 
hospital  for  the  insane,  and  he  shall  be  received  by  the  officer  in  charge  of 
such  hospital,  and  be  maintained  therein  until  duly  discharged.  [Poor 
Law,  § 97;  B.  C.  & G.  Cons.  L.,  p.  4270.] 

§ 9.  CARE  AND  BINDING  OUT  OF  STATE  POOR  CHILDREN. 

Such  superintendent  of  state  and  alien  poor  shall  cause  the  state  poor 
children,  under  sixteen  years  of  age,  unless  committed  with  the  mother  as 
hereinbefore  provided  by  this  chapter,  to  be  maintained  and  cared  for  at 


776 


RELIEF  OF  POOR. 


Poor  Law,  §§  99-101. 

such  orphan  asylums  in  this  state  as  he  may  deem  proper ; and  the  expenses- 
thereof  shall  be  paid  by  the  state  treasurer  on  the  certificate  of  such  super-, 
intendent  and  the  warrant  of  the  comptroller.  Such  superintendent,  in 
his  discretion,  may  bind  out  a state  poor  orphan  or  indigent  child  which 
may  be  committed  to  any  such  state  alms-house,  or  placed  in  any  orphan 
asylum,  if  a male  child  under  twenty-one  years,  if  a female  under  the  age  of 
eighteen,  to  be  clerks,  apprentices  or  servants  until  such  child,  if  a male, 
be  twenty-one  years  old,  or  if  a female,  shall  be  eighteen  years  old,  which 
binding  shall  be  as  effectual  as  if  such  child  had  bound  himself  with  the 
consent  of  his  parents  or  other  legal  guardian.  [Poor  Law,  § 98;  B.  C.  & 
G.  Cons.  L.,  p.  4271.] 


§ 10.  TRANSFER  TO  OTHER  STATES  OR  COUNTRIES. 

When  any  person  becomes  an  inmate  of  any  such  alms-house,  and 
expresses  a preference  to  be  sent  to  any  state  or  country  where  he  may 
have  a legal  settlement,  or  friends  willing  to  support  him  or  to  aid  in 
supporting  him,  the  superintendent  of  the  state  and  alien  poor  may  cause 
his  removal  to  such  state  or  country,  provided,  in  the  judgment  of  the 
superintendent,  the  interests  of  the  state  and  the  welfare  of  such  poor 
person  will  be  thereby  promoted.  [Poor  Law,  § 99 ; B.  C.  & G.  Cons.  L.,  p. 
4271.] 

§11.  POWERS  OF  SUPERINTENDENT  OF  STATE  AND  ALIEN  POOR. 

The  superintendent  of  state  and  alien  poor  shall  possess  and  exercise 
the  like  powers,  and  be  subject  to  the  like  duties  as  to  the  state  poor  as 
superintendents  of  the  poor  exercise  and  are  subject  to  in  the  care  and 
support  of  the  county  poor.  In  the  absence  or  illness  of  the  superintendent 
such  powers  and  duties  may  be  performed  and  discharged,  by  any  person 
appointed  by  the  state  board  of  charities  for  such  purpose.  [Poor  Law, 
§ 100;  B.  C.  & G.  Cons.  L.,  p.  4271.] 


§ 12.  INDIAN  POOR  PERSONS;  REMOVAL  TO  COUNTY  ALMS- 
HOUSE. 

Every  Indian  residing  within  this  state  or  upon  any  of  the  Indian 
reservations  of  this  state,  who  is  a poor  person  within  the  meaning  of  this 
chapter,  shall  be  maintained  as  provided  in  this  article.  Upon  application 
being  made  by  such  Indian  poor  person  to  the  superintendent  of  the  poor 
of  the  county  where  such  Indian  resides,  or  to  any  other  officer  charged 
with  the  support  and  relief  of  the  poor,  and  on  satisfactory  proof  being 
made  that  such  Indian  is  a poor  person  as  defined  in  this  chapter,  such 
superintendent  or  other  officer  shall  bv  warrant*  cause  such  Indian  to  be 


THE  STATE  POOR. 


m 


Poor  Law,  §§  102,  103. 

conveyed  to  the  alms-house  of  the  county  where  such  Indian  resides,  where 
he  shall  be  maintained  at  state  expense.  Immediately  upon  the  removal 
of  such  Indian  who  is  a poor  person  to  such  alms-house,  all  testimony 
taken  and  all  facts  relating  thereto,  together  with  a verified  statement , of 
the  expenses  incurred  in  making  such  removal,  shall  be  transmitted  to  the 
state  board  of  charities.  Such  board  shall  examine  all  matters  relating 
thereto,  and  if  satisfied  that  such  removal  was  proper,  and  that  the  expenses 
thereof  were  actually  and  necessarily  incurred,  shall  audit  and  allow  the 
amount  of  such  expenses,  which  when  so  audited  and  allowed  shall  be  paid 
by  the  state  treasurer,  on  the  warrant  of  the  comptroller,  to  the  person  in- 
curring the  same. 

If,  however,  it  shall  appear  to  the  satisfaction  of  such  superintendent 
that  the  Indian  poor  person  making  application  for  relief  is  in  such 
physical  condition  as  to  make  it  improper  to  remove  him  to  the  alms- 
house, the  superintendent  may,  subject  to  such  rules  and  regulations  as 
may  be  prescribed  by  the  state  board  of  charities,  provide  for  the  care  and 
support  of'  such  Indian  poor  person,  without  removing  him  to  the  alms- 
house, and  the  expenses  incurred  in  such  care  and  support  shall  be  paid  by 
the  state  treasurer  on  the  warrant  of  the  comptroller,  upon  the  order  and 
allowance  thereof  by  the  state  board  of  charities  as  in  cases  of  support  of 
Indian  poor  persons  in  alms-houses.  [Poor  Law,  § 101;  B.  C.  & G. 
Cons.  L.,  p.  4271.] 


§ 13.  CONTRACTS  FOR  SUPPORT  OF  INDIAN  POOR  PERSONS. 

The  state  board  of  charities  shall  from  time  to  time,  on  behalf  of  the 
state,  contract  with  the  proper  officers  of  the  county  within  which  such 
Indians  who  are  poor  persons  reside,  on  such  terms  and  for  such  times  as 
it  may  deem  proper,  for  the  reception  and  support  in  the  alms-house  of 
such  counties  of  such  Indians  who  are  poor  persons  as  may  be  committed 
thereto.  Such  board  may  establish  rules  and  regulations  for  the  discipline, 
treatment  and  care  of  such  Indians  and  provide  for  their  discharge.  Every 
such  contract  shall  be  in  writing  and  filed  in  the  office  of  such  board. 
[Poor  Law,  § 102;  B.  C.  & G.  Cons.  L.,  p.  4272.] 


§ 14.  EXPENSES  FOR  SUPPORT  OF  INDIAN  POOR  PERSONS. 

The  expenses  for  the  support,  treatment  and  care  of  all  Indians  who  arc 
poor  persons  and  shall  be  sent  to  such  county  alms-house  pursuant  to  this 
chapter,  shall  be  paid  quarterly  on  the  first  day  of  January,  April,  July 
and  October  in  each  year,  to  the  treasurer  of  the  county  wherein  such 
Indians  are  supported,  by  the  state  treasurer,  on  the  warrant  of  the  comp- 
troller, but  no  such  expenses  shall  be  paid  until  an  account  of  the  number 


778 


RELIEF  OF  POOR. 


Poor  Law,  § 104. 

of  Indians  thus  supported  and  the  time  that  each  shall  have  been  respec- 
tively maintained  shall  have  been  rendered  in  due  form  and  approved  by 
the  state  board  of  charities-  [Poor  Law,  § 103;  B.  C.  & G.  Cons.  L., 
p.  4272.] 

§ 15.  DUTY  OF  KEEPERS;  SUPERINTENDENT  OF  STATE  AND 
ALIEN  POOR  TO  KEEP  RECORD. 

The  keeper  or  principal  officer  in  charge  of  such  alms-house  shall  enter 
the  names  of  all  Indians  committed  thereto,  with  such  particulars  in 
relation  thereto  as  the  state  board  of  charities  may  prescribe.  Immediately 
upon  the  admission  of  any  such  Indian,  such  keeper  or  principal  officer  shall 
transmit  by  mail  the  names  of  such  Indians,  with  the  particulars  herein- 
before mentioned,  to  the  superintendent  of  state  and  alien  poor;  and 
notice  of  the  death,  discharge  or  absconding  of  any  such  Indian  shall  in 
like  manner  be  transmitted  to  such  superintendent.  Such  superintendent 
shall  cause  the  names  of  such  Indians  in  such  county  alms-house  to  be 
entered  in  a book  to  be  kept  for  that  purpose  in  the  office  of  such  board, 
and  he  shall  verify  the  correctness  thereof  by  comparison  with  the  books 
kept  in  the  alms-house  by  personal  examination  of  such  Indians  or  in  such 
other  manner  as  the  board  may  direct ; and  he  shall  furnish  the  board 
in  tabulated  statements,  annually  on  or  before  the  second  Tuesday  in 
January,  the  number  of  Indians  maintained  in  all  such  county  alms-houses 
during  the  preceding  year,  the  number  discharged,  bound  out,  removed 
from  the  state,  and  the  number  who  died  or  left  without  permission  during 
the  year,  with  such  other  information  as  the  board  may  require.  [Poor 
Law,  § 104;  B.  C.  & G.  Cons.  L.,  p.  4273.] 


TOWN  AND  COUNTY  POOR; MISCELLANEOUS  PROVISIONS.  779, 


Poor  Law,  § 138. 


CHAPTER  LIY. 


DISTINCTION  BETWEEN  TOWN  AND  COUNTY  POOR  AND  OTHER 
MISCELLANEOUS  PROVISIONS  RELATING  TO  THE  POOR. 


Section  1.  Boards  of  supervisors  may  abolish  or  revive  distinction  between 
town  and  county  poor. 

2.  Overseers  to  pay  town  poor  moneys  to  county  treasurer,  within 

three  months  after  notice,  of  abolition  of  distinction  between 
town  and  county  poor. 

3.  Town  poor  money,  invested,  to  be  under  control  of  overseer; 

may  be  applied  to  town  expenses  when  distinction  between  town 
and  county  poor  is  abolished. 

4.  Poor  persons  owning  property. 

4a.  Burial  of  poor  persons;  expense,  how  paid. 

5.  Money  raised  by  towns  and  counties  for  the  care  and  support  of  inmates 

of  charitable  institutions. 

6.  Reports  with  relation  to  children  placed  in  family  houses. 

7.  Reports  to  clerk  of  board  of  supervisors  of  appointments  and 

commitals  to  charitable  institutions. 

8.  Reports  by  officers  of  certain  institutions  to  clerks  of  supervisors 

and  cities. 

9.  Verified  accounts  against  counties,  cities  and  towns. 

10.  Pauper,  when  not  admitted  to  asylum. 

11.  Commitment  to  the  “Shelter  for  Unprotected  Girls”  at  Syracuse; 

board  of  supervisors  to  pay  expenses  of  inmates. 


$ 1.  BOARDS  OF  SUPERVISORS  MAY  ABOLISH  OR  REVIVE  DIS- 
TINCTION BETWEEN  TOWN  AND  COUNTY  POOR. 

The  board  of  supervisors  of  any  county  may,  at  an  annual  meeting  or 
at  a special  meeting  called  for  that  purpose,  by  resolution,  abolish  or 
revive  the  distinction  between  town  and  county  poor  of  such  county,  as 
to  poor  persons  over  the  age  of  sixteen  years,  or  as  to  poor  persons  of  the 
age  of  sixteen  years  or  under,  or  as  to  both,  by  a vote  of  two-thirds  of 
all  the  members  elected  to  such  board,  and  until  such  abolition  or  re- 
vival, such  county,  or  the  towns  therein,  shall  continue  to  maintain  and 
support  their  poor  as  at  the  time  when  this  chapter  shall  take  effect.1 
The  clerk  of  the  board  shall,  within  thirty  days  after  such  determina- 


I.  Distinction  between  town  and  county  poor.  Boards  of  supervisors  may 
abolish  or  revive  distinctions  between  town  and  county  poor,  in  their  discretion, 
in  the  manner  prescribed  by  this  section.  People  ex  Tel.  Supt.  of  the  Poor  v. 


780 


RELIEF  OF  POOR. 


Poor  Law,  § 139. 

tion,  serve,  or  cause  to  be  served,  a copy  of  tbe  resolution  upon  the  clerk 
of  each  town,  village  or  city  within  such  county,  and  upon  each  of  the 
superintendents  and  overseers  of  the  poor  therein.  Upon  filing  such 
determination  to  abolish  the  distinction  between  such  town  and  county 
poor,  duly  certified  by  the  clerk  of  the  board,  in  the  office  of  the  county 
clerk,  such  poor  of  the  county  shall  thereafter  be  maintained,  and  the 
expense  thereof  defrayed  by  the  county;  and  all  costs  and  charges  at- 
tending the  examinations,  conveyance,  support  and  necessary  expenses 
of  such  poor  persons  therein,  shall  be  a charge  upon  the  county.  Such 
charges  and  expenses  shall  be  reported  by  the  superintendent  of  the 
poor,  to  the  board  of  supervisors,  and  shall  be  assessed,  levied  and  col- 
lected the  same  as  other  county  charges.  [Poor  Law,  § 138,  as  amended 
by  L.  1916,  ch.  379;  B.  C.  & G.  Cons.  L.,  p.  4280.] 


§ 2.  OVERSEERS  TO  PAY  TOWN  POOR  MONEYS  TO  COUNTY 
TREASURER,  WITHIN  THREE  MONTHS  AFTER  NOTICE  OF 
ABOLITION  OF  DISTINCTION  BETWEEN  TOWN  AND 
COUNTY  POOR. 

Within  three  months  after  notice  shall  have  been  served  upon  the  over- 
seers of  the  poor,  that  the  distinction  between  town  and  county  poor  has 
been  abolished,  they  shall  pay  over  all  moneys  which  shall  remain  in  their 
hands  as  overseers  for  the  use  of  their  town,  after  discharging  all  demands 
against  them,  to  the  county  treasurer,  to  be  applied  by  him  toward  the 
future  taxes  of  such  town;  and  all  moneys  thereafter  received  by  them,  as 
such  overseers,  for  the  use  of  the  poor  of  their  town,  shall  be  paid  by  them 
to  the  county  treasurer  within  three  months  after  receiving  the  same,  and 
by  him  credited  to  the  town  whose  overseers  shall  have  paid  the  same.  It 
shall  be  the  duty  of  all  officers  or  persons  to  pay  to  the  county  treasurer 
all  moneys  which  shall  be  received  for,  or  owing  by  them  to  the  overseers 
of  the  poor  of  any  such  town,  for  the  use  of  the  poor  thereof,  pursuant  to 
any  law  or  obligation  requiring  the  same  to  be  paid  to  such  overseers,  and 


Supervisors,  103  N.  Y.  541.  But  they  have  no  authority  to  make  a distinction, 
in  part,  between  town  and  county  poor.  Rept.  of  Atty  Genl.  (1900)  276. 

Determination  of  supervisors  must  be  filed  to  effect  a change  of  system. 
Thompson  v.  Smith,  2 Den.  177. 

The  effect  of  abolishing  the  distinction  between  town  and  county  paupers  is 
to  deprive  the  town  of  the  right  of  reimbursement  from  the  county.  People  ex 
rel.  v.  Bd.  Sup’s  St.  Lawrence  Co.,  103  N.  Y.  541,  546;  Robbins  v.  Wolcott,  66 
Barb.  63,  68. 

Review.  The  acts  of  supervisors  in  distinguishing  between  town  and  county 
poor  are  legislative  and  not  judicial,  and  cannot  be  reviewed  by  certiorari. 
People  ex  rel.  Allen  v.  Supervisors  of  Westchester  Co.,  113  App.  Div.  773,  99  N.  Y. 
Supp.  348. 


TOWN  AND  COUNTY  POOR;  MISCELLANEOUS  PROVISIONS.  781 
Poor  Law,  §§  140,  57,  58. 

credited  by  such  county  treasurer  to  the  town  for  whose  use  such  moneys 
were  received  or  owing.  Any  overseer  or  other  person  having  received  or 
owing  such  moneys,  wiio  shall  neglect  or  refuse  to  pay  the  same  within 
thirty  days  after  demand  thereof,  shall  be  liable  to  an  action  therefor,  with 
interest  at  the  rate  of  ten  per  cent,  thereon,  by  such  county  treasurer,  in 
the  name  of  his  county.2  [Poor  Law,  § 139 ; B.  C.  & G.  Cons.  L.,  p.  4281.] 

§ 3.  TOWN  POOR  MONEY,  INVESTED,  TO  BE  UNDER  CONTROL  OF 
OVERSEER;  MAY  BE  APPLIED  TO  TOWN  EXPENSES  WHEN 
DISTINCTION  BETWEEN  TOWN  AND  COUNTY  POOR  IS 
ABOLISHED. 

When  any  town  shall  have  any  moneys  raised  for  the  support  of  the 
poor,  invested  in  the  name  of  the  overseers  of  the  poor  of  such  town,  such 
overseers  shall  continue  to  have  the  control  thereof,  and  shall  apply  the 
interest  arising  therefrom  to  the  support  of  the  poor  of  their  town,  so  long 
as  such  town  shall  be  liable  to  support  its  own  poor,  but  when  relieved  from 
such  liability  by  a vote  of  the  supervisors  of  the  county,  the  money  so  raised 
and  invested  shall  be  applied  to  the  payment  of  such  taxes  upon  the  town,  as 
the  inhabitants  thereof  shall  at  an  annual  town  meeting,  or  a special  town 
meeting  called  for  the  purpose,  determine.  [Poor  Law,  § 140;  B.  C.  & G. 
Cons.  L.,  4281.] 

§ 4.  POOR  PERSONS  OWNING  PROPERTY. 

If  it  shall  at  any  time  be  ascertained  that  any  person,  who  has  been 
assisted  by  or  received  support  from  any  town,  city  or  county,  has  real  or 
personal  property,  or  if  any  such  perosn  shall  die,  leaving  real  or  personal 
property,  an  action  may  be  maintained  in  any  court  of  competent  juris- 
diction, by  the  overseer  of  the  poor  of  the  town  or  city,  or  the  superintend- 
ent of  the  poor  of  any  county  which  has  furnished  or  provided  such  assistance 
or  support,  or  any  part  thereof,  against  such  person  or  his  or  her  estate, 
to  recover  such  sums  of  money  as  may  have  been  expended  by  their  town, 
city  or  county  in  the  assistance  and  support  of  such  person  during  the  period 
of  ten  years  next  preceding  such  discovery  or  death.  [Poor  Law,  § 57 ; B.  C. 
& G.  Cons.  L.,  p.  4257.] 

§ 4a.  BURIAL  OF  POOR  PERSONS;  EXPENSE,  HOW  PAID. 

It  shall  be  the  duty  of  the  superintendent  of  the  poor  or  every  county 
and  the  overseer  of  the  poor  of  every  town,  and  the  person  or  official  having 
in  charge  the  care  of  the  poor  of  every  city  or  village,  to  cause  the  remains  of 
each  deceased  poor  person  to  be  properly  buried.  The  expense  of  such  burial 
shall  be  a state,  county,  town,  city  or  village  charge,  as  the  case  may  be,  and 
the  money  therefor  shall  be  raised  as  other  charges  of  the  state,  county,  town, 
city  or  village  are  raised.  [Poor  Law,  § 58,  as  added  by  L.  1917,  ch.  512.] 


2.  In  counties  where  the  poor  are  a county  charge,  money  expended  for  the  tempo- 
rary or  permanent  relief  of  the  poor  belongs  to  the  cunty,  and  a town  cannot  main- 
tain an  action  against  a person  alleged  to  have  fraduulently  received  such  money. 
Robbins,  v.  Wolcott,  66  Barb.  63;  People  v.  Harris,  16  How.  Pr.  256,  260. 


7 82 


RELIEF  OF  POOR. 


General  Municipal  Law,  § 87;  Poor  Law,  § 146. 

§ 5.  MONEY  RAISED  BY  TOWNS  AND  COUNTIES  FOR  THE  CARE 
AND  SUPPORT  OF  INMATES  OF  CHARITABLE  INSTITU- 
TIONS. 

Boards  of  estimate  and  apportionment,  common  councils,  boards  of  aider- 
men,  boards  of  supervisors,  town  boards,  boards  of  trustees  of  villages  and 
all  other  boards  or  officers  of  counties,  cities,  towns  and  villages,  authorized 
to  appropriate  and  to  raise  money  by  taxation  and  to  make  payments  there- 
from, are  hereby  authorized,  in  their  discretion,  to  appropriate  and  to 
raise  money  by  taxation  and  to  make  payments  from  said  moneys,  and  from 
any  moneys  received  from  any  other  source  and  properly  applicable 
thereto,  to  charitable,  eleemosynary,  correctional  and  reformatory  institu- 
tion wholly  or  partly  under  private  control,  for  the  care,  support  and 
maintenance  of  their  inmates,  of  the  moneys  which  are  or  may  be  appropri- 
ated therefor;  such  payments  to  be  made  only  for  such  inmates  as  are 
received  and  retained  therein  pursuant  to  rules  established  by  the  state 
boards  of  charities;  except  that  boards  of  trustees  of  villages  and  town 
boards  of  towns  in  which  there  is  no  hospital  located,  and  which  are  situ- 
ated upon  and  adjoin  the  boundary  line  of  a neighboring  state,  are  hereby 
authorized,  in  their  discretion,  to  appropriate  and  to  raise  money  by  taxa- 
tion and  to  make  payments  from  said  moneys,  and  from  any  moneys 
received  from  any  other  source  and  properly  applicable  thereto,  to  hospitals 
in  such  adjoining  state  for  the  purpose  of  maintaining  a bed  or  beds  in 
such  hospital  for  the  benefit  of  and  to  be  used  exclusively  by  the  inhabitants 
of  such  village  or  town.  Boards  of  trustees  of  villages  and  town  boards 
of  towns  situate  upon  the  boundary  line  of  a neighboring  state,  which 
have  appropriated  and  raised  money  by  taxation  for  the  purpose  of  main- 
taining a bed  or  beds  in  a hospital  in  such  adjoining  state  and  have  not 
paid  the  same,  are  hereby  authorized  to  use  said  money  for  the  purpose 
for  which  it  was  appropriated  and  raised.  Payments  to  such  hospital  in 
an  adjoining  state  shall  be  made  only  for  such  inmates  as  are  received  and 
retained  therein  pursuant  to  rules  established  by  the  state  board  of 
charities.  [General  Municipal  Law,  § 87;  B.  C.  & G.  Cons.  L.,  p.  2138.] 


§ 6.  REPORTS  WITH  RELATION  TO  CHILDREN  PLACED  IN  FAM- 
ILY HOMES. 

The  superintendents  of  the  poor  of  counties,  the  overseers  of  the  poor  of 
cities  and  towns,  and  all  other  public  officers  by  whatsoever  name  or  title 
known  who  are  authorized  by  law  to  place  out  dependent  children  in  family 
homes  by  adoption,  indenture  or  otherwise,  are  hereby  required  to  report  to 
the  state  board  of  charities  on  blanks  provided  by  such  board,  the  partic- 
ulars with  relation  to  each  child  so  placed  out.  Such  report  shall  state  the 


TOWN  AND  COUNTY  POOR; MISCELLANEOUS  PROVISIONS. 


783 


State  Charities  Law,  §§  450,  451. 

name,  age  and  sex  of  the  child  so  placed  out,  together  with  the  father’s  full 
name  and  residence,  the  mother’s  full  name  and  residence,  and  the  religi 
ous  faith  of  the  parents.  The  report  shall  also  state  the  full  names  and 
residences  of  the  heads  of  the  family  with  whom  such  child  is  placed,  their 
relationship  to  the  child,  if  any,  the  religious  faith  of  the  heads  of  such 
family,  and  their  occupation  or  occupations,  together  with  such  further 
information  as  the  state  board  of  charities  may  require  on  the  blanks  pro- 
vided. Such  reports  for  the  preceding  months  shall  be  filed  with  the  state 
board  of  charities  on  or  before  the  tenth  day  of  each  month.  [Poor  Law, 
§ 146;  B.  C.  & G.  Cons.  L.,  p.  4283.] 


§ 7.  REPORTS  TO  CLERK  OF  BOARD  OF  SUPERVISORS  OF  AP- 
POINTMENTS AND  COMMITALS  TO  CHARITABLE  INSTI- 
TUTIONS. 

Every  judge,  justice,  superintendent  or  overseer  of  the  poor,  supervisor 
or  other  person  who  is  authorized  by  law  to  make  appointments  or  com- 
mitments to  any  state  charitable  institution,  in  which  the  board,  instruc- 
tion, care  or  clothing  is  a charge  against  any  county,  town  or  city,  shall 
make  a written  report  to  the  clerk  of  the  board  of  supervisors  of  the  county, 
or  of  the  county  in  which  any  town  is  situated,  or  to  the  city  clerk  of 
any  city,  which  is  liable  for  any  such  board,  instruction,  care  or  clothing, 
within  ten  days  after  such  appointment  or  commitment,  and  shall  therein 
state,  when  known,  the  nationality,  age,  sex  and  residence  of  each  person 
so  appointed  or  committed  and  the  length  of  time  of  such  appointment  or 
commitment.  This  and  the  two  following  sections  shall  apply  to  each  of 
the  asylums,  reformatories,  homes,  retreats,  penitentiaries,  jails  or  other 
institutions,  except  alms-houses,  in  each  of  the  counties  of  this  state, 
except  the  county  of  Kings,  in  which  the  board,  instruction,  care  or 
clothing  of  persons  committed  thereto  is,  or  shall  be,  a charge  against 
any  county  or  town  therein.  [State  Charities  Law,  § 450.  as  amended 
by  L.  1909,  ch.  258;  B.  C.  & G.  Cons.  L..  p.  5481.] 

§ 8.  REPORTS  BY  OFFICERS  OF  CERTAIN  INSTITUTIONS  TO 
CLERKS  OF  SUPERVISORS  AND  CITIES. 

The  keeper,  superintendent,  secretary,  director  or  other  proper  officer  of  a 
state  charitable  institution  to  which  any  person  is  committed  or  appointed, 
whose  board,  care,  instruction,  tuition  or  clothing  shall  be  chargeable  to 
any  city,  town  or  county,  shall  make  a written  report  to  the  clerk  of  such 
city  or  to  the  clerk  of  the  board  of  supervisors  of  the  county,  or  of  the 
county  in  which  such  town  is  situated,  within  ten  days  after  receiving 
such  person  therein.  Such  report  shall  state  when  such  person  was 
received  into  the  institution,  and,  when  known,  the  name,  age,  sex,  nation- 


784 


RELIEF  OF  POOR. 


State  Charities  Law,  §§  452,  17. 

ality,  residence,  length  of  time  of  commitment  or  appointment,  the  name 
of  the  officer  making  the  same,  and  the  sum  chargeable  per  week,  month 
or  year  for  such  person.  If  any  person  so  appointed  or  committed  to  any 
such  institution  shall  die,  be  removed  or  discharged,  such  officers  shall, 
immediately  report  to  the  clerk  of  the  board  of  supervisors  of  the  county, 
or  of  the  county  in  which  such  town  is  situated,  or  to  the  city  clerk  of  the 
city  from  which  such  person  was  committed  or  appointed,  the  date  of  such 
death,  removal  or  discharge.  [State  Charities  Law,  § 451,  as  amended 
by  L.  1909,  ch.  258 ; B.  C.  & G.  Cons.  L.,  p.  5481.] 


§ 9.  VERIFIED  ACCOUNTS  AGAINST  COUNTIES,  CITIES  AND 
TOWNS. 

The  officers  mentioned  in  the  last  section  shall  annually,  on  or  before 
fhe  fifteenth  day  of  October,  present  to  the  clerk  of  the  board  of  super- 
visors of  the  county,  or  of  the  county  in  which  such  town  is  situated,  or 
to  the  city  clerk  of  a city  from  which  any  such  person  is  committed  or 
appointed,  a verified  report  and  statement  of  the  account  of  such  institu- 
tion with  such  county,  town  or  city,  up  to  the  first  day  of  October,  and 
in  case  of  a claim  for  clothing,  an  itemized  statement  of  the  same ; and  if  a 
part  of  the  board,  care,  tuition  or  clothing  has  been  paid  by  any  person 
or  persons,  the  account  shall  show  what  sum  has  been  so  paid;  and  the 
report  shall  show  the  name,  age,  sex,  nationality  and  residence  of  each 
person  mentioned  in  the  account,  the  name  of  the  officer  who  made  the 
appointment  or  commitment,  and  the  date  and  length  of  the  same,  and  the 
time  to  which  the  account  has  been  paid,  and  the  amount  claimed  to  such 
first  day  of  October,  the  sum  per  week  or  per  annum  charged,  and  if  no 
part  of  such  account  has  been  paid,  the  report  shall  show  such  fact.  Any 
officer  who  shall  refuse  or  neglect  to  make  such  report  shall  not  be  entitled 
to  receive  any  compensation  or  pay  for  any  services,  salary  or  otherwise, 
from  any  town,  city  or  county  affected  thereby.  The  clerk  of  the  board  of 
supervisors  who  shall  receive  any  such  report  or  account  shall  file  and 
present  the  same  to  the  board  of  supervisors  of  his  county  on  the  second 
day  of  the  annual  meeting  of  the  board  next  after  the  receipt  of  the  same. 
[State  Charities  Law,  § 452,  as  amended  by  L.  1909,  ch.  258;  B.  C.  & 
G.  Cons.  L.,  p.  5482.] 


§ 10.  PAUPER,  WHEN  NOT  ADMITTED  TO  ASYLUM. 

A poor  person  shall  not  be  admitted  as  an  inmate  into  a state  institu- 
tion for  the  feeble-minded,  or  epileptics,  unless  a resident  of  the  state  for 
one  year  next  preceding  the  application  for  his  admission.  [State  Charities 
Law,  § 17,  first  sentence;  B.  C.  & G.  Cons.  L.,  p.  5383.] 


TOWN  AND  COUNTY  POOR; MISCELLANEOUS  PROVISIONS.  735 


State  Charities  Law,  § 387. 

§ 11.  COMMITMENT  TO  THE  “SHELTER  FOR  UNPROTECTED 
GIRLS  ’’  AT  SYRACUSE;  BOARDS  OF  SUPERVISORS  TO  PAY 
EXPENSES  OF  INMATES. 

Each  board  of  supervisors  of  the  several  counties  within  the  fifth,  sixth, 
seventh  and  eighth  judical  districts  of  this  state  is  hereby  authorized  and 
directed  to  audit  the  bills  for  boarding  any  inmate  of  said  institution 
[The  Shelter  for  Unprotected  Girls  at  Syracuse]  received  therein  from  the 
county  of  such  board  by  virtue  of  any  of  the  provisions  of  section  three 
hundred  and  eighty-one,  at  such  prices  as  such  board  of  supervisors  may 
deem  just  and  reasonable,  and  the  bills  so  audited  shall  be  paid  by  the 
■county  treasurer  of  such  county.  When  any  such  bill  is  so  audited  and  paid, 
it  shall  be  apportioned  by  said  board  among  the  various  cities  and  towns  in 
such  county  as  said  board  shall  deem  equitable,  and  the  amount  so  appor- 
tioned to  any  city  or  town  shall  be  reimbursed  by  such  city  or  town  to 
such  county.  [-State  Charities  Law,  § 387,  as  amended  by  L.  1909,  eh. 
258 ; B.  C.  & G.  Cons.  L.,  p.  5473.] 


PART  VIII. 

HIGHWAYS  AND  BRIDGES. 


CHAPTER  LV. 

DEFINITIONS  AND  CLASSIFICATION. 

EXPLANATORY  NOTE. 

Changes  Made  by  Present  Highway  Law  ; Historical  Statement. 

The  Highway  Law  of  1909  (L.  1909,  ch.  30),  as  contained  in  this 
part  of  the  manna!  is  identical  with  the  new  Highway  Law  of  1908  (L. 
1 908,  ch.  330)  ; the  sections  thereof  are  identical  with  the  sections  of  the 
law  of  1908. 

The  first  general  law  on  the  subject  of  highways  and  bridges  was 
passed  in  1797  (ch.  43)  which  regulated  highways  in  all  the  counties 
of  the  state  except  those  of  New  York,  Suffolk,  Queens  and  Kings. 
The  laws  upon  this  subject  were  again  revised  and  re-enacted  by  L. 
1801,  ch  186,  and  were  subsequently  included  in  the  Revised  Laws  of 
1813,  ch.  33,  and  in  the  Revised  Statutes  of  1828,  tit.  1,  ch.  16,  pt.  1. 

Prior  to  1873  all  work  upon  the  highways  of  the  state  outside  of 
cities  and  villages  was  performed  by  the  owners  of  property  lying  in  the 
respective  districts  or  wards,  the  number  of  days’  labor  to  be  performed 
by  each  being  assessed  against  him  in  proportion  to  the  value  of  his 
property.  This  system  became  known  as  the  labor  system.  In  1873, 
by  ch.  395,  the  several  towns  were  given  the  option  of  changing  to  a 
money  system,  by  which  an  annual  tax  wras  levied  instead  of  an  assess- 
ment for  labor,  and  the  money  so  raised  was  to  be  expended  in  procuring 
work  to  be  done  bv  contract  or  days’  labor.  The  provisions  of  this 
act  were  carried  over  into  the  Highway  Law  of  1890.  (Rept.  of  Board 
of  Statutory  Consolidation,  p.  2570.) 

786 


DEFINITIONS  AND  CLASSIFICATION. 


787 


Explanatory  note. 

Highway  Law  of  1908. 

The  Highway  Law  of  1908  was  submitted  to  the  legislature  in  that 
year  by  the  Joint  Legislative  Committee  on  Highways.  This  revision 
was  much  more  than  a consolidation  or  codification  of  existing  general 
laws  relating  to  highways  and  bridges.  As  stated  in  the  preface  to  the 
Highway  Code  of  the  State  of  Hew  York  “ But  it  does  more  than 
revise  and  codify  existing  laws ; it  originates  new  methods  of  state  and 
county  administration  of  highway  affairs ; it  logically  and  effectively 
unites  centralization  with  local  control  and  responsibility,  on  the  one 
hand,  by  creating  a state  commission  with  full  power  to  aid,  supervise 
and  direct  the  local  officer  in  administering  highway  affairs  in  his  lo- 
cality, and  on  the  other,  by  preserving  to  the  local  officer  all  his  power  and 
responsibility  in  respect  to  local  conditions  and  the  expenditure  of  town 
and  county  funds ; it  outlines  a comprehensive  system  of  trunk  highways 
and  provides  for  their  construction  at  the  sole  expense  of  the  state;  it 
abolishes  the  time-worn  and  ineffective  labor  system  of  taxation  for  the 
maintenance  of  town  highways  and  substitutes  therefor  a money  tax  to 
be  levied  by  the  board  of  supervisors  upon  estimates  duly  submitted  by 
the  town  superintendent  of  highways  and  revised  by  the  town  board, 
subject  to  reasonable  limitations  as  to  amounts  which  may  be  raised 
without  a vote  of  a town  meeting;  it  provides  for  the  proper  audit  of 
town  expenditures  for  highways  and  bridges  and  the  systematic  and 
uniform  accounting  for  receipts  and  expenditures  by  highway  officers, 
under  the  supervision  of  and  in  the  form  prescribed  by  the  state  com- 
mission of  highways ; it  has  more  fully  protected  the  interests  of  county 
and  town  in  the  construction  of  county  highways  and  has  provided  more 
effectual  safeguards  in  the  award  of  contracts  for  the  construction  of 
state  and  county  highways.”  As  above  indicated  the  Highway  Law  of 
1908  was  re-enacted  as  ch.  45  of  the  Consolidated  Laws  without  change 
in  arrangement  or  substance  except  that  the  Motor  Vehicle  Law  is  made 
a part  thereof  and  is  now  found  in  art.  11. 


Section  1.  Short  title. 

2.  Definitions. 

3.  Classification  of  highways. 


788 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  1,  2. 


§ 1.  SHORT  TITLE. 

This  chapter  shall  be  known  as  the  “ Highway  Law.”  1 [Highway 
Law,  § 1 ; B.  C.  & G.  Cons.  L.,  p.  2167.] 

§ 2.  DEFINITIONS. 

1.  The  term  “ department,”  when  used  in  this  chapter,  shall  mean  the 
department  of  highways  as  constituted  herein. 

2.  The  terms  “ commission,”  “ highway  commission,”  and  “ state 
highway  commission,”  when  so  used,  shall  each  mean  the  state  commis- 
sion of  highways.  The  term  “ state  superintendent  of  highways,”  when 
so  used,  shall  mean  the  commissioner  of  highways,  and  reference  to  pow- 
ers and  duties  of  the  state  superintendent  of  highways  to  be  exercised 
subject  to  the  commission  shall  mean  the  exercise  of  such  powers  and 
duties  by  the  commissioner  of  highways  without  the  concurrence  of  any 
other  commission  or  officer. 

3.  The  term  “ district  superintendent  ” or  “ county  superintendent,” 
when  so  used,  shall  mean  the  district  superintendent  of  highways  or 
county  superintendent  of  highways  respectively. 

4.  The  term  “ town  superintendent,”  when  so  used,  shall  mean  the 
town  superintendent  of  highways. 

5.  A highway  within  the  provisions  of  this  chapter  shall  be  deemed  to 
include  necessary  culverts,  sluices,  drains,  ditches,  waterways,  embank- 
ments, retaining  walls  and  all  bridges  having  a span  of  five  feet  or  less.2 
[Highway  Law,  § 2,  as  amended  by  L.  1911,  ch.  646,  L.  1912,  ch.  83, 
L.  1913,  ch.  80;  B.  C.  & G.  Cons.  L.,  p.  2168.] 

2.  Use  of  definitions.  The  purpose  of  defining  the  terms  enumerated  in 
this  section  is  to  state  the  meaning  of  such  terms  when  used  in  the  Highway 
Law.  Wherever  any  of  these  terms  are  so  used  reference  should  be  made  to 
this  section  to  determine  their  meaning.  It  will  be  noticed  that  county  engineers 
and  county  superintendents  are  hereafter  to  be  known  as  district  superin- 
tendents or  county  superintendents,  and  that  the  commissioners  of  highways 
under  the  former  law  are  hereafter  to  he  known  as  town  superintendents. 

Definition  of  highway.  The  term  highway  is  defined  herein  for  the  pur- 
pose of  determining  what  such  term  includes  when  used  in  this  chapter.  It  is 
not  intended  as  exclusive  of  the  original  common  law  definition  of  a highway. 
The  main  object  was  to  authorize  the  construction  and  repair  of  “ culverts, 
sluices,  drains,  bridges,  waterways,  embankments,  retaining  walls  and  all 
bridges  having  a span  of  five  feet  or  less  ” as  a part  of  the  highway. 

At  common  law  a highway  is  defined  as  a way  over  which  the  public  at 
large  have  a right  of  passage  whether  it  be  a carriageway,  a horseway  or 
footway,  or  a navigable  river.  3 Kent’s  Commentaries,  432.  Any  way  which 
is  common  to  all  people  without  distinction  is  a highway.  People  v.  Kingman, 
24  N.  Y.  559. 

Streets  as  highways.  The  term  “ highway  ” as  generally  used  includes  the 
streets  of  a city  or  village..  Adams  v.  S.  & W.  R.  R.  Co.,  11  Barb.  414,  449, 
Benedict  v.  Goit,  3 Barb.  459;  Brace  v.  N.  Y.  Central  R.  R.  Co.,  27  N.  Y. 
271.  But  term  “ highway  ” in  its  ordinary  and  popular  sense,  refers  to  the 
country  roads  under  the  management  and  control  of  the  local  authorities  of 
the  several  towns  or  counties  of  the  state.  In  re  Woolsey,  95  N.  Y.  135;  In 
re  Burns,  155  N.  Y.  23. 


DEFINITIONS  AND  CLASSIFICATION. 


789 


Highway  Law,  § 3. 

§ 3.  CLASSIFICATION  OF  HIGHWAYS. 

Highways  are  hereby  divided  into  four  classes : 3 

1.  State  highways  are  those  constructed  or  improved  under  this  chap- 
ter at  the  sole  expense  of  the  state,  including  those  highways  specified 
and  described  in  section  one  hundred  and  twenty  of  the  highway  law 
and  acts  amendatory  thereof. 

2.  County  highways  are  those  heretofore  or  hereafter  constructed  or 
improved  at  the  joint  expense  of  state,  county  and  town,  or  state  and 
town,  as  provided  by  law,  except  those  highways  specified  and  described 
in  section  one  hundred  and  twenty  of  this  chapter. 

3.  County  roads  are  those  designated  as  such  under  a general  or 
special  law  and  constructed,  improved,  maintained  and  repaired  by  the 


Sidewalks.  A sidewalk  is  as  much  a part  of  the  highway  as  the  traveled 
wagon  road  is.  People  v.  Meyer,  26  Misc.  117,  56  N.  Y.  Supp.  1097,  1099. 

Bridges.  A highway  includes  all  bridges  necessary  for  the  proper  use  of 
such  highway  by  the  traveling  public.  Bridges  are  ordinarily  treated  as  por- 
tions of  the  highways  which  cross  them,  and  are  to  be  maintained  by  the  same 
authorities  to  whom  the  duty  of  repairing  the  highway  is  committed.  Washer 
v.  Bullitt  County,  110  U.  S.  558,  568,  4 Sup.  Ct.  249,  28  L.  Ed.  249;  Dodge  County 
Commr’s  v.  Chandler,  96  U.  S.  205,  208,  24  L.  Ed.  625. 

A bridge  having  a span  of  more  than  five  feet  is  not  a part  of  a highway  so  as  to 
authorize  the  state  highway  commission  to  construct  it  as  a part  of  a state  highway. 
Paddleford  v.  State  (1918),  103  Misc.  398. 

Cul-de-sac.  A way  which  is  open  at  one  end  only  is  a cul-de-sac.  Although  every 
public  thoroughfare  is  a highway,  it  is  not  essential  that  every  highway  should  be 
a thoroughfare,  as  it  is  now  well  settled  that  a cul-de-sac  may  be  a highway.  Elliot 
on  Roads  & Streets,  § 2.  In  the  case  of  Holdane  v.  Cold  Spring  Trustees,  23  Barb. 
103,  two  of  the  three  judges  held  that  a cul-de-sac  could  not  be  a highway.  They 
based  their  decisions  upon  what  they  supposed  to  be  the  common  law.  In  the  case 
of  People  v.  Kingman,  24  N.  Y.  559,  the  court  of  appeals  disapproved  the  decision  in 
Holdane  v.  Cold  Spring  Trustees,  23  Barb.  103,  and  held  that  upon  principle  as  well 
as  authority  it  is  no  objection  to  the  highway  that  it  is  a cul-de-sac;  that  public 
ways  with  outlet  at  one  end  may,  and  even  do,  exist.  See  also  People  v.  Van  Al- 
styne,  3 Keyes,  35,  37 ; Saunders  v.  Townsend,  26  Hun,  308,  309. 

Private  roads.  A way  opened  opened  by  the  owners  of  private  lands  for  the  accom- 
modation of  the  lands  through  and  to  wnich  it  leads,  although  laid  out  as  a public 
road,  must  be  deemed  a private  way,  even  if  the  public  are  permitted  to  travel  over 
it,  unless  it  be  shown  to  have  been  dedicated  to,  and  accepted  and  adopted  by  the 
public  as  a public  highway.  Palmer  v.  Palmer,  150  N.  Y.  139,  44  N.  E.  966. 

A private  approach  from  a highway,  which  approach  has  a span  of  less  than  five 
feet  is  to  be  deemed  a part  of  the  highway.  Ferguson  v.  Town  of  Lewisboro  (1914), 
213  N.  Y.  141,  107  N.  E.  53. 

3.  The  present  Highway  Law,  by  providing  for  the  construction  of  State  highways 
at  the  sole  expense  of  the  State,  creates  a class  of  highways  not  contained  in  the 
former  law.  The  county  highways  are  the  same  as  those  formerly  constructed  under 
the  so-called  Higbie-Armstrong  Act  (1898,  ch.  115,  and  the  acts  amendatory 
thereof)  at  the  joint  expense  of  State,  county  and  town.  After  the  determination 
of  the  highways  to  be  constructed  as  State  and  county  highways,  all  other  highways 
outside  of  incorporated  villages  constituting  separate  road  districts  are  to  be  known 
as  town  highways,  subject  to  the  control  of  towns,  as  provided  in  the  Highway  Law. 


790 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 3. 

county  as  such  in  counties  in  which  the  county  road  system  has  been  or 
may  be  adopted. 

4.  Town  highways  are  those  constructed,  improved  or  maintained  by 
the  town  with  the  aid  of  the  state,  under  the  provisions  of  this  chapter, 
including  all  highways  in  towns,  outside  of  incorporated  villages  consti- 
tuting separate  road  districts,  which  do  not  belong  to  either  of  the  three 
preceding  classes.  [Highway  Law,  § 3,  as  amended  by  L.  1910,  ch.  567, 
L.  1912,  ch.  83,  and  L.  1916,  ch.  578.] 


DEPARTMENT  OF  HIGHWAYS. 


m 


Explanatory  note. 


CHAPTER  LVl. 

DEPARTMENT  OF  HIGHWAYS. 

EXPLANATORY  NOTE. 

State  Department  of  Highways. 

The  Highway  Law  of  1908  transferred  to  the  State  Commission  of 
Highways,  the  powers  and  duties  formerly  possessed  and  exercised  by 
the  State  Engineer.  These  powers  and  duties  were  extended  by  provid- 
ing for  more  effective  supervision  of  highways  built  and  maintained  by 
the  towns  and  counties  with  the  aid  of  state  money,  and  the  exclusive  con- 
trol of  highways  built  entirely  by  the  state.  The  State  Commission,  as 
constituted  by  ch.  80  of  L.  1913,  now  consists  of  a single  commissioner, 
known  as  the  Commissioner  of  Highways.  He  possesses  all  the  powers 
and  performs  the  duties  of  the  State  Commission  of  Highways.  This 
chapter  treats  of  the  membership  and  officers  and  employees  of  this  com- 
mission, and  their  general  powers  and  duties. 

Powers  in  Respect  to  Town  and  County  Highways. 

The  commission  has  the  general  supervision  of  all  highways  and 
bridges  constructed  or  maintained  in  whole  or  in  part  by  the  aid  of  state 
moneys.  Since  all  towns  receive  state  moneys  to  aid  in  caring  for  their 
highways,  it  follows  that  the  commission  may  control  the  several  town 
officers  in  the  performance  of  their  duties  in  respect  to  such  highways. 
The  commission  prescribes  rules  and  regulations  governing  the  per- 
formance of  official  duties  by  such  officers,  and  provides  for  the  enforce- 
ment thereof.  The  commission  and  its  officers  must  aid  town  and 
county  superintendents  in  the  performance  of  their  duties,  and  advise 
with  them  as  to  the  construction  and  maintenance  of  highways  and 
bridges.  All  of  these  powers  tend  to  make  the  commission  a controlling 
factor  in  the  administration  of  highway  laws.  All  town  and  county 
officers  having  duties  to  perform  with  respect  to  the  highways  and 
bridges  must  be  guided  by  the  judgment  of  the  commission.  The 
effect  of  this  summary  power  vested  in  the  commission  is  to  harmonize 


792 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  10,  11. 

highway  administration,  and  establish  a uniform  state  system  of  high- 
ways. 


[Highway  Law,  art.  II.] 

Section  I.  Department  of  highways  established. 

2.  State  commission  of  highways;  deputies,  secretary  and  other  clerks, 

officers  and  employees. 

3.  Oath  of  office;  undertakings. 

4.  Principal  office;  official  seal;  stationery. 

5.  Salaries  and  expenses. 

5a.  Deputy  commissioners,  secretary  and  chief  auditor  of  the  department. 

6.  General  powers  and  duties  of  the  commission. 

7.  Division  of  state;  division  engineers. 

8.  Duties  of  division  engineers. 

t8a.  Appointment  of  officers,  clerks  and  employees. 

9.  Blank  forms  and  town  accounts. 

10.  Examination  of  accounts  and  records. 

11.  Condemnation  of  bridges. 

12.  Estimate  of  cost  of  maintenance  of  state  and  county  highways. 

13.  Rules  and  regulations  for  state  and  county  highways. 

14.  Patented  material  or  articles. 


§ 1.  DEPARTMENT  OF  HIGHWAYS  ESTABLISHED. 

There  is  hereby  established  a department,  to  be  known  as  a department 
of  highways,  which  shall  be  constituted  as  provided  in  this  chapter,  and 
shall  have  the  powers  and  perform  the  duties  hereinafter  prescribed. 
[ Highway  Law,  § 10;  B.  C.  & Gf.  Cons.  L.,  p.  2171.] 

§ 2.  STATE  COMMISSION  OF  HIGHWAYS;  COMMISSIONER  OF  HIGH- 
WAYS. 

The  state  commission  of  highways  is  continued.  Such  commission 
shall  consist  of  a single  commissioner,  to  be  known  as  the  commissioner 
of  highways,  who  shall  be  the  head  of  the  department  of  highways.  Such 
commissioner  shall  be  appointed  by  the  governor  by  and  with  the  ad- 
vice and  consent  of  the  senate  for  a term  of  five  years.  He  shall  devote 
all  of  his  time  to  the  duties  of  his  office.  The  governor  may  remove  such 
commissioner  for  inefficiency,  neglect  of  duty  or  misconduct  in  office.  A 
copy  of  the  charges  against  him  shall  be  served  upon  such  superintendent 
and  he  shal]  have  an  opportunity  of  being  publicly  heard  in  person  or 
by  counsel  in  his  own  defense  upon  not  less  than  a ten  days’  notice.  If 


DEPARTMENT  OF  HIGHWAYS.  793 

Highway  Law,  §§  12,  13,  18. 

such  commissioner  shall  be  removed,  the  governor  shall  file  in  the  office 
of  the  secretary  of  state  a complete  statement  of  all  charges  made  against 
such  commissioner  and  his  findings  thereon,  together  with  a complete 
record  of  the  proceedings.  The  commissioner  of  highways  shall  receive 
an  annual  salary  to  be  fixed  by  the  governor  of  not  exceeding  ten  thou- 
sand dollars.  Wherever  by  the  terms  of  this  chapter  or  other  statute, 
action  by  the  commission  is  required  to  be  taken  by  resolution  or  in  any 
manner  by  the  concurrence  of  the  members  of*  a majority,  such  action 
shall,  when  the  commission  consists  of  a single  commissioner,  be  taken 
by  a formal  order  of  such  commissioner  entered  in  the  records  of  the  de- 
partment of  highways.  [Highway  Law,  § 11,  as  amended  by  L.  1911, 
ch.  646,  and  L.  1913,  ch.  80;  B.  C.  & G.  Cons.  L.,  p.  2171.] 

§ 3.  OATH  OF  OFFICE;  UNDERTAKING. 

The  commissioner  of  highways  shall,  before  entering  upon  the  duties 
of  his  office,  take  and  subscribe  the  constitutional  oath  of  office  and  exe- 
cute an  undertaking  in  the  sum  of  twenty-five  thousand  dollars,  to  be 
approved  by  and  filed  with  the  comptroller  and  renewed  as  often  as  the 
governor  may  require.  Such  undertaking  shall  be  to  the  effect  that  he 
will  faithfully  discharge  the  duties  of  his  office  and  promptly  account  for 
and  pay  over  all  moneys  or  property  received  by  him  as  such  commis- 
sioner of  highways  in  accordance  with  law,  or  in  default  thereof  that  the 
parties  executing  such  undertaking  will  pay  all  damages,  costs  and  ex- 
penses resulting  from  such  default.  [Highway  Law,  § 12,  as  amended 
by  L.  1911,  ch.  646,  and  L.  1913,  ch.  80 ; B.  C.  & G.  Cons.  L.,  p.  2172.] 

§ 4.  PRINCIPAL  OFFICE;  OFFICIAL  SEAL;  STATIONERY. 

The  principal  office  of  the  department  shall  be  in  the  city  of  Albany 
in  rooms  provided  by  the  trustees  of  public  buildings.  The  department 
shall  have  an  official  seal,  to  be  prepared  by  the  secretary  of  state,  as 
provided  by  law.  The  offices  of  the  department  shall  be  supplied  with 
necessary  postage,  stationery  and  office  furniture  and  appliances,  to  be 
paid  for  out  of  moneys  appropriated  therefor,  and  it  shall  have  prepared 
for  it  by  the  state,  such  books  and  blanks  as  are  required  for  carrying  on 
the  business  of  the  department.  [Highway  Law,  § 13 ; B.  C.  & G.  Cons. 
L.,  p.  2173.] 

§ 5.  SALARIES  AND  EXPENSES. 

All  engineers,  superintendents,  clerks,  officers  and  other  employees  of 
the  department  shall  receive  the  compensation  fixed  by  the  commissioner 


*So  in  original. 


HIGHWAYS  AND  BRIDGES. 


794 


Highway  Law,  § 14. 

of  highways  except  as  otherwise  defined  and  established  in  this  chapter. 
In  the  discharge  of  their  official  duties  the  commissioner  of  highways, 
deputies,  secretary,  engineers,  and  the  clerks,  officers  and  other  employees 
of  the  department  shall  have  reimbursed  to  them  their  necessary  travel- 
ing expenses  and  disbursements.  Such  salaries  and  expenses  shall  be 
paid  by  the  state  treasurer  upon  the  warrant  of  the  comptroller,  out  of 
moneys  appropriated  therefor  in  the  same  manner  as  the  salaries  and 
expenses  of  other  officers,  clerks  and  employees  are  paid.  [Highway 
Law,  § 18,  as  amended  by  L.  1911,  ch.  616,  and  renumbered  and 
amended  by  L.  1913,  ch.  80 ; B.  C.  & G.  Cons.  L.,  p.  2173.] 

§ 5a,  DEPUTY  COMMISSIONERS,  SECRETARY  AND  CHIEF  AUDITOR  OF 
THE  DEPARTMENT. 

The  commissioner  of  highways  shall  appoint  a secretary  and  chief 
auditor  of  the  department  and  three  deputy  commissioners.  Each  of  the 
deputy  commissioners  shall  have  had  practical  experience  in  actual  build- 
ing, construction  and  maintenance- of  highways  and  be  familiar  with  the 
operation  and  effect  of  state  statutes  relating  to  highways  and  bridges. 
One  of  such  deputies  shall  be  a practical  civil  engineer,  to  be  known  as 
the  first  deputy,  and  his  duties  shall  relate  to  the  plans,  specifications  and 
execution  of  all  contracts  pertaining  to  state  and  county  highways ; one 
of  such  deputies  shall  be  known  as  the  second  deputy,  and  his  duties 
shall  relate  to  the  maintenance  of  state  and  county  highways ; one  of  such 
deputies  shall  be  known  as  the  third  deputy  and  his  duties  shall  relate 
to  the  repair,  improvement  and  maintenance  of  town  highways  and 
bridges,  and  county  roads  and  roads  and  bridges  on  the  Indian  reserva- 
tions. The  first  deputy  shall  receive  an  annual  salary  of  six  thousand 
dollars.  The  second  and  third  deputies  and  the  secretary  shall  each 
receive  an  annual  salary  of  five  thousand  dollars.  The  chief  auditor 
shall  receive  an  annual  salary  of  five  thousand  dollars.  Each  deputy,  the 
secretary  and  the  chief  auditor  shall  before  entering  upon  the  duties  of 
his  office  each  take  and  subscribe  the  constitutional  oath  of  office.  Each 
deputy,  the  secretary  and  the  chief  auditor  shall  each  execute  an  under- 
taking in  the  sum  of  five  thousand  dollars,  to  be  approved  by  and  filed 
with  the  comptroller  and  renewed  as  often  as  the  commissioner  of  high- 
ways may  require.  The  commissioner  of  highways,  bv  order  filed  in  the 
office  of  the  department,  may  at  any  time  designate  a deputy  to  sign  on 
behalf  of  the  commission  such  papers  and  documents  as  are  specified  in 
such  order.  The  chief  auditor  shall  determine  the  authorization  for  and 
the  accuracy  of  every  expenditure  of  state  funds  for  highway  purposes 
and  his  report  thereon,  after  approval  by  the  commissioner  of  highways, 


DEPARTMENT  OF  HIGHWAYS. 


795 


Highway  Law,  § 15. 

shall  be  transmitted  to  the  comptroller  for  final  audit.  Each  deputy,  the 
secretary  and  the  chief  auditor  shall  have  such  other  and  further  duties 
as  the  commissioner  of  highways  may  determine,  and  shall  each  be  sub- 
ject to  his  direction  and  control  and  may  be  removed  by  him.  [Highway 
Law,  § 14,  as  added  by  L.  1913,  ch.  80.] 


§ 6.  GENERAL  POWERS  AND  DUTIES  OF  THE  COMMISSIONER  OF  HIGH* 
WAYS. 

The  commissioner  of  highways  shall 1 

1.  Have  general  supervision  of  all  highways  and  bridges  which  are 
constructed  improved  or  maintained  in  whole  or  in  part  by  the  aid  of 
state  moneys. 

2.  Prescribe  rules  and  regulations 2 not  inconsistent  with  law,  fixing 
the  duties  of  division  engineers,  resident  engineers,  district,  county  and 
town  superintendents  in  respect  to  all  highways  and  bridges  and  deter- 
mining the  method  of  the  construction,  improvement  or  maintenance  of 
such  highways  and  bridges.  Such  rules  and  regulations  shall,  before 
taking  effect,  be  printed  and  transmitted  to  the  highway  officers  affected 
thereby. 

3.  Compel  compliance  with  laws,  rules  and  regulations  relating  to 
such  highways  and  bridges  by  highway  officers  and  see  that  the  same  are 
carried  into  full  force  and  effect. 

4.  Aid  district,  county  and  town  superintendents  in  establishing 
grades,  preparing  suitable  systems  of  drainage  and  advise  with  them  as 
to  the  construction,  improvement  and  maintenance  of  highways  and 
bridges. 

5.  Cause  plans,  specifications  and  estimates  to  be  prepared  for  the 
repair  and  improvement  of  highways  and  the  construction  and  repair  of 


1.  Many  of  the  powers  and  duties  prescribed  in  this  section  were  formerly  pos- 
sessed by  the  State  Engineer.  Former  Highway  Law,  sec.  55c,  as  amended  by  L. 
1897,  ch.  743,  required  town  officers  to  comply  with  the  directions  and  rules  of  the 
State  Engineer  in  respect  to  highway  improvements,  under  L.  1897,  ch.  115,  and  the 
acts  amendatory  thereof.  L.  1907,  ch.  717,  required  the  State  Engineer  to  collect 
information  and  compile  statistics,  determine  as  to  methods  of  construction  and 
consult  with  and  aid  local  officers  and  hold  meetings  in  each  county.  All  of  these 
duties  are  retained  in  this  section  to  be  exercised  by  the  commissioner  of  highways. 

The  supervisory  power  of  the  state  commissioner  of  highways  involves  wide  discre- 
tion as  to  the  construction  and  maintenance  of  the  highway  system  of  the  state, 
and  the  exercise  of  this  discretion  necessarily  affects  the  manner  in  which  the  funds 
to  be  raised  by  the  state,  counties  and  towns  relating  to  such  construction  and 
maintenance  shall  be  collected  and  disbursed.  People  ex  rel.  Carlise  v.  Supervisors 
of  Onondaga  (1916),  217  N.  Y.  424,  111  N.  E.  1057. 

2.  Highway  Law,  section  24,  post,  p.  800a,  authorizes  the  commissioner  of  highways 
to  make  rules  and  regulations  for  the  use  of  State  and  county  highways  by  the 
arveling  public.  The  rules  and  regulations  to  be  adopted  under  the  above  sub- 
division pertain  entirely  to  the  duties  of  highway  officers. 


796 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 15. 

bridges,  when  requested  so  to  do  by  a district,  county  or  town  superin- 
tendent. 

6.  Investigate  and  determine  upon  the  various  methods  of  road  con- 
struction adapted  to  different  sections  of  the  state,  and  as  to  the  best 
methods  of  construction  and  maintenance  of  highways  and  bridges. 

7.  Make  an  annual  report  to  the  legislature  on  or  before  February 
fifteenth,  stating  the  condition  of  the  highways  and  bridges,  the  progress 
of  the  improvement  and  maintenance  of  state,  county  and  town  highways, 
the  amount  of  moneys  received  and  expended  during  the  year,  upon 
highways  and  bridges  and  in  the  administration  of  his  office,  and  also 
containing  such  matters  as  in  his  judgment  should  be  brought  to  the  at- 
tention of  the  legislature,  together  with  recommendations  as  to  such 
measures  in  relation  to  highways  as  in  his  judgment  the  public  interests 
require. 

8.  Compile  statistics  relating  to  the  public  highways  throughout  the 
state,  and  collect  such  information  in  regard  thereto  as  he  shall  deem 
expedient. 

9.  Cause  public  meetings  to  be  held  at  least  once  each  year,  in  each 
district  or  county,  for  the  purpose  of  furnishing  such  general  informa- 
tion and  instructions  as  may  be  necessary,  regarding  the  construction,  im- 
provement or  maintenance  of  the  highways  and  bridges  and  the  applica- 
tion of  the  highway  law,  and  the  rules  and  regulations  of  the  department, 
and  also  for  the  purpose  of  hearing  complaints.  He  shall  notify  the  dis- 
trict or  county  superintendent  of  his  intention  to  hold  such  meeting  or 
meetings,  specifying  the  date  and  the  place  thereof.3 

10.  Aid  at  all  times  in  promoting  highway  improvement  throughout 
the  state,  and  perform  such  other  duties  and  have  such  other  powers  in 
respect  to  highways  and  bridges  as  may  be  imposed  or  conferred  on  him 
by  law. 

11.  Approve  and  determine  the  final  plans,  specifications  and  esti- 
mates for  state  and  county  highways  upon  the  receipt  of  the  report  and 
recommendations  of  the  county  or  district  superintendent,  as  provided 
herein,  and  transmit  the  same  in  the  case  of  a county  highway  to  the 
board  of  supervisors.  After  the  approval  of  such  plans,  specifications  and 
estimate  by  the  board  of  supervisors  and  the  return  thereof  to  the  com- 


3.  Bv  Highway  Law,  sec.  33,  subd.  7,  post,  p.  806,  the  county  or  district  super- 
intendent is  directed  to  notify  each  town  superintendent  and  supervisor  of  the  time 
and  place  where  such  meetings  are  to  be  held.  By  subd.  10  of  sec.  47,  post,  p.  820, 
it  is  made  the  duty  of  the  town  superintendent  to  attend  such  meetings,  and  his 
expenses  necessarily  incurred  thereby  are  a town  charge. 


DEPARTMENT  OF  HIGHWAYS, 


797 


Highway  Law,  § 16. 

missioner  of  highways,  in  the  case  of  a county  highway  and  after  his 
final  determination  in  respect  thereto  in  the  case  of  a highway,  the  Com- 
missioner of  highways  shall  cause  a contract  to  be  let  for  the  construc- 
tion or  improvement  of  such  state  or  county  highway  after  due  adver- 
tisement. 

12.  Prepare  tables  showing  the  total  number  of  miles  of  highways  in 
the  state,  and  county,  and  file  a copy  of  the  same  in  the  office  of  the  comp- 
troller.4 

13.  Divide  the  state  into  not  more  than  nine  divisions  and  assign  a 
division  engineer  to  the  charge  of  each,  subject  to  his  direction,  supervi- 
sion and  control.  In  making  such  division  no  county  shall  be  divided. 

14.  Make  and  file  with  the  comptroller  a schedule  of  salaries  of  all 
officers,  clerks,  employees,  engineers  and  superintendents,  appointed  by 
him,  whose  salaries  are  not  fixed  by  law. 

15.  Inquire  into  the  official  conduct  of  all  subordinates  of  the  depart- 
ment. 

16.  Direct  and  cause  to  be  made  such  repairs  of  state  and  county  high- 
ways as  he  deems  necessary,  within  the  estimates  and  appropriations 
made  therefor,  ["Highway  Law,  § 15,  as  amended  by  L.  1913,  ch.  80; 
B.  C.  & G.  Cons.  L.,  p.  2173.] 

§ 7.  DIVISION  OF  STATE;  DIVISION  ENGINEERS. 

The  commissioner  of  highways  shall  appoint  a division  engineer  for 
each  of  the  divisions  of  the  state.  Each  person  so  appointed  as  a divi- 
sion engineer  shall  be  .a  practical  civil  engineer  having  had  actual  ex- 
perience in  the  construction  and  maintenance  of  highways  and  bridges. 
The  salary  of  such  engineers  shall  be  four  thousand  dollars  per  annum. 
An  office  may  be  maintained  by  such  division  engineers  at  a convenient 
place  within  each  division  as  authorized  by  the  commissioner  of  high- 
ways. The  salary  and  expenses  of  such  engineers  shall  be  paid  out  of 
moneys  appropriated  therefor  upon  the  requisition  of  the  commissioner 
of  highways.  Each  division  engineer  shall,  before  entering  upon  the 
duties  of  his  office,  take  and  subscribe  the  constitutional  oath  of  office 


4.  The  tables  of  highway  mileage  are  very  important.  The  amount  of  State  aid 
to  the  towns  is  calculated  therefrom,  since  such  amount  depends  upon  the  assessed 
valuation  and  mileage  of  the  towns.  See  Highway  Law,  sec.  101,  post , p.  867.  The 
proportionate  amount  to  be  paid  by  county  and  town  for  the  construction  of  county 
highways  is  ascertained  by  dividing  the  total  amount  of  assessed  valuation  of  tax- 
able property  in  county  and  town  by  the  total  mileage  of  highways  therein.  See 
Highway  Law,  sec.  141,  post,  p.  889. 


HIGHWAYS  AND  BRIDGES. 


798 


Highway  Law,  § 17. 

and  execute  an  official  undertaking  in  the  sum  of  ten  thousand  dollars  to  be  approved 
by  and  filed  with  the  comptroller  and  renewed  as  often  as  the  commissioner  of  high- 
ways may  require.  The  commissioner  of  highways,  subject  to  the  provisions  of  the 
civil  service  law,  may  remove  such  division  engineers.  [Highway  Law,  § 16,  as 
amended  by  L.  1911,  ch.  646,  and  L.  1913,  ch.  80;  B.  C.  & G.  Cons.  L.,  p.  2175.] 


§ 8.  DUTIES  OF  DIVISION  ENGINEERS. 

Each  division  engineer  shall  devote  his  entire  time  to  the  performance  of  his  duties. 
He  shall,  under  the  direction  and  control  of  the  commissioner  of  highways, 

1.  Make  or  cause  to  be  made  all  surveys,  maps,  plans,  specifications  and  estimates 
necessary  or  required  for  the  improvement,  construction  and  maintenance  of  state 
and  county  highways  within  the  division  for  which  he  is  appointed. 

2.  Examine,  revise  and  approve  all  plans,  specifications  and  estimates  and  pro- 
posals for  the  improvement,  construction  and  maintenance  of  highways  and  bridges 
within  his  division,  which  may  be  submitted  by  the  commissioner  of  highways,  pur- 
suant to  the  provisions  of  this  chapter,  or  the  rules  and  regulations  of  such 
commissioner. 

3.  Examine  and  inspect,  or  cause  to  be  examined  and  inspected,  the  work 
performed  on  any  highways,  and  report  to  the  commissioner  of  highways  as  to  whether 
the  work  has  been  done  in  accordance  with  the  plans  and  specifications  and  contracts 
made  therefor. 

4.  Approve  and  certify  to  the  monthly  estimates  or  allowances  for  work  being 
performed  under  any  contract  let  for  the  construction,  improvement  or  maintenance 
of  state  and  county  highways. 

5.  Inspect,  or  cause  to  be  inspected,  all  state  and  county  highways,  and  report 
from  time  to  time  in  respect  thereto,  when  required  by  the  commissioner  of  highways. 

6.  Consult  with  district,  county  and  town  superintendents  and  other  highway 
officers  in  respect  to  the  proper  methods  of  constructing,  improving  and  maintaining 
highways  and  bridges. 

7.  Perform  such  other  duties  as  may  be  prescribed  by  the  commissioner  of  high- 
ways. 

8.  Have  charge  of  the  construction,  reconstruction,  maintenance  and  repair  of 
state  and  county  highways  in  his  division,  under  the  supervision  of  the  deputy  having 
jurisdiction  thereof. 

9.  When  the  corners  of  the  boundaries  of  counties,  cities,  villages  and  subdivision 

lots  of  towns  shall  have  been  located,  as  provided  in  subdivision  nine  of  section 
thirty-three  of  this  chapter,  it  shall  be  the  duty  of  the  division  engineer  to  accurately 
set  a monument  at  such  corner,  except  in  cases  where  the  improvement  of  such 
highway  or  road  has  been  completed  prior  to  the  location  of  such  corner  as  provided 
in  such  subdivision.  Such  monument  shall  be  of  some  durable  material  and  shall 
be  so  set  that  the  top  thereof  shall  be  on  a level  with  the  surface  of  such  improved 
highway  or  road.  The  cost  and  expense  of  such  monuments  and  the  setting  of  the 
same  shall  be  a state  charge.  [Subd.  added  by  L.  1916,  ch.  217.]  [Highway  Law, 
§ 17,  as  amended  by  L.  1911,  ch.  646,  L.  1913,  ch.  80,  and  L.  1916, 

ch.  217;  B.  C.  & G.  Cons.  L.,  p.  2175.] 


DEPARTMENT  OF  HIGHWAYS. 


790 


Highway  Law,  §§  19,  20,  21. 

§ 8-a.  APPOINTMENT  OF  OFFICERS,  CLERKS  AND  EMPLOYEES. 

The  commissioner  of  highways  shall  appoint  such  resident  engineers, 
■district  superintendents,  clerks,  officers  and  employees  as  may  be  re- 
quired to  carry  out  the  provisions  of  this  chapter,  subject  to  the  civil  ser- 
vice laws  and  the  provisions  of  this  chapter,  within  the  amount  appro- 
priated therefor,  unless  the  appointment  of  such  clerks,  officers  or  em- 
ployees is  otherwise  provided  for  herein.  District  superintendents,  ap- 
pointed as  provided  in  this  chapter,  shall  be  appointed  from  lists  pre- 
pared from  examinations  which  shall  test  their  qualifications  for  the 
actual  construction  and  maintenance  of  highways  and  their  executive  ca- 
pacity, rather  than  their  scientific  attainments.  Clerks,  other  than  those 
employed  in  the  principal  office  of  the  commissioner  of  highways,  inspec- 
tors and  other  employees  in  the  department  whose  duties  pertain  to  the 
maintenance  of  highways,  shall  likewise  be  selected  from  lists  prepared 
from  examinations  testing  their  general  knowledge  of  the  highway  law 
and  of  the  practical  construction  of  highways.  Inspectors  of  construc- 
tion, other  than  engineers  and  levelers,  shall  be  selected  from  lists 
similarly  prepared,  except  that  they  shall  be  residents  of  the  county 
within  which  the  highway  constructed  or  improved  is  located.  To  the 
end  that  the  employees  of  the  department  of  highways  engaged  in  the 
work  of  constructing,  improving  or  maintaining  highways  under  the  pro- 
visions of  this  chapter  may  be  practical  highway  builders,  the  commis- 
sioner of  highways  is  authorized  to  indicate  to  the  civil  service  commis- 
sion the  relative  value  which  should  be  given  to  experience  and  scientific 
attainments.  The  commissioner  of  highways,  subject  to  the  provisions 
of  the  civil  service  law.  may  remove  the  resident  engineers,  district  su- 
perintendents, clerks,  officers  and  employees  of  the  departments.  [High- 
way Law,  § 19,  as  added  by  L.  1913,  ch.  80.] 

§ 9.  BLANK  FORMS  AND  TOWN  ACCOUNTS. 

The  commissioner  of  highways  shall  prescribe  and  furnish  blank  forms 
of  orders,  reports  and  accounts  and  blank  books,  whenever  in  his  judg- 
ment they  are  required  for  the  convenience  of  his  office  and  of  highway 
officers.  [Highway  Law,  § 20,  as  renumbered  and  amended  by  L.  1913, 
ch.  80;  B.  C.  & G.  Cons.  L.,  p.  2176.] 

§ 10.  EXAMINATION  OF  ACCOUNTS  AND  RECORDS. 

The  commissioner  of  highways  may,  at  such  times  as  may  be  deemed 
expedient,  cause  an  examination  of  all  accounts  and  records  kept  as  re- 
quired  by  this  chapter,  and  it  shall  be  the  duty  of  all  county  and  town 


800 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 22. 

officers  to  produce  all  such  records  and  accounts  for  examination  and  in- 
spection, at  any  time  on  demand  of  a representative  of  the  commissioner 
of  highways.5  [Highway  Law,  § 21,  as  renumbered  and  amended  by  L. 
1913,  ch.  80;  B.  C.  & G.  Cons.  L.,  p.  2176.] 

§ 11.  CONDEMNATION  OF  BRIDGES. 

The  commissioner  of  highways  shall  cause  an  inspection  to  be  made  of 
any  bridge  which  is  reported  to  be  unsafe  for  public  use  and  travel  by 
the  district  or  county  superintendent,  the  town  superintendent,  or  five 
residents  of  the  town.  If  such  bridge  is  found  to  be  unsafe  for  public 
use  and  travel  the  commissioner  of  highways  shall  condemn  such  bridge, 
and  notify  the  district  or  county  superintendent,  the  town  superintendent 
and  the  supervisor  of  the  town,  of  that  fact.  The  district  or  county  su- 
perintendent shall  either  prepare  or  approve  plans,  specifications  and 
estimates  for  the  construction  or  repair  of  such  bridge  without  delay. 
The  town  shall  provide  for  the  construction  or  reconstruction  of  such 
bridge,  as  provided  for  by  section  ninety- three  of  this  chapter.6  [High- 
way Law,  § 22,  as  renumbered  and  amended  by  L.  1913,  ch.  80;  B.  C. 
& G.  Cons.  L.,  p.  2176.] 


5.  Town  accounts  of  money  received  and  expended  for  highways,  bridges, 
machinery,  tools  and  implements,  the  removal  of  obstructions  caused  by  snow,  and 
for  miscellaneous  purposes,  are  to  be  kept  in  the  manner  prescribed  by  the  com- 
mission. See  sec.  108,  post.  All  of  these  accounts  under  the  above  sections  are 
to  be  open  to  examination  and  inspection  by  the  commission  or  any  of  its  repre- 
sentatives at  all  reasonable  times. 

6.  The  commission,  under  this  section,  may  condemn  a bridge  which  has  become 
unsafe.  When  notified  by  the  commission  it  becomes  the  duty  of  the  town  super- 
intendent to  cause  the  bridge  to  be  repaired  or  reconstructed  in  accordance  with  the 
plans  and  specifications  prepared  or  approved  by  the  district  or  county  superin- 
tendent. If  more  than  $1,500  is  required  for  the  purpose,  a proposition  must  be 
submitted  at  a town  meeting  to  authorize  the  raising  of  a tax.  Highway  Law, 
sec.  94,  subd.  4,  post,  p.  861;  sec.  95,  post,  p.  862.  If  the  proposition  be  adopted 
the  town  board  may  authorize  the  supervisor  to  borrow  money  in  anticipation  of  the 
taxes  to  be  levied  in  pursuance  of  the  proposition  adopted  at  such  town  meeting. 
A proposition  may  also  be  submitted  authorizing  the  town  to  bond  for  the  amount 
required  to  rebuild  or  repair  the  bridge  condemned  by  the  commission.  Highway 
Law,  sec.  97,  post,  p.  863. 


HIGHWAYS  AND  BRIDGES. 


800a. 


Highway  Law,  §§  23,  24,  25. 

§ 12.  ESTIMATE  OF  COST  OF  MAINTENANCE  OF  STATE  AND  COUNTY 
HIGHWAYS. 

The  commissioner  of  highways  shall  annually  cause  to  he  inspected  all 
improved  state  and  county  highways,  either  by  the  division  engineer,  or 
the  district  or  county  superintendent  of  the  district  or  county  in  which 
such  highways  are  situated  and  shall  require  a complete  report  of  such 
inspection  which  shall  show  in  detail  the  condition  of  the  highway  in- 
spected, the  necessary  work  to  be  performed  in  the  repair  and  mainten- 
ance of  such  highways,  and  the  estimated  cost  thereof.  The  commis- 
sioner of  highways  shall  revise  said  estimates  and  annually  report  to 
the  legislature  his  estimated  cost  of  such  repair  and  maintenance  for  the 
ensuing  year,  as  so  revised,  in  detail  by  counties.7  [Highway  Law,  § 
23,  as  amended  by  L.  1912,  ch.  83,  and  renumbered  and  amended  by  L. 
1913,  ch.  80 ; B.  C.  & G.  Cons.  L.,  p.  2177.] 

§ 13.  RULES  AND  REGULATIONS  FOR  STATE  AND  COUNTY  HIGHWAYS. 

The  commissioner  of  highways  is  hereby  empowered  to  make  rules  and 
regulations  from  time  to  time  for  the  protection  of  any  state  or  county 
highway  or  section  thereof.8  He  may  prescribe  the  width  of  tires  to  be 
used  on  such  highways  and  he  may  prohibit  the  use  of  chains  or  armored 
tires  by  motor  vehicles  upon  such  highways,  and  any  disobedience  thereof 
shall  be  punishable  by  a fine  of  not  less  than  ten  dollars  and  not  exceed- 
ing one  hundred  dollars,  to  be  prosecuted  for  by  the  town,  county,  or 
district  superintendent  and  paid  to  the  county  treasurer  to  the  credit  of 
the  fund  for  the  maintenance  of  such  highways  in  the  town  where  such 
fine  is  collected.  [Highway  Law,  § 24',  as  renumbered  and  amended  by 
L.  1913,  ch.  80;  B.  C.  & G.  Cons.  p.  2177.] 

§ 14.  PATENTED  MATERIAL  OR  ARTICLES. 

In  the  construction,  maintenance  or  repair  of  state  or  county  highways, 


7.  Appropriations  for  maintenance.  By  Highway  Law,  sec.  171,  post  p.  901, 
it  is  provided  that  there  shall  be  annually  appropriated  for  the  maintenance  and 
repair  of  State  and  county  highways  an  amount  sufficient  to  provide  therefor,  based 
upon  the  estimates  prepared  and  submitted  by  the  commission  to  the  Legislature, 
as  provided  in  this  section.  The  object  of  this  section  is  to  provide  a basis  for  the 
aanual  appropriation  for  the  maintenance  of  State  and  county  highways. 

8.  The  commission  may  adopt  rules  and  regulations  prescribing  the  duties  of 
highway  officers.  Highway  Law,  sec.  15,  sub.  2,  ante,  p.  795. 


800b 


DEPARTMENT  OF  HIGHWAYS. 


Highway  Law,  § 25. 

no  patented  material  or  article  or  any  other  material  or  article  shall  be 
specified,  contracted  for  or  purchased,  except  under  such  circumstances 
that  there  can  be  fair  and  reasonable  opportunity  for  competition,  the  con- 
ditions to  secure  which  shall  be  prescribed  by  the  commissioner  of  high- 
ways.9 [Highway  Law,  § 25,  as  added  by  L.  1913,  ch.  80.] 

9.  Liquid  asphalt.  A producer  of  liquid  asphalt,  which  answers  all  the  tests 
prescribed  in  specifications  for  the  construction  of  highways,  except  that  they 
call  for  a solid  asphalt,  which  is  produced  only  by  a single  company  and  its 
subsidiaries,  has  a sufficient  special  interest  to  authorize  a suit  upon  its  part 
to  enjoin  the  Highway  Commissioner  from  letting  contracts  under  such  specifi- 
cations. Warner-Quinlan  Asphalt  Co.  v.  Carlisle.  158  App.  Div.  638. 


DISTRICT  OR  COUNTY  SUPERINTENDENTS. 


Explanatory  note. 


801 


CHAPTER  LVn. 

DISTRICT  OR  COUNTY  SUPERINTENDENTS. 

EXPLANATORY  NOTE. 

County  Superintendents. 

County  superintendents  of  highways  take  the  place  of  county 
engineers  under  the  former  law.  The  hoard  of  supervisors  of  each 
county  may  appoint  a county  superintendent  of  highways,  and  fix  his 
salary.  If  such  officer  is  not  appointed,  the  county  is  included  in  a 
district  with  other  counties,  and  a district  superintendent  of  highways  is 
appointed  by  the  State  commission  of  highways. 

District  Superintendents. 

This  office  is  new  under  the  Highway  Law  of  1909.  The  law 
authorizes  the  commission  to  establish  districts  to  be  made  up  of  counties 
which  have  not  appointed  county  superintendents.  District  superin- 
tendents are  appointed  by  the  commission  and  are  removable  at  its 
pleasure.  The  salaries  are  fixed  by  the  commission,  and  the  amount 
thereof  is  apportioned  among  the  counties  in  the  district  according  to 
the  number  of  highways  in  each  district.  The  part  apportioned  to 
each  county  must  be  levied  and  collected  as  other  county  charges. 

Powers  and  Duties. 

The  powers  and  duties  of  county  and  district  superintendents  are 
prescribed  by  the  Highway  Law,  § 33,  as  amended  by  L.  1910,  ch.  567, 
and  L.  1911,  ch.  646,  supplemented  by  rules  and  directions  made  by  the 
commission.  The  rules  and  directions  in  respect  to  the  duties  of  such, 
officers  are  included  in  the  notes  to  this  chapter. 


[Highway  Law,  art.  III.] 

Section  1.  Appointment  of  county  superintendents. 

2.  District  superintendents;  appointment  and  salaries. 

3.  Removal  of  county  superintendents. 

4.  General  powers  and  duties  of  district  or  county  superintendents. 


-802 


HIGHWAYS  AND  BRIDGES. 
Highway  Law,  §§  30-32. 


§ 1.  APPOINTMENT  OF  COUNTY  SUPERINTENDENT. 

The  board  of  supervisors  of  any  county  may  appoint  a county  superintendent, 
determine  the  amount  of  the  bond  which  he  shall  give,  fix  his  salary,  and 
provide  for  the  payment  of  all  the  necessary  expenses  incurred  while  in  the 
performance  of  his  duties,  which  salary  and  expenses  shall  be  a county  charge, 
and  may  remove  such  county  superintendent  for  malfeasance  or  misfeasance 
in  office,  upon  written  charges,  after  an  opportunity  to  be  heard,  not  less  than 
five  days  after  the  service  upon  such  superintendent  of  a copy  of  such  charges.1 
The  term  of  office  of  each  superintendent  shall  be  four  years  unless  sooner 
removed  by  the  board  of  supervisors  as  above  provided,  or  by  the  commission 
as  hereinafter  provided.  [Highway  Law,  § 30,  as  amended  by  L.  1910,  ch.  567, 
in  effect  June  21,  1910.] 


§ 2.  DISTRICT  SUPERINTENDENTS;  APPOINTMENT  AND  SALARIES. 

If  the  board  of  supervisors  of  any  county  shall  fail  to  appoint  a county  super- 
intendent, the  commission  shall  appoint  a county  superintendent  from  the 
eligible  list  of  the  county,  and  fix  his  salary,  which,  together  with  his  expenses, 
shall  be  a county  charge,  payable  monthly,  or,  in  its  discretion,  place  such 
county  in  a district  with  such  other  counties  as  they  deem  best  and  appoint  a 
district  superintendent  therefor.  A county  may  be  divided,  but  no  district  shall 
contain  more  than  five  thousand  miles  of  public  highways.  Such  district 
superintendents  may  be  removed  by  the  commission  at  its  pleasure.  The  com- 
mission shall  fix  the  salaries  of  such  superintendents.  Such  salaries,  together 
with  expenses,  shall  be  paid  monthly  in  the  first  instance  by  the  state  treasurer 
upon  the  warrant  of  the  comptroller  and  the  amount  thereof  shall  be  annually 
apportioned  by  the  commission  among  the  counties  contained  in  the  district, 
in  proportion  to  the  number  of  miles  of  public  highways  of  such  county  and 
in  such  district.  The  comptroller  shall  certify  the  amount  so  apportioned  to 
the  board  of  supervisors  of  each  of  such  counties,  and  such  board  shall  annually 
levy  and  cause  to  be  collected  as  a county  charge  the  proportionate  part  of 
such  salary,  and  the  treasurer  of  each  such  county  shall  pay  the  sum  so  raised 
into  the  state  treasury.la  [Highway  Law,  § 31,  as  amended  by  L.  1910,  ch.  224, 
in  effect  May  5,  1910.] 


§ 3.  REMOYAL  OF  COUNTY  SUPERINTENDENT. 

The  commission  may  remove  a county  superintendent  for  inefficiency, 
neglect  of  duty  or  misconduct  in  office,  upon  written  charges  after  an  op- 
portunity of  being  publicly  heard  in  his  defense.  A copy  of  such  charges 


1.  A bill  for  services  of  counsel  employed  by  the  county  superintendent  in  a pro 

ceeding  to  remove  a town  superintendent  is  not  a proper  charge  against  the  state. 
But,  if  no  county  attorney  has  been  appointed,  it  may  be  a proper  charge  against 
the  county.  Rept.  of  Atty.  Genl.,  May  3,  1911. 

Review  of  proceedings;  reinstatement.  Certiorari  may  be  brought  to  review  the 
proceedings  of  a board  of  supervisors  in  removing  a county  superintendent  of  high- 
ways, pursuant  to  this  section,  for  malfeasance  in  office  by  reason  of  the  receipt  by 
him  of  moneys  from  a town  for  the  preparation  of  plans  and  specifications  for  the 
improvement  of  a highway.  Evidence  examined,  and  held,  that,  although  the  county 
superintendent  may  have  misconceived  his  rights,  he  should  be  reinstated.  People 
ex  rel.  Seaman  v.  Cocks  (1912),  149  App.  Div.  883,  134  N.  Y.  Supp.  808. 

Salary  of  superintendent.  The  board  of  supervisors  has  the  absolute  and  exclusive 
right  to  appoint  the  county  superintendent  and  to  fix  his  salary  and  provide  for  the 
payment  of  his  necessary  expense,  although  such  salary  at  the  time  of  the  appoint- 
ment exceeds  the  salary  stated  in  the  notice  published  by  the  civil  service  commission 
for  the  competitive  examination  of  candidates.  MacDonald  v.  Ordway  (1916),  219 
N.  Y.  328,  114  N.  E.  386. 

la.  Salary  and  expenses  of  county  superintendent.  Under  this  section  of  the 
Highway  Law,  as  amended  in  1910,  the  board  of  supervisors,  being  authorized  to  fix 
the  salary  of  the  county  superintendent  of  highways  and  to  provide  for  the  payment 
of  his  expenses,  has  implied  power  to  increase  the  salary  of  such  superintendent 
and  to  provide  for  additional  expenses  where  there  is  an  unsual  increase  in  the 
dtuies  to  be  performed  by  him.  Porter  v.  Fletcher,  153  App.  Div.  470. 


DISTRICT  OR  COUNTY  SUPERINTENDENTS. 


803 


Highway  Law,  § 33. 

shall  be  personally  served  upon  such  superintendent  and  he  shall  be  given 
not  less  than  five  days’  notice  of  the  time  and  place  of  the  hearing.  If 
upon  such  hearing  it  appears  that  the  charges  are  sustained,  the  commission 
shall  remove  such  superintendent  and  forthwith  serve  notice  thereof  by 
mail  upon  the  superintendent  and  upon  the  chairman  and  clerk  of  the 
board  of  supervisors  of  the  county  for  which  he  was  appointed.  Such 
notice  shall  state  specifically  the  grounds  for  such  removal.  The  record 
of  the  proceedings  upon  such  hearing  shall  be  filed  in  the  office  of  the 
commission.  The  commission  shall  appoint  a district  superintendent  for 
such  county  or  cause  it  to  be  added  to  some  other  district,  and  it  shall 
thereupon  be  made  subject  to  the  jurisdiction  of  the  district  superintendent 
thereof  until  the  board  of  supervisors  shall  appoint  a new  county  superin- 
tendent to  fill  the  vacancy  caused  by  such  removal.  [Highway  Law,  § 
32;  B.  C.  & G.  Cons.  L.,  p.  2178.] 


§ 4.  GENERAL  POWERS  AND  DUTIES  OF  DISTRICT  OR  COUNTY 
SUPERINTENDENTS. 

The  district  or  county  superintendent  appointed  as  provided  in  this 
article  shall,  subject  to  the  rules  and  regulations  of  the  commission  la  and 
subject  to  the  supervision  of  the  state  superintendent  of  highways: 


la.  Rules  and  regulations  adopted  by  the  commission  may  control  the 
district  or  county  superintendent  in  the  performance  of  his  duties.  High- 
way Law,  sec.  15,  subd.  2,  ante,  p.  596. 

The  following  Rules  are  in  force  October  1,  1910: 

First. — A district  or  county  superintendent  must  observe  the  prescribed  rules 
and  regulations  of  the  commission. 

Second. — A district  or  county  superintendent  is  directed  to  consult  with  the 
division  engineer  whenever,  in  his  judgment,  he  may  need  advice  and  assistance 
in  preparing  or  approving  plans  and  specifications  for  the  construction  of 
highways  and  bridges. 

Third. — District  or  county  superintendents  are  to  have  no  control  over  state 
or  county  highways  unless  specifically  directed  by  the  commission. 

Fourth. — District  or  county  superintendents  are  directed  to  investigate  as  to 
when  public  meetings  for  a county  or  district  should  be  held  and  to  notify  the 
commission,  in  writing,  when  and  where,  in  their  judgment,  such  meeting  or 
meetings  should  be  held. 

Fifth. — A district  or  county  superintendent  is  directed  to  notify  the  commis- 
sion, in  writing,  whenever  a town  superintendent  shall  have  failed  to  perform 
his  duty  in  compliance  with  the  directions  for  the  guidance  of  town  superin- 
tendents, and  also  to  notify  the  commission  regarding  any  malfeasance  or  mis- 
feasance in  office. 

Sixth. — The  district  or  county  superintendent  should  inspect  the  highways 
and  bridges  of  each  town  in  his  district  or  county  at  least  once  each  year,  and 
advise  and  direct  the  town  superintendent  how  best  to  repair,  maintain  and 
improve  such  highways  and  bridges. 


804 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 33. 

1.  Have  general  charge  of  all  highways  and  bridges  within  his  district 
or  county  and  see  that  the  same  are  improved,  repaired  and  maintained, 
as  provided  by  law,  and  have  the  general  supervision  of  the  work  of  con- 
structing, improving  and  repairing  bridges  and  town  highways  in  his 
district  or  county. 


Seventh. — The  district  or  county  superintendent  is  directed  to  notify  the 
supervisors,  town  superintendents,  and  town  clerks  that  all  reports  made  by 
them  must  be  first  forwarded  to  him  for  his  personal  approval  before  trans- 
mitting the  same  to  the  commission. 

Eighth. — The  district  or  county  superintendent  is  directed  to  instruct  the 
town  superintendent  when  to  make  a preliminary  inspection  of  the  roads  which 
are  to  be  improved  as  State  or  county  highways  for  the  purpose  of  securing 
preliminary  information  to  be  used  in  preparing  plans  and  specifications  for 
such  highways,  and  also  how  to  mark,  or  in  some  substantial  manner  designate 
the  portions  of  such  highways  as  may  need  especial  care  and  attention. 

Ninth. — The  district  or  county  superintendent  is  directed  to  assist  the  town 
superintendent  in  the  erection  of  monuments  showing  the  boundaries  of  the 
highways  and  in  the  establishment  of  such  new  monuments  as  may  be  re- 
quired. 

Tenth. — The  district  or  county  superintendent  is  directed  to  furnish  or 
cause  to  be  furnished  to  the  town  board,  plans  and  specifications  for  the  con- 
struction of  new  highways  or  the  permanent  improvement  or  reconstruction 
of  existing  highways,  when  the  cost  shall  exceed  five  hundred  dollars,  provided 
that  such  money  is  to  be  expended  by  contract. 

Eleventh. — All  contracts  for  the  purchase  of  stone  crushers,  steam  rollers 
or  traction  engines  must  be  approved  by  the  district  or  county  superintendent 
and  he  must  indorse  his  approval  thereon. 

Tioelfth. — The  district  or  county  superintendent  must  observe  the  following 
ruling  or  construction  of  the  commission  relating  to  the  lease  or  hire  of 
machinery  as  provided  by  section  50  of  the  Highway  Law,  viz.: 

Whenever  the  town  board  has  made  a contract  with  a machinery  firm  or 
corporation  calling  for  a fixed  sum  to  be  paid  each  year  for  the  lease  or  hire 
of  a stone  crusher,  steam  roller  or  traction  engine,  there  must  be  a certification 
upon  the  order  given  by  the  town  superintendent  to  the  supervisor  for  such 
lease  or  hire  showing  the  specific  days  which  he  has  used  the  same  during  the 
period.  The  rate  must  not  be  more  than  ten  dollars  per  day  for  a crusher  or 
steam  roller  or  eight  dollars  per  day  for  a traction  engine,  and  if  the  number 
of  days  which  he  has  worked  the  same  is  not  sufficient  to  pay  the  amount  as 
agreed  upon  with  the  firm  or  corporation  leasing  or  hiring  the  same,  then  the 
balance  cannot  be  paid  from  the  highway  fund,  but  must  be  paid  from  the 
general  fund  of  the  town.  If  the  number  of  days  exceeds  the  minimum  num- 
ber of  days  necessary  to  furnish  at  the  above  rates  an  amount  needed  to  pay 
the  machinery  company,  then  the  total  amount  agreed  upon  as  rental  shall  be 
divided  by  the  number  of  days  and  the  charge  per  day  for  a stone  crusher, 
steam  roller  and  traction  engine  shall  be  at  that  figure  and  not  at  the  maximum 
figure  under  the  provisions  of  section  50  of  the  Highway  Law. 

Thirteenth. — A district  or  county  superintendent  is  directed  to  first  obtain 


DISTRICT  OR  COUNTY  SUPERINTENDENTS. 


805 


Highway  Law,  § 33. 

2.  Visit  and  inspect  the  highways  and  bridges  in  each  town  of  his 
district  or  county,  at  least  once  in  each  year  and  whenever  directed  by  the 
commission,  and  advise  and  direct  the  town  superintendent  how  best  to 
repair,  maintain  and  improve  such  highways  and  bridges. 


the  consent  of  the  commission  before  he  grants  permission  for  an  overhead  or 
underground  crossing,  or  to  lay  and  maintain  drainage,  sewer  and  water  pipes 
in  grounds  within  any  portions  of  a state  and  county  highway. 

Fourteenth. — The  district  or  county  superintendent  is  directed  to  assist  the 
town  superintendent  by  directing  him  how,  or  by  furnishing  him  with  proper  in- 
formation so  that  he  may  properly  measure  all  the  highways  of  his  town  in 
accordance  with  the  directions  which  have  been  furnished  him  by  the  com- 
mission. 

Fifteenth. — The  district  or  county  superintendent  is  directed  to  carefully 
consider  the  fact  that  the  traveling  public  must  not  be  inconvenienced  on 
account  of  the  lack  of  care  or  inattention  on  the  part  of  a contractor  con- 
structing or  improving  a State  or  county  highway,  or  a town  superintendent 
in  performing  the  same  class  of  work  in  not  providing  a temporary  highway. 

Sixteenth. — The  district  or  county  superintendent  is  directed  to  either  pre- 
pare, or  cause  to  be  prepared,  plans  and  specifications  for  the  erection  of 
bridges,  except  that  if  a bridge  to  be  repaired  or  rebuilt  is  one  which  has 
been  condemned  by  the  commission  the  same  shall  be  repaired  or  rebuilt  in 
accordance  with  plans  and  specifications  prepared  and  approved  by  the  com- 
mission. 

Seventeenth. — The  district  or  county  superintendent  is  directed  to  carefully 
examine  the  preliminary  maps,  or  a copy  thereof,  of  the  plans  and  specifica- 
tions for  either  a State  or  county  highway  which  shall  be  presented  to  him 
by  the  commission. 

Eighteenth. — In  the  construction  and  improvement  of  county  highways,  in 
cases  of  a supplement  contract,  the  district  or  county  superintendent  is  directed 
to  either  approve  or  disapprove  of  the  same. 

Nineteenth. — After  the  completion  of  a county  highway  or  section  thereof, 
and  after  the  commission  shall  have  notified,  in  writing,  the  district  or  county 
superintendent  and  the  board  of  supervisors  that  it  will  accept  the  work  on 
behalf  of  the  State  and  county  within  twenty  days  from  the  date  of  such 
notice,  the  district  or  county  superintendent  is  directed  to  file,  within  the  time 
specified,  his  acceptance  or  protest  and  to  secure  the  acceptance  or  protest 
of  the  chairman  of  the  board  of  supervisors  of  the  county. 

Twentieth. — The  district  or  county  superintendent  is  directed,  whenever  in  his 
judgment  it  seems  proper,  to  send  a written  report  to  the  commission  stating 
any  defects  which  may  appear  or  any  damage  which  may  be  done  to  a State 
or  county  highway,  and  he  is  also  directed  to  make  such  recommendations  as 
may  seem  proper  to  him. 

Twenty-first. — The  district  or  county  superintendent  is  directed  to  examine 
the  various  formations  and  deposits  of  gravel  and  stone  in  his  district  or  county, 
for  the  purpose  of  ascertaining  the  materials  which  are  best  available  and 
suitable  for  the  improvement  of  the  highways  therein. 

Twenty-second. — The  district  or  county  superintendent  is  directed  to  establish 


806 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 33. 

2-8-  If  a county  has  any  county  roads  as  defined  by  subdivision  three  of 
section  three,  the  county  superintendent  shall,  on  or  before  December  first  in 
-each  year,  prepare  and  submit  to  the  board  of  supervisors  of  such  county 
a statement  of  the  amount  necessary  to  be  raised  by  the  board  of  super- 
visors for  the  construction,  improvement  and  maintenance  of  such  county 
roads  for  the  ensuing  year,  showing  the  amount  by  towns  and  as  a total, 
and  the  location  where  any  permanent  repairs  are  required  to  be  made. 
[Subd.  inserted  by  L.  1910, ch.  567,  in  effect  June  21,  1910.] 

3.  Examine  the  various  formations  and  deposits  of  gravel  and  stone 
in  his  district  or  county,  for  the  purpose  of  ascertaining  the  materials 
which  are  best  available  and  suitable  for  the  improvement  of  highways 
therein,  and  when  requested  by  the  commission  submit  samples  of  such 
formations  and  deposits  and  make  a written  report  in  respect  thereto. 

4.  Establish,  or  cause  to  be  established,  such  grades,  and  recommend 
such  means  of  drainage,  repairs  and  improvements,  as  seem  to  him  neces- 
sary whenever  requested  by  the  town  superintendent  or  town  board. 

5.  Approve  plans  and  specification  and  estimates  for  the  erection  and 
repair  of  bridges  and  the  construction  and  maintenance  of  town  highways. 

6.  Report  to  the  commission  annually,  on  or  before  November  fifteenth 
in  each  year,  in  relation  to  the  highways  and  bridges  in  his  district  or 
county,  containing  such  matter  and  in  such  form  as  may  be  prescribed 
by  the  commission,  and  file  a duplicate  thereof  with  the  clerk  of  the  board 
of  supervisors.  Additional  reports  shall  be  made  from  time  to  time  when 
required  by  the  commission  in  respect  to  such  matters  as  may  be  specified 
by  them. 

7.  Whenever  a public  meeting*  2 for  a county  or  district  shall  have 
been  called  by  the  commission  he  shall  cause  due  notice  to  be  mailed  to 
each  town  superintendent  and  supervisor  of  the  towns  under  his  jurisdic- 
tion and  give  such  notice  by  advertisement  as  shall  be  directed  by  the 
commission. 

8.  Inspect  or  cause  to  be  inspected,  if  so  directed  by  the  board  of 
supervisors,  each  county  highway  during  its  construction  or  improvement, 
and  certify  to  the  board  of  supervisors  the  progress  of  the  work,  and  report 


all  grades  in  case  of  permanent  improvement,  and  recommend  means  of 
drainage,  repairs  and  improvement  to  the  town  superintendent  or  town  board. 

Twenty-third. — District  or  county  superintendents  are  directed  to  report  to 
the  commission  annually  on  or  before  the  fifteenth  day  of  November  in  each 

year. 

2.  Public  meetings  are  called  by  the  commission,  Highway  Law,  sec.  15, 
sub.  9,  ante , p.  796;  and  town  superintendents  are  required  to  attend;  and 
their  actual  and  necessary  expenses  are  a town  charge,  Highway  Law,  sec.  47, 
sub.  10,  post,  p.  820. 


DISTRICT  OR  COUNTY  SUPERINTENDENTS 


807 


Highway  Law,  § 33. 


to  the  commission  any  irregularities  of  the  contractor  or  any  failure  on 
his  part  to  comply  with  the  terms  of  the  contract.3 

9.  Accurately  ascertain  and  locate  the  corners  of  the  established 
boundaries  of  counties,  towns,  cities  and  villages  and,  where  townships 
were  originally  subdivided  into  lots  to  accurately  ascertain  and  estab- 
lish such  lot  corners  if  any  such  corners  will  be  located  within  the  bounds 
of  the  improved  part  of  any  state  or  county  highway  or  county  road. 

If  the  district  or  county  superintendent  shall  not  be  a civil  engineer 
he  may  hire  a competent  civil  engineer  to  locate  such  corners.  In 
either  case  he  may  employ  such  other  assistants  as  may  be  necessary,  the 
cost  and  expense  thereof  to  be  a county  charge. 

Nothing  in  this  subdivision  contained,  however,  shall  be  construed 
to  extend  to  the  location  of  the  corner  or  other  boundaries  of  city,  or 
village  lots,  or  farm  lands,  except  as  they  may  be,  incidentally,  the  cor- 
ners of  the  boundaries  of  counties,  towns,  cities,  villages  or  original 
subdivisions  of  towns,  except,  also,  that  where  the  corners  or  boundaries 
of  city  or  village  lots,  or  farm  lands,  have  been  located  and  a monument 
placed  before  the  improvement  of  such  highway,  the  owner  of  such  city 
or  village  lots  or  farm  lands  may  point  out  to  such  engineer  the  location 
of  such  monument,  and  upon  such  owner  furnishing  a suitable  monu- 
ment, it  shall  be  the  duty  of  such  engineer  to  erect  such  monument  in 
the  manner  hereinbefore  provided.  [Subd.  added  by  L.  1916,  ch.  217.] 

10.  Perform  such  other  duties  as  may  be  prescribed  by  law,  or  the 
rules  and  regulations  of  the  commission.  (Formerly  subd.  9;  renum- 
bered subd.  10  by  L.  1916,  ch.  217.)  [Highway  Law,  § 33,  as  amended 
by  L.  1910,  ch.  567,  L.  1911,  ch.  646,  and  L.  1916,  ch.  217;  B.  C.  & G. 
Cons.  L.,  p.  2179.] 


3.  Inspection  of  county  highways  during  construction  is  required  of  county 
and  district  superintendents,  only  when  requested  by  boards  of  supervisors,  in  which 
event  they  are  representative  of  the  county  for  the  purpose  of  ascertaining  whether 
the  county  is  getting  what  it  pays  for.  When  such  a highway  is  properly  completed 
it  is  provided  in  section  134,  as  amended  by  L.  1911,  ch.  646,  and  L.  1916,  oh.  460,  that 
the  board  of  supervisors  is  to  accept  the  same,  and  this  inspection  will  aid  the 
board  in  arriving  at  a proper  determination. 


HIGHWAYS  AND  BRIDGES. 


^>06 


Explanatory  note. 


CHAPTER  LVin. 

TOWN  SUPERINTENDENT;  GENERAL  POWERS  AND  DUTIES. 

EXPLANATORY  NOTE. 

Office  of  Town  Superintendent  of  Highways. 

The  town  superintendent  of  highways  was  substituted  by  the  new 
Highway  Law  for  the  former  commissioner  of  highways.  Under  the 
former  law  there  could  be  one  or  three  commissioners  of  highways. 
Under  the  present  law  there  may  be  but  one  superintendent  of  highways, 
to  be  elected  or  appointed  as  provided  by  section  40  and  41  of  the 
Highway  Law. 

The  provisions  of  the  Town  Law,  relative  to  oaths  of  office,  undertak- 
ing, eligibility,  etc.,  so  far  as  they  are  not  inconsistent  with  the  High- 
way Law,  are  applicable  to  the  office  of  town  superintendent  of  high- 
ways. 

Term  of  Office  ; Compensation ; Removal. 

Town  superintendents  of  highways  are  elected  for  terms  of  two  years. 
Vacancies  are  filled  for  the  unexpired  terms.  Their  compensation  is 
fixed  by  the  town  board  at  not  less  than  two  dollars  nor  more  than 
five  dollars  per  day.  They  are  also  entitled  to  their  expenses.  They 
may  be  removed  by  the  town  board  upon  charges  preferred  by  the  State 
commission,  or  by  the  district  or  county  superintendent.  A hearing 
must  be  had  on  the  charges,  and  a decision  rendered.  An  appeal  may 
be  taken  to  the  county  court,  by  either  the  town  superintendent  in  case  of 
removal,  or  the  commission  or  superintendent  in  case  of  a refusal  to 
remove. 

General  Powers  and  Duties. 

The  law  prescribes  in  detail  the  general  powers  and  duties  of  the  town 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


809 


Explanatory  note. 

superintendent.  See  Highway  Law,  § 47,  as  amended  by  L.  1910,  ch. 
567,  L.  1914,  ch.  84,  and  L.  1915,  ch.  322.  It  will  be  noticed  that  the 
superintendent  is  controlled  in  the  performance  of  such  duties  by  the 
rules  and  regulations  of  the  commission.  He  succeeds  to  the  common 
law  and  statutory  powers  and  duties  of  the  former  commissioners  of 
highways,  except  as  superseded  or  modified  by  the  present  law.  He 
remains  in  all  respects  a town  officer,  and  is  charged  generally  with  the 
care  and  superintendence  of  the  highways  of  the  town,  subject  to  the 
control  of  the  commission  in  the  exercise  of  powers  conferred  upon  it. 
His  duties  in  respect  to  the  construction  and  repair  of  bridges  remain 
the  same  as  those  of  the  commissioners  of  highways  under  the  former 
laws. 

Effect  of  State  Supervision. 

The  new  law  does  not  materially  limit  the  powers  and  duties  of  town 
officers  in  respect  to  town  highways.  But  as  to  county  and  state  high- 
ways the  commission  is  supreme  and  may  arbitrarily  control  the  actions 
of  town  superintendents  act  under  the  direct  supervision  of  the  commis- 
sion and  its  officers. 

The  office  of  town  superintendent  is  continued  with  the  powers  and 
•duties  in  respect  to  town  highways  and  bridges,  formerly  belonging 
to  the  office  of  highway  commissioner,  modified  only  so  far  as  is  neces- 
sary to  carry  out  the  new  method  of  administering  highway  moneys. 
The  state  organization,  consisting  of  commissioners,  engineers  and 
county  and  district  superintendents,  is  available  in  aid  of  the  town 
superintendents,  but  none  of  these  officers  may  intervene  to  lessen  the 
responsibility  of  the  town  officers  for  the  proper  maintenance  of  the 
town  highway  system.  The  state  commission  and  district  or  county 
superintendents  may  insist  that  the  town  superintendents  perform  their 
statutory  duties,  and  a failure  may  be  a ground  for  removal.  Reports 
respecting  highway  conditions  are  required,  and  the  commission  may 
direct  the  use  of  uniform  methods  of  expending  and  accounting  for 
highway  moneys.  All  of  these  statutory  requirements  are  for  the 
purpose  of  securing  the  adoption  and  application  throughout  the  state  of 
appropriate  and  efficient  methods  of  highway  construction  and  main- 
tenance. But  they  are  not  for  the  purpose  of  transferring  any  of  the 
powers  and  duties  of  the  local  officers  in  respect  to  those  highways  which 
constitute  the  town  system. 


810 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 40. 

[Highway  Law,  art.  IV.] 

Section  1.  Election  of  town  superintendent  of  highways. 

2.  Submission  of  proposition  for  appointment  of  town  superintendent.. 

3.  Term  of  office  of  town  superintendent. 

4.  Vacancies;  office  of  highway  commissioner  abolished. 

5.  Deputy  town  superintendent. 

6.  Compensation  of  town  superintendent  and  deputy. 

7.  Removal  of  town  superintendent. 

8.  General  powers  and  duties  of  town  superintendent. 

9.  Contracts  for  the  construction  of  town  highways. 

10.  Machinery,  tools  and  implements. 

11.  Town  superintendent  may  hire  machinery. 

12.  Purchase  of  gravel  and  stone. 

13.  Obstructions  and  their  removal. 

13a.  Removal  of  snow  and  ice  from  culverts  and  waterways. 

14.  Temporary  obstructions. 

15.  Removal  of  noxious  weeds  and  brush  within  the  highways,  and  of 

obstructions  caused  by  snow. 

16.  Assessment  of  costs  against  owners  and  occupants* 

17.  Wire  fences  to  prevent  snow  blockades. 

18.  Entry  upon  lands  by  town  superintendent. 

19.  Damages  to  owners  of  lands. 

20.  Damages  for  change  of  grade. 

21.  Drainage,  sewer  and  water  pipes,  cattle  passes  or  crossings  in 

highways. 

22.  Trees  and  sidewalks. 

23.  Expenditures  for  sidewalks. 

24.  Allowances  for  shade  trees. 

25.  Custody  of  shade  trees. 

26.  Compensation  for  watering  troughs. 

27.  Credit  on  private  road. 

28.  Neglect  or  refusal  to  prosecute. 

29.  Erection  of  guide  boards. 

30.  Measurement  of  highways  and  report. 

31.  Application  for  service  of  prisoners. 

32.  Construction  and  repair  of  approaches  to  private  lands. 

33.  Unsafe  toll  bridges. 

34.  Actions  for  injuries  to  highways. 

35.  Liability  of  town  for  defective  highways. 

36.  Action  by  town  against  superintendent. 

37.  Audit  of  damages  without  action. 

38.  Closing  highways  for  repair  or  construction. 

39.  Adoption  of  labor  system  for  removing  snow. 

40.  Assessment  of  labor  for  removal  of  snow. 

41.  List  of  persons  assessed  for  removal  of  snow. 

42.  District  foreman;  return  and  levy  of  unworked  tax. 

43.  Appeals  by  non-residents;  certain  assessments  to  be  separate;* 

tenant  may  deduct  assessment. 

§ 1.  ELECTION  OF  TOWN  SUPERINTENDENT  OF  HIGHWAYS. 

At  the  biennial  town  meeting  held  after  the  taking  effect  of  this  chapter,. 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES.  £li 

Highway  Law,  § 41. 

there  shall  be  elected  in  each  town  a town  superintendent  of  highways.1 * * * * * 
A successor  to  the  town  superintendent,  so  elected,  shall  be  elected  at 
each  biennial  town  meeting  held  thereafter  in  such  town,  unless  the 
town  shall  have  adopted  as  provided  in  section  41  a resolution  that  there- 
after the  town  superintendent  shall  be  appointed  by  the  town  board 
[Highway  Law,  § 40;  B.  C.  & G.  Cons.  L.,  p.  2181.] 

§ 2.  SUBMISSION  OF  PROPOSITION  FOR  APPOINTMENT  OR  ELEC- 
TION OF  TOWN  SUPERINTENDENT. 

Upon  the  written  request  of  twenty-five  taxpayers  of  any  town,  made 
and  filed  as  provided  in  the  town  law,  the  electors  thereof  may,  at  a 
special  or  biennial  town  meeting,  vote  by  ballot  upon  a proposition  pro- 
viding for  the  appointment  of  a town  superintendent  in  such  town.  Such 


1.  This  section  supersedes  Town  Law,  sec.  80,  ante.  The  town  superintendent 
is  to  take  the  place  of  the  former  commissioners  of  highways,  and'  after  this  act 
takes  effect  there  can  only  be  but  one  town  superintendent  in  each  town. 

References.  (For  places  in  this  Manual  where  the  sections  here  referred  to 
may  be  found,  see  Tables  of  Laws,  following  Table  of  Contents.)  Town  superim 
tendents  of  highways  act  with  the  assessors  as  fence  viewers  of  the  town.  See  Town 
Law,  sec.  121,  ante.  As  to  their  powers  and  duties  as  fence  viewers,  see  Town  Law7, 
secs.  360-368,  ante. 

Eligibility  of  town  superintendents.  See  Town  Law,  sec.  81,  ante. 

Oath  of  office,  form  of,  and  when  and  how  to  be  taken.  See  Town  Law,  sec.  83 ; 
Public  Officers  Law7,  sec.  10,  ante.  Effect  of  failure  to  take  oath.  See  Public 
Officers’  Law,  sec.  13,  ante. 

Undertakings  of  tow7n  superintendents  of  highways  to  be  executed.  See  Town 
Law7,  sec.  Ill,  ante.  Liabilities  of  sureties  on  undertaking.  See  Town  Law,  sec.  13, 
ante.  Effect  of  undertaking.  See  Public  Officers  Law,  sec.  12,  ante.  Effect  of 
failure  to  execute.  See  Public  Officers  Law,  sec.  13,  ante. 

Resignation  of  town  superintendent  may  be  made  to  any  three  justices  of  the 
peace,  see  Town  Law,  sec.  84,  ante;  and  should  be  filed  with  the  towm  clerk.  See 
Public  Officers  Law,  sec.  31,  ante. 

Removal  of  town  superintendent  by  Appellate  Division  of  the  Supreme  Court. 
See  Public  Officers  Law,  sec.  36,  ante. 

Vacancies,  how  created,  see  Public  Officers  Law,  sec.  30,  ante;  how  filled,  see 
Town  Law,  sec.  130,  ante. 

Delivery  of  books  and  papers  by  outgoing  town  superintendent,  see  Town  Law7, 
sec.  91,  ante;  proceedings  to  compel  delivery  of  books  and  papers,  see  Code  Civ. 
Proc.,  sec.  2471a. 

Effect  of  failure  to  file  oath.  The  failure  of  a town  superin- 
tendent to  take  and  file  his  oath,  as  required  in  § 83  of  the  Towrn 
Law,  as  amended  by  L.  1916,  ch.  340,  would  not  affect  the  powers  and 
rights  of  such  superintendent  in  his  official  capacity.  The  failure  to  file 
the  oath  does  not  of  itself  work  a forfeiture.  Such  forfeiture  must  come 


812 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  42,  43. 

proposition  shall  be  submitted  in  the  manner  provided  by  law  for  the  sub- 
mission of  questions  or  propositions  at  a town  meeting.* 2  If  such  prop- 
osition be  adopted,  the  town  board  of  the  town  shall,  upon  the  expiration 
of  the  term  of  office  of  the  elected  town  superintendent,  appoint  a town 
superintendent  therefor,  who  shall  take  and  hold  office  for  the  term  here- 
inafter prescribed.  Upon  like  request  the  electors  of  any  town  in  which 
the  office  of  superintendent  of  highways  is  appointed  may,  in  like 
manner  determine  that  the  superintendent  of  highways  for  "such  town 
shall  thereafter  be  elected,  as  provided  in  section  forty  of  the  highway 
law.  [Highway  Law,  § 41,  as  amended  by  L.  1916,  ch.  47 ; B.  C.  & G. 
Cons.  L.,  p.  2181.] 


§ 3.  TERM  OF  OFFICE  OF  TOWN  SUPERINTENDENT. 

The  term  of  office  of  a town  superintendent  elected  or  appointed,  as 
provided  in  this  article,  shall  be  two  years.3  If  such  town  superintendent 
be  elected  at  a town  meeting  held  at  the  time  of  a general  election,  his 
term  shall  begin  on  the  first  day  of  January  succeeding  his  election.  If 
such  town  superintendent  shall  have  been  elected  at  a town  meeting  held 
at  any  other  time,  his  term  of  office  shall  begin  on  the  first  Monday  suc- 
ceeding his  election.  If  such  town  superintendent  shall  have  been  ap- 
pointed pursuant  to  a proposition  adopted,  as  provided  in  the  preceding 
section,  his  term  shall  begin  on  the  first  day  of  January  succeeding  his  ap- 
pointment, and  the  town  board  shall  meet  prior  to  that  day  for  the  appoint- 
ment of  such  town  superintendent.  [Highway  Law,  § 42,  as  amended  by 
L.  1917,  ch.  562,  and  L.  1918,  ch.  372;  B.  C.  & G.  Cons.  L.,  p.  2182.] 

§ 4.  VACANCIES;  OFFICE  OF  HIGHWAY  COMMISSIONER  ABOL- 
ISHED. 

Vacancies  in  the  office  of  town  superintendent  shall  be  filled  for  the 


from  some  act,  judicial  or  otherwise,  which  effectually  ousts  the  superintendent  and 
severs  his  relation  to  the  office  and  until  then  he  is  practically  an  officer  de  jure , 
having  a defeasible  title  to  the  office.  Horton  v.  Parsons,  37  Hun,  42.  See  also 
People  v.  Crissey,  91  N.  Y.  616,  635;  In  re  Kendall,  85  N.  Y.  302,  305;  Foot  v.  Stiles, 
&7  N.  Y.  399'. 

2.  Submission  of  proposition.  Application  for  submission  of  proposition  at  town 
meeting,  see  Town  Law,  section  48,  ante.  Call  for  special  town  meeting,  see  Town 
Law,  secs.  46,  47,  ante. 

Effect  of  vote  to  make  appointive.  This  section  does  not  mean  that  the  office  of 
town  superintendent  becomes  permanently  appointive  when  such  proposition  has 
been  approved  by  the  electors,  and  hence  at  a subsequent  election  they  may  again 
make  the  position  elective.  People  ex  rel.  Dare  v.  Howell  (1916),  174  App.  Div.  118, 
160  N.  Y.  Supp.  959. 

3 Evidence  of  election.  It  is  intended  by  the  statute  that  a public  declaration  by 
the  town  clerk  as  to  the  result  of  the  canvass  of  the  votes  cast  for  a town  superin- 
tendent of  highways,  shall  be  a sufficient  certificate  and  evidence  of  his  election. 
Matter  of  Baker,  11  How.  Pr.  418;  Matter  of  Case  v.  Campbell,  16  Abb.  N.  C.  270. 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


813 


Highway  Law,  § 44. 

balance  of  the  unexpirecl  term.* * * 4  The  office  of  highway  commissioner  in 
each  town  is  hereby  abolished,  to  take  effect  on  and  after  November  first, 
nineteen  hundred  and  nine.  Where  the  office  of  highway  commissioner 
shall  become  vacant  by  expiration  of  term  or  otherwise,  after  the  taking 
effect  of  this  chapter,  and  prior  to  the  said  first  day  of  November,  nineteen 
hundred  and  nine,  such  vacancies  shall  be  filled  for  a term  to  expire  on 
such  date.  Highway  commissioners  in  office  when  this  chapter  or  any 
section  hereof  takes  effect  shall  exercise  the  power  and  perform  the  duties 
hereby  conferred  and  imposed  upon  town  superintendents  until  the  said 
first  day  of  November,  nineteen  hundred  and  nine,  and  until  their  successors 
shall  have  duly  qualified,  whereupon  such  powers  and  duties  shall  cease  and 
determine.5  [Highway  Law,  § 43 ; B.  C.  & G.  Cons.  L.,  p.  2182.] 


§ 5.  DEPUTY  TOWN  SUPERINTENDENT. 

The  town  board  of  a town  may,  in  its  discretion,  upon  the  written 
recommendation  of  the  town  superintendent,  appoint  a deputy  town  super- 
intendent, to  be  nominated  by  such  town  superintendent,  to  assist  him 
in  the  performance  of  his  duties.6*  Such  deputy  superintendent  shall  act 


Holding  over  after  expiration  of  term  is  authorized  by  Public  Officers  Law, 

§ 5.  Except  for  the  authority  conferred  by  this  section  a town  superintendent  of 
highways  would  not  be  permitted  to  hold  his  office  after  the  expiration  of  his  term. 
People  v.  Tieman,  30  Barb.  193.  The  term  “qualified”  as  used  in  this  section  of 
the  Public  Officers  Law  means  to  take  an  oath  of  office  and  to  file  an  official  under- 

taking as  required  by  law.  People  ex  rel.  Williamson  v.  McKinney,  52  N.  Y. 
374,  380. 

4.  Vacancies,  how  created  generally,  see  Public  Officers  L.,  sec.  30,  ante . 
Appointments  to  fill  vacancies  by  town  board,  see  Town  Law,  sec.  130,  ante. 

Vacancy  caused  by  non-residence.  The  office  of  town  superintendent  of  high- 
ways will  become  vacant  upon  the  officer  ceasing  to  be  a resident  of  the  town  for 
which  he  was  elected  or  appointed.  People  v.  Board  of  Education,  1 Den.  647 ; 
People  v.  Hull,  47  N.  Y.  St.  Rep.  91,  94,  19  N.  Y.  Supp.  536. 

A special  town  meeting  cannot  be  called  for  the  filling  of  a vacancy  in  the 
office  of  a town  superintendent  of  highways.  People  ex  rel.  Hyde  v.  Potter,  82  N.  Y. 
Supp.  649. 

Resignations  of  town  superintendents  of  highways,  see  Town  Law,  sec.  84,  ante . 
Resignation  of  public  officer  generally,  see  Public  Officers  Law,  sec.  31,  ante. 

5.  Time  of  taking  effect.  Under  sec.  357,  subd.  1,  of  the  Highway  Law,  post, 
it  is  provided  that  the  provisions  of  section  43  shall  take  effect  immediately  so  that 
highway  commissioners  in  office  at  the  present  time  are  authorized  to  exercise  the 
powers  and  perform  the  duties  conferred  upon  town  superintendents  of  highways  by 
the  provisions  of  sections  90,  91,  94,  95,  99  and  100,  ante,  relating  to  estimates  of 
expenditures,  duties  of  the  town  boards  in  respect  thereto,  levy  of  taxes,  etc. 

5a.  Appointment  of  Deputy.  A town  superintendent  may  not  appoint  a 
deputy,  as  the  power  of  appointment  is  vested  solely  in  the  town  board.  Lynch  v. 
Rhinebeck,  210  N.  Y.  101,  rev’g  149  App.  Div.  92J,  133  N.  Y.  Supp.  739. 


814 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  45,  45a,  46. 

as  such  during  the  pleasure  of  the  town  superintendent.  [Highway  Law, 
§ 44;  B.  C.  & G.  Cons.  L.,  p.  2183.] 

§ 6.  COMPENSATION  OF  TOWN  SUPERINTENDENT  AND  DEPUTY. 

The  town  board  shall  fix  the  compensation  of  such  superintendent  and 
'his  deputy,  if  one  be  appointed,  which  shall  not  be  less  than  two  nor  more 
than  five  dollars  per  day.6  Such  town  superintendent  and  his  deputy,  if 
any,  shall  be  paid  the  actual  and  necessary  expenses  incurred  by  them  in 
the  performance  of  their  duties.  Such  compensation  may  be  paid  by  the 
supervisor  monthly,  in  advance  of  audit,  from  moneys  levied  and  collected 
for  such  purpose,  on  accounts  duly  verified  in  the  same  manner  as  town 
accounts  are  required  by  law  to  be  verified.  Such  accounts  for  compensa- 
tion, together  with  accounts  for  expenses  incurred  by  such  town  superin- 
tendent and  his  deputy,  if  any,  verified  as  above  provided,  shall  be  subject 
to  audit  by  the  town  board  at  its  meeting  held  annually  for  the  audit  of 
accounts  of  town  officers,  and  the  balance  due,  as  finally  audited  by  the 
town  board,  shall  be  paid  by  the  supervisor  to  such  town  superintendent, 
or  deputy,  if  any,  from  funds  available  therefor.  [Highway  Law,  § 45 ; 
B.  C.  & G.  Cons.  L.,  p.  2183.] 

Compensation  of  town  superintendents  in  certain  counties  adjoining 
cities  of  the  first  class. — The  town  board  of  any  town  in  a county  having  a 
population  of  two  hundred  thousand  or  less,  according  to  the  last  federal  or 
state  census  or  enumeration,  adjoining  a city  of  the  first  class  having  a popu- 
lation of  one  million  or  upwards,  may  by  resolution  provide  that  the  town 
superintendent  of  highways  shall  receive  an  annual  salary  of  not  to  exceed 
twenty-five  hundred  dollars  in  lieu  of  all  other  compensation.  In  a town 
in  which  such  superintendent  shall  receive  a salary  as  herein  provided,  the 
compensation  provided  for  in  section  one  hundred  and  seventy-five  of  this 
chapter  for  the  services  of  such  superintendent  shall  be  paid  to  the  super- 
visor of  the  town  for  the  benefit  of  the  town.  [Highway  Law,  § 45a,  as 
added  by  L.  1917,  ch.  662.] 

§ 7.  REMOVAL  OF  TOWN  SUPERINTENDENT. 

A town  superintendent  may  be  removed  by  the  town  ooard  upon  written 
charges  preferred  by  the  commission,  or  by  the  district  or  county  super- 
intendent, for  malfeasance  or  misfeasance  in  office.7  Such  charges  shall 
be  presented  in  duplicate  to  the  town  clerk,  one  of  which  shall  be  filed  in 
his  office,  and  the  other  shall  be  served  by  him  personally  upon  the  town 
superintendent,  together  with  a notice  directing  him  to  appear  before  the 
town  board  at  a time  and  place  stated  therein.  Such  service  shall  be 

6.  The  compensation  of  a highway  commissioner  under  setcion  85  of  the  Town  Law, 
ante,  might  have  been  fixed  at  not  less  than  two  nor  more  than  three  dollars  per  day. 
The  present  Highway  Law  supersedes  such  section  85  of  the  Town  Law,  so  far  as  it 
relates  to  the  office  of  town  superintendent  of  highways. 

State  and  county  highways.  The  compensation  of  town  superintendents  for  ser- 
vices in  respect  to  the  maintenance  and  repair  of  State  and  county  highways  is  fixed 
by  the  commission  and  is  paid  from  moneys  set  apart  as  provided  in  article  7 of  the 
Highway  Law  for  such  maintenance  and  repair.  See  Highway  Law,  sec.  175,  post. 

Purcnase  of  automobile.  The  purchase  and  maintenance  of  an  automobile  for  the 
use  of  a town  superintendent  of  Highways  is  a proper  town  charge,  where  it  develops 
to  be  for  the  financial  interests  of  the  town.  Opinion  of  State  Comptroller  (1916), 
9 State  Dept.  Rep.  530. 

7.  A town  superintendent  of  highways  may  be  removed  by  the  Apellate  Division  of 
the  Supreme  Court  upon  application  of  any  citizen,  resident  of  the  town.  Public 
Officers  Law,  sec.  36,  ante. 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES.  815 

Highway  Law,  § 47. 

made  at  least  five  days  prior  to  the  time  specified  in  such  notice.  The 
town  board  shall  convene  for  the  purpose  of  considering  such  charges 
within  ten  days  after  the  filing  thereof  with  the  town  clerk.  The  town 
board  shall  hear  evidence  in  support  and  in  defense  of  such  charges  and 
after  such  hearing  shall  enter  an  order  in  the  office  of  the  town  clerk 
either  sustaining  or  dismissing  such  charges.  The  entry  of  an  order 
sustaining  the  charges  shall  operate  as  a removal  and  the  town  board  shall 
appoint  another  person  to  fill  the  vacancy  caused  thereby.  The  person  so 
appointed  shall  hold  office  for  the  unexpired  term  or  until  the  -entry  of  a 
final  order  of  a court  of  competent  jurisdiction  determining  that  the 
original  town  superintendent  was  wrongfully  and  illegally  removed  and 
directing  his  reinstatement.  If  the  charges  are  dismissed,  the  town  board 
shall  notify  the  commission  and  the  district  or  county  superintendent  of 
such  fact.  The  town  board  shall  also  notify  the  commission  and  the  dis- 
trict or  county  superintendent  of  the  name  of  the  person  appointed  to 
fill  the  vacancy  caused  by  the  removal  of  such  town  superintendent.  An 
appeal  may  be  taken  by  the  commission  or  district  or  county  superintendent, 
or  by  the  town  superintendent,  from  the  order  of  the  town  board,  to  the 
county  court  by  the  filing  of  a notice  of  such  appeal  in  the  office  of  the 
town  clerk  within  thirty  days  after  the  entry  of  such  order.7a  A copy  of 
such  notice  of  appeal  shall  be  served  personally  or  by  mail  upon  the  ad- 
verse party,  Upon  such  appeal  the  county  court  shall  consider  the 
charges  presented  to  the  town  board,  and  may  hear  evidence  in  support 
and  in  defense  thereof.  After  such  hearing  the  court  shall  make  an  or- 
der either  affirming  of  reversing  the  order  of  the  town  board.  A copy  of 
such  order  shall  be  entered  in  the  office  of  the  town  clerk.  If  the  order  re- 
verse an  order  dismissing  the  charges,  i't  shall  direct  the  town  board  to 
remove  the  town  superintendent  and  appoint  a person  to  fill  the  vacancy 
caused  thereby,  within  the  time  specified  therein ; if  it  reverse  an  order 
sustaining  such  charges,  it  shall  direct  the  reinstatement  of  the  town 
superintendent  removed,  to  take  effect  upon  the  filing  of  the  copy  in  said 
town  clerk’s  office.  [Highway  Law,  § 46 ; B.  C.  & G.  Cons.  L.,  p.  2184.] 

§ 8.  GENERAL  POWERS  AND  DUTIES  OF  TOWN  SUPERINTENDENT. 

The  town  superintendent  shall,  subject  to  the  rules  and  regulations  of 
the  commission,* * 3 * * * * 8  made  and  adopted  as  provided  in  this  chapter : 

7a.  An  appeal  may  be  taken  by  the  commission  from  a decision  of  the  town 
board  within  30  days  after  service  of  notice  upon  him  of  the  entry  of  an  order 

dismissing  charges  against  a town  superintendent.  Rept.  of  Atty.  Genl.,  May 

3,  1911. 

Removal  of  town  superintendent  by  commissioner  for  failure  to  file  list  of 

names  of  persons  employed  by  him,  and  for  the  repair  and  improvement  of 

highways  other  than  those  specified  in  the  agreement  made  between  him  and 
the  town  board  under  § 105  of  the  Highway  Law,  is  justified.  Such  conduct 

constitutes  malfeasance  in  office  under  this  section.  Carlisle  v.  Burke,  82  Misc. 
282. 

8.  Rules  and  regulations  adopted  by  the  commission  as  provided  in  Highway 
Law,  gee.  15,  subd.  2,  ante,  may  prescribe  the  duties  of  town  superintendents 
respecting  State  and  county  highways. 


816 


HIGHWAYS  AND  BRIDGES. 


Highway  Law.  § 47. 

1.  Have  the  care  and  superintendence9  of  highways  and  bridges  and 
board  walks  or  renewals  thereof  on  highways  less  than  two  rods  in  width, 
in  the  town,  except  as  otherwise  specially  provided  in  relation  to  incorpo- 
rated villages,10  cities  and  other  localities.  [Subd.  amended  by  L.  1915, 
ch.  322.] 

2.  Cause  such  highways  and  bridges  and  the  board  walks  or  renewals 
thereof  on  highways  less  than  two  rods  in  width  to  be  kept  in  repair,11 


9.  Superintendence.  Town  superintendents,  like  the  former  highway  com- 
missioners, are  to  superintend  the  repair  and  maintenance  of  town  highways  and 
bridges.  The  State  commission  and  the  district  or  county  superintendents  may 
have  supervisory  power,  and  may  enforce  a compliance  with  "the  statutes  and  lawful 
rules  and  regulations,  on  the  part  of  the  town  superintendents;  but  they  cannot 
intervene  to  lessen  the  responsibility  of  the  town  officers  for  the  proper  maintenance 
of  the  town  highway  system.  District  or  county  superintendents  are  required  to 
have  “general  supervision  of  the  work  of  constructing,  improving  and  repairing 
bridges  and  town  highways.”  Highway  Law,  sec.  33,  subd.  1,  ante.  They  may  aid 
town  superintendents  in  the  maintenance  and  construction  of  town  bridges  and 
highways  (Idem,  sec.  33,  subd.  2,  ante),  and  are  required  to  approve  plans,  specifi- 
cations and  estimates  for  the  construction  and  maintenance  of  town  highways 
where  the  work  is  to  be  done  by  contract.  Idem,  sec.  33,  subd.  5,  ante. 

Powers  and  duties  generally.  The  town  superintendent  is  vested  with  gen- 
eral control  over  the  public  highways  and  he  has  a duty  to  perform  toward  the 
public  in  connection  with  their  proper  maintenance.  Matter  of  the  Application 
of  R.  E.  F.  Co.,  123  N.  Y.  351,  33  N.  Y.  St.  Rep.  695.  In  the  administration  of 
the  highway  system,  he  is  an  independent  public  officer,  exercising  power  and 
charged  with  public  duties,  specially  prescribed  by  law,  and  as  such  acts 
individually  of  any  direction  on  the  part  of  the  town;  on  the  other  hand  he 
is  without  power  to  represent  or  affect  the  rights  of  the  town  in  any  other 
manner  than  as  prescribed  by  statute.  Flynn  v.  Hurd,  118  N.  Y.  19;  People 
ex  rel.  Everett  v.  Supervisors,  93  N.  Y.  397 ; Mather  v.  Crawford,  36  Barb.  564. 
He  is  not  an  agent  of  the  town  in  its  corporate  capacity,  and  the  town  is  not 
chargeable  for  his  nonfeasance  or  misfeasance,  nor  for  his  official  acts  or 
delinquincies,  except  where  made  so  by  special  provision  of  law.  People  ex  rel. 
Van  Keuren  v.  Town  Auditors,  74  N.  Y.  310;  People  ex  rel.  Everett  v.  Super- 
visors, 93  N.  Y.  397;  Morey  v.  Town  of  Newfane,  8 Barb.  645;  Bryant  v.  Town 
of  Randolph,  133  N.  Y.  70;  Whitney  v.  Town  of  Ticonderoga,  127  N.  Y.  40,  37 
N.  Y.  St.  Rep.  135.  But  see  Bartlett  v.  Crozier,  17  Johns.  439. 

A town  superintendent  has  implied  authority  to  purchase  supplies  necessary 
for  the  purposes  covered  by  an  agreement  pursuant  to  section  105  of  the 
Highway  Law.  Rept.  of  Atty.  Genl.,  March  31,  1911.  But  he  has  no  legal  right 
to  purchase  supplies  for  roads  and  bridges  without  the  consent  of  the  town 
board.  Rept.  of  Atty  Genl.,  March  11,  1911. 

10.  Tillages.  Streets  in  villages  under  exclusive  control  of  village  trustees. 
Village  Law,  sec.  141.  Control  and  maintenance  of  bridges  in  villages,  see 
Village  Law,  sec.  142.  See  Bender’s  Village  Law  of  New  York. 

11.  Duty  of  the  town  superintendent  to  keep  highways  and  bridges  in  repair. 
The  town  superintendent  is  powerless  to  burden  the  towrn  he  represents  for  the 
repair  of  highways  and  bridges  beyond  statutory  limitations.  Flynn  v.  Hurd, 
118  N.  Y.  19;  People  ex  rel.  Everett  v.  Board  of  Supervisors,  93  N.  Y.  397.  No 
other  officers  are  by  enactment  charged  with  such  duty.  Berlin  Iron  Bridge  Co. 
v.  Wagner,  57  Hun,  346,  10  N.  Y.  Supp.  840.  Neither  the  Town  Law'  nor  the 
Highway  Law  has  changed  the  old  rule  that  he  cannot  create  any  liability  upon 
the  part  of  his  town  to  pay  for  materials  ordered  by  him  for  the  ordinary 
repair  of  town  highways.  Lyth  & Sons  v.  Towm  of  Evans,  33  Misc.  221,  68  N.  Y. 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


817 


Highway  Law,  § 47. 


and  free  from  obstructions  caused  by  snow  and  give  the  necessary  di- 

Supp.  356;  Van  Alstyne  v.  Freday,  41  N.  Y.  174;  People  ex  rel.  Bowles  v.  Burrell, 
14  Misc.  217,  35  N.  Y.  Supp.  608.  If  the  reparation  made  by  the  town  superin- 
tendent is  the  product  of  his  judgment  he  does  not  exceed  the  consent  granted 
him  by  the  town  board;  and  mandamus  will  lie  on  its  refusal  to  audit  a claim 
so  incurred  by  him.  People  ex  rel.  Slater  v.  Smith,  83  Hun,  432,  31  N.  Y.  Supp. 
749.  As  to  duty  to  repair  and  the  origin  thereof,  see  Bartlett  v.  Crozier,  17 
Johnson,  439;  Morey  v.  Town  of  Newfane,  8 Barb.  645;  Dorn  v.  Town  of  Oyster 
Bay,  84  Hun,  510,  32  N.  Y.  Supp.  341. 

Defense  to  action  for  negligence;  want  of  funds. — It  is  no  defense  to  an  ac- 
tion for  negligence  in  not  replacing  a barrier  upon  a bridge  that  the  town 
superintendent  had  no  funds  applicable  to  the  purpose,  as  by  section  93  of  the 
Highway  Law  he  is  authorized  to  make  the  necessary  expenditure  for  extraor- 
dinary repairs,  to  be  afterward  audited  by  the  town  board.  Rising  v.  Town  of 
Moreau,  68  Misc.  284,  125  N.  Y.  Supp.  249. 

A town  superintendent  is  not  responsible  for  the  repair  of  highways  and 
bridges  situated  within  an  Indian  reservation.  Bishop  v.  Barton,  2 Hun,  436. 

Inspection  of  highways;  negligence. — A town  is  chargeable  with  the  negli- 
gence of  the  town  superintendent  in  failing  to  call  the  attention  of  the  town 
board  to  an  unsafe  driveway  of  which  he  had  knowledge,  leading  from  a high- 
way to  abutting  premises  as  this  section  imposes  upon  the  superintendent  a 
duty  of  inspection.  But,  it  seems,  no  charge  of  negligence  can  arise  against 
the  superintendent  if  the  town  board  fails  to  act  after  having  been  informed 
of  the  defect.  Ferguson  v.  Town  of  Lewisboro,  149  App.  Div.  232,  133  N.  Y. 
Supp.  699. 

Power  to  contract.  A town  superintendent  is  not  an  agent  of  the  town  with 
authority  to  contract  for  it  in  real  or  supposed  emergencies,  and  cannot  make  a 
contract  binding  upon  the  town  unless  specifically  authorized  by  statute.  Peo- 
ple ex  rel.  Morey  v.  Town  Board,  175  N.  Y.  394,  reversing  80  App.  Div.  280,  80 
N.  Y.  Supp.  309.  As  to  legality  of  orders  made  by  town  superintendents,  see 
Van  Bergen  v.  Bradley,  36  N.  Y.  316;  Engleman  v.  Longhorst,  120  N.  Y.  332, 
SI  N.  Y.  St.  Rep.  29. 

Highway  superintendents  have  no  power  or  authority  to  bind  the  town  by 
their  contracts  and  are  individually  responsible  alone  to  those  with  whom  they 
contract  if  any  responsibility  is  thereby  created;  they  can  only  impose  liability 
upon  towns  for  the  construction  of  roads  when  they  have  direct  statutory 
authority  therefor.  Matter  of  Niland  v.  Bowron,  193  N.  Y.  180,  affg.  113  App. 
Div.  661,  99  N.  Y.  Supp.  914.  Section  10  of  the  Town  Law  (former  sec.  182)  has 
not  changed  the  old  rule  that  a commissioner  [now  town  superintendent]  of 
highways  cannot  create  any  liability  upon  the  part  of  his  town  to  pay  for 
materials  ordered  by  him  for  the  ordinary  repair  of  town  highways.  Highway 
commissioners  are  charged  with  the  duty  of  keeping  town  highways  in  repair 
as  independent  officers  and  not  as  agents  of  the  town,  and  when  they  contract 
for  such  ordinary  repairs  no  liability  is  created  against  the  town,  and  the  com- 
missioners themselves  as  such  officers,  and  not  the  town,  should  be  sued  for 
the  debt.  Lyth  & Sons  v.  Town  of  Evans,  33  Misc.  221,  68  N.  Y.  Supp.  356. 

Common-law  duty  to  repair  bridges.  The  repair  of  bridges  at  common  law, 
that  is,  those  without  cities  or  incorporated  towns,  belonged  to  the  county; 
and  the  remedy  was  not  by  suit  against  the  surveyors,  whose  duty  it  was  to 
repair  bridges,  or  against  the  justices,  but  by  indictment  against  the  county. 
But  the  common-law  rule  has  never  been  adopted  in  this  state.  Bartlett  v. 
Crozier,  17  Johns.  439;  Hill  v.  Supervisors  of  Livingston,  12  N.  Y.  52. 

Extent  of  repairs.  A highway  cannot  be  said  to  be  open  and  worked  unless 
it  is  passable  for  its  entire  length.  It  need  not  be  worked  in  every  part,  but  it 
must  be  worked  sufficiently  to  enable  the  public  to  pass  and  repass  with  teams 
and  vehicles  such  as  are  ordinarily  used.  The  requirement  to  open  and  work  a 
highway  implies  that  it  must  be  made  passable  as  a highway  for  public  travel. 
It  need  not  be  a first-class  road;  it  need  not  be  finished,  but  it  must  be  sufficient 
and  kept  in  a suitable  condition  to  enable  the  public  to  pass  over  it.  Beckwith 
v.  Whalen,  70  N.  Y.  430.  See,  also,  People  ex  rel.  Slater  v.  Smith,  83  Hun,  432, 
31  N.  Y.  Supp.  749;  Peck  v.  Batavia,  32  Barb.  641. 

Where  town  superintendents  have  not  sufficient  funds  in  their  hands  to 


818 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 47. 

rections  therefor,12  and  inspect  the  highways  and  bridges  within  the  town* 
during  the  months  of  April  and  October  of  each  year,  or  at  such  other 
time  as  the  district  or  county  superintendent  may  prescribe;  and  may 
cause  to  be  constructed  and  repaired  any  public  roads,  walks,  places  and 
avenues  on  any  sand  beach  separated  by  more  than  two  miles  of  water 
from  the  main  body  of  his  town,  although  such  roads,  walks,  places  and 
avenues  are  narrower  than  the  width  of  highways  required  by  statute. 
Within  the  meaning  of  this  section,  or  of  any  provision  of  this  chapter 
referring  to  a renewal  of  a board  walk  on  a highway  less  than  two  rods 
in  width,  the  term  “ renewal  ” shall  include  a walk  built  of  other  mate- 
rial to  replace  such  board  walk.  [Sub.  amended  by  L.  1914,  ch.  84,  and 
L.  1915,  ch.  322.] 

3.  Divide  the  town  into  as  many  sections  as  may  be  necessary  for  the 
proper  maintenance  and  repair  of  the  highways  therein,  and  the  opening 
of  highways  obstructed  by  snow. 

4.  Employ  such  persons  with  teams  and  implements,  as  may  be  neces- 
sary for  the  proper  maintenance  and  repair  of  highways  and  bridges,  and 
the  removal  of  obstructions  caused  by  snow,  subject  to  the  approval  of  the 
town  board,  as  hereinafter  provided,  and  provide  for  the  organization  and 
supervision  of  the  persons  so  employed.  He  shall  file  a list  of  the  names 
of  the  persons  so  employed,  with  the  compensation  paid  to  each,  and  the 
capacity  in  which  they  were  employed  in  the  office  of  the  town  clerk.13 

5.  Construct  and  keep  in  repair  sluices  and  culverts  and  cause  the 
waterways,  bridges  and  culverts  to  be  kept  open.14 

provide  the  needed  repairs  it  is  within  their  discretion  to  apply  the  fund  on  hand 
in  making  such  repairs  as  are  most  urgently  needed.  They  are  not  nor  is  the  town 
liable  for  an  error  in  judgment  in  so  doing,  if  they  act  reasonably  and  in  good 
faith.  Monk  v.  Town  of  New  Utrecht,  104  N.  Y.  552;  Patchen  v.  Town  of  Walton, 
17  App.  Div.  158,  45  N.  Y.  Supp.  145. 

Use  of  material  taken  from  highway.  In  making  necessary  repairs  to  high- 
ways the  town  superintendent  may  take  soil  from  any  portion  of  the  highway 
including  the  unused  roadside,  regardless  of  any  grading  or  other  improvements 
made  by  abutting  owners,  in  the  absence  of  proof  that  the  town  superintendent 
has  not  acted  wantonly  or  maliciously.  Anderson  v.  Van  Tassell,  53  N.  Y.  631. 
Where  it  is  necessary  to  cut  down  the  bed  of  the  highway,  the  fee  of  which  is  not 
in  the  public,  in  order  to  bring  it  to  a desired  grade,  the  town  superintendent  may 
use  the  earth  and  stone  thus  taken  out  to  repair  any  part  of  a highway  upon  which 
they  may  see  fit  to  put  them;  but  unless  it  is  necessary  to  remove  the  earth  and 
stone  for  that  purpose,  they  may  not  use  them  for  the  purpose  of  repairing  any  part 
of  the  highway,  except  that  part  which  is  opposite  the  lands  of  the  owner  who  owns 
the  fee  of  the  highway  at  the  point  where  the  materials  were  removed.  Robert  v. 
Sadler,  104  N.  Y.  229 ; Ladd  v.  French,  6 N.  Y.  Supp.  56,  24  N.  Y.  St.  Rep.  952. 

Stones  and  other  material  taken  from  the  highway  and  not  required  for  the  use 
of  the  highway  belong  to  the  abutting  owner  if  his  title  covers  the  highway. 
Deverell  v.  Bauer,  41  App.  Div.  53,  58,  N.  Y.  Supp.  413. 

12.  Estimates  to  contain  amount  for  removel  of  obstructions  caused  by  snow. 
Highway  Law,  sec.  90,  post.  If  amount  is  insufficient  town  board  may  cause 
additional  amount  to  be  raised  for  such  purpose.  Idem , sec.  92,  post. 

13.  The  town  superintendent  should  not  employ  his  own  teams  and  implements 
for  work  on  the  highways;  it  is  against  the  established  principles  of  public  policy 
to  allow  a public  officer  to  be  both  the  employer  and  the  employed.  Rept.  of  Atty.- 
Gen.  (1903),  309. 

14.  Ditches  and  culverts  in  State  and  county  highways  must  be  kept 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES.  819 

Highway  Law,  § 47. 

6.  Cause  loose  stones  lying  in  the  beaten  track  of  every  highway  within 
his  town  to  be  removed  at  least  three  times  each  year  between  the  first  day 
of  April  and  the  first  day  of  December.  Stones  so  removed  shall  be  con- 
veyed to  some  place  from  which  they  shall  not  work  back,  or  be  brought 
back  into  the  track  by  road  machines  or  other  implements  used  in  repair- 
ing such  highways.15 

7.  Cause  noxious  weeds  growing  within  the  bounds  of  the  highways  to  be 
cut  and  removed,  at  least  twice  in  each  year,  once  between  the  first  and 
thirtieth  day  of  July,  and  once  between  the  first  and  thirtieth  day  of  Sep- 
tember. He  shall  also  cause  all  briers  and  brush  within  the  bounds  of 
the  highway  to  be  cut  and  removed  once  between  the  first  and  thirtieth 
day  of  September  in  each  year,  as  provided  by  section  fifty-four  of  this 
chapter,  unless  otherwise  directed  by  the  commission.16  [Amended  by 
L.  1910,  ch.  567. 

8.  Cause  such  highways  as  shall  have  been  laid  out,  but  not  sufficiently 
described,  and  such  as  shall  have  been  used  for  twenty  years,17  but  not 
recorded,  to  be  ascertained,  described  and  entered  on  record  in  the  town 
clerk’s  office.18 


open  and  free  from  obstructions  by  town  superintendent.  Highway  Law,  sec. 
53,  post. 

15.  Injurious  substances  in  highways,  see  Penal  Law,  secs.  1434,  191  post. 
Any  person  throwing  loose  stones,  rubbish,  ashes,  etc.,  in  the  highway  is  liable 
to  a penalty  of  ten  dollars.  Highway  Law,  sec.  328,  post. 

16.  Removal  of  weeds  and  brush  by  land  owners.  It  is  made  the  duty  of 
the  owner  or  occupant  of  lands  situated  along  the  highway  to  cut  and  remove 
the  weeds  and  brush  within  the  bounds  of  the  highway  and,  in  case  of  failure, 
the  town  superintendent  is  required  to  do  the  same  and  charge  the  expense 
thereof  upon  such  owners  or  occupants.  See  Highway  Law,  sec.  54,  post. 

A town  superintendent  has  no  authority  to  create  a liability  upon  the  part 
of  his  town  to  a person  hired  to  cut  brush  along  a town  highway,  and  even 
if  such  liability  were  created,  it  would  not  become  actionable  until  the  claim 
had  been  acted  upon  by  the  town  auditors.  Wright  v.  Town  of  Wilmurt,  44 
Misc.  456,  90  N.  Y.  Supp.  90  (1904). 

17.  Highways  by  use,  see  Highway  Law,  sec.  209,  post. 

18.  Surveys  upon  the  laying  out  of  a highway  by  the  town  superintendent, 
see  Highway  Law,  sec.  190,  post.  The  board  of  supervisors  is  authorized  to 
direct  the  town  superintendent  to  cause  a survey  of  highways  to  be  made  at  the 
expense  of  the  town.  County  Law,  sec.  71,  post. 

When  survey  authorized.  Where  a highway  has  been  dedicated  to  the 
public  for  the  prescribed  period  of  twenty  years  the  town  superintendent  may 
cause  a survey  to  be  made  thereof  and  remove  fences  and  other  encroachments 
within  the  limits  of  such  highway.  James  v.  Sammis,  132  N.  Y.  239. 

A writing  signed  by  the  commissioners,  although  not  containing  a formal 
order  laying  out  the  highway,  which  purports  to  be  a survey  of  the  road, 


820 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 47. 

9.  Inspect  all  highways  which  are  to  be  constructed  or  improved  as 
state  or  county  highways,  when  directed  by  the  district  or  county  super- 
intendent, for  the  purpose  of  securing  preliminary  information  to  be  used 
in  preparing  the  plans  and  specifications  for  such  highways,  and  mark 
or  in  some  substantial  manner  designate  the  portions  of  such  highways 
which  may  need  special  care  and  attention.  He  shall  report  to  the  district 
or  county  superintendent  the  condition  of  such  highways  and  submit  there- 
with such  recommendations  in  respect  thereto  as  may  seem  expedient. 
The  district  or  county  superintendent  may  require  additional  reports  in 
respect  to  such  highways  whenever  it  seems  to  him  to  be  necessary. 

10.  Attend  public  meetings  called  by  the  commission,  held  within  the 
county,  after  receiving  notice  thereof  from  the  district  or  county  super- 
intendent, and  his  expenses  necessarily  incurred  thereby  shall  be  a town 
charge.19 

11.  Cause  the  monuments  erected,  or  to  be  erected,  as  the  boundaries  of 
highways,  to  be  kept  up  and  renewed  so  that  Hie  extent  of  such  highway 
boundaries  may  be  publicly  known,  and  erect  and  establish  such  new 
monuments  as  may  be  required  by  the  district  or  county  superintendent.20 

12.  Collect  all  penalties  prescribed  by  this  chapter.21 


describes  the  center  line,  and  states  where  the  road  iw  to  commence  and  termi- 
nate and  which  was  filed  with  the  town  clerk,  is  a substantial  compliance  with 
the  statute;  no  particular  form  is  necessary  and  the  acts  of  such  officers 
should  receive  liberal  construction.  Tucker  v.  Rankin,  Barb.  471. 

Effect  of  survey.  The  order  cannot  have  the  effect  to  increase  or  change  the 
width  or  location  of  the  highway  from  what  it  was  before;  it  could  be  effectual 
only  as  a description  of  the  width  as  manifested  by  the  permitted  use  for  twenty 
years.  Ivory  v.  Town  of  Deerpark,  116  N.  Y.  476;  People  v Judges  of  Cortland 
Co.,  24  Wend.  491;  Cole  v.  Van  Keuren,  4 Hun  262,  6 T.  & C.  483,  affirmed, 
64  N.  Y.  646.  An  order  of  the  superintendent  is  not  conclusive  upon  a 
person  claiming  that  the  highway  is  a private  road--  the  statute  does  not 
authorize  the  superintendent  to  create  or  enlarge,  but  only  to  perpetuate,  the 
evidence  of  a public  right.  Cole  v.  Van  Keuren,  4 Hun  282,  6 T.  & C.  483, 
affirmed,  64  N.  Y.  646. 

A certificate  or  order  of  the  town  superintendent  merely  ascertaining  and  de- 
scribing a road  as  a highway  is  insufficient  as  a defense  in  an  action  against  him 
for  trespass,  -where  it  does  not  purport  to  be  based  upon  a record  nor  upon  an 
adjudication  that  there  had  been  a user  of  twenty  years  without  record.  Kelsey 
v.  Burgess,  35  N.  Y.  St.  Rep.  368,  12  N.  Y.  Supp.  169. 

19.  Public  meetings  held  on  the  call  of  the  commission,  Highway  Law,  sec. 
15,  subd.  9,  ante;  notice  of  which  are  to  be  given  by  the  district  at  county 
superintendent,  Idem , sec.  33,  subd.  7,  ante. 

20.  Board  of  supervisors  authorized  to  direct  town  superintendent  tc  estab- 
lish location  of  highways  by  suitable  monuments.  County  Law,  sec.  71.  post. 

21.  Penalties  prescribed  in  this  chapter.  For  failure  of  owners  of  unsafe  toll 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


821 


Highway  Law,  § 48. 

13.  Report  annually  on  such  date  as  may  be  prescribed  by  the  com- 
mission, prior  to  November  fifteenth,  to  the  district  or  county  superin- 
tendent, in  relation  to  the  highways  and  bridges  in  his  town,  containing 
the  matter  and  in  the  form  to  be  prescribed  by  the  commission. 

14.  Perform  such  other  duties  and  have  such  other  powers  as  may  be 
imposed  or  conferred  by  law,  or  the  rules  and  regulations  of  the  commis- 
sion, including  the  powers  and  duties  heretofore  exercised  or  performed 
by  highway  commissioners.  [Highway  Law,  § 47 ; B.  C.  & G.  Cons. 
L.,  p.  2184.] 

§ 9.  CONTRACTS  FOR  THE  CONSTRUCTION  OF  TOWN  HIGHWAYS 
AND  BRIDGES. 

The  town  board  of  any  town  may  provide  that  the  construction  of 
new  highways  and  bridges,  or  the  permanent  improvement  or  reconstruc- 
tion of  existing  highways  and  bridges,  or  the  permanent  improvement 
or  reconstruction  of  existing  highways  and  bridges  or  repairing,  rebuild- 
ing or  replacing  walks  on  highways  less  than  two  rods  in  width  pursuant 
to  the  provisions  of  sections  forty-seven,  sixty-two  and  ninety-seven 
of  this  chapter,  the  cost  of  which  will  exceed  five  hundred  dollars,  shall 
be  done  under  contracts.22  All  such  contracts  shall  be  awarded  by  the 
town,  superintendent,  in  accordance  with  estimates,  plans  and  specifica- 
tions to  be  furnished  by  the  district  or  county  superintendent,  or  by  the 
commission,  as  provided  in  this  chapter,  to  the  lowest  responsible 
bidders,  after  advertisement  once  a week,  for  three  consecutive  weeks, 
in  a newspaper  published  in  the  town  where  the  work  is  to  be  performed, 
or  if  no  newspaper  is  published  therein,  in  a newspaper  published  at 
some  other  place  in  the  county,  having  the  largest  circulation  in  said 
tovm.  All  bids  for  such  work  shall  be  opened  in  public  and  shall  be 
filed  in  the  office  of  the  town  clerk.  No  such  contract  shall  be  awarded, 


bridge  to  repair  the  same,  section  72,  post,  damages  in  actions  for  injuries  to  high- 
ways shall  be  brought  by  the  town  superintendent,  section  73,  post. 

Penalty  for  driving  or  riding  faster  than  a walk  on  a bridge,  sections  252  and 
253,  post.  Failure  of  person  operating  ferry  to  post  schedule,  section  274,  post. 
Forfeiture  for  the  employment  of  intemperate  drivers,  section  282,  post.  Forfeiture- 
for  failure  of  owner  of  carriage  for  conveyance  of  passenger  to  discharge  driver 
upon  receiving  notice  of  his  having  been  intoxicated,  section  283,  post.  Forfeiture 
for  leaving  horses  without  being  tied,  section  284,  post.  Penalty  for  the  deposit  of 
stones,  ashes  and  refuse  in  highways,  section  288,  post.  Penalty  for  neglecting  to 
comply  with  law  of  the  road,  section  292,  post.  Penalty  for  falling  trees  in  the 
highway,  section  295,  post.  Forfeiture  for  failure  to  remove  fallen  trees  from  the 
highway,  section  296,  post. 

Actions,  how  brought.  Any  action  for  the  benefit  of  a town  to  recover  penalty 
or  forfeiture  given  to  a town  officer,  or  the  town  represented  by  him,  must  be  brought 
in  the  name  of  the  town.  Town  Law,  § 10.  As  to  actions  generally  by  or  against 
town  superintendents  of  highways,  see  Code  Civil  Procedure,  §§  1925-1928.  Com- 
missioners of  Cortlandville  v.  Peck,  5 Hill,  215. 

22,  Contracts  by  town  superintendents  under  this  section  must  be  in  the  name 
of  the  town.  Town  Law,  sec.  10,  ante. 


822 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 49. 


unless  it  be  approved  by  the  district  or  county  superintendent,  as  to  its 
form  and  efficiency.23  The  person  to  whom  such  contract  is  awarded 
shall  execute  a bond  to  the  town,  in  a sum  equal  to  one-half  of  the  amount 
of  the  contract,  with  two  or  more  sureties  to  be  approved  by  the  town 
board,  conditioned  for  the  faithful  compliance  with  the  terms  of  the  con- 
tract, and  the  plans  and  specifications  and  for  payment  of  all  damages 
which  may  accrue  to  the  town,  because  of  a violation  thereof.  When  such 
work  is  completed  pursuant  to  the  terms  of  such  contract,  and  the  plans 
and  specifications  therefor,  and  accepted  by  the  district  or  county  super- 
intendent and  town  board,  as  being  in  accordance  .therewith,  the  cost  of 
the  work  under  the  contract  shall  be  paid  out  of  moneys  available  there- 
for, in  the  same  manner  as  other  highway  expenses.  Payments  made 
under  such  contract  shall  be  upon  certificates  issued  to  the  contractor  by 
the  district  or  county  superintendent,  to  the  effect  that  the  work  has  been 
done  under  and  in  accordance  with  the  terms  of  such  contract,  and  the 
plans  and  specifications.  All  work  done  under  any  such  contract  shall 
be  under  the  supervision  of  the  district  or  county  superintendent,  or 
some  person  designated  by  him.  The  town  superintendent  shall  file  all 
contracts,  awarded  under  this  section  or  as  provided  in  this  chapter,  for 
the  construction,  improvement  or  repair  of  town  highways  and  bridges, 
or  for  repairing,  rebuilding  or  replacing  a walk,  with  the  town  clerk  of 
the  town  within  ten  days  after  their  execution.  [Highway  Law,  § 48, 
as  added  by  L.  1914,  ch.  413,  Avhich  repealed  and  superseded  former 
§ 48,  as  amended  by  L.  1916,  ch.  578;  B.  C.  & G.  Cons.  L.,  p.  2190.] 


§ 10.  MACHINERY,  TOOLS  AND  IMPLEMENTS. 

The  town  superintendent  may,  with  the  approval  of  the  town  board, 
purchase  for  the  use  of  the  town,  stone  crushers,  steam  rollers,  motor  trucks, 
scarifiers,  concrete  mixers,  traction  engines,  road  machines  for  grading  and 
scraping,  tools  and  other  implements,  subject  to  the  limitations  prescribed 
in  section  ninety-four,  which  shall  be  paid  for  from  moneys  levied  and  col- 
lected or  from  the  proceeds  of  bonds  issued  and  sold  for  such  purposes  as 
provided  in  this  chapter.24  No  contract  for  the  purchase  of  stone  crushers. 


23.  Approval  of  plans,  specifications  and  estimates  by  county  or  district 
superintendents  required  by  Highway  Law,  sec.  33,  subd.  5,  ante.  When  re- 
quested by  a town  superintendent  the  commission  may  cause  plans,  specifications 
and  estimates  to  be  prepared  for  the  repair  or  improvement  of  a town  highway. 
Highway  Law,  sec.  15,  subd.  5,  ante. 

24.  Moneys  available  for  the  purchase  of  road  machinery,  tools  and  imple- 
ments must  be  estimated  for  separately  by  the  town  superintendent,  under 
Highway  Law,  sec.  90,  subd.  3,  post,  p.  853,  and  when  collected  must  be  paid  to 
the  supervisor  to  be  paid  out  by  him  upon  the  order  of  the  town  superintendent 
according  to  such  estimate.  If  the  amount  estimated  for  is  insufficient  an  addi- 


823 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 

Highway  Law,  § 49. 

steam  rollers,  motor  trucks,  scarifiers,  concrete  mixers,  or  traction  engines 
shall  be  valid,  unless  the  district  or  county  superintendent  shall  have  ap- 
proved thereof  and  endorsed  his  approval  upon  such  contract.  All  road 
machines,  stone  crushers,  steam  rollers,  motor  trucks,  scarifiers,  concrete 
mixers,  or  traction  engines,  tools  and  other  implements  owned  either  by  the 
town  or  the  highway  districts  therein,  shall  be  used  by  the  town  superin- 
tendent in  such  manner  and  at  such  places  in  such  town  as  he  shall  deem 
best.  They  shall  be  under  the  control  of  the  superintendent  and  be  cared 
for  by  him  at  the  expense  of  the  town.  The  town  superintendent  shall  an- 
nually make  a written  inventory25  of  all  such  machinery,  tools  and  imple- 
ments, indicating  each  article  and  stating  the  value  thereof,  and  the  esti- 
mated cost  of  all  necessary  repairs  thereto,  and  deliver  the  same  to  the  super- 
visor of  the  town  on  or  before  October  thirty-first  in  each  year.  He  shall 
at  the  same  time  file  with  the  town  clerk  his  written  recommendations  as 
to  what  machinery,  tools  and  implements  should  be  purchased  for  the  use 
of  the  town,  and  the  probable  cost  thereof.  The  town  superintendent  shall 
provide  a suitable  place  for  housing  and  storing  all  machinery,  tools  and 


tional  amount  may  be  raised  by  a vote  at  a town  meeting,  as  provided  in  High- 
way Law,  sec  92,  post.  No  part  of  the  money  received  from  the  State  is  avail- 
able for  the  purchase  of  road  machines.  See  Highway  Law,  sec.  101,  post.  The 
money  available  for  such  purposes  can  only  be  paid  out  by  the  supervisor  upon 
the  written  order  of  the  superintendent  after  audit  by  the  town  board.  See 
Highway  Law,  sec.  106,  post . 

Contract  for  steam  roller;  fraud. — Payment  by  the  manufacturers  of  a steam 
roller  of  the  per  diem  fees  of  the  members  of  the  town  board  for  attending  a 
meeting  to  authorize  a contract  for  hiring  or  purchasing  a steam  roller  and 
also  the  expenses  of  town  officials  in  going  to  examine  the  roller  and  verify 
the  agent’s  representations  in  respect  to  it  is  not  a fraud  upon  the  town  which 
will  vitiate  the  subsequent  contract  for  the  hiring  or  purchase  of  the  roller. 
Gardner  v.  Town  of  Cameron,  74  Misc.  286.  But  a contract  for  leasing  such 
machine,  the  rental  to  constitute  a part  of  the  purchase  price,  the  sale  to  be 
completed  within  a prescribed  period  is  not  valid,  unless  authorized  by  a town 
meeting. 

25.  The  inventory  of  machinery,  tools  and  implements  required  by  this  sec- 
tion must  be  delivered  to  the  supervisor  and  included  in  his  report  to  the  town 
board.  See  Highway  Law,  sec.  107,  post.  For  form  of  inventory,  see  Form  No. 
$7,  post. 


824 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 50. 

implements  owned  by  the  town  and  cause  the  same  to  be  stored  therein, 
when  not  in  use.  He  may  also  with  the  approval  of  the  town  board  sell 
any  such  machinery,  tools  and  implements,  which  are  no  longer  needed  by 
the  town,  or  which  are  wrorn  out  or  obsolete,  or  may  exchange  the  same  for 
new  machinery,  tools  and  implements.  If  sold,  the  proceeds  shall,  under  the 
direction  of  the  town  board,  be  applicable  to  the  purchase  of  the  machinery, 
tools  and  implements  mentioned  in  subdivision  three  of  section  ninety-four 
of  this  chapter.  Where  there  is  an  incorporated  village  constituting  a 
separate  road  district,  wholly  or  partly  in  a town  which  has  purchased  a 
stone  crusher,  steam  roller,  motor  truck,  scarifier,  concrete  mixer,  or  trac- 
tion engine,  the  town  board  of  such  town  may  permit  the  use  thereof  by 
such  village  upon  such  terms  as  may  be  agreed  upon.  [Highway  Law,  § 49, 
as  amended  by  L.  1917,  ch.  349,  and  L.  1918,  ch.  329;  B.  C.  & G.  Cons.  L., 
p.  2191.] 

§11.  TOWN  SUPERINTENDENT  MAY  HIRE  MACHINERY. 

The  town  superintendent  may,  with  the  approval  of  the  district  or  county 
superintendent,  lease  or  hire  stone  crushers,  steam  rollers,  motor  trucks, 
scarifiers,  concrete  mixers  and  traction  engines  at  a rate  to  be  approved  by 
the  town  board,  which  shall  not  exceed  twenty  dollars  for  a stone  crusher 
and  steam  roller  or  motor  truck,  and  eight  dollars  for  a traction  engine, 
scarifier  or  concrete  mixer,  for  each  day  such  stone  crusher,  steam  roller, 
motor  truck,  scarifier,  concrete  mixer,  or  traction  engine  is  actually  used 
upon  the  highways.  The  expense  thereof  shall  be  paid  by  the  supervisor, 
upon  the  written  order  of  the  town  superintendent,  out  of  moneys  received 
by  him  as  provided  in  this  chapter,  for  the  repair  and  improvement  of  high- 
ways.25*1 [Highway  Law,  § 50,  as  amended  by  L.  1918,  ch.  329;  B.  C.  & 
G.  Cons.  L.,  p.  2192.] 


25a.  Contract  for  conditional  sale  with  provision  for  rental.— The  authorities 

of  a town  on  its  behalf  entered  into  a written  agreement  purporting  to  lease  a 
steam  roller  ot  the  rate  of  ten  dollars  a day  and  agreed  to  use  the  same  not  less 
than  sixty-four  days  in  the  year.  It  was  further  provided  that  the  continuance 
of  the  lease  each  year  was  optional  with  the  town  superintendent,  but  that  if 
the  lease  was  not  to  be  so  continued  the  lessee  must  notify  the  lessor  in  writing 
by  a certain  date,  and  that  upon  a failure  to  do  so  the  lease  should  continue  for 
another  year  upon  the  same  terms.  It  was  further  provided  that  in  default  of 
notice  to  the  contrary  the  lessee  agreed  to  rent  and  use  the  roller  for  the  afore- 
said number  of  days  at  the  aforesaid  rates,  payments  to  be  made  until  the 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


824a 


Highway  Law,  § 51. 

§ 12.  PURCHASE  OF  GRAVEL  AND  STONE. 

The  town  superintendent2015  may,  with  the  approval  of  the  town  board, 
purchase  of  the  owner  of  any  gravel  bed  or  pit,  or  stone  quarry  within 
the  town,  gravel  or  stone  for  the  purpose  of  grading,  repairing  or  other- 
wise improving  the  highways  of  the  town,  at  a price  per  cubic  yard  to 
be  approved  by  the  town  board.  If  such  town  superintendent  cannot 
agree  with  any  such  owner  for  the  purchase  of  such  gravel  or  stone,  he 
may,  with  the  approval  of  the  town  board  acquire  by  condemnation  the 
right  to  take  and  use  such  gravel  or  stone,  and  to  remove  the  same  from 
such  bed,  pit  or  quarry,  for  the  purpose  of  grading,  repairing  or  other- 
wise  improving  such  highways,  together  with  the  right  of  way  to  and 


roller  was  fully  paid  for,  the  lessor  agreeing  that  upon  full  payment,  and  for  a 
consideration  of  one  dollar,  the  roller  should  belong  to  the  lessee  free  of  all  incum- 
brances, the  machine,  however,  to  remain  the  property  of  the  lessor  until  paid  for, 
with  a right  in  it  to  retake  the  machine.  It  was  held,  that  said  instrument  though 
called  a lease  was  not  such  in  fact,  but  on  the  contrary  was  a contract  of  condh 
tional  sale,  unauthorized  by  this  section.  A lease  can  only  be  made  at  a rental 
fixed  by  the  town  board.  Where  the  contract  is  not  approved  the  lessor  cannot 
recover  for  use  of  roller.  Gardner  v.  Town  of  Cameron  (1913),  155  App.  Div.  750. 

A town  superintendent  cannot  enter  into  a contract  for  the  leasing  of  a road 
machine,  binding  upon  his  town,  unless  the  town  board  approve  of  the  rate  to  be 
paid  therefor,  notwithstanding  the  fact  that  the  county  superintendent  has  approved 
of  the  contract.  Rept.  of  Atty.  Genl.,  Apr.  25,  1911. 

Power  of  town  authorities  to  lease  steam  roller;  liability  of  town  for 
benefits  received.  The  Highway  Law  does  not  authorize  a town  board  to  pur- 
chase a steam  roller  for  use  upon  highways  by  a contract  of  conditional  sale,  and 
such  contract  is  void  and  unenforcihle.  Although  the  contract  aforesaid  is  void  a 
taxpayer,  in  order  to  compel  a restoration  of  town  funds  paid  thereon  to  the  seller 
by  the  town  officials,  must  allege  not  only  that  the  town  funds  have  been  wasted 
but  prove  upon  trial  that  they  have  in  fact  been  wasted;  that  is  to  say,  that  the 
payment  resulted  in  no  benefit  to  the  town.  Hence,  as  the  town  authorities  were 
authorized  by  statute  to  lease  a steam  roller,  there  can  be  no  recovery  as  for  waste 
where  the  amount  paid  to  the  company  furnishing  the  roller  was  reasonable  in 
amount  and  the  town  received  the  benefit  of  the  roller,  which  was  used  in  the  neces- 
sary performance  of  its  function  in  caring  for  its  highways.  Under  the  circum- 
stances the  town  is  liable  as  upon  a quantum  meruit.  Shoemaker  v.  Buffalo  Steam 
Roller  Co.,  165  App.  Div.  836,  151  N.  Y.  Supp.  207. 

25b.  The  words  “ town  superintendents  of  highways  ” and  “ town 
superintendents  ” are  used  interchangeably  to  designate  the  same  official.  Map- 
son  v.  Gale,  142  App.  Div.  335,  126  N.  Y.  Supp.  907. 


824b 


HIGHWAYS  AXD  BRIDGES. 


Highway  Law,  § 52. 

from  such  bed,  pit  or  quarry,  for  the  purpose  of  such  removal.250  Xo  such 
gravel  or  stone  shall  be  so  taken  by  condemnation  within  five  hundred 
feet  of  any  house  or  barn,  or  from  any  lawn,  orchard  or  vineyard.  The 
purchase  price  of  such  stone  or  gravel  and  the  damages  awarded  in  such 
condemnation  proceedings,  together  with  the  costs  and  expenses  thereof, 
shall  be  a town  charge  and  paid  from  moneys  levied  and  collected  there- 
for, as  provided  by  law.  If  the  town  shall  abandon  for  the  period  of 
three  years  any  right  acquired  under  this  section  to  take  and  use  the 
gravel  or  stone  from  any  such  bed,  pit  or  quarry,  or  if  the  superintend- 
ent shall  cease  to  use  the  same  for  the  purposes  for  which  it  was  acquired, 
the  right  thereto  shall  cease,  and  the  ownership  thereof  shall  revert  to 
and  become  vested  in  the  owner  of  such  bed,  pit  or  quarry,  or  his  heirs 
or  assigns.  [Highway  Law,  § 51 ; B.  C.  & G.  Cons.  L.,  p.  2192.] 

§ 13.  OBSTRUCTIONS  AND  THEIR  REMOVAL. 

Obstructions,  within  the  meaning  of  this  section,  shall  include  trees 
which  have  been  cut  or  have  fallen26  either  on  adjacent  lands  or  within 
the  bounds  of  the  highway,  in  such  a manner  as  to  interfere  with  public 
travel  therein ; limbs  of  trees  which  have  fallen  within  the  highway,  or 
branches  of  trees  overhanging  the  highway  so  as  to  interfere  wfith  public 
travel  therein ; lumber,  wood  or  logs  piled  within  the  bounds  of  the  public 
highway;  machines,  vehicles  and  implements  abandoned  or  habitually 
placed  within  the  bounds  of  the  highway;  fences,  buildings  or  other 
structures  erected  within  the  bounds  of  the  highway ; earth,  stone  or  other 


25c.  The  petition  to  condemn  gravel  and  stone  for  the  improvement  of  a 
highway  should  not  describe  the  entire  plot  of  land  from  which  the  material  is  to 
be  taken,  but  on  the  contrary  should  locate  the  quarry  itself  by  metes  and  bounds, 
as  well  as  the  right  of  way  over  which  the  material  is  to  be  removed,  and  also  those 
lands  contiguous  to  a quarry  in  which  an  easement  will  be  necessary  in  order  to 
carry  on  operations.  An  amendment  of  the  petition  may  be  allowed.  Maxson  v. 
Gale,  142  App.  Div.  335,  126  N.  Y.  Supp.  967. 

28.  It  is  the  duty  of  the  owners  or  occupants  of  lands  from  which  a tree  shall 
fall  into  the  highway  to  remove  the  same.  Highway  Law.  sec.  336,  post. 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


825 


Highway  Law,  § 52. 

material  placed  in  any  ditch  or  waterway  along  the  highway ; telegraph, 
telephone,  trolley  and  other  poles,  and  the  wires  connected  therewith, 
erected  within  the  bounds  of  the  highway  in  such  a manner  as  to  interfere 
with  the  use  of  the  highway  for  public  travel.27 

It  shall  he  the  duty  of  each  owner  or  occupant  of  lands  situate  along 
the  highway,  to  remove  all  obstructions  within  the  bounds  of  the  highway, 
which  have  been  placed  there,  either  by  themselves  or  by  their  consent.28 


27.  What  constitutes  obstructions.  Anything  which  unreasonably  obstructs 
a highway  so  as  to  prevent  the  use  thereof  for  the  purposes  for  which  it  is  main- 
tained is  an  illegal  obstruction  and  must  be  removed  as  provided  in  this  section,  or 
may  be  abated  as  a nuisance.  Slight  inconveniences  and  occasional  interruptions 
of  the  use  of  a highway,  which  are  temporary  and  reasonable,  are  not  illegal  merely 
because  the  public  may  not,  for  the  time,  have  full  use  thereof.  People  v.  Horton, 
64  N.  Y.  610.  An  obstruction  which  renders  a street  or  highway  dangerous  and 
unfit  for  the  use  of  the  traveling  public  is  prima  facie  an  unlawful  obstruction  and 
constitutes  a nuisance  in  itself.  Cuilo  v.  N.  Y.  Edison  Co.,  85  Misc.  6,  147  N.  Y. 
Supp.  14. 

Trees,  lawfully  planted  in  a highway,  do  not  become  obstructions  or  en- 
croachments upon  a change  in  the  statute,  and  the  court  is  powerless  to  have 
them  removed;  if  public  convenience  require  their  removal,  condemnation 
proceedings  must  be  instituted  and  compensation  awarded  their  owner.  Town 
of  Wheatfield  v.  Shasley,  23  Misc.  100,  51  N.  Y.  Supp.  835;  Edsall  v.  Howell,  86 
Hun  424,  33  N.  Y.  Supp.  892. 

When  obstructions  authorized.  The  legislature,  by  virtue  of  its  general  con- 
trol over  public  streets  and  highways,  has  the  power  to  authorize  structures  in 
the  streets  and  highways,  which,  under  the  common  law,  would  be  obstruc- 
tions or  encroachments,  and  may  delegate  the  power  to  the  governing  body  of 
a municipality.  Hoey  v.  Gilroy,  129  N.  Y.  132.  For  instance,  town,  village  or 
city  authorities  may,  if  empowered  by  statute,  authorize  and  regulate  the  use 
of  awnings,  stands  for  business  purposes,  and  the  like,  in  the  public  streets. 
But  apart  from  these  exceptions  “ public  highways  belong,  from  side  to  side, 
and  end  to  end  ” to  the  public.  Any  permanent  or  unnecessary  obstacle  to  travel 
in  a street  or  highway  is  a nuisance,  although  space  may  be  left  for  the  passage 
of  the  public.  Authorities  may  properly  grant  a right  to  a railroad  to  maintain 
gates  at  a highway  crossing,  and  if  properly  constructed  and  opened  and  closed, 
and  necessary  to  the  public  safety,  cannot  be  restrained.  Friedlander  v.  D.  & 
H.  C.  Co.,  34  N.  Y.  St.  Rep.  650,  13  N.  Y.  Supp.  323. 

Penal  liability.  By  the  Penal  Law  an  obstruction  is  made  a public  nuisance 
and  the  person  maintaining  it  is  guilty  of  a misdemeanor  punishable  by  a fine 
of  not  more  than  $500,  or  by  not  more  than  one  year’s  imprisonment  or  by  both. 
Penal  Law,  §§  1530,  1532. 

28.  Encroachment  by  abutting  owner.  The  owner  of  land  abutting  upon  a 
public  street  is  permitted  to  encroach  on  the  primary  right  of  the  public  to  a 
limited  extent  and  for  a temporary  purpose,  owing  to  the  necessity  of  the  case. 
Two  facts,  however,  must  exist  to  render  the  encroachment  lawful;  the  obstruc- 


826 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 52. 

It  shall  be  the  duty  of  all  telephone,  telegraph,  electric  railway  and  other 
electrical  companies,  to  remove  and  reset  telephone,  telegraph,  trolley 
and  other  poles  and  the  wires  connected  therewith,  when  the  same  con- 
stitute obstructions  to  the  use  of  the  highway  by  the  traveling  public. 
If  temporary  obstructions  such  as  trees,  lumber,  wood,  logs,  machinery, 
vehicles  and  similar  obstructions  are  not  removed  within  five  days  after 
the  service  of  a notice,  personally  or  by  mail,  upon  such  owner  or  occu- 
pant, requesting  the  same  to  be  done,  the  town  superintendent  shall  re- 
move such  obstruction.  And  if  permanent  obstructions,  including, 
among  others,  telegraph,  telephone,  trolley  and  other  poles  and  wires  con- 
nected therewith,  are  not  moved  and  reset  within  thirty  days,  the  town 
superintendent  shall  move  and  reset  such  poles  and  wires.29  The  ex- 
pense thereby  incurred  shall  be  paid  in  the  first  instance  out  of  moneys 

tion  must  be  reasonably  necessary  for  the  transaction  of  business;  it  must  not 
unreasonably  interfere  with  the  rights  of  the  public.  Welsh  v.  Wilson,  101 
N.  Y.  254;  Callanan  v.  Gilman,  107  N.  Y.  360;  Flynn  v.  Taylor,  127  N.  Y.  596. 
In  these  cases  a temporary  obstruction  or  occupation  of  a part  of  a street  or 
highway,  by  persons  engaged  in  building,  or  in  receiving  or  delivering  goods 
from  stores  or  warehouses  were  allowed.  But  one  who  has  occasion  to  leave 
a load  in  a highway  must  remove  it  with  promptness.  If  he  let  it  remain  there 
an  unreasonable  time  it  may  be  removed  as  a nuisance.  It  is  not  sufficient, 
however,  that  the  obstructions  are  necessary  with  reference  to  the  business 
of  the  person  who  erects  or  maintains  them;  they  must  be  reasonable  with 
respect  to  the  rights  of  the  public.  Callanan  v.  Gilman,  107  N.  Y.  360. 

Erection  of  poles  in  highway.  The  right  which  telephone  and  telegraph  com- 
panies derive  by  virtue  of  section  102  of  the  Transportation  Corporations  Law 
to  construct  and  maintain  poles  and  wires  in  rural  highways  is  not  absolute  or 
unqualified  but  subject  to  the  rule  that  the  lines  must  be  so  located  as  not 
unnecessarily  to  obstruct  the  public  travel.  Where  the  plans  for  the  improve- 
ment of  any  such  highway  require  the  re-location  of  poles  and  wires,  it  is  in- 
cumbent upon  the  companies  at  their  own  expense  to  re-locate  the  same.  It 
seems,  however,  that  it  is  incumbent  upon  the  state  or  county,  as  the  case  may 
be,  to  afford  the  company  a new  right  of  way  within  the  limits  of  the  improved 
highway.  Opinion  of  Atty.  Genl.,  Mch.  21,  1913. 

29.  Removal  of  obstructions  by  town  superintendents.  The  highways  of  the 
state  are  made  for  and  devoted  to  public  travel,  and  the  whole  public  have 
the  right  to  their  use  in  their  entirety,  and  when  obstructions  to  public  travel 
are  found  within  their  bounds,  the  town  superintendents  of  highways  are 
clothed  with  power  to  remove  them  without  waiting  for  the  slow  process  of 
law,  even  though  travel  be  not  absolutely  and  entirely  prevented.  Cook  v. 
Harris,  61  N.  Y.  448;  Hathaway  v.  Jenks,  67  Hun,  289;  22  N.  Y.  Supp.  421;  Van 
Wyck  v.  Lent,  33  Hun,  301. 

Where  the  town  superintendent  sees  fit  to  remove  the  encroachment  sum- 
marily the  party  would  be  remediless,  except  by  an  action  for  trespass;  such 
a remedy  would  be  inadequate  to  afford  relief,  so  injunction  will  interpose  and 
the  plaintiff  will  not  be  compelled  to  wait  and  seek  his  remedy  after  the  injury 
has  been  actually  inflicted.  Flood  v.  Van  Wormer,  70  Hun,  415,  24  N.  Y.  Supp. 
460,  affirmed  147  N.  Y.  284;  Corning  v.  Lawerre,  6 Johns.  Ch.  439.  If,  in  the 
discharge  of  his  official  duty,  the  superintendent  removes  without  unnecessary 
damage  an  encroachment,  after  notice,  though  informal,  to  the  owner,  he  should 
not  be  deemed  a trespasser,  and  no  action  for  trespass  will  lie  against  him 
therefor.  Hathaway  v.  Jenks,  67  Hun,  289,  22  N.  Y.  Supp.  421. 

For  form  of  notice  to  remove  obstruction,  see  Form  No.  98  post. 

IVotice  to  remove.  Under  the  common  law  an  actual  notice  must  be  shown, 
and  it  will  not  be  presumed;  the  burden  of  proving  that  it  has  been  given  is 
upon  the  commissioner.  Case  v.  Thompson,  6 Wend.  634. 

A notice  of  order  requiring  the  removal  of  such  encroachment  must  con- 
tain a precise  and  certain  description  of  the  particulars  of  the  encroachment  to 
such  an  extent,  at  least,  as  will  enable  the  party  upon  whom  it  is  served  to  go 
upon  the  ground  and  fix  the  place  and  extent  thereof  with  certainty  and  without 
embarrassment.  Town  of  Sardinia  v,.  Butter,  149  N.  Y.  505;  Cook  v.  Covil,  18 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


827 


Highway  Law,  §§  53,  53a,  54. 

levied  and  collected  and  available  therefor,  and  the  amount  thereof  shall 
be  charged  against  such  owner,  occupant  or  company,  and  levied  and  col- 
lected, as  provided  in  section  fifty-five.30  [Highway  Law,  § 52,  as 
amended  by  L.  1914,  ch.  196;  B.  C.  & G.  Cons.  L.,  p.  2193.] 

§ 13-a.  REMOVAL  OF  SNOW  AND  ICE  FROM  CULVERTS  AND  WATER- 
WAYS. 

The  town  superintendent  shall  cause  the  removal  of  obstructions 
caused  by  snow  on  state  and  county  highways  within  the  town.  He  shall 
also,  during  such  time  as  patrolmen  are  not  employed  thereon,  cause 
snow  and  ice  to  be  removed  from  the  culverts  and  waterways  of  such 
highways  when  necessary,  and  the  cost  thereof  shall  be  paid  from  the 
miscellaneous  or  other  town  funds.  [Highway  Law,  § 53,  as  added  by 
L.  1914,  ch.  197.] 

§ 14.  TEMPORARY  OBSTRUCTIONS. 

The  necessary  obstruction  of  a highway  by  the  removal  of  buildings  or 
other  temporary  obstruction  shall  only  be  allowed  if  a highway  other  than 
a state  or  county  highway  under  a permit  granted  by  the  county  superin- 
tendent upon  the  written  request  of  the  town  superintendent  and  if  a 
state  or  county  highway  under  a permit  granted  by  the  commissioner  of 
highways.  [Highway  Law,  § 53a,  as  added  by  L.  1910,  ch.  567,  and 
amended  by  L.  1913.  ch.  80,  in  effect  June  21,  1910.] 

§ 15.  REMOVAL  OF  NOXIOUS  WEEDS  AND  BRUSH  WITHIN  THE  HIGH- 
WAYS, AND  OF  OBSTRUCTIONS  CAUSED  BY  SNOW. 

It  shall  be  the  duty  of  the  owner  or  occupant  of  lands  situated  along 
the  highway  to  cut  and  remove  the  noxious  weeds  growing  within  the 
bounds  of  the  highway,  fronting  such  lands,  at  least  twice  in  each  year, 
once  in  the  month  of  June,  and  once  in  the  month  of  August. 30a  It  shall 
be  the  duty  of  such  owner  or  occupant  to  cut  and  remove  all  briers  and 
brush,  growing  within  the  bounds  of  the  highway,  fronting  such  lands, 
once  in  the  month  of  August  in  each  year.  It  shall  also  be  the  duty  of 
such  owner  or  occupant  to  remove  brush,  shrubbery  and  other  obstruc- 
tions within  the  bounds  of  the  highway,  causing  the  drifting  of  snow 
upon  said  highway,  before  the  first  day  of  November  in  each  year.  If 
such  owner  or  occupant  fails  to  cut  or  remove  such  weeds  or  brush,  or  to 
remove  such  brush,  shrubbery  or  other  obstructions,  causing  the  drifting 
of  snow,  as  provided  herein,  the  town  superintendent  of  the  town  in 
which  said  lands  are  situated  shall  cause  the  same  to  be  done,  and  the 
expense  thereby  incurred  shall  be  paid  in  the  first  instance  out  of  moneys 

Fun.  288;  Mott  v.  Commissioners  of  Highways  of  Rush,  2 Hill,  472;  Fitch  v. 
Commissioners  of  Highways  of  Kirkland,  22  Wend.  132;  Spicer  v.  Slade,  9 Johns. 
359. 

Mandamus  will  lie  to  compel  the  town  superintendent  to  remove  bath  houses 
which  lie  in  a public  highway  and  cut  off  access  at  high-water  mark.  People 
ex  rel.  Butler  v.  Hawkhurst,  123  App.  Div.  65,  107  N.  Y.  Supp.  746. 

30.  Assessment  of  cost  of  removing  obstructions  and  moving  and  resetting 
poles  against  owners  and  occupants  must  be  made  by  the  town  superintendent 
in  the  manner  prescribed  by  Highway  Law,  sec.  55,  post  p.  828. 

30a.  Duty  of  abutting  owners  to  cut  weeds  and  brush  and  remove  obstructions 
from  highways  is  laid  upon  the  occupants  of  lands  as  well  as  the  owners  and 
the  question  of  ownership  of  the  fee  of  any  part  of  the  highway  does  not  neces- 
sarilv  enter  into  consideration.  Rept.  of  Atty.  Genl.,  Oct.  25,  1910;  Rept  of 
Atty.  Genl.  ri912L  vol.  2,  p.  438. 


828 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 55. 

levied  and  collected  and  available  therefor,  and  the  amount  thereof  shall 
he  charged  against  such  owner  or  occupant,  and  levied  and  collected,  as 
provided  in  section  fifty-five.31  The  town  board  of  any  town  may,  by 
resolution,  determine  that  the  work  required  by  this  section  to  be  done 
bv  the  owner  or  occupant  of  lands  situated  along  the  highway  shall  be 
done  by  the  town  superintendent.  If  such  resolution  be  adopted  such 
work  shall  be  done  by  the  town  superintendent  at  the  times  prescribed 
by  this  section,  the  cost  thereof  shall  not  be  charged  or  assessed  against 
the  owner  or  occupant  but  shall  be  a town  charge,  and  there  shall  be  an- 
nually raised  in  such  town  in  addition  to  other  moneys  raised  for  high- 
way purposes,  a sum  sufficient  to  pay  such  expense.  [Highway  Law,  § 
54,  as  amended  by  L.  1911,  ch.  151 ; B.  C.  & G.  Cons.  L.,  p.  2198.] 

§ 16.  ASSESSMENT  OF  COST  AGAINST  OWNERS  AND  OCCUPANTS. 

The  town  superintendent  shall  assess  the  cost  of, 

1.  Removing  obstructions  and  moving  and  resetting  poles  and  wires, 
pursuant  to  section  fifty-two. 

2.  Cutting  and  removing  noxious  weeds,  briers  and  brush  and  removing 
brush,  shrubbery  and  other  obstructions  within  the  highways,  causing  the 
drifting  of  snow,  pursuant  to  section  fifty  four,  against  the  owner,  occupant 
or  company  neglecting  to  perform  the  duty  imposed  by  the  sections  above 
referred  to.  Such  town  superintendent  shall  serve  personally  or  by  mail 
upon  such  owner,  occupant  or  company,  a written  notice,  stating  that  at  a 
time  and  place  specified  therein,  he  will  assess  such  cost  against  the  owner, 
occupant  or  company  neglecting  to  perform  such  duty.32  Such  notice  shall 
be  served  at  least  eight  days  previous  to  the  time  specified  therein.  If 
directed  against  a company,  it  may  be  served  upon  it  at  its  principal  place 
of  business,  or  upon  an  agent  of  the  company  within  the  town.  At  the 
time  and  place  so  specified,  he  shall  hear  the  parties  interested,  and  shall 
thereupon  complete  the  assessment,  stating  therein,  the  name  of  each 
owner,  occupant  or  company,  and  the  amount  assessed  against  him  or 
it,  and  shall  return  such  assessment  to  the  town  clerk  who  shall  present 
the  same  to  the  town  board  of  his  town,  at  its  meeting  held  on  the  Thurs- 
day preceding  the  annual  meeting  of  the  board  of  supervisors.33  Such 
town  board  shall  certify  such  assessment  to  the  board  of  supervisors  who 
shall  cause  the  amount  stated  therein  to  be  levied  against  such  owner. 


31.  Notice  is  not  required  but  is  desirable.  For  form  of  notice  to  remove 
weeds,  brier  and  bush,  see  Form  No.  99. 

32.  For  form  of  notice  of  assessment,  see  Form  No.  100,  post. 

33.  For  form  of  assessment  of  cost  of  removing  weeds,  etc.,  see  Form  No. 
101,  post. 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES.  829 

Highway  Law,  §§  56,  57. 

occupant  or  company  and  any  uncollected  tax  shall  be  a lien  upon  the 
land  affected.  The  amount  so  levied  shall  be  collected  in  the  same  manner 
as  other  taxes  levied  by  such  board,  and  shall  be  paid  to  the  supervisor  of 
the  town,  to  be  applied  in  reimbursing  the  fund  from  which  such  cost 
was  defrayed.  [Highway  Law,  § 55 ; B.  C.  & G.  Cons.  L.,  p.  2198.] 

§ 17.  WIRE  FENCES  TO  PREVENT  SNOW  BLOCKADES. 

The  town  superintendent,  with  the  consent  of  the  towrn  board,  may 
purchase  wire  for  fences  to  be  erected  for  the  prevention  of  snow  blockades, 
and  the  said  town  superintendent  is  hereby  authorized  to  contract  with  the 
owners  of  the  lands  lying  along  the  highways  of  their  respective  towns, 
at  such  points  as  are  liable  to  snow  blockade,  for  the  removal  of  the  fences 
now  standing  along  the  boundaries  of  such  highways  and  the  replacing 
of  such  fences  with  wire  fences.  He  may  contract  to  deliver  to  such  land 
owners  fence  wire  to  be  used  in  the  construction  of  such  fences,  without 
charge  to  said  land  owners,  at  the  place  of  purchase,  but  he  shall  not 
agree  to  pay  any  part  of  the  cost  of  removal  or  construction’  called  for 
by  said  contracts,  or  to  make  any  payment  to  said  land  owners,  as  a com- 
pensation for  the  construction  of  fences  or  for  posts.  The  amount  to  be 
expended  for  the  purchase  of  such  wire  shall  not  exceed  the  sum  of  three 
hundred  dollars  in  any  one  year,  and  such  amount  shall  be  included  in 
the  estimate  for  expenditures  for  removal  of  obstructions  caused  by  snow, 
and  other  miscellaneous  purposes,  and  paid  from  the  money  levied  and 
collected  therefor.  The  fences  to  be  built,  under  the  provisions  of  this 
section,  shall  be  of  not  less  than  four  strands  of  wire,  nor  more  than  nine 
strands,  in  the  discretion  of  the  town  superintendent,  approved  by  the  town 
board,  and  the  construction  of  said  fences  and  their  distance  apart,  shall 
be  such  as  said  town  superintendent  shall  prescribe.  Whenever  such  fence 
or  fences  shall  become  so  out  of  repair  as  to  be  dangerous  to  animals 
passing  along  the  highway,  it  shall  be  the  duty  of  the  owner  or  owners  of 
said  fence  or  fences  to  immediately  repair  or  replace  the  same.  When- 
ever the  town  superintendent  shall  contract  for  the  removal  of  any  fence, 
under  the  provisions  of  this  section,  he  shall  file  in  the  office  of  the  town 
clerk  a description  of  that  portion  of  the  highway  to  which  said  contract 
shall  apply,  and  thereafter  it  shall  not  be  lawful  for  any  person  to  replace 
the  fence  so  contracted  to  be  removed,  with  any  fence  liable  to  cause  the 
drifting  of  snow.  In  no  case  shall  the  town  superintendent  approve  of  or 
permit  the  use  of  barb  wire  for  such  fences.  [Highway  Law,  8 56;  B. 
C.  & G.  Cons.  L.,  p.  2199.] 

§ 18.  ENTRY  UPON  LANDS  BY  TOWN  SUPERINTENDENT. 

The  town  superintendent  may,  when  directed  by  the  district  or  county 
superintendent,  and  when  authorized  by  the  tpwn  board,  enter 


830 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  58,  59. 

1.  Upon  any  lands  adjacent  to  any  of  the  highways  in  the  town,  for  the 
purpose  of  opening  an  existing  ditch  or  drain,  or  for  digging  a new  ditch 
or  drain  for  the  free  passage  of  water  for  the  drainage  of  such  highways. 

2.  Upon  the  lands  *of  any  person  adjoining  rivers,  streams  or  creeks, 
to  drive  spiles,  throw  up  embankments  and  perform  such  other  labor  as 
may  be  necessary  to  keep  such  rivers,  streams  or  creeks  within  their  proper 
channels,  and  to  prevent  their  encroachment  upon  highways  or  abutments 
of  bridges. 

3.  Upon  the  lands  adjoining  a highway  which,  during  the  spring  freshets 
or  at  a time  of  highwater  are  subject  to  overflow  from  such  rivers,  streams 
or  creeks,  to  remove  or  change  the  position  of  a fence  or  other  obstruction 
preventing  the  free  flow  of  water  under  or  through  a highway,  bridge  or 
culvert,  whenever  the  same  may  be  necessary  for  the  protection  of  such 
highway  or  bridge. 

4.  Upon  any  lands  adjacent  to  highways  to  remove  any  fence  or  other 
obstruction  which  causes  snow’  to  drift  in  and  upon  such  highways,  and 
erect  snow  fences  or  other  devices  upon  such  lands  to  prevent  the  drifting 
of  snow  in  or  upon  such  highways.34  [Highway  Law,  § 57 ; B.  C.  & G. 
Cons.  L.,  p.  2200.] 

§ 19.  DAMAGES  TO  OWNERS  OF  LANDS. 

Where  lands  are  entered  upon  under  the  provisions  of  the  preceding 
section,  the  town  superintendent  shall  agree  with  the  owner  of  such  lands, 
subject  to  the  approval  of  the  town  board,  as  to  the  amount  of  damages, 
if  any,  sustained  by  such  owner  in  consequence  of  such  entry  in  perform- 
ance of  the  work  authorized  by  such  section,  and  the  amount  of  such 
damages  shall  be  a town  charge.  If  the  town  superintendent  is  unable 
to  agree  with  such  owner  upon  the  amount  of  damages  thus  sustained  the 
amount  thereof  shall  be  ascertained,  determined  and  paid  in  the  manner 
that  damages  are  so  ascertained,  determined  and  paid,  where  new  high- 
ways are  laid  out  and  opened  and  the  town  superintendent  and  land 
owners  are  unable  to  agree  upon  the  amount  thereof.  [Highway  Law,  § 
58;  B.  C.  & G.  Cons.  L.,  p.  2200.] 

§ 20.  DAMAGES  FOR  CHANGE  OF  GRADE. 

In  any  town  in  which  a town  highway  shall  be  repaired,  graded  and 


34.  Lands  adjacent  to  a State  or  county  highway  may  he  entered  upon  and 
occupied  for  drainage  purposes,  under  Highway  Law,  sec.  135,  post ; and  the 
damages  therefor  are  to  be  paid  as  provided  in  sec.  136  thereof,  post. 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES.  $31 

Highway  Law,  § 59. 

macadamized  from  curb  to  curb  by  the  authorities  of  the  town  the  owner  or 
owners  of  the  land  adjacent  to  the  said  highway  shall  be  entitled  to  recover 
from  the  town  the  damages  resulting  from  any  change  of  grade.35  A person 
claiming  damages  from  such  change  of  grade  must  present  to  the  town  board  of 
such  town  a verified  claim  therefor  within  sixty  days  after  such  change  of  grade 
is  effected.  The  board  may  agree  with  such  owner  upon  the  amount  of  damages 
to  be  allowed  him.  If  no  agreement  be  made  within  thirty  days  after  the 
presentation  of  the  claim,  the  person  presenting  it  may  apply  to  the  supreme 
court  for  the  appointment  of  three  commissioners  to  determine  the  compensa- 
tion to  which  he  is  entitled.  Notice  of  the  application  must  be  served  upon  the 
supervisor  of  the  town  at  least  ten  days  before  the  hearing  thereof.  All  pro- 
ceedings subsequent  to  the  appointment  of  commissioners  shall  be  taken  in 
accordance  with  the  provisions  of  the  condemnation  law  so  far  as  applicable. 
Such  town  board,  or  such  commissioners,  shall,  in  determining  the  compensa- 
tion, consider  the  fair  value  of  the  work  done,  or  necessary  to  be  done,  in  order 
to  place  the  claimant’s  lands,  or  buildings,  or  both,  in  the  same  relation  to  the 


Establishment  of  grade.  Use,  acquiescence  and  recognition  for  forty  years 
is  sufficient  to  establish  the  grade  of  a highway.  Hunt  v.  Otego,  160  App.  Div. 
158,  145  N.  Y.  SUpp.  495. 

Application  of  section.  This  section  applies  to  all  parts  of  the  state,  provided 
some  statute  authorizes  an  award  of  damages  therefor.  It  extends  to  all  dam- 
ages whenever  sustained,  whether  in  the  future  or  in  the  past.  People  ex  rel 
C.  T.  Co.  v.  Prendergast,  202  N.  Y.  188;  Matter  of  Murphy  v.  Prendergast  (1917). 
99  Misc.  326;  Matter  of  149th  Street  Realty  Co.  v.  Prendergast  (1917),  179  App.  Div. 

786.  But  it  has  no  application  to  highways  constructed  by  the  state  under  the 

so-called  Good  Road  Law  (L.  1898,  eh.  115)  the  expense  of  which  is  borne  jointly  by 
the  town,  county  and  state.  Matter  of  Baynes,  140  App.  Div.  735, 126  N.  Y.  Supp.  132. 

There  is  no  restriction  in  the  present  law  upon  the  right  to  damages  in  any 
case  where  a town  highway  shall  be  repaired,  graded  and  macadamized  from 

curb  to  curb  by  the  authorities  of  the  town.  Under  the  former  law  it  was 

held  that  it  must  be  established  that  such  improvement  was  done  “ in  accord- 
ance with  the  provisions  of  section  69  of  chapter  686  of  the  Laws  of  1892,”  the 
County  Law.  Matter  of  Borup,  89  App.  Div.  183,  85  N.  Y.  Supp.  828  (1903). 
The  present  law  makes  no  reference  to  such  section,  and  under  the  case  cited 
the  petitioner  need  only  establish  that  the  highway  was  a town  highway  and 
that  it  has  been  “ repaired,  graded  and  macadamized  from  curb  to  curb  by  the 
authorities  of  the  town.” 

Although  this  section  authorizes  a recovery  of  damages  by  an  adjoining 
owner  where  a highway  is  “ graded  and  macadamized  from  curb  to  curb  by  the 
authorities  of  the  town,”  a recovery  may  be  had,  even  though  the  road  graded 
and  macadamized  was  not  in  fact  curbed.  Court  should  determine  sufficiency 
of  petition  even  if  no  objection  is  made  by  town.  Matter  of  Ives,  155  App  Div 
670. 

35.  Constitutionality.  The  constitutionality  of  the  original  act  was  estab- 
lished in  the  case  of  Matter  of  Borup,  182  N.  Y.  222,  affg.  92  App.  Div.  262,  92 
N.  Y.  Supp.  624  It  was  there  held  that  an  award  of  damages  was  not  permis- 
sible except  by  virtue  of  the  act  and  was  in  no  sense  a gift  or  gratuity  of  the  money 
of  the  town;  that  the  legislature  had  power  to  provide  for  the  payment  of  dam- 
ages in  the  original  act;  that  the  act  authorized  no  new  or  improper  rule  of 
damages;  that  tho  recovery  is  limited  to  the  actual  amount  of  damages,  meas- 
ured by  the  principles  prevailing  in  condemnation  proceedings.  See,  also  Peo- 
ple ex  rel.  C.  T.  Co.  v.  Prendergast,  202  N.  Y.  188. 

( I aim  ioi  damages.  At  common  law  an  abutter  had  no  claim  for  damages 
against  a municipality  for  a change  in  the  grade  of  a highway;  and  this  rule 
was  applicable  even  though  access  to  his  property  might  be  cut  off.  In  towns 
the  only  remedy  given  is  that  contained  in  this  section.  Smith  v.  Boston  & 
Albany  R.  R.  Co.,  90  App.  Div.  94,  91  N.  Y Supp.  412;  Matter  of  Baynes,  140  App. 
Div.  735,  126  N.  Y.  Supp.  132.  The  right  to  compensation  is  created  by  statute; 
the  statutory  remedy  is  exclusive,  and  the  measure  of  damage  is  determined 
by  the  terms  thereof  and  cannot  be  assessed  on  the  theory  of  a trespass.  Mat- 
ter of  Hoy  v.  Village  of  Salamanca,  57  Misc.  31,  107  N.  Y.  Supp.  1208. 


832 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  59a,  60. 

changed  grade  as  they  stood  to  the  former  grade,  and  make  awards 
accordingly,  except  that  said  board  or  said  commissioners  may  make  an 
allowance  for  benefits  derived  by  the  claimant  from  such  improvement. 
The  amount  agreed  upon  for  such  damages,  or  the  award  therefor  together 
with  the  costs,  if  any,  allowed  to  the  claimant,  shall  be  a charge  against 
such  town  and  the  supervisor  shall  pay  the  same,  if  there  be  sufficient  funds 
in  his  hands  available,  and  if  not,  the  town  board  shall  borrow  money  for 
the  payment  thereof,  as  provided  in  section  ninety-seven,  or  issue  certifi- 
cates of  indebtedness  therefor,  as  provided  in  section  ninety-six.  Bonds 
of  the  town  to  raise  the  money  necessary  to  make  such  payment,  and  such 
bonds  or  such  certificates  of  indebtedness  shall  bear  a rate  of  interest  not 
exceeding  five  per  centum  per  annum  payable  semi-annually.  Such  bonds 
shall  be  in  the  same  form,  and  shall  be  issued  and  sold  in  the  same  manner 
as  other  town  bonds.  [Highway  Law,  § 59;  B.  C.  & G.  Cons.  L.,  p 
2201.] 

Interest  on  damages  for  change  of  grade. — Whenever  awards  shall  be 
lawfully  made,  pursuant  to  any  statute  of  this  state,  for  damages  sustained 
by  real  estate  or  any  improvements  thereon  by  reason  of  any  change  of 
grade  of  any  street,  avenue  or  road  in  front  thereof,  the  award  for  the 
principal  amount  of  damages  sustained  shall  bear  interest  at  the  rate  of 
six  per  centum  per  annum  from  the  time  of  the  change  of  grade  to  the  time 
of  the  payment  of  the  award.358-  [Highway  Law,  § 59a,  as  added  by  L. 
1910,  ch.  701,  in  effect  June  25,  1910.] 

§ 21.  DRAINAGE,  SEWER  AND  WATER  PIPES,  CATTLE  PASSES  OR 
OTHER  CROSSINGS  IN  HIGHWAYS. 

The  town  superintendent  may,  with  the  consent  of  the  town  board, 
upon  the  written  application  of  any  resident  or  taxpayer  of  his  town  or  a 
corporation,  grant  permission  for  an  overhead  or  underground  crossing 
or  to  lay  and  maintain  drainage,  sewer  and  water  pipes  under  ground 
within  the  portion  therein  described  of  a town  highway.36  If  the  high- 

Consequential  damages  upon  change  of  grade  of  state  highway.  The  report  of 

commissioners  to  ascertain  compensation  to  be  made  for  the  taking  of  real  estate 
for  state  highway  purposes,  so  far  as  an  award  therein  for  consequential  damages 
depending  upon  a change  of  the  grade  of  a state  highway,  should  be  set  aside,  be- 
cause the  change  of  grade  is  not  of  a town  highway.  People  v.  Dawson  (1914),  87 
Misc.  588,  150  N.  Y.  Supp.  679. 

The  interest  on  the  damages  allowed  is  a part  of  the  damages.  Matter  of  Murphy 
v.  Prendergast  (1917),  9'9  Misc.  326.  The  statute  was  enacted  to  remedy  the  defect 
of  failure  to  provide  for  the  payment  of  interest  as  a part  of  the  damages  and  has 
been  held  to  be  retroactive.  Matter  of  14th  St.  Realty  Co.  v.  Prendergast  (1917), 
179  App.  Div.  786.  The  computation  is  to  be  made  from  the  date  of  the  completion 
of  the  change  of  grade  although  at  that  time  the  statute  did  not  allow  interest.  Id. 

36.  Waterworks  companies  may  lay  and  maintain  pipes  and  hydrants  in  high- 
ways for  the  purpose  of  supplying  the  inhabitants  of  the  town  with  water.  See 
Transportation  Corporations  Law,  secs.  80,  82.  And  gas  and  electric  corporations 
may  secure  the  privilege  of  laying  pipes  and  wires  in  highways  under  Transpor- 
tations Corporations  Law,  sec.  61. 

For  forms  of  application  and  permit,  see  Forms,  Nos.  102,  103,  post. 

Effect  of  permission.  The  town  officers  represent  the  public  and  their  per- 
mission to  construct  and  maintain  a private  water  pipe  in  the  public  highway  is 


TOWN  SUPERINTENDENT ; POWERS  AND  DUTIES. 


833 


Highway  Law,  § 61. 

way  is  a state  or  county  highway  such  permission  shall  be  granted  with 
the  consent  of  the  county  or  district  superintendent  instead  of  the  town 
board.  Permission  shall  not  be  granted  for  the  laying  and  maintaining 
of  such  pipes  under  the  travelled  part  of  the  highway,  except  across  the 
same,  for  the  purpose  of  sewerage,  and  draining  swamps  or  other  lands, 
and  supplying  premises  with  water.  Such  permission  shall  be  granted 
upon  the  condition  that  such  pipes  and  hydrants  or  crossings  shall  be  so 
laid,  set  or  constructed  as  not  to  interrupt  or  interfere  with  public  travel 
upon  the  highway,  and  upon  the  further  condition  that  the  applicant  will 
replace  the  earth  removed  and  leave  the  highway  in  all  respects  in  as  good 
condition  as  before  the  laying  of  said  pipes,  or  construction  of  such  cross- 
ings, and  that  such  applicant  will  keep  such  pipes  and  hydrants  or  cross- 
ing in  repair  and  save  the  town  harmless  from  all  damages  which  may 
accrue  by  reason  of  their  location  in  the  highway,  and  that  upon  notice 
by  the  town  superintendent  the  applicant  will  make  the  repairs  required 
for  the  protection  or  preservation  of  the  highway.  The  permit  of  the 
town  superintendent,  with  the  consent  of  the  town  board  or  county  or 
district  superintendent,  and  the  acceptance  of  the  applicant,  shall  be 
executed  in  duplicate,  one  of  which  shall  be  filed  in  the  office  of  the  town 
clerk  and  the  other  in  the  office  of  the  district  or  county  superintendent. 
In  case  the  applicant  shall  fail  to  make  any  of  the  repairs  required  to  be 
made  under  the  permit,  they  may  be  made  by  the  town  superintendent  at 
the  expense  of  the  applicant,  and  such  expenses  shall  be  a lien,  prior  to 
any  other  lien,  upon  the  land  benefited  by  the  use  of  the  highway  for  such 
pipes,  hydrants  or  structures.  The  town  superintendent  may  revoke 
such  permit  upon  the  applicant’s  failure  to  comply  with  any  of  the  con- 
ditions contained  therein.  [Highway  Law,  § 60,  as  amended  by  L. 
1916,  ch.  462 ; B.  C.  & G.  Cons.  L.,  p.  2202.] 

§ 22.  TREES  AND  SIDEWALKS. 

The  town  superintendent  may,  by  an  order  in  writing,  approved  by  a 
majority  of  the  members  of  the  town  board,  authorize  the  owners  of 


sufficient  so  far  as  the  public  ownership  of  an  easement  over  the  street  is  con- 
cerned. But  such  permission  is  not  effective  against  an  abutting  owner  whose 
title  extends  to  the  middle  of  the  highway.  Cary  v.  f>ewey,  127  App.  Div.  478, 
111  N.  Y.  Supp.  261. 

Supervision  of  town  superintendent.  Under  the  former  law  a contract  be- 
tween a waterworks  company  and  a town  provided  for  the  furnishing  of  water 
to  the  town  and  its  inhabitants  and  contained  a provision  that  the  company’s 
pipes  should  be  laid  under  the  supervision  of  the  commissioner  of  highways, 
their  services  to  be  paid  for  by  the  company.  It  was  held  that  the  contract 
was  not  invalid  because  of  the  clause  requiring  payment  of  compensation  of  the 
commissioners  bf  the  company,  although  subject  to  close  scrutiny.  Nicoll  v.  Sands, 
131  N.  Y.  ID. 

Cattle  passes,  existing  under  a license  from  a town  need  not  be  rebuilt  by 
the  state.  If  unsuited  to  the  improved  highway  the  owner  must  provide  for 
reconstruction  under  this  section.  Rept.  of  Atty.  Genl.,  Aug.  16,  1010. 


834 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 61. 

property  adjoining  the  highways,  at  their  own  expense,  to  locate  and  plant 
trees  37  and  locate  and  construct  sidewalks  38  along  the  highways,  in  con- 


37.  Rights  of  abutting  owners.  An  owner  of  land,  abutting  upon  a country- 
road,  has  substantial  rights  both  in  the  surface  and  in  the  soil  on  the  sides 
of  such  road.  He  has  a right  of  light,  air  and  access,  and  to  cultivate  the 
road,  and  by  statutory  authority  to  plant  trees  along  the  road  in  front  of  his 
property;  and  a pole  upon  the  roadside,  supporting  electric  wires,  interfering 
with  growing  trees,  and  preventing  the  planting  of  new  ones,  is  an  unsightly 
structure  and  may  be  dangerous,  and  is  an  infringement  upon  the  rights  of  the 
abutting  owner.  It  is  of  no  consequence  to  what  uses  the  pole  and  wire  are 
to  be  put  after  they  are  erected.  Palmer  v.  Larchmont  Electric  Co.,  6 App. 
Div.  12;  39  N.  Y.  Supp.  522,  revd.  on  other  grounds,  158  N.  Y.  231. 

For  form  of  order  for  planting  trees,  see  Form  No.  104,  post. 

Shade  trees.  As  to  allowance  for  setting  out  shade  trees,  see  section  63, 
post.  As  to  custody  of  shade  trees,  see  section  64,  post.  Shade  trees  belong 
to  the  owners  of  the  abutting  lands,  section  333,  post.  As  to  penalty  for  injury 
to  fruit  or  shade  trees,  see  section  334,  post.  As  to  penalty  for  falling  trees 
into  the  highway,  see  section  335,  post. 

The  statute  authorizes  abutting  owners  to  set  out  shade  trees  without  regard 
to  the  ownership  of  the  fee.  Edsall  v.  Howell,  86  Hun,  424;  33  N.  Y.  Supp.  892. 
But  the  setting  out  of  shade  trees,  or  the  building  of  a sidewalk  is  not  such  an 
occupation  as  can  be  made  the  foundation  of  claim  to  the  title  of  the  fee 
by  adverse  possession  as  against  the  true  owner.  Bliss  v.  Johnson,  94  N.  Y. 
235. 

Willful  injury  to  shade  trees.  A person  who  willfully  cuts  down,  girdles 

or  otherwise  injures  a fruit,  shade  or  ornamental  tree  standing  on  the  lands 
of  another,  or  of  the  people  of  the  state,  is  guilty  of  a misdemeanor.  Penal  Law, 
sec.  1425,  subd.  2. 

Trees  planted  in  a highway,  the  fee  of  which  belongs  to  adjacent  owners, 
are  the  property  of  such  owners,  who  may  remove  them  at  pleasure ; and  the 
legislature  cannot  impose  a penalty  upon  him  for  removing  them  unless  the  public 
have  acquired  title  by  making  him  compensation  for  them.  Village  of  Lancaster 
v.  Richardson,  4 Lans.  136.  Trees  lawfully  set  and  maintained  in  the  highway 
are  neither  encroachments  nor  obstructions,  and  the  court  has  no  power  to  compel 
their  removal.  Town  of  Wheatfield  v.  Shasley,  23  Misc.  100,  51  N.  Y.  Supp.  835. 

Treble  damages  for  trespass  in  cutting  shade  trees  in  highway  in  front  of 
owner’s  lands  may  be  awarded,  based  upon  the  easement  which  the  abutting  owner 
retains  in  such  trees.  Such  damages  may  not  be  recovered  unless  it  appears  that 
the  injury  to  the  trees  was  not  necessary  for  the  improvement  of  the  highway. 
Pfohl  v.  Rupp.  166  App.  Div.  630,  152  N.  Y.  Supp.  47. 

Rights  of  electric  corporations  in  respect  to  shade  trees.  In  stringing 
its  wires  a corporation  has  no  right  to  cut  branches  of  trees  belonging  to  abutting 
owners,  unless  such  course  is  demanded  by  an  existing  necessity  which  cannot  be 
avoided  by  insulating  the  wires  or  by  employing  other  practical  means  which  may 
be  more  expensive  and  less  convenient.  Van  Siclen  v.  Jamaica  Electric  Light  Co., 
45  App.  Div.  1,  61  N.  Y.  Supp.  210.  The  right  to  the  protection  of  shade  trees 
vested  in  the  owners  of  adjoining  lands  is  subservient  to  the  proper  and  legitimate 
use  of  the  highway  by  the  public.  The  question  as  to  whether  or  not  the  use  of 
public  highways  in  the  country  by  electric  lighting  companies  is  within  the  proper 
public  use  of  such  highways  is,  in  all  cases,  to  be  determined  by  the  necessity  of 
the  light  for  the  proper  use  of  such  highways.  Farmer  v.  Larchment  Electric  Co, 
158  N.  Y.  231. 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


835 


Highway  Law,  §§  62,  63. 

formity  with  the  topography  thereof,  which  order  with  a map  or  diagram, 
showing  the  location  of  the  sidewalk  and  tree  planting,  certified  by  the 
town  superintendent,  shall  be  filed  in  the  office  of  the  town  clerk,  within 
ten  days  after  the  making  of  the  order.  [Highway  Law,  § 61 ; B.  C.  & 
G.  Cons.  L.,  p.  2203.] 

§ 23.  EXPENDITURES  FOR  SIDEWALKS. 

The  town  superintendent  of  any  town  may,  with  the  consent  of  the 
town  board,  maintain  and  repair  existing  sidewalks  in  such  town,  and 
the  expense  thereof  shall  be  a town  charge.  Where  such  sidewalk  shall 
consist  of  a board  walk  not  more  than  ten  feet  in  width  located  on  a high- 
way less  than  two  rods  in  width  the  town  superintendent  of  such  town 
may  maintain  and  repair  such  board  walk  or  renewal  thereof  and  with 
the  consent  of  the  town  board  may  replace  such  board  walk  with  a walk 
of  concrete  or  other  suitable  construction  and  the  expense  thereof  shall 
be  a town  charge.  The  town  board  of  any  such  town  may  on  the  petition 
of  not  less  than  twenty-five  taxpayers  of  the  town,  by  resolution,  direct 
the  town  superintendent  to  construct  a sidewalk  along  a described  portion 
of  any  highway  of  the  town,  in  the  manner  and  not  exceeding  an  expense 
to  be  specified  in  the  resolution,  ard  the  expense  of  constructing  such 
sidewalk  shall  be  a town  charge,  and  shall  be  paid  in  the  same  manner  as 
other  town  charges.  [Highway  Law,  § 62,  as  amended  by  L.  1915,  ch. 
322 ; B.  C.  & G.  Cons.  L.,  p.  2204.] 

§ 24.  ALLOWANCE  FOR  SHADE  TREES. 

There  shall  be  allowed  by  the  town  superintendent,  with  the  consent 


38.  Sidewalks  as  part  of  highway.  Sidewalks  are  a part  of  the  highway, 
and  the  owners  of  the  adjoining  lands  have  no  greater  duty  in  regard  to  keeping 
them  in  repair  than  they  have  in  regard  to  any  other  part  of  the  highway.  Village 
of  Fulton  v.  Tucker,  3 Hun,  529.  A town  which  constructs  a highway  with  a side- 
walk in  an  incorporated  village  is  under  the  same  obligation  to  keep  it  in  order 
as  exists  in  the  case  of  the  center  of  the  street.  Birngruber  v.  Town  of  Eastchester, 
54  App.  Div.  80;  66  N.  Y.  Supp.  278;  and  see  Clapper  v.  Town  of  Waterford,  131 
N.  Y.  382;  30  N.  E.  240. 

The  controlling  principle  in  the  case  of  injuries  caused  by  defective  sidewalks 
is  stated  in  the  case  of  Saulsbury  v.  Village  of  Ithaca,  94  N.  Y.  27,  where  it  is 
said : “ It  is  true  that  whether  a municipal  corporation  shall  build,  or  permit  to 

be  built,  a sidewalk  on  any  of  its  streets,  is  a matter  of  discretion  not  to  be  regu- 
lated by  the  courts;  yet  when  a sidewalk  is  built  with  or  without  its  permission 
it  becomes  responsible  for  its  condition,  and  is  bound,  so  long  as  it  exists,  to  keep 
it  in  order.” 

Establishment  of  sidewalk  districts,  and  the  maintenance  of  sidewalks 
therein,  by  the  town  board,  see  Town  Law,  §§  250-254,  ante. 

Driving  animals  on  sidewalks.  Section  1907  of  the  Penal  Law  provides 
that:  “ A person  who  wilfully  and  without  authority  or  necessity  drives  any  team, 

vehicle,  cattle,  sheep,  horse,  swine  or  other  animal  along  upon  a sidewalk  is  punish- 
able by  a fine  of  fifty  dollars,  or  imprisonment  in  the  county  jail  not  exceeding  thirty 
days,  or  both.” 


836 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  64,  65. 

of  the  town  board,  to  each  such  owner  or  occupant,  who  shall  set  out  or 
transplant  by  the  side  of  the  highway  adjoining  his  premises,  any  forest 
shade  trees,  fruit  trees,  or  nut  bearing  trees  suitable  for  shade  trees,  in 
conformity  with  the  preceding  section,  the  sum  of  one  dollar  for  each 
three  living  trees  so  set  out  or  transplanted,  to  be  paid  by  the  supervisors 
to  such  owner  or  occupant,  upon  the  order  of  the  town  superintendent  out 
of  moneys  levied  and  collected  for  miscellaneous  purposes.  Such  allowance 
shall  only  be  made  for  trees  so  set  out  or  transplanted  during  the  preceding 
year,  and  living  and  well  protected  from  animals  at  the  time  of  the  allow- 
ance. Such  trees  shall  be  set  out  or  transplanted  not  more  than  eight 
feet  from  the  outside  line  of  any  highway  three  rods  wide,  and  not  more 
than  one  additional  foot  distant  therefrom,  for  each  additional  rod  in 
width  of  highway,  and  not  less  than  seventy  feet  apart,  on  the  same  side 
of  the  highway,  if  elms,  or  fifty  feet,  if  other  trees.  Trees  transplanted  by 
the  side  of  the  highway,  in  place  of  trees  which  have  died,  shall  be  allowed 
for  in  the  same  manner.  [Highway  Law,  § 63;  B.  C.  & Gr.  Cons.  L.,  p. 
22 05.] 

§ 25.  CUSTODY  OF  SHADE  TREES. 

The  town  superintendent  shall  have  the  full  control  of  all  shade  trees 
in  the  public  highways  of  the  town,  but  not  within  the  limits  of  an  incor- 
porated village,  and  shall  prosecute  complaints  for  malicious  injury  to,  or 
unlawful  acts  concerning,  public  shade  trees.38a  Upon  the  recommenda- 
tion of  the  town  superintendent,  the  town  board  may,  by  resolution,  ap- 
propriate a sum,  not  exceeding  two  hundred  dollars,  to  be  known  as  the 
“ Shade  Tree  Fund.”  Such  fund  shall  be  placed  in  the  hands  of  the 
supervisor  as  custodian,  and  shall  be  expended  by  him  upon  the  written 
order  of  the  town  superintendent,  for  the  setting  out  and  preservation  of 
shade  trees  along  the  highways  in  such  town.  [Highway  Law,  § 64;  B. 
C.  & G.  Cons.  L.,  p.  2205.] 

§ 26.  COMPENSATION  FOR  WATERING  TROUGHS. 

The  town  superintendent  may,  with  the  consent  of  the  town  board, 
authorize  the  owner  or  occupant  of  lands  to  construct  and  maintain  a 
watering  trough  beside  the  public  highway,  to  be  supplied  with  fresh 
water,  the  surface  of  which  shall  be  three  or  more  feet  above  the  level  of 
the  ground  and  easily  accessible  for  horses  with  vehicles,  but  when  possi- 
ble, all  such  watering  troughs  shall  be  constructed  on  the  lower  side  of  the 
highway.39  Such  watering  trough  shall  be  maintained  by  such  owner  or 


38a.  Permission  to  trim  and  cut  shade  trees  without  assent  of  town  super- 
intendent.— An  owner  of  adjacent  land,  who  has  planted  trees  along  the  high- 
way to  which  he  owns  the  fee  subject  to  the  use  by  the  public,  may  permit  a 
telephone  and  telegraph  company  to  trim  or  cut  such  trees  without  assent  of 
the  town  superintendent.  Rept.  of  Atty.  Genl.,  May  4,  1911. 

39.  Abatement  of  toll  for  watering  trough.  Where  a watering  trough  is 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


837 


Highway  Law,  §§  66,  67. 

occupant  and  kept  supplied  with  fresh  water.  The  town  superintendent, 
shall  annually  give  a written  order  upon  the  supervisor  for  three  dollars 
to  be  paid  to  such  owner  or  occupant  by  the  supervisor,  for  maintaining 
such  watering  trough,  and  keeping  the  same  supplied  with  fresh  water,  out 
of  moneys  levied  and  collected  for  miscellaneous  purposes.  [Highway 
Law,  '§  65;  B.  C.  & G.  Cons.  L.,  p.  2205.] 


§ 27.  CREDIT  ON  PRIVATE  ROAD. 

Any  person  living  upon  a private  road  may  be  credited  on  account  of  his 
highway  taxes  in  any  year  an  amount  equal  to  the  value  of  the  work  which 
the  town  superintendent  may  deem  necessary  to  be  done  in  such  year  upon 
such  road.  The  town  superintendent  shall  issue  to  him  a statement  con- 
taining the  name  of  the  person,  the  location  of  the  road,  the  amount  of  work 
so  deemed  necessary  to  be  done,  and  the  value  thereof.  Such  statement 
shall  be  presented  to  the  town  board  at  its  annual  meeting  for  the  audit  of 
town  accounts,  and  if  approved  by  such  board,  and  such  work  shall  have  been 
done,  an  order  shall  be  issued  directing  the  supervisor  to  pay  the  sum 
specified  in  such  statement  to  the  person  therein  named,  or  his  assignee, 
out  of  moneys  in  the  hands  of  the  supervisor  available  for  highway  pur- 
poses. The  amount  so  paid  in  any  year  shall  not  exceed  the  amount 
payable  by  the  person  named  in  such  statement  on  account  of  moneys  levied 
in  such  town  for  the  repair  and  improvement  of  highways  as  provided 
in  this  ‘chapter.  This  section  shall  not  apply  to  private  roads  or  rights 
of  way  over  lands  of  the  owner  thereof  used  by  him  for  his  own  con- 
venience.40 [Highway  Law,  § 66;  B.  C.  & G.  Cons.  L.,  p.  2206.] 


§ 28.  NEGLECT  OR  REFUSAL  TO  PROSECUTE. 

If  the  town  superintendent  shall  neglect  or  refuse  to  prosecute  for  any 
penalty,  knowing  the  same  to  have  been  incurred,  he  shall  be  liable  to  a 
penalty  of  ten  dollars  for  every  such  neglect  or  refusal,  which  shall  be 


constructed  and  maintained  by  an  owner  of  premises  along  a turnpike  or 
plankroad,  the  company  owning  such  plankroad  or  turnpike  mast  abate  the 
toll  of  such  owner  in  the  annual  sum  of  three  dollars.  The  town  superintendent 
of  the  town  in  which  the  watering  trough  is  constructed  must  designate  the 
watering  troughs  along  such  plankroad  or  turnpike  necessary  for  public  con- 
venience. See  Transportation  Corporations  Law,  § 130. 

For  form  of  certificate  of  authority,  see  Form  No.  105,  post 
40.  Private  roads  are  to  be  laid  out  as  provided  in  Highway  Law,  seep. 
211-225,  post.  The  use  of  a private  road  is  prescribed  by  Idem,,  sec.  226,  post 
For  form  of  statement  of  credit,  see  Form  No.  106,  post. 


<838 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 68. 

recovered  by  action  in  the  name  of  the  town,  by  the  supervisor,  or  by  any 
taxpayer  of  the  town  who  shall  indemnify  the  town  for  the  costs  and  ex- 
pense of  the  action,  in  such  manner  as  the  supervisor  may  approve.41 
[Highway  Law,  § 67;  B.  C.  & G.  Cons.  L.,  p.  2206.] 


§ 29.  ERECTION  OF  GUIDE  BOARDS. 

The  town  superintendent  may,  with  the  consent  of  the  town  board, 
cause  guide  posts  with  proper  inscriptions  and  devices  to  be  erected  at  the 
intersections  of  such  highways  therein,  as  may  be  necessary,  which  shall 
be  kept  in  repair  by  him  at  the  expense  of  the  town.  Upon  written  appli- 
cation to  him,  of  five  resident  taxpayers  of  any  town  or  twenty  resident 
taxpayers  of  the  county  in  which  such  town  is  located,  requesting  the 
erection  of  one  or  more  guide  boards  at  the  intersection  of  highways  in 
such  town,  it  shall  be  his  duty  to  cause  to  be  erected  at  the  intersections 
mentioned  in  such  application,  such  guide  boards  indicating  the  direction, 
distances  and  names  of  the  towns,  villages  or  cities  to  or  through  which 
such  intersecting  highways  run.  Such  application  shall  designate  the 
highway  intersections  at  which  such  guide  boards  are  requested  to  be 
erected,  and  may  contain  suggestions  as  to  the  inscriptions  and  devices  to 
be  placed  upon  such  boards.  The  cost  of  the  erection  and  maintenance  of 
such  boards  shall  be  a town  charge.  If  the  town  superintendent  refuses 
or  neglects  for  a period  of  sixty  days  after  receiving  such  application  to 
comply  with  the  request  contained  therein,  he  shall,  for  such  neglect  or 
refusal,  forfeit  to  the  town,  the  sum  of  twenty-five  dollars,  to  be  recovered 
by  the  supervisor  in  the  name  of  the  town,  and  the  amount  so  recovered 
shall  be  set  apart  for  the  erection  of  such  guide  boards.42  [Highway  Law, 
§ 68;  B.  C.  & G.  Cons.  L.,  p.  2206.] 


41.  Collection  of  penalties.  This  section  evidently  has  reference  to  the  duty 
of  the  town  superintendent  to  collect  all  penalties  prescribed  by  this  chapter, 
as  required  by  Highway  Law,  sec.  47,  subd.  12,  ante. 

For  actions  to  recover  penalties  under  the  former  law,  see  Bentley  v.  Phelps, 
27  Barb.  524  (1858);  McFadden  v.  Kingsbury,  11  Wend.  667  (1834);  Bartlett 
v.  Crozier,  17  Johns.  439  (1820);  Haywood  v.  Wheeler,  11  Johns.  432  (1814). 

42.  Other  provisions  relative  to  milestones  and  guideposts.  A willful  or 
maiicous  injury  to  mileboards,  milestones  or  guideposts  is  a misdemeanor. 
Penal  Law,  § 1423,  sub.  11,  as  added  by  L.  1911,  ch.  316. 

Whoever  shall  injure,  deface  or  destroy  a milestone  or  guidepost  erected  on 
any  highway  shall,  for  every  such  offense,  forfeit  treble  damages.  See  High- 
way Law,  sec.  330,  post.  It  is  thus  provided  that  a person  who  injures  a 
milestone  or  guidepost  may  be  proceeded  against  either  criminally  under  the 
Penal  Law,  or  civilly  under  the  Highway  Law.  As  to  erection  of  milestones 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


839 


Highway  Law,  §§  69-71. 

§ 30.  MEASUREMENT  OF  HIGHWAYS  AND  REPORT. 

Within  six  months  after  the  taking  effect  of  his  chapter,  and  as  often 
as  the  commission  shall  direct,  the  town  superintendent  shall  measure  all 
highways  of  his  town.  Such  measurements  shall  be  made  either  by  the  use 
of  a cyclometer  or  otherwise  as  the  commission  shall  direct.  He  shall 
ascertain,  and  indicate  in  his  report,  the  town  highways  which  have  been 
surfaced  with  gravel,  those  which  have  been  surfaced  with  crushed  stone 
and  those  which  have  been  shaped  and  crowned.  He  shall  report  in  trip- 
licate on  forms  to  be  prescribed  and  furnished  by  the  commission,  the  total 
mileage  of  all  highways  within  his  town,  specifying  as  above  provided  as 
to  town  highways,  one  of  which  shall  be  filed  with  the  town  clerk,  one 
with  the  district  or  county  superintendent,  and  one  with  the  commission. 
[Highway  Law,  § 69;  B.  C.  & G.  Cons.  L.,  p.  2207.] 

§ 31.  APPLICATION  FOR  SERVICE  OF  PRISONERS. 

After  satisfying  himself  that  proper  quarters  can  be  secured,  the  town 
superintendent  may,  with  the  consent  of  the  town  board,  request  the  super- 
visor of  the  town,  under  the  provisions  of  section  ninety-three  of  the 
county  law,  to  procure  the  services  of  prisoners  serving  sentence  in  the 
county  jail,  for  general  work  upon  the  public  highways  of  the  town. 
[Highway  Law,  § 70;  B.  C.  & G.  Cons.  L.,  p.  2207.] 

§ 32.  CONSTRUCTION  AND  REPAIR  OF  APPROACHES  TO  PRIVATE 
LANDS. 

The  owners  or  occupants  of  lands  shall  construct  and  keep  in  repair  all 
approaches  or  driveways  from  the  highway,  under  the  direction  of  the 
district  or  county  superintendent,  and  it  shall  be  unlawful  for  such  owner 
or  occupant  of  lands  to  fill  up  any  ditch  or  place  any  material  of  any  kind 
or  character  in  any  ditch  so  as  to  in  any  manner  obstruct  or  interfere  with 
the  purposes  for  which  it  was  made.  The  town  superintendent  may,  when 


and  guideposts  by  turnpike  and  plankroad  companies,  see  Transportation 
Corporations  Law,  sec.  136,  post. 

For  form  of  application  for  erection  of  guide  boards,  see  Form  No.  107, 
post. 

State  and  county  highways.  In  the  preparation  of  maps,  plans,  specifica- 
tions and  estimates  for  the  construction  or  improvement  of  State  and  county 
highways  provision  must  be  made  for  the  erection  of  suitable  guideposts. 
Highway  Law,  sec.  125,  subd.  7,  post. 

The  expense  of  erecting  and  maintaining  guideboards  is  made  by  this  section 
a town  charge  and  is  payable  by  the  supervisor  upon  the  order  of  the  town 
superintendent  after  audit  by  the  town  board,  as  provided  in  Highway  Law, 
sec.  106,  post. 


340 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  72,  73. 

directed  by  the  town  board,  construct  and  keep  in  repair  such  approaches 
and  the  expense  thereof  shall  be  a town  charged  [Highway  Law,  § 71; 
B.  C.  & G.  Cons.  L.,  p.  2208.] 


§ 33.  UNSAFE  TOLL  BRIDGE. 

Whenever  complaint  in  writing,  on  oath,  shall  be  made  to  the  town 
superintendent,  of  any  town  in  which  shall  be  in  whole  or  in  part  any  toll 
bridge  belonging  to  any  person  or  corporation,  representing  that  such  toll 
bridge  has  from  any  cause  become  and  is  unsafe  for  the  public  use,  such 
town  superintendent  shall  forthwith  make  a careful  and  thorough  examina- 
tion of  such  toll  bridge,  and  if  upon  the  examination  thereof  he  shall  be 
of  the  opinion  that  the  same  has  from  any  cause  become  dangerous  or  un- 
safe for  public  use,  he  shall  thereupon  give  immediate  notice  to  the  owners 
of  such  toll  bridge,  or  to  any  agent  of  such  owners,  acting  as  such  agent  in 
respect  to  such  bridge,  that  he  has,  on  complaint  made,  carefully  and 
thoroughly  examined  the  bridge  and  found  it  to  be  unsafe  for  public  use. 
Such  owners  shall  thereupon  immediately  commence  repairing  the  same, 
and  cause  such  repairs  to  be  made  within  one  week  from  the  day  of  such 
notice  given,  or  such  reasonable  time  thereafter  as  may  be  necessary  to 
thoroughly  repair  the  bridge,  so  as  to  make  it  in  all  respects  safe  and  con- 
venient for  public  use.  For  neglect  to  take  prompt  and  effective  meas- 
ures so  to  repair  the  bridge,  its  owners  shall  forfeit  twenty-five  dollars,  and 
shall  not  demand  or  receive  any  toll  for  using  the  bridge  until  the  same 
shall  be  fully  repaired.  The  town  superintendent  shall  cause  such  repairs 
to  be  made  and  the  owners  of  the  bridge  shall  be  liable  for  the  expense 
thereof,  and  for  the  services  of  the  superintendent,  and  upon  the  neglect 
or  refusal  to  pay  the  same  upon  presentation  of  an  account  therefor,  the 
town  superintendent  may  recover  the  same  by  action,  in  the  name  of  the 
town.  [Highway  Law,  § 72;  B.  C.  & G.  Cons.  L.,  p.  2208.] 

§ 34.  ACTIONS  FOR  INJURIES  TO  HIGHWAYS. 

The  town  superintendent  shall  bring  an  action  in  the  name  of  the  town, 
against  any  person  or  corporation,  to  sustain  the  rights  of  the  public,  in 
and  to  any  town  highway  in  the  town,  and  to  enforce  the  performance 
of  any  duty  enjoined  upon  any  person  or  corporation  in  relation  thereto, 


42a.  Plans  for  underground  crossings  of  a railroad,  providing  for  sidewalks 
through  the  proposed  subway,  may  be  approved  by  the  highway  commission; 
but  such  commission  cannot  approve  plans  for  construction  of  approaches  to 
highways  on  lands  of  adjacent  owners.  Rept.  of  Atty.  Genl.,  March  11,  1911. 

43.  Toll  bridge  corporations.  Rights,  duties  and  liabilities  of  toll  bridge  cor- 
porations in  respect  to  toll  bridges  are  set  forth  in  Transportation  Corporations 
Law,  secs.  122-151. 

Form  of  complaint  of  unsafe  toll  bridges,  see  Form  No.  108,  post . 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


841 


Highway  Law,  § 73. 

and  to  recover  any  damages  sustained  or  suffered,  or  expenses  incurred  by 
such  town,  in  consequence  of  any  act  or  omission  of  any  such  person  or 
corporation,  in  violation  of  any  law  or  contract  in  relation  to  such  high- 
way.44 [Highway  Law,  § 73;  B.  C.  & G.  Cons.  L.,  p.  2208.] 


44.  Penalties  for  injuries  to  highways  are  prescribed  by  section  330  of  the 
Highway  Law,  post.  It  is  also  provided  in  sec.  47,  subd.  12,  and  sec.  337  of  the 
Highway  Law,  ante,  that  all  penalties  incurred  pursuant  to  the  Highway  Law 
shall  be  recovered  by  the  town  superintendent  in  the  name  of  the  town. 

Abatement  of  nuisance.  A town  superintendent  may  abate  a nuisance  caused 
by  an  unsafe  bridge  over  a mill-race  by  repairing  the  same  at  the  expense  of 
the  owner,  and  an  action  will  lie  against  such  owner  for  the  amount  expended. 
Town  of  Clay  v.  Hart,  25  Misc.,110;  55  N.  Y.  Supp.  43. 

Surrendering*  turnpike.  Where  a turnpike  has  been  abandoned  the  owners 
may  be  compelled,  by  an  action  brought  under  this  section,  to  surrender 
possession  of  all  parts  of  the  turnpike  road  to  the  control  of  the  town  superin- 
tendent. Town  of  Palatine  v.  N.  Y.  C.  & H.  R.  R.  R.  Co.,  22  App.  Div.  181; 
47  N.  Y.  Supp.  1024. 

Drainage  commissioners  appointed  for  the  drainage  of  marsh  lands,  who, 
without  the  consent  of  the  town  authorities,  cut  a channel  for  the  drainage 
of  water  across  a town  highway,  and  have  omitted  to  construct  a suitable 
bridge  across  such  channel,  may  be  compelled  to  construct  such  bridge  by 
an  action  maintainable  under  this  section  in  the  name  of  the  town,  in  spite  of 
the  fact  that  the  statute  under  which  the  drainage  commissioners  acted  did 
not  in  express  terms  confer  upon  them  the  power  to  construct  such  bridge. 
Town  of  Conewango  v.  Shaw,  31  App.  Div.  354;  52  N.  Y.  Supp.  327. 

Railroads  using  highways.  A railroad  corporation  may  construct  its  rail- 
road upon  or  along  a highway  upon  the  order  of  the  Supreme  Court  of 
the  district  in  which  such  highway  is  situated  upon  at  least  ten  days’  notice 
to  the  town  superintendent  of  highways.  Where  such  railroad  is  so  con- 
structed, it  is  made  the  duty  of  the  corporation  to  restore  the  highway  to  its 
former  state,  “ or  to  such  state  as  not  to  have  unnecessarily  impaired  its 
usefulness.”  See  Railroad  Law,  sec.  22. 

The  intention  of  the  statute  is  to  impose  upon  a railroad  company,  whose 
track  is  upon  an  original  highway,  the  duty  of  maintaining  the  restored 
as  well  as  of  restoring  the  original  highway,  at  least  so  far  as  affected 

by  its  own  operations;  and  so  long  as  changes  are  made  in  the  highway  by 

the  railroad,  or  occur  in  consequence  of  its  operation,  which  affect  the  safety 
of  the  highway,  the  statutory  duty  to  preserve  the  usefulness  of  the  highway 
attaches  and  remains  until  fully  complied  with.  Allen  v.  Buffalo,  Rockland 
& Pittsburg  R.  Co.,  151  N.  Y.  434;  45  N.  E.  845;  see,  also,  Schild  v.  Central 
Park,  etc.,  R.  R.  Co.,  133  N.  Y.  447;  31  N.  E.  327;  Wiley  v.  Smith,  25  App. 

Div.  351;  49  N.  Y.  Supp.  934;  Town  of  Windsor  v.  D.  & H.  C.  Co.,  92  Hun, 

127;  36  N.  Y.  Supp.  863. 

The  town  superintendent  of  highways  of  a town  has  no  power  to  control  the 
location  of  a railway  within  the  line  of  the  highway  of  the  town,  and  while 
for  any  failure  of  the  railroad  company  in  the  performance  of  the  duty  of 


842 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 74. 

§ 35.  LIABILITY  OF  TOWNS  FOR  DEFECTIVE  HIGHWAYS. 

Every  town  shall  be  liable  for  all  damages  to  persons  or  property  sus- 
tained by  reason  of  any  defect  in  its  highways  or  bridges,  existing  be- 
cause of  the  neglect  of  any  town  superintendent  of  such  town.  No  action 
shall  be  maintained  against  any  town  to  recover  such  damages,  unless  a 
verified  statement  of  the  cause  of  action,  including  the  time  and  place  at 
which  such  injury  is  alleged  to  have  been  received,  shall  have  been  filed 
with  the  town  clerk  and  supervisor  of  the  town  within  ninety  days  after 
the  cause  of  action  accrued.  And  no  such  action  shall  be  commenced  until 
fifteen  days  after  the  service  of  such  statement.45  [Highway  Law,  § 74, 
as  amended  by  L.  1913,  ch.  389,  and  L.  1918,  ch.  161 ; B.  C.  & G.  Cons.  L., 

p.  2211.] 

restoration,  he  is  authorized  by  the  above  section  to  maintain  an  action  for 
its  performance  in  the  name  of  the  town,  or  for  damages  sustained  by  the 
town,  it  is  for  the  company  in  the  first  instance  to  determine  the  method  of 
restoration.  Post  v.  West  Shore  R.  R.  Co.,  123  N.  Y.  580;  26  N.  E.  7.  If  the 
railroad  has  proceeded  to  restore  a highway  in  a manner  which  has  proven 
ineffectual,  the  town  superintendent  may  by  mandamus  compel  a proper  per- 
formance of  the  duty  of  the  railroad  company,  and  the  court  in  the  writ  should 
point  out  how  the  corporation  has  failed  in  its  duty,  and  direct  particularly 
what  should  be  done  so  that  it  may  not  fail  again.  People  ex  rel.  Green  v. 
Duchess  and  Columbia  R.  R.  Co.,  58  N.  Y.  152.  See,  also,  McMahon  v.  S.  A. 
R.  R.  Co.,  75  N.  Y.  231;  Masterson  v.  N.  Y.  C.  & H.  R.  R.  Co.,  84  N.  Y.  247. 

A street  railroad  company  is  required  by  § 11  of  the  Railroad  Law  to  restore 
the  highways  to  the  condition  in  which  they  were  before  the  railroad  was 
constructed;  and  it  is  made  the  duty  of  the  town  superintendent,  by  this  sec- 
tion, to  compel  such  company  to  make  such  restoration  and  in  case  of  a failure 
he  may  bring  an  action  in  the  name  of  the  town  against  the  company.  Report 
of  Atty.  Genl.  (1902)  230. 

Application  to  villages.  Since  § 141  of  the  Village  Law  constituted  a village 
a “ separate  highway  district,”  the  trustees  of  a village  may  maintain  an  action 
under  this  section  to  prevent  an  encroachment  upon  a village  street.  Village  of 
Oxford  v.  Willoughby,  181  N.  Y.  155.  A village  being  a separate  highway  dis- 
trict, the  authority  of  the  town  superintendent  is  transferred  to  and  vested  in 
the  village  authorities  and  the  latter  may  resort  to  a court  of  equity  for  the 
preservation  of  the  village  streets  and  highways.  Village  of  Haverstraw  v. 
Eckerson,  192  N.  Y.  54,  affg.  124  App.  Div.  18,  108  N.  Y.  Supp.  506. 

45.  Under  the  statute  a town  is  liable  only  for  the  negligence  of  the  town, 
superintendent.  Hence,  where  the  plaintiff’s  horse  ran  away  and  injured  her; 
owing  to  the  fact  that  it  became  frightened  by  the  smell  left  by  powder  which 
had  been  used  by  the  overseer  of  the  road  district  in  blasting  rock  for  the 
roadbed,  the  town  is  not  liable  unless  it  appear  that  the  work  was  done  under 
the  direction  of  the  town  superintendent,  or  that  he  knew  that  it  was  going 
on,  or  that  by  the  exercise  of  reasonable  diligence  he  could  have  known  of  the 
condition.  Booth  v.  Town  of  Orleans,  147  App.  Div.  240. 

Defective  highways.  A consideration  of  the  law  relating  to  the  liability  of 
towns  for  injuries  caused  to  users  of  the  highway  by  defects  therein  is  beyond 
the  scope  of  this  work.  The  cases  which  have  arisen  under  the  above  section 
are  very  numerous.  They  involve  a determination  of  what  constitutes  a defect 
and  what  is  negligence  upon  the  part  of  the  town  or  the  highway  officers. 
Nearly,  if  not  all,  of  such  cases  are  cited  in  B.  C.  & G.  Cons.  L.,  pp.  2210-2216, 
to  which  reference  is  here  made. 

Railroad  company  not  liable  for  defects  in  highway  caused  by  erection  of  fence 
along  railroad  right  of  way  to  prevent  snow  drifting  on  tracks.  It  was  the  duty 
of  the  town  superintendent  to  keep  the  highway  in  a passable  condition.  The  rail- 
road company  had  a legal  right  to  erect  the  fence  on  its  own  land  and  if  there  wTas 
any  liability  for  the  injuries  caused  by  the  snow  in  the  highway,  it  was  that  of 
the  town.  Cooney  v.  Northern  Central  Ry.  Co.  (1917),  180  App.  Div.  675. 

Sufficiency  of  statement.  Where  the  statement  has  served  the  object  intended 
by  the  statute,  viz.,  to  give  thp  town  notice  of  the  claim,  such  statement  did 
not  operate  to  limit  proof  of  the  actual  extent  of  the  plaintiff’s  injuries  nor  the 
amount  of  damages  she  could  recover.  Eggleston  v.  Town  of  Chautauqua,  90 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


843 


Highway  Law,  § 75. 

§ 36.  ACTION  BY  TOWN  AGAINST  SUPERINTENDENT. 

If  a judgment  shall  be  recovered  against  a town  for  damages  to  person  or 
property,  sustained  by  reason  of  any  defect  in  its  highway  or  bridges,  existing 
because  of  the  neglect  of  any  town  superintendent,  such  town  superintendent  shall 
be  liable  to  the  town  for  the  amount  of  the  judgment,  and  interest  thereon,  but 


App.  Div.  314,  86  N.  Y.  Supp.  276.  The  object  of  the  statute  plainly  is  that  the 
town  shall  have  fair  and  timely  notice  of  the  cause  of  action  and  of  the  claim  made 
against  it,  and  time  is  given  after  the  notice  and  before  the  suit  is  commenced 
for  the  town  to  examine  into  the  claim  and  decide  what  to  do  with  reference  to  it. 
This  notice  is  not  required  to  have  all  the  formalities  of  a complaint  or  of  a bill 
of  particulars;  its  purpose  is  served  by  bringing  the  general  nature  of  the  claim 
to  the  attention  of  the  town.  Quinn  v.  Town  of  Sempronius,  33  App.  Div.  70,  53 
N.  Y.  Supp.  325;  Eggleston  v.  Town  of  Chautauqua,  90  App.  Div.  314,  86  N.  Y. 
Supp.  279. 

The  legislature  having  made  the  presentment  of  the  statement  of  the  cause  of 
action  to  the  supervisor  a prerequisite  to  the  bringing  of  an  action  the  court 
cannot  permit  any  substitute  for  it ; the  statute  must  be  strictly  complied  with ; 
so,  where  plaintiff’s  attorney  wrote  a letter  to  the  supervisor,  which  was  not 
returned  as  not  being  the  statement  required,  and  the  town  officers  acted  thereon 
and  negotiated  for  a settlement  with  plaintiff,  the  claimant  is  not  relieved  from 
a literal  compliance  with  the  statute,  nor  have  the  town  officers  the  power  to  waive 
the  statutory  requirement.  Bourst  v.  Town  of  Sharon,  24  App.  Div.  599,  48  N.  Y. 
Supp.  996. 

A verified  statement  in  the  following  language: 

“ Town  of  Sardinia. 

“ To  Ella  D.  Spencer,  administratrix  of  the  estate  of  Frank  Spencer,  late  of  the 
town  of  Sardinia,  Erie  County,  N.  Y.,  debtor. 

“ To  damages  resulting  from  the  death  of  Frank  Spencer,  caused  by  the  breaking 
of  an  unsafe  and  defective  bridge  in  the  highway  in  said  town  near  the  residence 
of  Mr.  Henshaw,  $20,000. 

“ Dated,  Sardinia,  N.  Y.,  November  5,  1897. 

“ ELLA  D.  SPENCER, 

“ Administratrix.” 

Subjoined  to  this  statement  was  an  affidavit  of  the  administratrix.  It  was  held 
that  this  statement  was  sufficnently  definite  and  specific  to  give  the  authorities 
of  the  town  opportunity  to  investigate  and  determine  whether  they  would  allow  the 
claim.  Spencer  v.  Town  of  Sardinia,  42  App.  Div.  472;  59  N.  Y.  Supp.  412. 

The  statement  should  state  facts  showing  the  occurrence  of  the  accident,  the 
defects  in  the  highway  or  bridge  which  caused  it,  that  the  town  superintendent 
was  negligent  and  the  plaintiff  was  free  from  negligence,  and  that  the  plaintiff  was 
injured  and  was  entitled  to  damages  therefor.  It  might  well  state  the  nature  and 
extent  of  the  injuries  sustained,  and  the  amount  of  damages  claimed  therefor,  but 
the  amount  of  damages  would  be  merely  an  estimate  and  the  plaintiff  would 
not  be  restricted  to  the  amount  stated.  Eggleston  v.  Town  of  Chautauqua,  90  App. 
Div.  314,  86  N.  Y.  Supp.  279.  The  notice  should  state  the  time  and  place  of  the 
injury.  Lutes  v.  Town  of  Warwick,  149  App.  Div.  809,  134  N.  Y.  Supp.  298. 

An  action  against  a town  for  damages  to  persons  or  property  sustained  by  reason 
of  any  defect  in  its  highway  or  bridges  existing  because  of  the  neglect  of  the  town 
superintendent  of  highways  can  be  maintained  only  by  virtue  of  this  section;  but 
where  the  complaint,  otherwise  good,  contains- no  allegation  that  a verified  state- 
ment of  the  cause  of  action  was  filed  with  the  town  clerk  within  six  months  after 
the  cause  of  action  accrued,  as  required  by  said  section,  the  complaint  must  be 
dismissed,  with  leave  to  serve  an  amended  complaint  on  payment  of  a full  bill  of 
costs.  Dye  v.  Town  of  Cherry  Creek  (1914),  87  Misc.  207,  149  N.  Y.  Supp.  497. 

Tlie  purpose  of  the  notice  required  by  section  74  of  the  Highway  Law  before 
bringing  an  action  against  a town  for  damages  is  to  fairly  apprise  the  officers  of  the 


844 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  76,  77. 

such  judgment  shall  not  be  evidence  of  the  negligence  of  the  superintendent  in  the 
action  against  him.46  [Highway  Law,  § 75;  B.  C.  & G.  Cons.  L.,  p.  2217.] 


§ 37.  AUDIT  OF  DAMAGES  WITHOUT  ACTION. 

The  town  board  of  any  town  may  audit  as  a town  charge,  in  the  same  manner  as 
other  town  charges  are  audited,  any  one  claim  not  exceeding  five  hundred  dollars, 
for  damages  to  person  or  property,  heretofore  or  hereafter  sustained  by  reason  of 
defective  highways  or  bridges  in  the  town,  if  in  their  judgment  it  be  for  the  interest 
of  the  town  so  to  do;  but  no  claim  shall  be  so  audited  unless  it  shall  have  been  pre- 
sented to  the  supervisor  and  town  clerk  of  the  town  within  ninety  days  after  it 
accrued,  nor  if  any  action  thereon  shall  be  barred  by  the  statute  of  limitations.47 
The  town  board  may  also  audit  any  unpaid  judgment  heretofore  or  hereafter  re- 
covered against  a town  superintendent  for  any  such  damages,  if  such  town  board 
shall  be  satisfied  that  he  acted  in  good  faith,  and  the  defect  causing  such  damages 
did  not  exist  because  of  the  negligence  or  misconduct  of  the  superintendent  against 
whom  such  judgment  shall  have  been  recovered.  [Highway  Law,  § 76,  as  amended 
by  L.  1918,  ch.  161;  B.  C.  & G.  Cons.  L.,  p.  2217.] 


§ 38.  CLOSING  HIGHWAYS  FOR  REPAIR  OR  CONSTRUCTION. 

If  it  shall  appear  necessary  to  close  any  highway  in  order  to  permit  a 
proper  completion  of  any  work  of  improvement  thereon  conducted  by  the 
state,  county  or  town,  the  district  or  county  superintendent  shall,  upon  re- 
quest of  the  division  engineer,  or  direction  of  the  state  commissioner  of 
highways,  execute  a certificate  and  file  the  same  in  the  office  of  the  town 


town  of  the  nature  and  circumstances  of  the  accident,  so  that  they  may  investigate 
the  same  fully  and  intelligently,  and  with  certainty  as  to  the  place  and  conditions 
of  the  accident.  Such  a notice,  to  the  effect  that  on  a certain  date  while  the  plain- 
tiff was  driving  his  horse  to  a certain  place,  and  when  he  was  about  twenty-five  rods 
below  the  foot  of  a certain  hill  in  the  town  stated,  the  horse  stepped  through  a hole 
in  a sluice  and  broke  her  leg,  making  it  necessary  to  shoot  her,  damaging  the  plain- 
tiff to  a certain  sum,  no  part  of  which  has  ever  been  paid,  is  a substantial  compli- 
ance with  the  statute.  It  seems,  that  the  notice  need  not  be  framed  with  the  same 
particularity  as  a complaint,  and  need  not  contain  facts  showing  that  the  commis- 
sioner of  highways  was  negligent,  and  that  the  plaintiff  was  free  from  negligence. 
Griffin  v.  Town  of  Ellenburgh  (1916),  171  App.  Div.  713,  157  N.  Y.  Supp.  813. 

46.  Liability  of  town  superintendents.  Town  superintendents  since  the  act 
of  1881,  ch.  700,  are  no  longer  liable  for  their  negligence  to  persons  injured;  the 
primary  liability  to  such  persons  is  that  of  the  town.  Williams  v.  Village  cf  Port 
Chester,  97  App.  Div.  84,  89  N.  Y.  Supp.  671.  The  section,  as  it  existed  in  the 
former  Highway  Law,  was  passed  in  view  of  the  law  as  it  had  been>  announced  by 
the  courts  without  contemplating  any  change.  People  ex  rel.  Cole  v.  Cross,  87  App. 
Div.  56,  83  N.  Y.  Supp.  1083. 

Where  the  commissioner  of  highways  of  a town  negligently  permits  the  highways 
to  become  out  of  repair,  a person  sustaining  injuries  thereby  may  bring  an  action 
against  the  commissioner  individually,  notwithstanding  the  provisions  of  this  section, 
permitting  an  action  to  be  brought  against  the  town  because  of  the  neglect  of  its 
highway  commissioner.  Campbell  v.  Powers  (1913),  155  App.  Div.  862. 

Proof  of  negligence.  The  negligence  of  the  town  superintendent,  although 
established  in  the  action  against  the  town,  must  be  again  proved  in  the  action  by 
the  town  against  the  superintendent.  Lane  v.  Town  of  Hancock,  142  N.  Y.  510. 
See  also  Waller  v.  Town  of  Hebron,  5 App.  Div.  577,  39  N.  Y.  Supp.  381. 

Liability  of  town  superintendent  to  town  is  the  test  of  the  town’s  liability. 
Mack  v.  Town  of  Shawangunk,  98  App.  Div.  577,  90  N.  Y.  Supp.  760. 

47.  Audit  of  town  accounts.  Town  accounts  are  to  be  audited  as  provided  in 
sec.  133  of  the  Town  Law,  post.  See,  also,  Highway  Law,  sec.  106,  post. 

Judgments  against  a town  are  town  charges.  See  Town  Law,  sec.  170,  post. 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


845 


Highway  Law,  §§  78,  79. 


clerk  of  the  town  in  which  such  highway  is  situated.  Such  certificate  shall 
state  the  necessity  for  the  closing  of  such  highway  and  describe  the  por- 
tion thereof  to  be  closed ; not  more  than  two  miles  of  any  highway  shall  be 
closed  at  any  one  time.  At  the  time  of  filing  such  certificate  such  district 
or  county  superintendent  shall  notify  the  town  superintendent  to  close  the 
highway,  who  shall  thereupon  close  the  same  to  public  travel  by  erecting 
suitable  obstruction  and  posting  conspicuous  notices  to  the  effect  that  the 
highway  is  closed.  The  town  superintendent  shall,  if  practicable,  provide 
a new  location  for,  and  construct  a temporary  highway  to  be  used  by  the 
traveling  public  in  lieu  of  the  closed  highway  and  may  erect  temporary 
bridges  when  necessary,  or  cause  other  existing  highways  to  be  used,  when 
so  directed  by  the  district  or  county  superintendent.  For  the  purpose  of 
locating,  constructing  and  erecting  such  temporary  highway  or  bridge  the 
town  superintendent  may  enter  upon  the  lands  adjoining  or  near  to  the 
closed  highway  and  may,  with  the  approval  of  the  town  board,  agree  with 
the  owners  of  such  land  as  to  the  damages,  if  any,  caused  thereby.  If  the 
town  superintendent  is  unable  to  agree  with  such  owner  upon  the  amount 
of  damages  thus  sustained  the  amount  thereof  shall  be  ascertained,  deter- 
mined and  paid  as  provided  in  section  fifty-eight.  When  such  highway 
shall  have  been  closed  to  the  public  as  provided  herein  any  person  who 
disregards  the  obstruction  and  notice,  and  drives,  rides  or  walks  over  the 
portion  of  the  highway  so  closed  shall  be  guilty  of  a misdemeanor.  The 
district  or  county  superintendent  in  his  discretion  may  temporarily  close 
a town  highway  or  a county  road  for  a period  of  not  to  exceed  ten  days. 
In  closing  such  highway  or  road  the  district  or  county  superintendent  shall 
proceed  in  the  manner  provided  in  this  section,  and  he  shall  immediately 
transmit  to  the  division  engineer  a written  notice  of  such  closing.  The 
provisions  of  this  section  with  regard  to  the  closing  of  highways  generally 
shall  apply  in  like  manner  to  such  temporary  closing.  [Highway  Law, 
§ 77,  as  amended  by  L.  1911,  ch.  646,  and  L.  1918,  eh.  148;  B.  C.  & G. 
Cons.  L .,  p.  2219.] 

§ 39.  ADOPTION  OF  LABOR  SYSTEM  FOR  REMOVING  SNOW. 

The  town  board  of  any  town  at  its  annual  meeting  on  the  first  Thursday 
after  general  election,  may,  by  resolution,  determine  that  no  money  shall 
be  raised  in  such  town  for  the  ensuing  year  for  the  removal  of.  obstructions 
in  the  highways  caused  by  snow,  and  that  such  obstructions  shall  be  re- 
moved by  the  labor  of  persons  and  corporations  liable  to  be  assessed  in 
such  towns  for  highway  taxes.  [Highway  Law,  § 78 ; added  by  L.  1909,  ch. 
488,  and  amended  by  L 1910,  ch.  136,  in  effect  Apr.  21,  1910;  B.  C.  & 
G.  Cons.  L.,  p.  2219.] 


§ 40.  ASSESSMENT  OF  LABOR  FOR  THE  REMOVAL  OF  SNOW. 

The  town  superintendent  of  a town  in  which  the  obstructions  in  the 
highways  caused  by  snow  shall  be  removed  by  the  labor  of  persons  and 
corporations  liable  to  assessment  in  each  town  for  highway  taxes,  pursu- 
ant to  the  last  preceding  section  shall  annually  on  or  before  November 


846 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 80. 

fifteenth  divide  the  town  into  a convenient  number  of  highway  districts 
and  file  a description  thereof  in  the  office  of  the  town  clerk,  and  before 
such  date  shall  make  an  estimate  giving  the  probable  number  of  days’  labor 
needed  during  the  following  year  for  the  removal  of  obstructions  caused 
by  snow  in  the  highways  and  for  the  prevention  of  such  obstructions 
and  shall  assess  one  day’s  labor  upon  each  male  inhabitant  of  the  town 
above  the  age  of  twenty-one  years,  excepting  honorably  discharged  soldiers 
and  sailors  who  lost  an  arm  or  a leg  in  the  military  or  naval  service  of  the 
United  States,  or  who  are  unable  to  perform  manual  labor,  by  reason  of 
injuries  received  or  disabilities  incurred  in  such  service,  members  of  any 
fire  company  formed  or  created  pursuant  to  any  statute,  and  situated 
within  such  town,  persons  seventy  years  of  age  or  over,  clergymen  and 
priests  of  every  denomination,  paupers,  idiots  and  lunatics.  The  balance 
of  such  estimated  number  of  days  shall  be  apportioned  and  assessed  upon 
the  estate,  real  and  personal,  of  every  inhabitant  of  the  town,  including 
corporations  liable  to  taxation  therein,  as  the  same  shall  appear  by  the 
last  assessment  roll  of  the  town,  and  upon  each  parcel  or  tract  of  land 
owned  by  the  nonresidents,  excepting  such  as  are  occupied  by  an  inhabitant 
of  the  town,  which  shall  be  assessed  to  the  occupant.  The  assessment  of 
labor  for  personal  property  must  be  in  the  district  in  which  the  owner 
resides,  and  real  property  in  the  district  where  it  is  situated,  except 
that  the  assessment  of  labor  upon  the  property  of  corporations  may  be  in 
any  district  or  districts  of  the  town,  and  such  labor  may  be  worked  out  or 
commuted  for  as  if  the  corporation  were  an  inhabitant  of  the  district; 
but  the  real  property  within  an  incorporated  city  or  village  exempted 
from  the  jurisdiction  of  the  town  superintendent,  and  personal  property 
of  an  inhabitant  thereof,  shall  not  be  assessed  for  such  labor  by  the  town 
superintendent.  Whenever  the  assessors  of  any  town  shall  have  omitted  to 
assess  any  inhabitant,  corporation  or  property  therein,  the  town  superin- 
tendent shall  assess  the  same,  and  apportion  the  labor  as  above  provided. 
[Highway  Law,  § 79,  as  added  by  L.  1909,  ch.  488,  and  amended  by  L. 
1910,  ch.  136,  in  effect  Apr.  21,  1910.] 


§ 41.  LISTS  OF  PERSONS  ASSESSED  FOR  REMOVAL  OF  SNOW. 

A copy  of  the  lists  of  persons  and  corporations  assessed  shall  be  prepared 
by  the  town  superintendent  and  filed  in  the  office  of  the  town  clerk.  The- 
town  superintendent  may  at  any  time  file  in  the  office  of  the  town  clerk 
a supplemental  list  containing  the  names  of  persons  or  corporations 
omitted  from  the  original  list,  and  the  names  of  new  inhabitants,  and  shall 
assess  them  in  proportion  to  their  real  and  personal  estate  as  others  as- 
sessed by  him  on  such  list.  [Highway  Law,  § 80,  as  added  by  L.  1909,. 
ch.  488 ; B.  C.  & G.  Cons.  L.,  p.  2219.] 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


847 


Highway  Law,  §§  81,  82. 

§ 42.  DISTRICT  FOREMAN;  RETURN  AND  LEVY  OF  UNWORKED 
TAX. 

The  town  superintendent  shall  also,  immediately  after  the  town  has  been 
divided  into  districts  as  provided  in  section  seventy-nine  of  this  chapter, 
appoint  a foreman  in  each  district,  who  shall  be  a taxable  resident  thereof, 
who  shall  serve  for  one  year  and  until  his  successor  is  appointed  and  shall 
receive  such  per  diem  compensation,  not  exceeding  two  dollars  per  day,  for 
time  actually  spent  in  performing  his  duties,  as  the  town  board  may 
prescribe,  payable  as  the  compensation  of  others  town  officers  is  paid. 
The  superintendent  shall  prepare,  from  the  lists  prescribed  in  section 
eighty,  a separate  list  for  each  district  of  persons  and  corporations  assessed 
therein  for  the  then  current  year  for  labor  in  removing  obstructions  caused 
by  snow,  showing  the  number  of  days’  labor  for  which  each  person  or  cor- 
poration is  assessed,  and  shall  deliver  each  such  list  to  the  foreman  of  the 
proper  district.  It  shall  be  the  duty  of  each  foreman  to  notify  the  several 
persons  and  corporations  thus  assessed,  or  such  of  them  as  the  occasion 
demands,  from  time  to  time  as  needed,  that  they  are  required  to  appear 
and  perform  labor  in  the  removal  of  obstructions  caused  by  snow  at  a time 
and  place  stated  by  the  foreman.  On  or  before  the  first  day  of  May  each 
district  list,  showing  the  portions  worked  or  commuted  for,  the  portions 
in  which  parties  were  notified  but  failed  to  perform  work  after  being  so 
notified,  and  the  portions  upon  which  no  notice  to  perform  work  was 
served,  shall  be  returned  by  the  district  foreman  to  the  town  superin- 
tendent. All  assessments  upon  which  parties  have  been  notified  and 
failed  to  appear  or  commute  shall  then  be  certified  by  the  town  superin- 
tendent to  the  town  board,  who  shall  return  the  same  to  the  board  of 
supervisors  of  the  county  and  which  shall  be  included  by  them  in  the 
next  tax-roll  of  the  town  and  levied  against  the  persons  and  corporations 
assessed  at  the  rate  of  one  dollar  and  fifty  cents  per  day  as  other  taxes 
are  levied.  [Highway  Law,  § 81,  inserted  by  L.  1910,  ch.  136,  in  effect 
Apr.  21,  1910.] 


§ 43.  APPEALS  BY  NONRESIDENT;  CERTAIN  ASSESSMENTS  TO  BE 
SEPARATE;  TENANT  MAY  DEDUCT  ASSESSMENT. 

Whenever  any  nonresident  owner  of  unoccupied  land  shall  conceive 
himself  aggrieved  by  any  such  assessment  of  any  town  superintendent, 
such  owner  or  his  agent,  may,  within  thirty  days  after  such  list  has  been 
filed  in  the  office  of  the  town  clerk,  appeal  to  the  county  judge  of  the 
county  in  which  such  land  is  situated,  who  shall  within  twenty  days  there- 
after hear  and  decide  such  appeal,  the  owner  or  agent  giving  notice  to  the 
town  superintendent  of  the  time  of  the  hearing  before  the  judge,  and 
his  decision  thereupon  shall  be  final  and  conclusive.  Whenever  the  town 


848 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 82. 

superintendent  shall  assess  the  occupant  for  any  land  not  owned  by  such- 
occupant,  he  shall  distinguish  in  his  assessment  list  the  amount  charged 
upon  such  list,  from  the  personal  tax,  if  any,  of  the  occupant  thereof;  but 
when  any  such  land  shall  be  assessed  in  the  name  of  the  occupant,  the 
owner  thereof  shall  not  be  assessed  during  the  same  year  on  account  of 
the  same  land.  Whenever  any  tenant  of  any  land,  for  a less  term  than 
twenty-five  years,  shall  be  assessed  to  work  on  the  highways  for  such  land, 
and  shall  actually  perform  such  work  or  commute  therefor,  he  shall  be 
entitled  to  a deduction  from  the  rent  due  or  to  become  due  from  him  for 
such  land,  equal  to  the  full  amount  of  such  assessment,  estimating  the 
same  at  the  rate  of  one  dollar  per  day,  unless  otherwise  provided  for  by 
agreement  between  the  tenant  and  his  landlord.  Whenever  the  highways  in 
any  district  are  obstructed  by  snow,  the  town  superintendent  shall  im- 
mediately call  upon  the  persons  and  corporations  in  such  district  assessed 
for  labor  in  pursuance  of  the  preceding  sections  to  assist  in  removing  such 
obstruction,  and  shall  credit  such  persons  or  corporations  with  the  days’ 
labor  so  performed.  If  any  persons,  corporations  or  occupants  of  land 
owned  by  nonresidents  so  called  out  neglect  or  refuse  to  appear  at  the  place 
designated  by  the  town  superintendent  or  to  commute  at  a dollar  a day 
within  twenty-four  hours  after  due  notice,  the  town  superintendent  shall 
cause  the  obstruction  to  be  immediately  removed  and  on  or  before  Septem- 
ber first  of  each  year,  or  at  such  other  time  as  the  board  of  supervisors  may 
by  resolution  prescribe,  make  out  a list  of  all  persons,  corporations  or 
occupants  of  lands  owned  by  nonresidents  who  shall  fail  to  work  out  such 
labor  or  commute  therefor,  with  the  number  of  days  not  worked  out  or  com- 
muted for  by  each,  charging  for  each  day  in  such  list  at  the  rate  of  one 
dollar  and  fifty  cents  per  day,  verified  to  the  effect  that  such  persons,  corpor- 
ations or  occupants  of  lands  owned  by  nonresidents  have  been  notified  to 
appear  and  perform  such  labor  or  commute  therefor,  and  that  the  same  has 
not  been  performed  or  commuted.  Such  list  shall  be  certified  by  the  town 
superintendent  of  such  town  to  the  town  board  and  by  such  town  board 
to  the  board  of  supervisors  and  the  highway  commission,  and  the  amount 
of  such  arrearages  shall  be  levied  by  such  board  of  supervisors  against 
and  collected  from  the  real  or  personal  estate  of  such  persons  and  corpora- 
tions and  from  the  real  estate  owned  by  nonresidents  specified  in  such 
list,  to  be  collected  by  the  collectors  of  the  several  towns  in  the  same 
manner  that  other  town  taxes  are  collected,  and  shall  order  the  same  when 
collected  to  be  paid  over  to  the  supervisor  to  be  by  him  added  to  the  high- 
way fund  of  the  town.  No  persons  or  corporations  shall  be  allowed  any 
sum  for  highway  labor  performed  in  removing  obstructions  caused  by 
snow,  unless  authorized  or  directed  by  the  town  superintendent  to  perform 
such  labor.  It  shall  be  the  duty  of  the  town  superintendent  on  or  before 
khe  thirty-first  day  of  October  in  each  year  to  file  with  the  highway  com- 


TOWN  SUPERINTENDENT;  POWERS  AND  DUTIES. 


849 


Highway  Law,  § 82. 

mission  a statement  showing  the  number  of  clays’  labor  assessed.  It  shall 
also  be  the  duty  of  the  town  superintendent  to  file  with  the  highway  com- 
mission on  or  before  the  first  day  of  June  in  each  year  a statement  showing 
the  number  of  days’  labor  performed  or  commuted  for,  the  number  of  days’ 
labor  on  which  parties  were  notified  but  failed  to  labor,  also  the  number  of 
days’  labor  upon  which  no  notice  to  appear  was  given.  [Highway  Law, 
§ 82,  as  added  by  L.  1909,  ch.  488,  as  § 81,  renumbered  and  amended  by 
L.  1910,  ch.  136,  in  effect  Apr.  21,  1910.] 


HIGHWAYS  AND  BRIDGES. 


cS50 


Explanatory  note. 


CHAPTER  LIX. 

HIGHWAY  MONEYS;  STATE  AID. 

EXPLANATORY  NOTE. 


Highway  Taxation. 

This  chapter  pertains  to  the  raising  of  money  by  town  tax  for  the 
construction  and  maintenance  of  town  highways  and  bridges;  the 
apportionment  among  the  towns  of  moneys  appropriated  by  the  state  for 
town  highways ; the  expenditure  of  such  moneys  and  the  duties  of  town 
officers  in  respect  to  all  of  such  matters. 

One  of  the  most  important  changes  made  by  the  present  Highway 
Law  is  the  abolishing  of  the  old  labor  system  of  taxation,  and  substitut- 
ing therefor  the  so  called  money  system  of  raising  highway  taxes.  The 
present  law  requires  that  the  expense  of  maintaining  highways  and 
bridges  shall  be  paid  by  tax ; the  town  superintendent  is  to  have  charge 
of  such  maintenance  and  all  expenditures  legally  made  by  him  are 
charges  upon  the  town  to  the  same  extent  as  other  town  expenditures. 
The  law  does  not  fix  the  maximum  tax  to  be  raised,  but  it  specifies  the 
minimum  amount  to  be  levied. 


Annual  Estimates  of  Expenditures. 

The  town  superintendent  must  consider  the  needs  of  the  town  in 
respect  to  its  highways  and  bridges,  and  prepare  a statement  of  the 
amount  which,  in  his  opinion,  the  town  should  raise  by  tax  for  the 
various  purposes  specified  therein.  The  purposes  for  which  a 
tax  may  be  raised  are  specified  in  § 90,  as  amended  by  L.  1914, 
ch.  84,  and  L.  1915,  ch.  322 ; the  state  commission  of  highways  has 
prepared  and  furnishes  blanks  to  be  used  by  town  superintendents  in 
making  such  statements.  Such  statements  are  known  as  estimates  of 
highway  and  bridge  expenditures.  Each  estimate  is  to  be  submitted 


HIGHWAY  MONEYS;  STATE  AID. 


S51 


Explanatory  note. 

to  the  town  board  for  its  approval.  It  becomes  effectual  and  binding 
upon  the  town  when  so  approved.  The  supervisor  must  submit  the 
approved  estimate  to  the  board  of  supervisors,  who  thereupon  must 
cause  the  amounts  specified  in  the  estimate  to  be  levied  and  collected  in 
the  same  manner  as  other  charges  against  the  town  are  levied  and 
collected.  The  estimate  must  be  submitted  to  the  town  board  on  or 
before  October  31,  so  that  the  board  may  act  upon  it  at  its  meeting 
held  on  the  Thursday  preceding  the  annual  meeting  of  the  board  of 
supervisors. 

Additional  Tax ; Extraordinary  Repairs. 

If  the  town  superintendent  finds  that  the  amounts  included  in  his 
estimate  are  insufficient  for  the  purposes  named  he  shall  report  the  fact 
to  the  town  board,  and  such  board  may  cause  a vote  to  be  taken  at  a 
biennial  or  special  town  meeting  on  a proposition  to  appropriate  an 
additional  sum.  If  so  voted  the  amount  must  be  added  to  the  regular 
highway  tax. 

If  a bridge  or  highway  is  unsafe  the  town  superintendent  with  the 
approval  of  the  town  board  may  cause  the  same  to  be  rebuilt  or  repaired. 
If  the  expense  exceeds  $500  it  must  be  done  by  contract,  approved  by 
the  town  board.  The  amount  required  is  to  be  added  to  the  amount  of 
other  highway  taxes  in  the  town. 

Limitation  of  Amounts  to  be  Raised  by  Tax. 

The  law  imposes  a limit  upon  the  amount  to  be  raised  by  tax  without 
a vote  of  the  town,  for  all  purposes  except  the  repair  and  improvement 
of  highways.  The  limit  for  bridges  is  placed  at  $1500,  for  road 
machinery  the  limit  is  $500 ; for  extraordinary  repairs  of  bridges  and 
highways  which  have  become  unsafe,  the  limit  is  $1500. 

Borrowing  Money ; Bonds. 

Money  may  be  borrowed  by  the  supervisor,  in  anticipation  of  taxes, 
when  authorized  by  the  town  board.  Certificates  of  indebtedness  are 
required  to  be  issued  for  the  money  so  borrowed. 

When  authorized  by  a vote  of  a town  meeting  the  town  may  borrow 
money,  and  issue  bonds  therefor,  to  build,  rebuild  or  repair  highways 
and  bridges  and  to  purchase  stone  crushers,  rollers  and  traction  engines. 
The  law  provides  for  the  issue  and  sale  of  such  bonds. 


852 


HIGHWAYS  AND  BRIDGES. 


Explanatory  note. 

State  Aid. 

Section  101  of  the  Highway  Law  prescribes  the  amount  of  money  to 
be  paid  to  the  towns  to  aid  them  in  the  repair  and  improvement  of 
highways.  The  amounts  are  graded  in  accordance  with  the  assessed 
valuation  of  taxable  property  in  the  town  for  each  mile  of  highways. 

part  of  this  money  may  be  used  for  the  building  and  repairing  of 
bridges.  The  state  money  is  paid  to  the  county  treasurer  and  by  him 
distributed  among  the  towns. 

Supervisor  as  Custodian  of  Moneys. 

The  supervisor  is  the  custodian  of  all  highway  moneys.  The  collector 
is  directed  in  his  warrant  to  pay  to  the  supervisor  all  moneys  collected 
for  highway  and  bridge  purposes,  and  all  state  moneys  are  paid  to  him 
by  the  county  treasurer.  He  must  give  a separate  undertaking  for  the 
safe-keeping  of  such  funds,  to  be  approved  by  the  towm  board. 

Agreement  as  to  Expenditures  ; Audit  and  Payment. 

The  town  superintendent  and  town  board  must  enter  into  a written 
agreement  as  to  the  parts  of  the  town  and  the  manner  in  which  the 
highway  moneys  are  to  be  expended.  Such  agreement  must  be  executed 
in  duplicate ; one  copy  is  to  be  filed  with  the  town  clerk,  and  the  other 
with  the  district  or  county  superintendent. 

All  moneys  are  required  to  be  paid  out  by  the  supervisor,  in 
accordance  with  such  agreement  upon  the  order  of  the  town  superin- 
tendent, after  audit  by  the  town  board.  Such  audits  are  to  be  made 
at  any  meeting  of  the  board  called  for  the  purpose  by  the  supervisor  or 
town  clerk,  on  the  request  of  the  town  superintendent. 

The  supervisor  must  present  to  the  town  board  an  itemized  report  of 
money  received  and  paid  out.  The  form  of  such  report  is  prescribed  by 
the  commission  and  blanks  are  furnished  or  demanded. 


[Highway  Law,  art.  V.] 

Section  1.  Estimate  of  expenditures  for  highways  and  bridges. 

2.  Duties  of  town  board  in  respect  to  estimates;  levy  of  taxes. 

3.  Additional  tax. 


HIGHWAY  MONEYS;  STATE  AID. 


853 


Highway  Law,  § 90. 

Section  4.  Extraordinary  repairs  of  highways  and  bridges. 

5.  Limitations  of  amounts  to  be  raised. 

6.  Submission  of  propositions  at  town  meetings. 

7.  Borrowing  money  in  anticipation  of  taxes. 

8.  Towns  may  borrow  money  for  bridge  and  highway  purposes. 

9.  Issue  and  sale  of  town  bonds. 

10.  Assessment  of  village  property. 

11.  Statement  by  clerk  of  board  of  supervisors. 

12.  Amount  of  state  aid. 

13.  Mileage  and  assessed  valuation. 

14.  Payment  and  distribution  of  state  money. 

15.  Custody  of  highway  moneys;  undertaking  of  supervisor. 

16.  Expenditures  for  repair  and  improvement  of  highways. 

17.  Expenditures  for  bridges  and  other  highway  purposes. 

18.  Reports  of  supervisor  as  to  highway  moneys. 

19.  Highway  accounts;  forms  and  blanks. 

20.  Duty  of  town  clerk. 

21.  Compensation  of  supervisor  and  town  clerk. 

22.  Additional  expenditure  for  improvement,  repair  and  maintenance 

of  town  highways. 


§ 1.  ESTIMATE  OF  EXPENDITURES  FOR  HIGHWAYS  AND 
BRIDGES.^ 

The  town  superintendent  shall  annually,  on  or  before  the  thirty-first 
day  of  October,  make  a written  statement  in  respect  to  the  amount  of 
money  which  should  be  raised  by  tax  in  the  town  for  the  ensuing  year, 
beginning  on  the  first  day  of  November,  for  the  purposes  therein  set 
forth,  which  shall  be  filed  with  the  town  clerk.1 2  Such  statement  shall 
specify : 


1.  Legalization  of  taxes  levied  in  1911.  The  taxes  levied  for  the  repair  of 
highways  upon  the  assessment-rolls  of  the  several  towns  for  the  year  1911  were 
legalized  by  L.  1912,  ch.  64  (in  effect  March  23,  1912),  which  reads  as  follows: 

Section  1.  The  taxes  levied  in  the  year  nineteen  hundred  and  eleven  for  the  re- 
pair of  highways,  upon  the  real  and  personal  property  in  the  several  towns,  are 
hereby  legalized  and  confirmed  so  as  to  be  of  the  same  force  and  effect  as  though 
the  boards  of  supervisors  had,  in  said  year,  levied  the  minimum  amount  required 
to  be  levied  and  collected  under  the  provisions  of  subdivision  one,  section  ninety, 
chapter  thirty  of  the  laws  of  nineteen  hundred  and  nine,  entitled  “An  act,  etc.” 

2.  Highway  tax.  The  present  Highway  Law  abolishes  the  labor  system  of 
taxation  in  all  towns  and  substitutes  in  place  thereof  what  was  formerly  known  as 
the  money  system  of  taxation.  On  and  after  the  taking  effect  of  this  section  all 
towns  will  be  required  to  provide  for  the  raising  of  highway  money 
by  tax.  The  town  superintendent  is  required  under  this  section  to  esti- 
mate the  money  which  will  be  required  for  all  highway  and  bridge  pur- 
poses in  the  town  during  the  ensuing  year.  This  estimate  is  revised  by  the 


854 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 90. 

1.  The  amount  of  money  necessary  to  be  levied  and  collected  for  the 
repair  and  improvement  of  highways,  including  sluices,  culverts  and 
bridges  having  a span  of  less  than  five  feet,  and  board  walks  or  renewals 
thereof  on  highways  less  than  two  rods  in  width,  and  also  the  amount 
necessary  to  construct  or  repair  any 'public  roads,  walks,  places  or  avenues 
on  any  sand  beach  separated  by  more  than  two  miles  from  the  main 
body  of  the  town.  Such  amount  shall  not  be  less  than  an  amount  which 
when  added  to  the  amount  of  money  to  be  received  from  the  state, 
under  the  provisions  of  section  one  hundred  and  one,  will  equal  thirty 
dollars  for  each  mile  of  highways  within  the  town,  outside  the  limits 
of  incorporated  villages,  except  that  no  town  having  an  assessed  valuation 
of  three  thousand  seven  hundred  and  fifty  dollars  or  less  per  mile  out- 
side of  incorporated  villages  shall  be  required  to  levy  and  collect  a tax 
under  this  subdivision  in  excess  of  four  dollars  on  each  thousand  dollars 
of  assessed  valuation.* * 3  [Sub.  amended  by  L.  1914,  ch.  84,  and  L.  1915, 
ch.  322.] 

town  board  under  sec.  91  of  the  Highway  Law,  and  when  so  revised  the  amount 
provided  for  is  to  be  raised  by  tax  levied  by  the  board  of  supervisors  upon  the 
taxable  property  of  the  town.  The  levy  is  made  by  the  board  of  supervisors  at  its 
annual  meeting  and  when  the  tax  warrant  reaches  the  hands  of  the  collector  it  pro- 
vides for  the  collection  of  money  sufficient  to  take  care  of  highway  improvement 
during  the  next  year.  Such  moneys  will  be  paid  over  to  the  supervisor,  for  the 
most  part,  in  the  months  of  January,  February  or  March,  prior  to  the  time  when 
active  operations  upon  the  highways  are  required  to  be  begun.  It  will  be  noticed 
that  under  this  section  the  town  superintendent  is  to  determine  the  amount  required 
for  highways  and  bridges  in  the  towns  in  the  first  instance. 

Form  of  estimate  of  highway  and  bridge  expenditures,  and  town  board’s 
approval  thereof,  see  Form  No.  109,  post. 

Statement  under  former  law.  The  former  statute  made  it  the  commissioner’s 
imperative  duty  to  make  a statement  of  the  necessary  improvements  to  be  made 
on  bridges  and  highways  in  each  highway  district,  and  an  estimate  of  the 
probable  expense  thereof,  to  the  town  board  at  its  second  meeting,  that  is  the 
meeting  held  on  the  Thursday  prior  to  the  annual  meeting  of  the  bo^rd  of 
supervisors.  A duplicate  of  such  statement  and  estimate  was  required  to  be 
delivered  to  the  supervisor  of  the  town.  The  board  of  supervisors  at  its  next 
meeting  was  then  required  to  cause  the  amount  to  be  assessed  upon  and  col- 
lected in  the  town.  Lament  v.  Haight,  44  How.  Pr.  1.  The  object  of  providing 
for  such  statement  and  estimate  is  to  enable  the  town  to  raise  money  for  high- 
way purposes  by  annual  taxation  rather  than  by  incurring  indebtedness  or  bor- 
rowing money.  Wells  v.  Town  of  Salina,  119  N.  Y.  280,  290. 

3.  Minimum  amount  for  repair  and  improvement.  It  will  be  noticed  under 
subd.  1 that  the  minimum  amount  which  is  to  be  raised  by  tax  in  each  town 
for  the  repair  and  improvement  of  highways  will  vary  according  to  the 
amount  which  the  towns  receive  from  the  State  under  sec.  101  of  the  Highway 
Law.  If  the  assessable  valuation  per  mile  is  less  than  the  limit  prescribed 
in  this  subdivision,  the  amount  available  for  repair  and  improvement  of  high- 
ways may  be  less  than  thirty  dollars,  but  in  every  other  case  the  amount  raised 
by  the  town  and  the  amount  received  from  the  State  must  at  least  equal  the 
sum  of  thirty  dollars  for  each  mile.  It  was  intended  by  this  subdivision  to 
orotect  the  smaller  and  poorer  towns  by  limiting  the  amount  which  they 


HIGHWAY  MONEYS;  STATE  AID. 


855 


Highway  Law,  § 91. 

2.  The  amount  of  money  necessary  to  be  levied  and  collected  for  the  repair 
and  construction  of  bridges,  having  a span  of  five  feet  or  more. 

3.  The  amount  of  money  necessary  to  be  levied  and  collected  for  the  pur- 
chase, repair  and  custody  of  stone  crushers,  steam  rollers,  traction  engines, 
road  machines  for  grading  and  scraping,  tools  and  implements.* * * 4 5 6 

4.  The  amount  of  money  necessary  to  be  levied  and  collected  for  the  re- 
moval of  obstructions  caused  by  snow  and  for  other  miscellaneous  purposes.* 

The  amounts  specified  in  such  statement  shall  not  exceed  the  limitations 
prescribed  in  section  ninety-four.  If  the  town  superintendent  is  of  the  opinion 
that  an  amount  in  excess  of  the  limitations  therein  prescribed  be  raised  by  tax, 
he  shall  include  in  his  statement  his  reasons  therefor  in  detail.  [Highway  Law, 
§90;  B.  C.  & G.  Cons.  L.,  p.  2221. j 

§ 2.  DUTIES  OF  TOWN  BOARD  IN  RESPECT  TO  ESTIMATES;  LEVY 
OF  TAXES. 

The  town  board,  at  its  meeting  held  on  the  Thursday  succeeding  general 
election  day  in  each  year,  shall  consider  the  estimates  contained  in  such 
statement.  It  may,  by  a majority  vote  of  the  members  thereof,  approve 
such  statement,  or  increase  or  reduce  the  amount  of  any  of  the  estimates 
contained  therein,  subject  to  the  limitations  prescribed  in  section  ninety - 
four. 6 The  statement,  as  thus  approved,  increased  or  reduced  shall  be 
signed  in  duplicate  by  a majority  of  the  members  of  the  town  board,  one 


should  be  required  to  raise  by  tax  at  four  dollars  for  each  thousand  dollars  of 

assessed  valuation.  There  is  nothing  in  the  law  which  prevents  any  town  from 

imposing  a tax  greater  than  such  sum. 

4.  Road  machinery  may  be  purchased  by  the  town  superintendent  with  the 
approval  of  the  town  board  under  Highway  Law,  sec.  49,  ante.  The  expenses  con- 
nected with  the  purchase,  repair  and  custody  of  such  machinery  pursuant  to  the 
provisions  of  such  section  49  of  the  Highway  Law  is  chargeable  against  the  fund 
raised  under  subd.  3 of  the  above  section. 

5.  Removal  of  snow. — It  is  made  the  duty  of  the  town  superintendent  to  cause 
highways  to  be  kept  free  from  obstructions  caused  by  snow.  See  Highway  Law, 
sec.  47,  subd.  2,  ante.  It  is  provided  by  sections  78-81  of  the  Highway  Law  (preced- 
ing chapter)  that  the  board  of  supervisors  of  a county  may  adopt  the  labor  system 
of  taxation  for  removing  snow. 

Building  a new  highway  is  a “ miscellaneous  purpose  ” within  the  mean- 
ing of  subdivision  4.  There  is  no  limitation  of  the  amount  which  may  be  raised  for 
“miscellaneous  purposes”  except  as  it  is  controlled  by  the  public  necessities  of  a 
town.  Rept.  of  Atty.  Genl.,  Oct.  18,  1910. 

Moneys  raised  as  provided  by  sections  90-101  cannot  be  used  either  for  com 
struction  or  maintenance  of  town  highways  constructed  under  sections  320  or  320-a  of 
the  Highway  Law.  Opinion  of  Attorney  General  (1916),  State  Dept.  Reports,  Adv. 
Sheet  41,  p.  98. 

Estimates  may  be  made  by  the  town  superintendent  under  subd.  4 of  money 
necessary  for  building  a new  highway,  said  estimate  is  then  laid  before  the  town 
board  and  if  it  approves,  the  several  amounts  are  laid  before  the  board  of  super- 
visors and  raised  in  the  same  manner  as  other  highway  taxes  in  the  town.  Rept.  of 
Atty.  Genl.,  Oct.  18,  1910. 

6.  The  town  board  has  the  power,  under  this  section,  to  control  the  amount 
which  shall  be  raised  for  the  purposes  specified  in  the  statement  of  the  town 
superintendent.  The  approval  of  the  town  board,  when  the  estimate  is  not 
changed,  should  be  endorsed  on  the  statement  of  the  town  superintendent  and 
signed  by  the  members  of  the  town  board.  If  the  amounts  contained  in  the 
statement  are  reduced  or  increased  it  may  be  better  to  make  a new  statement 
containing  the  revised  estimates,  signed  in  duplicate  by  the  members  of  the 


■855 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 92. 

of  which  shall  be  filed  in  the  office  of  the  town  clerk,  and  the  other  shall 
be  delivered  to  the  supervisor.  The  town  clerk  shall  make  and  transmit 
a copy  of  such  statement  to  the  commission.  The  supervisor  shall  present 
such  statement  to  the  board  of  supervisors  and  such  board  shall  cause 
the  amounts  contained  therein,  subject  to  the  limitation  requiring  a vote 
of  the  electors  as  hereafter  provided,  to  be  assessed,  levied  and  collected 
in  such  town  in  the  same  manner  as  other  town  charges,  and  such  amounts 
shall  be  expended  for  the  purposes  specified  in  such  statement.* * * * * * 7  The 
warrant  for  the  collection  of  taxes  in  such  town  shall  direct  the  payment 
of  the  money  so  collected  to  the  supervisor  of  the  town,  to  be  held  by  him 
and  paid  out  for  the  purposes  specified  in  such  statement,  as  provided 
in  this  chapter.8  [Highway  Law,  § 91;  B.  C.  & G.  Cons.  L.,  p.  2223.] 

§ 3.  ADDITIONAL  TAX, 

Whenever  the  town  superintendent  and  the  town  board  shall  determine 
that  the  sum  of  one  thousand  five  hundred  dollars  will  be  insufficient  to  pay 
the  expenses  actually  necessary  for  the  removal  of  obstructions  caused  by 
enow  and  the  prevention  of  such  obstructions,  and  whenever  they  shall  de- 
termine that  the  amounts  levied  and  collected  for  any  of  the  purposes 


board.  It  is  the  statement,  as  finally  acted  upon  by  the  town  board,  which 
becomes  the  basis  for  the  levy  of  the  taxes  by  the  board  of  supervisors. 

Insufficient  appropriations.  In  the  absence  of  authority  conferred  upon  him 

as  provided  in  this  and  the  following  section  the  town  superintendent  has 

no  power  to  proceed  with  the  improvements,  and  apply  in  payment  therefor 
the  appropriation  for  the  succeeding  year,  and  expenditures  so  made  create  no 

legal  claim  against  the  town.  People  ex  rel.  Peterson  v.  Clark,  45  App.  Div. 

65,  60  N.  Y.  Supp.  1045. 

7.  The  board  of  supervisors  in  assessing  and  levying  taxes  for  highway 
purposes  are  governed  by  the  provisions  of  this  section.  The  provisions  of 
subds.  3 and  4 of  sec.  12  of  the  County  Law,  ante,  authorizing  the  board 
of  supervisors  to  direct  the  raising  of  such  sums  in  each  town  as  shall  be 
necessary  to  pay  its  town  charges  are,  so  far  as  they  pertain  to  taxes  for 
highway  purposes,  superseded  by  this  section.  The  board  of  supervisors  cannot 
exceed  the  amount  estimated  for  in  the  statement  submitted  to  it  by  the 
several  towns  of  the  county,  except  in  the  cases  specified  in  secs.  92  and  93  of  the 
Highway  Law. 

8.  Collection  of  taxes  and  expenditures.  The  board  of  supervisors  provides 
for  the  preparation  of  the  tax-roll  of  each  town  to  which  is  attached  a warrant 
under  the  seal  of  the  county,  signed  by  the  chairman  and  the  clerk  of  the 
board  of  supervisors,  to  collect  from  the  persons  named  in  the  roll  the  sums 
mentioned  therein.  Tax  Law,  secs.  58  and  59,  ante.  Under  sec.  59  of  the  Tax 
Law,  ante,  it  is  provided  that  the  collector’s  warrant  shall  direct  him  to  pay 
« to  the  commissioners  of  highways  of  the  town  such  sum  as  shall  have  been 
raised  for  the  support  of  highways  and  bridges  therein.”  This  provision  is 
superseded  by  the  above  section,  which  provides  that  the  warrant  shall  direct 


HIGHWAY  MONEYS;  STATE  AID. 


857 


Highway  Law,  § 93. 

mentioned  in  the  statement  presented  to  the  board  of  supervisors,  as  pro- 
vided in  the  preceding  section,  are  insufficient  to  pay  the  expenses  neces- 
sarily incurred  for  any  of  the  purposes  therein  specified  they  may  cause9  a 
vote  to  be  taken  by  ballot  at  a biennial  town  meeting  or  at  a special  town 
meeting  duly  called  therefor,  authorizing  such  additional  sum  to  be  raised 
as  they  may  deem  necessary  for  such  purpose,  not  exceeding  one-third  of 
one  per  centum  upon  the  taxable  property  of  the  town  as  shown  by  the  last 
assessment-roll  thereof.10  [Highway  Law,  § 92,  as  amended  by  L.  1918, 
ch.  147;  B.  C.  & G.  Cons.  L.,  p.  2224.] 

§ 4.  EXTRAORDINARY  REPAIRS  OF  HIGHWAYS  AND  BRIDGES. 

If  any  highway  or  bridge  or  the  board  walk  on  any  highway  less 
than  twTo  rods  in  width,  or  a walk  built  to  replace  the  same  under 
section  sixty-two,  shall  at  any  time  be  damaged  or  destroyed  by 
the  elements  or  otherwise,  or  become  unsafe  for  public  use  and  travel, 
or  if  any  bridge  or  the  board  walk  on  any  highway  less  than  two  rods 


the  payment  of  the  money  so  collected  to  the  supervisor  of  the  town.  Ex- 
penditures for  the  repair  and  improvement  of  town  highways  are  to  be  made 
as  provided  in  sec.  105  of  the  Highway  Law,  post , and  expenditures  for  bridges 
and  other  highway  purposes  are  to  be  made  as  provided  in  sec.  106  thereof, 
post. 

9.  Form  of  application  for  special  meeting  to  vote  upon  such  a proposition, 
see  Form  No.  110,  post. 

A proposition  may  be  submitted  at  a town  meeting  as  provided  in  the 
Town  Law,  see  ante,  pp.  , . 

10.  Former  Highway  Law,  sec.  9,  authorized  the  submission  of  a proposition 
to  a town  meeting  to  raise  a sum  in  addition  to  one  thousand  dollars  for 
highway  repairs  and  maintenance,  removal  of  obstructions  caused  by  snow 
and  the  purchase  of  road  machines.  The  present  law  provides  for  a submission 
of  a proposition  whenever  any  of  the  amounts  levied  and  collecetd  for  the 
purposes  mentioned  in  the  highway  estimate  are  insufficient  to  pay  the 
expenses  necessarily  incurred. 

Object  and  effect  of  section.  The  purpose  of  this  section  is  to  provide 
for  an  amount  in  addition  to  that  contained  in  the  annual  statement  submitted 
to  the  board  of  supervisors  when  it  is  found  that  such  amounts  are  insufficient 
to  properly  care  for  the  highways  and  bridges  of  the  town.  The  limitation  of 
one-third  of  one  per  centum  of  the  taxable  property  of  the  town  cannot  be 
exceeded.  The  additional  amount  so  voted  by  the  people  must  be  raised 
by  tax  upon  the  town.  Such  sum  is  not  to  be  raised  by  the  issue  of  bonds, 
but  money  may  be  borrowed  in  anticipation  of  additional  taxes  so  to  be  levied, 
as  provided  in  Highway  Law,  sec.  96,  post. 

Effect  of  failure  to  secure  additional  sum.  It  is  the  duty  of  a town  super- 
intendent and  town  board  to  take  action  under  this  section  to  secure  such  sum. 
in  addition  to  that  estimated  for  in  his  annual  statement,  as  may  be  necessary 
to  keep  the  highways  and  bridges  of  the  town  in  a safe  condition.  It  has  been 
held  that  as  a defense  to  an  action  for  injuries  sustained  by  reason  of  a 
defective  highway,  it  is  not  sufficient  to  show  that  the  superintendent  had  no 
funds,  but  it  must  also  be  shown  that  he  had  sought  through  the  proper 


858 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 93. 

iii  width,  or  any  such  walk  built  to  replace  the  same,  be  condemned  by 
the  commission,  as  provided  in  this  chapter,  the  town  superintendent 
shall  cause  the  same  to  be  immediately  repaired  or  rebuilt,  with  the 
approval  of  the  town  board.* 11  Such  highway  or  bridge  or  walk  shall. 


channels  to  procure  them.  Whitlock  v.  Town  of  Brighton,  2 App.  Div.  21,  37 
N.  Y.  Supp.  333,  affirmed,  154  N.  Y.  781;  Warren  v.  Clement,  24  Hun  472; 
McMahon  v.  Town  of  Salem,  25  App.  Div.  1,  49  N.  Y.  Supp.  310. 

11.  Former  Highway  Law,  sec.  10,  as  amended  by  L.  1906,  ch.  417,  provided 
for  the  repair  or  rebuilding  of  a highway  or  bridge  which  at  any  time  had 
been  damaged  or  destroyed  by  the  elements  or  otherwise,  or  had  become  unsafe. 
The  work  was  required  to  be  done  under  written  contract,  if  the  amount  to  be 
expended  exceeded  five  hundred  dollars.  If  the  expense  of  the  construc- 
tion exceeded  fifteen  hundred  dollars,  the  work  could  only  be  done  after 
the  submission  and  adoption  of  a proposition  at  a town  meeting. 

Limitation  of  expenditure.  Not  more  than  fifteen  hundred  dollars  can 
be  levied  in  any  one  year  for  the  repair  or  construction  of  a highway  or  bridge 
under  this  section,  unless  duly  authorized  by  a vote  of  a town  meeting.  See 
Highway  Law,  sec.  94,  subd.  4,  post. 

Power  of  town  superintendents  to  bind  town.  Town  superintendents  of 
highways  have  no  general  authority  to  bind  the  town  by  their  contracts  save 
in  exceptional  cases  prescribed  by  statute.  People  ex  rel.  Everett  v.  Supervisors, 
93  N.  Y.  397;  Berlin  Bridge  Co.  v.  Wagner,  57  Hun,  346;  10  N.  Y.  Supp.  840. 
In  the  case  of  People  ex  rel.  Bowles  v.  Burrell,  14  Misc.  217;  35  N.  Y.  Supp. 
608,  Justice  Rumsey  held  that  highway  commissioners  have  no  power  to  pledge 
the  credit  of  the  town  for  materials  for  the  repair  of  highways,  and  the  person 
furnishing  such  material  has  no  claim  therefor  upon  the  town,  notwithstanding 
the  existence  of  a local  custom  to  buy  such  material  upon  credit.  And  in  the 
case  of  Lyth  v.  Town  of  Evans,  33  Misc.  221,  227,  68  N.  Y.  Supp.  356,  it  was 
said:  “If  extraordinary  repairs  become  necessary,  and  the  funds  supplied 

are  insufficient  for  the  purpose,  the  law  provides  the  method  of  procedure 
to  be  taken  by  the  commissioners  with  the  consent  of  the  town  board  whereby 
a legal  obligation  to  pay  for  the  necessary  expenditure  may  be  created  directly 
against  the  town  itself.  In  no  other  wTay  may  the  commissioners  create  an 
obligation  or  liability  against  the  town.” 

a town  superintendent  of  highways  is  not  an  agent  of  the  town  authorized 
to  contract  a debt  in  real  or  supposed  emergencies,  and  cannot  make  a con- 
tract binding  upon  the  town  unless  authorized  by  statute.  So  where  a town 
superintendent  contracts  individually  with  a person  to  supervise  the  construc- 
tion of  a bridge  authorized  by  a town  board,  such  contract  is  not  binding  upon 
the  town,  unless  - the  town  board  consented  to  such  contract.  People  ex  rel. 
Morey  v.  Town  Board,  175  N.  Y.  394.  The  consent  mentioned  in  the  statute 
is  a judicial  act  contemplating  a decision  of  the  board  upon  evidence  as  to 
whether  or  not  the  highways  are  in  such  a condition  as  to  require  immediate  repair. 
Town  superintendents  of  highways  are  charged  with  the  duty  of  keeping  town 
highways  in  repair  as  independent  officers  and  not  as  agents  of  the  town,  and  when 
they  contract  for  ordinary  repairs,  it  is  as  such  officers  and  the  liability  therefor, 
if  they  exceed  the  statutory  limitation,  is  assumed  by  them  personally  and  not  as 
agents  of  the  town.  Opinion  of  State  Comptroller  (1916),  9 State  Dept.  Rep.  482. 

In  the  case  of  People  ex  rel.  Peterson  v.  Clark,  45  App.  Div.  65;  60  N.'  Y. 
Supp.  1045,  it  was  held  that  where  the  appropriation  for  the  improvement  of 
highways,  made  under  sec.  19  of  the  Former  Highway  Law,  is  insufficient,  the 
proper  course  of  the  commissioner  was  to  apply,  under  secs.  10  and  11  of  that 


HIGHWAY  MONEYS;  STATE  AID. 


859 


Highway  Law,  § 93. 

be  so  repaired  or  rebuilt  in  accordance  with  the  directions  or  the  plans 
and  specifications  prepared  or  approved  by  the  district  or  county  super- 


law, to  the  town  board  for  consent  to  make  the  necessary  improvements.  In 
the  absence  of  such  consent  the  highway  commissioner  had  no  power  to  pro- 
ceed with  the  improvements,  and  apply  in  payment  thereof  the  appropriation 
for  the  succeeding  year;  and  expenditures  so  made  create  no  legal  claim 
against  the  town.  The  court  said;  “We  are  unable  to  find  in  the  Highway 
Law,  or  other  statutes  of  the  state,  any  provision  authorizing  a highway  com- 
missioner to  create  a debt  against  a town,  except  in  the  manner  provided  in 
sec.  10  of  the  Highway  Law.”  See,  also,  in  respect  to  the  powers  of  town 
superintendents  to  bind  a town  for  highway  improvements,  Mather  v.  Craw- 
ford, 36  Barb.  565;  Barker  v.  Loomis,  6 Hill,  464;  Van  Alstyne  v.  Freday,  41 
N.  Y.  174. 

A town  superintendent  has  no  authority  to  create  a liability  upon  the 
part  of  his  town  to  a person  hired  to  cut  brush  along  a town  highway,  and 
even  if  such  liability  were  created,  it  would  not  become  actionable  until 
the  claim  had  been  acted  upon  by  the  town  auditors.  Wright  v.  Town  of 
Wilmurt,  44  Misc.  456,  90  N.  Y.  Supp.  90. 

An  unsafe  condition  which  is  the  result  of  ordinary  wear  and  tear  is  not 
such  an  emergency  as  will  warrant  action  under  this  section.  Such  a con- 
dition may  be  remedied  in  the  ordinary  manner,  by  including  the  amount 
required  in  the  annual  statement  as  provided  in  secs.  90  and  91.  The  re- 
pairs provided  for  in  sec.  93  are  those  arising  only  from  emergencies  which 
could  not  have  been  foreseen.  This  section  does  not  authorize  the  town  super- 
intendent, upon  determining  that  a highway  bridge  has  become  unsafe  from 
natural  wear  and  decay,  to  make  a contract  for  the  rebuilding  of  such  bridge, 
with  the  approval  of  the  town  board,  at  a cost  exceeding  the  moneys  appro- 
priated for  highway  purposes.  The  phrase,  “ or  become  unsafe,”  means  an 
unsafe  condition  arising  from  extraordinary  cause.  Livingston  v.  Stafford,  99 
App.  Div.  108,  91  N.  Y.  Supp.  172. 

The  commissioners  of  highways  [Town  superintendent]  and  town  board  of 
a town  cannot  contract  for  the  building  of  new  bridges  in  the  place  of  old 
bridges  not  damaged  except  by  natural  wear,  unless  the  electors  of  a town 
duly  authorize  the  raising  of  money  for  such  purpose.  A contractor  is 
charged  with  the  knowledge  of  the  want  of  such  authority.  People  ex  rel. 
United  Construction  Co.  v.  Voorhies,  114  App.  Div.  351,  99  N.  Y.  Supp.  918, 
affd.  187  N.  Y.  539. 

Consent  of  town  board.  Where  a bridge  has  been  destroyed  by  the  ele- 
ments it  is  contemplated  that  the  town  superintendent  shall  proceed  to 
rebuild  if  authorized  by  the  town  board.  When  the  consent  of  the  town 
board  is  given,  the  town  superintendent  may  contract  for  its  rebuilding,  and 
the  contract  is  to  be  deemed  the  contract  of  the  town  and  should  be  made 
in  the  name  of  the  town.  Town  of  Saranac  v.  Groton  Bridge  Co.,  55  App. 
Div.  134;  67  N.  Y.  Supp.  118.  When  once  the  consent  has  been  given  the 
duties  of  the  town  board,  so  far  as  the  construction  of  the  bridge  is  con- 
cerned, are  at  an  end.  The  board  cannot  direct  the  town  superintendent  as  to 
what  kind  of  a bridge  shall  be  erected  or  how  and  by  whom  it  shall  be 
built.  People  ex  rel.  Groton  Bridge  Co.  v.  Town  Board,  92  Hun,  585;  36 


HIGHWAYS  AND  BRIDGES. 


860 


Highway  Law,  § 93. 


intendent;  except  if  the  bridge  or  walk  to  be  repaired  or  rebuilt  is  one 
which  has  been  condemned  by  the  commission,12  as  provided  in  this  chap- 
ter, the  same  shall  be  repaired  or  rebuilt  in  accordance  with  plans  and 
specifications  to  be  prepared  or  approved  by  the  commission.  The  town 


N.  Y.  Supp.  1062.  But  where  a resolution  was  passed  by  a town  board 
providing  for  the  rebuilding  of  the  bridge  containing  certain  conditions,  it 
was  held  that  in  case  such  conditions  were  not  complied  with  the  resolution 
conferred  no  authority,  and  that  a bridge  constructed  without  regard  to  such 
conditions  by  the  commissioner  was  unauthorized.  Town  of  Saranac  v. 
Groton  Bridge  Co.,  55  App.  Div.  134;  67  N.  Y.  Supp.  118. 

Where  a resolution  authorized  a commissioner  “ to  repair  the  bridges  that 
may  have  gone  down  since  the  annual  town  meeting  to  the  best  of  his  judg- 
ment,” it  was  held  that  if  in  his  judgment  it  was  deemed  best  or  necessary  to 
remodel  or  reconstruct  the  bridge,  the  consent  would  authorize  such  an  action 
on  his  part.  People  ex  rel.  Slater  v.  Smith,  83  Hun,  432;  31  N.  Y.  Supp.  749; 
see  Huggans  v.  Riley,  125  N.  Y.  88;  25  N.  E.  993;  Hall  v.  Town  of  Oyster 
Bay,  61  App.  Div.  508,  511;  70  N.  Y.  Supp.  710. 

No  particular  form  of  consent  by  the  town  board  is  required;  and  where  it 
formally  resolves  that  an  unsafe  bridge  be  replaced  by  a new  one,  the  super- 
intendent has  sufficient  authority  to  contract  for  the  bridge,  although  the 
board  subsequently  attempts  to  delay  action  that  it  may  obtain  legal  advice  in 
the  matter.  Basselin  v.  Pate,  30  Misc.  368,  69  N.  Y.  Supp.  653.  Where  it  does 
not  appear  whether  the  consent  was  in  writing  or  not,  it  will  be  presumed,  if 
that  be  a requisite,  that  a record  of  the  consent  was  properly  made.  Boots 
v.  Washburn,  79  N.  Y.  207. 

Mandanus  to  compel  approval.  Where  the  commissioner  of  highways  [super- 
intendent] of  a town,  without  the  previous  consent  of  the  town  board,  has 
expended  moneys  in  excess  of  the  amount  in  his  hands,  for  the  purpose  of 
repairing  highways  which  were  in  a dangerous  and  unsafe  condition,  a writ 
of  mandamus  will  not  issue  commanding  the  officers  of  the  town  to  convene 
as  a town  board,  and  give  their  consent  to  the  payment  of  the  highway  com- 
missioner’s claim  for  reimbursement.  The  fact  that  if  an  application  had 
been  made  to  the  town  board  prior  to  the  expenditure  of  the  money,  they  would 
undoubtedly  have  consented  to  the  making  of  the  repairs,  does  not  justify 
the  issuance  of  a mandamus.  The  consent  mentioned  in  the  statute  is  a 
judicial  act  contemplating  a decision  of  the  board  upon  evidence  as  to  whether 
or  not  the  highways  are  in  such  condition  as  to  require  immediate  repair. 
People  ex  rel.  Graham  v.  Studwell,  91  App.  Div.  469,  86  N.  Y.  Supp.  967  (1904), 
affirmed  179  N.  Y.  520.  The  town  board  may  make  the  judgment  of  the 
superintendent  the  measure  of  its  consent  as  to  reconstruction  of  a bridge; 
and  it  is  not  in  the  province  of  a writ  of  mandamus  to  review  the  exercise- 
of  a judicial  or  discretionary  power  of  such  board,  or  to  direct  what  the 
result  of  its  exercise  shall  be.  People  ex  rel  Slater  v.  Smith,  83  Hun  432,  31 
N.  Y.  Supp.  749. 

12.  Condemnation  of  bridge  by  the  State  commission  and  duties  of  dis- 
trict or  county  superintendent  in  respect  thereto,  see  Highway  Law,  sec.  20„ 
ante. 


HIGHWAY  MONEYS;  STATE  AID. 


861 


Highway  Law,  § 94. 

clerk  shall  prepare  a statement  showing  the  probable  cost  of  improving, 
repairing  or  rebuilding  such  highway  or  bridge  or  walk,  which  statement 
shall  be  signed  in  duplicate  by  a majority  of  the  members  of  the  town 
board,  one  of  which  duplicates  shall  be  filed  with  the  town  clerk  and  one 
be  delivered  to  the  supervisor.  The  town  clerk  shall  make  a copy  of  such 
statement  and  transmit  the  same  to  the  commission.  The  supervisor  shall 
present  such  statement  to  the  board  of  supervisors,  who  shall  cause  the 
amount  contained  in  such  statement  to  be  assessed,  levied  and  collected  in 
the  same  manner  as  amounts  levied  and  collected  for  other  highway  and 
bridge  purposes,  as  provided  by  law.  The  amount  so  raised  shall  be  paid 
to  the  supervisor  to  be  expended  for  the  purposes  specified  in  such  state- 
ment. [Highway  Law,  § 93,  as  amended  by  L.  1913,  ch.  621,  L.  1915,  ch. 
322,  and  L.  1917,  ch.  261 ; B.  C.  & G.  Cons.  L.,  p.  2225.] 


§ 5.  LIMITATIONS  OF  AMOUNTS  TO  BE  RAISED. 

The  amounts  to  be  raised  by  tax  upon  the  vote  of  a town  board,  as  pro- 
vided in  this  article,  shall  be  subject  to  the  following  limitations:13 

1.  The  amount  to  be  levied  and  collected  in  each  year  for  the  repair  and. 
improvement  of  highways,  including  sluices,  culverts  and  bridges  having 
a span  of  less  than  five  feet  and  board  walks  or  renewals  thereof,  on  high- 
ways less  than  two  rods  in  width,  shall  not  be  less  than  the  amount  pre- 
scribed under  subdivision  one  of  section  ninety.  [Subd.  amended  by  L. 
1915,  ch.  322.] 

2.  Not  more  than  fifteen  hundred  dollars  shall  be  levied  and  collected 
in  any  one  year  in  any  town  for  the  repair  and  construction  of  a bridge 
unless  by  unanimous  consent  of  all  members  of  the  town  board,  but  in 
no  case  shall  more  than  three  thousand  dollars  be  levied  and  collected  un- 
less duly  authorized  by  the  vote  of  a town  meeting.14 

3.  Not  more  than  five  hundred  dollars  shall  be  levied  and  collected  in 
any  one  year  in  any  town  for  the  purchase  or  repair  of  stone  crushers,  steam 
rollers,  motor  trucks,  scarifiers,  concrete  mixers,  traction  engines  or  road 
machines  for  grading  and  scraping,  tools  and  implements,  unless  duly  au- 


13.  Debts  in  excess  of  limitation.  A town  superintendent  has  no  general 
authority  to  bind  the  town  by  his  contracts.  He  must  find  his  authority  in  the 
statute,  and  those  who  deal  with  him,  and  with  the  other  officers  of  the  town  are 
presumed  to  know  this  limitation  of  power.  See  People  ex  rel.  Everett  v.  Super- 
visors, 93  N.  Y.  397;  Berlin  Bridge  Co.  v.  Wagner,  57  Hun  346,  10  N.  Y.  Supp.  840. 

14.  Limit  of  amount  to  be  raised  for  bridges.  If  more  than  fifteen  hundred 
dollars  is  required  to  be  raised  in  any  one  year  for  the  repair  or  construction  of  a 
single  bridge,  it  must  be  after  a vote  at  a town  meeting.  Under  the  former  Highway 
Law,  sec.  10,  as  amended  by  L.  1905,  ch.  417,  a bridge  which  had  become  unsafe  or 
had  been  destroyed  by  the  elements,  could  not  be  repaired  or  constructed  if  the 
amount  required  would  exceed  fifteen  hundred  dollars  unless  the  expense  had  been 
duly  authorized  by  a vote  at  a town  meeting. 


862 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  94,  95. 

thorized  by  the  vote  of  a town  meeting.15  [Subd.  3,  as  amended  by  L. 
1918,  chs.  320,  329.] 

4.  Not  more  than  fifteen  hundred  dollars  shall  be  levied  and  collected 
in  any  one  year  in  any  town  for  the  repair  or  construction  of  any  high- 
way or  bridge  which  has  been  damaged  or  destroyed  as  provided  in  section 
ninety-three  or  which  has  been  condemned  by  the  commission  as  provided 
in  this  chapter,  unless  by  unanimous  consent  of  all  members  of  the  town 
board,  but  in  no  case  shall  more  than  three  thousand  dollars  be  levied  and 
collected  unless  duly  authorized  by  the  vote  of  a town  meeting.  [High- 
way Law,  § 94,  as  amended  by  L.  1916,  ch.  578;  B.  C.  & G.  Cons.  L.,  p. 
2228.] 


§ 6.  SUBMISSION  OF  PROPOSITIONS  AT  TOWN  MEETINGS. 

A proposition  to  authorize  the  levy  and  collection  of  an  amount  greater 
than  that  specified  in  the  preceding  section  for  any  of  the  purposes  therein 
mentioned  may  be  submitted  upon  the  written  application  of  twenty-five 
taxpayers  upon  the  last  town  assessment-roll  or  by  a majority  of  the 
members  of  the  town  board,  at  a biennial  town  16  meeting  or  a special  town 
meeting  duly  called  as  provided  by  law.  The  provisions  of  the  town  law 
relating  to  the  submission  of  town  propositions  at  a biennial  or  special 
town  meeting  shall  apply  to  the  submission  of  such  propositions.17  If 
such  proposition  be  adopted  the  town  board  shall  include  in  the  estimates 
contained  in  the  next  statement  submitted  by  it  to  the  board  of  supervisors, 
as  provided  in  section  ninety-one,  the  amounts  authorized  to  be  raised 
by  such  proposition  for  the  purposes  therein  stated,  and  thereupon  such 
amounts  shall  be  levied  and  collected,  and  paid  to  the  supervisor,  to  be 
expended  by  him  as  directed  by  such  proposition.  [Highway  Law, 
§ 95;  B.  C.  & G.  Cons.  L.,  p.  2229.] 

§ 7.  BORROWING  MONEY  IN  ANTICIPATION  OF  TAXES. 

The  supervisor  may,  when  authorized  by  the  town  board,  borrow  money 

15.  Road  machinery.  The  town  superintendent  may,  with  the  approval  of 
the  town  board,  purchase  stone  crushers,  steam  or  other  power  rollers,  traction  en- 
gines, road  machines,  etc.,  under  Highway  Law,  sec.  49,  ante.  It  is  here  provided 
that  not  more  than  five  hundred  dollars  shall  be  levied  and  collected  in  any  one  year 
for  any  of  these  purposes  unless  a vote  be  had  at  a town  meeting.  Under  former 
Highway  Law,  sec.  7,  stone  crushers  and  power  rollers  could  only  be  purchased  after 
a submission  of  a proposition  at  a town  meeting. 

Road  machinery  may  not  be  purchased  under  a contract  of  conditional  sale.  Such 
machinery  can  only  be  purchased  when  there  are  funds  available  therefor.  A con- 
ditional contract  which  provides  for  the  sale  of  such  machinery  upon  payment  of 
the  purchase  price  at  some  time  in  the  future  is  not  authorized.  Payments  can  only 
be  made  from  funds  raised  by  tax  and  not  more  than  $500  of  the  funds  of  the  town 
are  available  for  such  purposes,  unless  a proposition  has  been  adopted  at  a town 
meeting,  authorizing  the  issue  and  sale  of  bonds.  Gardner  v.  Town  of  Cameron,  155 
App.  Div.  750,  140  N.  Y.  Supp.  634.  See,  also,  Shoemaker  v.  Buffalo  Steam  Roller 
Co.,  83  Misc.  162,  144  N.  Y.  Supp.  721. 

16.  Form  of  application  for  submission  of  proposition  to  a town  meeting,  see 
Form  No.  Ill,  post. 

17.  Submission  of  propositions  at  town  meetings,  see  Town  Law,  secs.  46-50, 

4 6,  ante. 


HIGHWAY  MONEYS;  STATE  AID. 


863 


Highway  Law,  § 97. 

in  anticipation  of  taxes  to  be  levied  and  collected,  on  the  credit  of  the  town, 
and  issue  certificates  of  indebtedness  therefor  in  the  following  cases: 

1.  When  an  additional  sum  is  directed  to  be  levied  and  collected  by  a 
vote  of  a town  meeting  as  provided  in  section  ninety-two. 

2.  When  an  amount  necessary  for  the  payment  of  expenses  incurred  in 
the  improvement,  repair  and  rebuilding  of  a highway  or  bridge  has  been 
directed  to  be  levied  and  collected  as  provided  in  section  ninety-three. 

3.  When  a proposition  has  been  adopted  at  a town  meeting  as  provided 
in  section  ninety-five  authorizing  the  levy  and  collection  of  an  amount 
greater  than  that  specified  in  section  ninety-four  for  any  of  the  purposes 
therein  mentioned. 

4.  When  the  board  of  supervisors  has  authorized  a town  board  to  borrow 
its  share  of  the  cost  of  improving  a town  highway  as  provided  by  section 
three  hundred  and  twenty-a. 

Such  certificates  of  indebtedness  shall  be  signed  by  the  supervisor  and 
the  town  clerk  and  shall  bear  interest  at  a rate  not  exceeding  six  per  cen- 
tum for  a period  not  exceeding  one  year.18  The  amount  so  borrowed 
shall  be  paid  out  by  the  supervisor  for  the  purposes  for  which  the  taxes, 
in  anticipation  of  which  such  certificates  were  issued,  are  to  be  levied  and 
collected.  The  principal  and  interest  of  such  certificates  shall  be  paid  by 
the  supervisor  immediately  upon  the  collection  of  the  taxes  levied  for  such 
purposes.  [Highway  Law,  § 96,  as  amended  by  L.  1918,  ch.  321;  B.  C.  & 
G.  Cons.  L.,  p.  2229.] 

§ 8.  TOWNS  MAY  BORROW  MONEY  FOR  BRIDGE  AND  HIGHWAY 
PURPOSES. 

A proposition  may  be  submitted  at  a regular  or  special  town  meeting 
in  the  manner  provided  by  the  town  law,19  authorizing  the  town  to  borrow 
money  upon  its  bonds,  or  other  obligations,  to  be  expended  for  the  follow- 
ing purposes:20 


18.  Certificates  of  indebtedness  to  be  in  form  prescribed  by  the  Commission,, 
see  Form  No.  112,  post. 

19.  Submission  of  propositions  at  town  meetings  must  be  made  as  provided 
in  Town  Law,  sec.  46,  ante. 

A proposition  to  raise  money  for  building  a new  highway  may  be  submitted 
to  the  voters  of  a town  pursuant  to  this  section.  Rept.  of  Atty.  Genl.,  Oct.  18, 

1910. 

20.  Limitation  of  indebtedness  of  town  is  prescribed  by  County  Law,  sec.  13, 
post. 

Purpose  of  section.  The  statute  exists  for  the  purpose  of  permitting  a town 
to  raise  more  money  than  is  authorized  by  general  statute  for  the  construction 
of  highways  and  bridges.  People  ex  rel.  Morrill  v.  Supervisors  of  Queens,  112 
N.  Y.  585. 

Power  to  borrow,  generally.  The  power  to  raise  money  for  municipal  pur- 
poses never  means  a power  to  borrow;  it  is  intended  that  it  be  raised  by  tax- 
ation unless  there  be  express  provision  of  statute  to  the  contrary.  Wells  v. 
Town  of  Salina,  119  N.  Y.  280.  The  established  theory  is  that  money  for  all 
highway  and  bridge  purposes  be  raised  by  annual  tax,  and  without  some  express. 


HIGHWAYS  AND  BRIDGES. 


864 


Highway  Law',  § 97. 

1.  Constructing,  building,  repairing  or  discontinuing  any  highway  or 
bridge  therein,  or  upon  its  borders. 

2.  Repairing  or  rebuilding  any  highway  or  bridge  or  board  walk,  or 
renewal  thereof,  on  any  highway  less  than  two  rods  in  width,  which 
shall  at  any  time  be  damaged  or  destroyed  by  the  elements  or  otherwise, 
or  become  unsafe  for  public  use  and  travel.  [Subd.  amended  by  L. 
1915,  ch.  322.] 

3.  Repairing  or  rebuilding  any  bridge  which  has  been  condemned  by 
the  commission,  as  provided  in  this  chapter. 

4.  The  purchase  of  stone  crushers,  steam  rollers  and  traction  engines. 

The  vote  upon  any  such  proposition  shall  be  by  ballot.  If  any  such 

proposition  shall  be  adopted,  the  board  of  supervisors,  upon  the  appli- 
cation of  the  town  board,  shall  by  resolution21  authorize  the  town  to  issue 
bonds  not  exceeding  the  amount  specified  in  said  proposition,  which 
shall  be  sufficient  to  refund  and  pay  any  temporary  loan  or  certificate  of 
indebtedness,  and  to  provide  for  the  completion  of  any  work  authorized. 
There  shall  accompany  such  application  a statement  signed  by  a majori- 


provision  as  that  contained  in  the  above  section,  the  borrowing  of  money 
by  a town  is  unlawful.  Van  Alstyne  v.  Freday,  41  N.  Y.  174. 

Town  board  is  powerless  to  act  where  the  provisions  of  the  section  have  not 
been  complied  with.  Matter  of  Niland  v.  Bowron,  193  N.  Y.  180,  affg.  113  App. 
Div.  661,  99  N.  Y.  Supp.  914. 

21.  Resolutions  authorizing  issue  of  bonds  must  provide  for  raising  an- 
nually, by  tax,  a sum  sufficient  to  pay  the  interest  and  principal  of  the  bonds. 
See  General  Municipal  Law,  sec.  5,  post.  Such  resolutions  must  also  specify 
the  form,  place  of  payment,  etc.,  of  the  bonds,  and  require  the  supervisor  to 
give  adequate  security  for  the  lawful  application  of  the  funds  raised.  See 
County  Law,  sec.  14,  post. 

Forms  of  application  for  authority  to  issue  bonds;  of  certified  proceedings  of 
town  meeting,  and  of  resolution  authorizing  town  to  borrow  money,  see  Forms, 
Nos.  113,  114,  115,  post. 

Conditions  imposed  by  boards  of  supervisors.  In  legislating  for  a town 
under  the  provisions  of  this  section,  the  board  of  supervisors  may  impose  con- 
ditions as  to  details  for  the  interest  of  the  taxpayers,  not  specified  in  the 
statute,  such  as  safe  guards  in  the  letting  of  contract,  and  provisions  that  the 
work  shall  be  prosecuted  under  competent  supervision  and  the  money  de- 
posited with  the  county  treasurer  to  be  paid  out  only  upon  the  certificate  of  the 
engineer;  and  such  conditions  when  so  imposed  are  binding  upon  the  officers 
affected.  People  ex  rel.  Wakeley  v.  McIntyre,  154  N.  Y.  628  (1898).  Board  may 
authorize  issue  of  long  term  bonds;  and  may  direct  payment  of  interest  out  of 
proceeds  until  a tax  therefor  can  be  collected.  Ghiglione  v.  Marsh,  23  App.  Div. 
61,  48  N.  Y.  Supp.  604. 

Resolution  of  board.  The  act  of  the  board  of  supervisors  is  purely  legis- 
lative and  cannot  be  reviewed  on  certiorari.  People  ex  rel.  Trustees  v.  Super- 
visors, 131  N.  Y.  468.  Board  may  impose  conditions  as  to  details  respecting  the 
letting  of  contracts,  although  not  expressly  authorized  by  statutes.  People  ex 
rel.  Wakeley  v.  McIntyre,  154  N.  Y.  628. 


HIGHWAY  MONEYS;  STATE  AID. 


865 


Highway  Law,  § 97. 


ty  of  the  members  of  the  town  board,  and  certified  by  the  town  clerk,  con- 
taining a copy  of  the  proposition  submitted,  as  above  provided,  the  vote 
for  and  against  the  same,  and  specifying  the  amount  which  it  is  esti- 
mated will  be  required  to  be  expended,  pursuant  to  such  proposition. 
If  the  highway  or  bridge,  proposed  to  be  constructed,  built,  repaired  or 
discontinued,  is  situated  in  two  or  more  towns  in  the  same  county,  the 
board  of  supervisors  shall,  if  application  be  made  by  any  one  of  such 
towns,  apportion  the  expense  thereof  among  such  towns,  in  such  pro- 
portion as  shall  be  just.22  If  the  town  adopting  any  such  proposition 
shall  contain  any  portion  of  the  land  of  the  forest  preserve,  the  board  of 
supervisors  shall  not  authorize  such  town  to  borrow  moneys  without  the 
written  approval  of  the  forest,  fish  and  game  commissioner,  except  in 
payment  of  a debt  lawfully  incurred  by  the  town.  [Highway  Law,  § 
97,  as  amended  by  L.  1914,  ch.  202  ; B.  C.  & G.  Cons.  L.,  p.  2230.] 

Power  of  certain  towns  in  the  Adirondack  park  to  borrow  money  for  high- 
way purposes. — No  money  shall  be  borrowed,  as  provided  in  sections  ninety- 
six  and  ninety-seven  of  this  act,  by  a town  containing  lands  of  the  Adiron- 
dack park,  where  the  assessed  value  of  the  real  property  of  the  state  equals 
or  exceeds  twenty-five  per  centum  of  the  assessed  value  of  the  taxable  prop- 
erty of  the  town,  until  the  consent,  in  writing,  of  the  state  comptroller  that 
such  loan  or  loans  be  made,  be  procured  and  filed  in  the  office  of  the  town 
clerk  of  the  town  intending  to  negotiate  the  loan  or  loans.  Any  loan  made 
in  violation  of  this  section  for  an  indebtedness  thereby  intended  to  be 
created,  shall  be  null  and  void  and  no  moneys  of  the  town  shall  be  paid 
thereon.  [Highway  Law,  § 97a,  as  added  by  L.  1917,  ch.  565.] 

§ 9.  ISSUE  AND  SALE  OF  TOWN  BONDS. 

The  board  of  supervisors  shall,  from  time  to  time,  impose  upon  the 
taxable  property  of  the  town  a tax  sufficient  to  pay  the  principal  and  in- 
terest of  such  obligations  as  they  shall  become  due.  The  supervisors  and 

22.  Liability  of  towns  for  construction  of  bridges  over  streams  constituting 
boundary  lines  of  towns,  see  Highway  Law,  sec.  250,  post. 

Issue  "and  sale.  Bonds  issued  under  this  section  may  be  made  payable  in  gold 
and  run  for  thirty  years.  Effect  of  revision  upon  former  law.  Ghiglione  v.  Marsh, 
23  App.  Div.  61,  48  N.  Y.  Supp.  604. 

Ijt  has  been  held  that  to  entitle  a party  to  recover  in  an  action  upon  bonds 
issued  by  a municipality  there  must  be  affirmative  and  extrinsic  proof  that  all 
the  preliminary  conditions  required  to  authorize  the  issue  of  such  bonds  have 
been  complied  with.  Starin  v.  Town  of  Genoa,  23  N.  Y.  439';  Town  of  Venice 
v.  Woodruff,  62  N.  Y.  465;  Dodge  v.  County  of  Platte,  82  N.  Y.  218. 

Form  of  bonds.  The  fact  that  the  names  of  the  officers  authorized  to  issue 
the  bonds  were  lithographed  on  the  coupons  of  such  bonds  was  held  not  to 
make  them  invalid,  where  it  appeared  that  such  officers  adopted  and  delivered 
as  their  own  the  signatures  in  that  form.  Beattys  v.  Town  of  Solon,  64  Hun 
120,  19  N.  Y.  Supp.  37. 

Payment  of  bonds.  It  is  the  duty  of  the  town  to  provide  for  the  payment  of 
its  bonds  lawfully  issued.  In  case  of  a failure  to  perform  such  duty,  the  holder 
of  the  bonds  may  maintain  an  action  against  the  town  thereon,  although  by  the 
act  under  which  they  were  issued  it  is  made  the  duty  of  the  board  of  supervisors 
of  the  county  to  impose  and  levy  a tax  to  pay  the  bonds.  Such  settled  and  ad- 
mitted obligations  of  the  town  need  not  be  audited  and  allowed  by  the  board  of 
town  auditors.  Marsh  v.  Town  of  Little  Valley,  64  N.  Y.  112;  Horn  v.  Town  of 
New  Lots,  83  N.  Y.  101. 


866 


HIGHWAYS  AXD  BRIDGES. 


Highway  Law,  §§  99,  100. 

town  clerk  shall  keep  a record,  showing  the  date  and  amount  of  the  obliga- 
tions issued,  the  time  and  place  of  their  payment,  and  the  rate  of  interest 
thereon.  The  obligations  shall  be  delivered  to  the  supervisor  of  the  town, 
who  shall  dispose  of  the  same  for  not  less  than  par  and  apply  the  proceeds 
thereof  for  the  purposes  for  which  they  were  issued.  [Highway  Law,  § 98, 
as  amended  by  L.  1916,  ch.  578;  B.  C.  & G.  Cons.  L.,  p.  2231.] 

§ 10.  ASSESSMENT  OF  VILLAGE  PROPERTY. 

In  any  town  in  which  there  may  be  an  incorporated  village,  which 
forms  a separate  road  district,  and  wherein  the  roads  and  streets  are 
maintained  at  the  expense  of  such  village,  all  property  within  such  village 
shall  be  exempt  from  the  levy  and  collection  of  taxes  levied  in  the  town, 
as  provided  by  section  ninety-one  of  this  article,  for  the  repair  and  im- 
provement of  highways,  including  sluices,  culverts  and  bridges  having 
a span  of  less  than  five  feet.23  The  assessors  of  such  town  shall  indicate 
in  a separate  column  the  value  of  the  real  and  personal  property  included 
in  such  incorporated  village.24  [Highway  Law,  § 99;  B.  C.  & G.  Cons. 
L.,  p.  2232.] 

§ 11.  STATEMENT  BY  CLERK  OF  BOARD  OF  SUPERVISORS. 

The  clerk  of  the  board  of  supervisors  of  each  county  shall,  on  or  before 
the  first  day  of  January  of  each  year,  transmit  to  the  state  comptroller 
and  the  commission  a statement,  signed  and  verified  by  the  chairman  of 
the  board,  and  certified  by  the  clerk,  which  shall  state  the  name  of  each 
town,  the  assessed  valuation  of  real  property,  and  the  assessed  valuation  of 


23.  Exemption  of  villages.  By  the  above  section  villages  are  exempt  from 
any  taxes  for  the  maintenance  and  repair  of  highways  lying  outside  thereof. 
But  this  does  not  relieve  them  from  assessments  made  for  damages  and  charges 
for  laying  out  or  altering  any  road  or  erecting  and  repairing  a bridge  in  the 
•town.  The  section  is  general,  and  applies  to  every  case  where  an  incorporated 
village  within  a town  may  be  a separate  road  district.  Thus  from  a.  certain 
class  of  public  charges  or  expenses  connected  with  the  highways  the  villages 
are  exempt,  while  to  another  class  they  are  subject.  Bonds  issued  by  a town 
for  the  construction  and  repair  of  highways  and  bridges  therein  would  be  a 
charge  upon  the  whole  town  including  the  villages  within  it.  Matter  of  Shafter 
v.  Carrol,  18  App.  Div.  390',  392;  46  N.  Y.  Supp.  202. 

24.  Section  21  of  the  former  Tax  Law  was  amended  by  L.  1908,  ch.  437,  to 
provide  for  the  insertion  of  an  additional  column  in  the  assessment-roll  to 
contain  valuations  of  village  property. 


HIGHWAY  MONEYS;  STATE  AID. 
Highway  Law,  § 101. 


867 


personal  property,  each  separately,  in  the  towns  outside  incorporated 
villages,  and  the  amount  of  tax  levied  therein  for  the  repair  and  improve- 
ment of  highways,  including  sluices,  culverts  and  bridges  having  a span 
of  less  than  five  feet.  The  towns’  valuation  of  real  property  to  be  used 
in  such  statement  shall  be  the  valuation  thereof,  as  equalized  by  the 
boards  of  supervisors,  or  other  competent  authority,  during  the  year  prior 
to  the  levy  of  taxes  upon  which  is  based  the  determination  of  the  amounts 
to  be  paid  to  the  several  towns,  as  provided  in  this  article.25  [Highway 
Law,  § 100 ; B.  C.  & G.  Cons.  L.,  p.  2233.] 

§ 12.  AMOUNT  OF  STATE  AIX).25a 

There  shall  be  paid  by  the  state  to  the  several  towns,  in  the  manner 
hereinafter  provided,  an  amount  based  upon  the  amount  of  taxes  levied 
therein  for  the  repair  and  improvement  of  highways,  sluices,  culverts  and 
bridges  having  a span  of  less  than  five  feet,  and  to  be  determined  as  fol- 
lows : 

1;  In  towns  where  the  assessed  valuation  of  real  and  personal  prop- 
erty, exclusive  of  such  property  in  incorporated  villages,  shall  be  less 
than  five  thousand  dollars  for  each  mile  of  highways  in  such  towns,  out- 
side of  incorporated  villages,  an  amount  equal  to  the  amount  of  such 
taxes. 

2.  In  towns  where  such  assessed  valuation  shall  be  five  thousand  dol- 
lars or  over  and  less  than  seven  thousand  dollars  for  each  mile  of  such 
highways,  an  amount  equal  to  ninety  per  centum  of  the  amount  of  such 
taxes. 

3.  In  towns  where  such  assessed  valuation  shall  be  seven  thousand 
dollars  or  over  and  less  than  nine  thousand  dollars  for  each  mile  of  such 
highways,  an  amount  equal  to  eighty  per  centum  of  the  amount  of  such 
taxes. 

4.  In  towns  where  such  assessed  valuation  shall  be  nine  thousand  dol- 
lars or  over  and  less  than  eleven  thousand  dollars  for  each  mile  of  such 
highways,  an  amount  equal  to  seventy  per  centum  of  the  amount  of  such 

taxes. 

5.  In  towns  where  such  assessed  valuation  shall  be  eleven  thousand 
dollars  or  over  and  less  than  thirteen  thousand  dollars  for  each  mile  of 
such  highways,  an  amount  equal  to  sixty  per  centum  of  the  amount  of 
such  taxes. 

6.  In  towns  where  such  assessed  valuation  shall  be  thirteen  thousand  ' 
dollars  or  over  for  each  mile  of  such  highways,  an  amount  equal  to  fifty 
per  centum  of  such  taxes.  Provided  that  no  town  shall  receive  from  the 

215.  Form  of  statement  of  clerk  of  board  of  supervisors  as  to  moneys  raised 
by  towns  for  highway  purposes.  See  Form  No.  116,  pout. 

25a.  Moneys  known  as  “ state  aid  ” cannot  be  used  for  the  building  and  con- 
struction of  new  town  roads,  or  for  the  payment  of  damages  awarded  to  land 
owners  for  the  laying  out  of  a new  highway,  or  for  any  other  purpose  except 
the  “ repair  and  improvement  ’*  of  the  highways  of  the  town.  Rept.  of  Atty. 
Genl.,  Oct.  18,  1910. 

A village  incorporated  after  the  collection  of  the  highway  tax  in  a town  is 
not  entitled  to  any  portion  of  the  highway  fund  raised  ejther  by  taxation  or 
contributed  by  the  state.  Rept.  of  Atty.  Genl.,  May  18,  1911. 


868 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  102,  103. 

state  in  any  year,  under  this  section,  an  amount  exceeding  an  averag© 
of  twenty-five  dollars  per  mile,  for  the  total  mileage  of  its  highways 
outside  of  incorporated  villages,  except  that  in  towns  where  the  assessed 
valuation  of  real  and  personal  property  therein,  exclusive  of  such  prop- 
erty in  incorporated  villages,  averages  more  than  twenty-five  thousand 
dollars  for  each  mile  of  highways  therein  outside  of  such  villages,  the 
amount  paid  hereunder  shall  not  exceed  one-tenth  of  one  per  centum 
of  such  assessed  valuation. 

7.  Where  a town,  having  within  its  limits  an  incorporated  village  or 
city  of  the  third  class,  shall  levy  a tax  upon  the  whole  town  including, 
such  incorporated  village  or  city,  the  same  to  he  spent  wholly  without 
the  limits  of  such  village  or  city,  for  the  repair  and  improvement  of 
highways,  sluices,  culverts  and  bridges  having  a span  of  less  than  five 
feet,  the  amount  of.  such  tax  shall  be  included  in  the  statement  to  be 
transmitted  by  the  clerk  of  the  board  of  supervisors  to  the  comptroller 
as  required  by  section  one  hundred  of  the  highway  law  and  such  amount 
shall  be  used  as  an  additional  basis  of  the  amount  of  state  aid  under 
this  section,  the  same  as  if  such  tax  were  levied  wholly  without  the 
limits  of  such  incorporated  village  or  city  of  the  third  class.  [Highway 
Law,  § 101,  subd.  added  by  L.  1913,  ch.  375;  B.  C.  & G.  Cons.  L.r 
p.  2233.] 

§ 13.  MILEAGE  AND  ASSESSED  VALUATION. 

The  mileage  of  highways  in  towns  to  be  used  in  determining  the 
amounts  to  be  paid  to  such  towns  under  the  provisions  of  this  article 
shall  be  the  tables  of  mileage  heretofore  prepared  by  the  state  engineer, 
until  the  corrected  tables  of  mileage  prepared  as  provided  in  section 
fifteen  of  this  chapter  are  filed.  Such  tables  and  all  corrections  thereof 
shall  be  filed  with  the  commission  and  comptroller.  The  assessed  valua- 
tion of  real  property  to  be  used  in  determining  such  amounts  shall  be 
the  valuation  thereof,  equalized  as  provided  in  section  one  hundred  and 
forty-one  of  this  chapter,  during  the  year  prior  to  the  levy  of  taxes  upon 
which  is  based  the  determination  of  the  amounts  to  be  paid  to  the 
several  towns,  as  provided  in  this  article.  [Highway  Law,  § 102  ; B. 
C.  & G.  Cons.  L.,  p.  2234.] 

§ 14.  PAYMENT  AND  DISTRIBUTION  OF  STATE  MONEY. 

The  comptroller  shall  determine  the  amount  due  to  the  several  towns,  under 
the  provisions  of  this  article,  and  shall  draw  his  warrant  upon  the  state  treas- 
urer in  favor  of  the  county  treasurer  of  each  county  for  the  total  amount  to  be 
paid  to  the  towns  in  such  county,  as  so  determined  by  him,  and  shall  indicate 
the  amount  to  be  paid  to  each  town.  The  county  treasurer  shall  pay  to  the 
supervisor  of  each  town  the  amount  to  which  such  town  is  entitled,  as  deter- 
mined and  indicated  by  the  comptroller.  No  such  payment  shall  be  made  until 
the  supervisor  has  filed  in  the  office  of  the  county  treasurer  a certified  copy  of 
the  undertaking  given  by  him,  as  provided  in  this  article.26  [Highway  Law, 
§ 103;  B.  C.  & G.  Cons.  L.,  p.  2234.] 

26.  The  undertaking  of  the  supervisor  is  to  be  given  to  the  town  as  pro- 
vided in  the  next  section.  This  undertaking  is  in  addition  to  the  official  undertaking 
required  by  Town  Law,  sec.  100,  ante.  For  form  of  undertaking,  see  Form  No.  117. 
post. 


HIGHWAY  MONEYS;  STATE  AID. 


86D 


Highway  Law,  §§  104,  105. 

§ 15.  CUSTODY  OF  HIGHWAY  MONEYS;  UNDERTAKING  OF  SUP- 
ERVISOR. 

All  moneys  levied  and  collected,  as  provided  in  this  article,  all  moneys 
collected  as  penalties  under  this  chapter,  or  received  from  any  other  source 
and  available  for  highway,  bridge  and  miscellaneous  purposes  and  all 
moneys  received  from  the  state,  as  provided  in  section  one  hundred  and 
one,  shall  be  paid  to  the  supervisor,  who  shall  be  the  custodian  thereof, 
and  accountable  therefor.27  Before  receiving  any  such  moneys  the  super- 
visor shall  give  an  undertaking  to  the  town  in  an  amount  to  be  specified 
by  the  commission  and  with  such  sureties,  as  shall  be  approved  by  the  town 
board,  conditioned  for  the  faithful  disbursement,  safekeeping  and  account- 
ing of  the  moneys  so  received  by  him.  Such  undertaking  shall  be  filed  in 
the  office  of  the  town  clerk  and  a certified  copy  thereof  shall  be  filed  in 
the  office  of  the  county  treasurer  before  any  moneys,  received  from  the 
state  shall  be  paid  to  him,  and  also  in  the  office  of  the  commission.  In  case 
of  a failure  of  the  supervisor  to  faithfully  disburse,  safely  keep  or  account 
for  moneys  received  from  the  state  the  commission  may  bring  an  action 
on  such  bond  in  the  name  of  the  town.28  [Highway  Law,  § 104 ; B.  C. 
& G.  Cons.  L.,  p.  2234.] 


§ 16.  EXPENDITURES  FOR  REPAIR  AND  IMPROVEMENT  OF 
HIGHWAYS. 

The  moneys  levied  and  collected  for  the  repair  and  improvement  of 
highways,  including  sluices,  culverts  and  bridges  having  a span  of  less 
than  five  feet  and  board  wralks  or  renewals  thereof,  on  highways  less  than 


27.  Custody  of  highway  moneys.  The  supervisor  has  always  been  the  cus- 
todian of  the  funds  received  from  the  State  for  the  repair  and  improvement  of  high' 
ways.  The  present  law  makes  him  the  custodian  of  all  moneys  received  from  any 
source  and  available  for  highway  and  bridge  purposes. 

Supervisor  as  custodian  of  town  moneys.  The  statute  which  relates  gener- 
ally to  the  powers  and  duties  of  the  supervisor  assumes  that  he  is  the  legal  custodian 
of  the  moneys  of  the  town  and  chargeable  with  the  duty  not  only  of  receiving  and 
keeping  them,  but  also  of  guarding  their  disbursement.  Bridges  v.  Board  of  Super- 
visors, 92  N.  Y.  570. 

28.  Bonds  of  supervisors  of  towns  for  tlie  receipt  of  State  highway 

moneys  must  be  given  for  the  faithful  disbursement,  safe-keeping  and  accounting 
of  all  such  moneys  received  by  them  and  may  cover  the  full  term  of  office.  Kept,  of 
Atty.  Genl.  (1911),  vol.  2,  p.  688. 

Liability  of  supervisor  for  breach  of  bond.  The  fact  that  the  supervisor  of 
a town  in  good  faith  deposited  as  a general  deposit,  moneys  received  by  him  in  his 
official  capacity,  with  a reputable  firm  of  individual  bankers,  believed  to  be  solvent, 
and  that  thereafter  such  firm  failed  and  such  moneys  were  lost  is  not  a defense  to 
an  action  brought  upon  the  bond  of  such  supervisor.  Tillinghast  v.  Merrill,  77  Hun, 
481,  28  N.  Y.  Supp.  1089.  The  liability  upon  the  bond  given  under  this  section  can 
only  extend  to  moneys  received  by  the  supervisor  thereunder.  See  Bissell  v.  Saxton, 
66  N.  Y.  55. 


HIGHWAYS  AND  BRIDGES. 


870 


Highway  Law,  § 105. 

two  rods  in  width,  and  the  moneys  received  from  the  state,  as  provided  by 
section  one  hundred  and  one,  shall  be  expended  for  the  repair  and  im- 
provement of  such  highways,  sluices,  culverts  and  bridges  and  walks,  at 
such  places  and  in  such  manner  as  may  be  agreed  upon  by  the  town  board 
and  town  superintendent.  The  town  board  and  the  town  superintendent 
shall  constitute  a board  for  the  purpose  of  determining  the  places  where 
and  the  manner  in  which  such  moneys  shall  be  expended.  Such  agree- 
ment shall  be  written  and  signed  in  duplicate  by  a majority  of  the  mem- 
bers of  the  board  so  constituted,  and  shall  be  approved  by  the  commission, 
before  the  same  shall  take  effect.29  One  of  such  duplicates  -shall  be  filed, 
in  the  office  of  the  town  clerk  and  one  in  the  office  of  the  district  or  county 
superintendent.  Such  moneys  shall  be  paid  out  by  the  supervisor  on  the 
written  order  of  the  town  superintendent  in  accordance  with  such  written 
agreement.30  The  town  board  and  town  superintendent  may  also  appro- 
priate from  such  moneys  such  a sum  of  money  as  they  deem  proper  for  the 
construction  or  repair  of  any  public  road,  walk,  place  or  avenue  upon  any 
sand  beach  separated  by  more  than  two  miles  of  water  from  the  main  body 
of  the  town,  although  such  road,  walk,  place  and  avenue  is  narrower  than 
the  width  of  highways  required  by  statute,  but  the  construction  or  repair 
of  any  such  road,  walk,  place  or  avenue  with  such  moneys  on  any  such  beach 
shall  not  be  construed  as  imposing  any  liability  upon  the  town  or  upon  the 
superintendent  of  highways  for  any  injury  to  person  or  property  happening 
thereon.  [Highway  Law,  § 105,  as  amended  by  L.  1914,  ch.  84,  and  L. 
1915,  ch.  322;  B.  C.  & G.  Cons.  L.,  p.  2235.] 


29.  Form  of  agreement  as  to  places  and  manner  of  expenditure  of  highway  mon- 
eys, see  Form  No.  118,  post. 

' Mandamus  to  compel  performance  of  duty.  As  a meeting  of  the  town  board  with 
the  elected  superintendent  of  highway  for  the  purpose  of  dividing  the  road  funds, 
under  this  section,  is  obligatory,  the  court  has  power  to  direct  the  town  board  to 
perform  the  duty  of  a peremptory  writ  of  mandamus  and  to  recognize  a lawfully 
elected  superintendent  of  highways.  People  ex  rel.  Dare  v.  Howell  (1916),  174  App. 
Div.  118,  160  N.  Y.  Supp.  959. 

30.  Purposes  for  which  expenditures  may  be  made.  The  money  to  be  ex- 
pended by  a town  in  the  repair  and  maintenance  of  its  highways,  a portion  of 
which  is  to  be  contributed  by  the  state  must  be  expended  in  the  improvement  and 
betterment  of  the  highways,  and  not  in  the  payment  of  salaries  of  town  officers  or 
the  purchase  of  personal  property,  the  title  of  which  would  vest  in  the  town.  R'pt. 
of  Attv.  Genl.  (1906)  341.  The  town  superintendent  of  highways  has  no  authority 
to  purchase  supplies  for  purposes  not  included  in  the  written  agreement  pursuant  to 
this  section  or  otherwise  authorized  by  the  town  board.  Rept.  of  Atty.  Genl.,  March 
31,  1911. 

The  opening  and  laying  out  of  new  highways  is  provided  for  separately  and  apart 
from  the  care  and  maintenance  of  highways  and  expenditures  therefor  cannot  be 
made  from  the  fund  levied,  collected  and  received  as  provided  in  this  chapter  for 
the  repair  and  improvement  of  highways,  a part  of  which  is  contributed  by  the  state. 
Rept.  of  Atty.  Genl.  (1904)  308. 

Sidewalks  are  a part  of  the  highways  and  moneys  raised  and  collected  for  the 
repair  and  improvement  of  highways,  and  moneys  received  from  the  state  may  be  ex- 
pended in  the  repair  thereof.  Rept.  of  Atty.  Genl.  (1901)  213. 

Removal  of  town  superintendent  of  highways  for  expenditure  of  town  funds 
on  highways  otherwise  than  those  specified  in  the  statement,  is  justified.  Carlisle 
v.  Burke.  82  Misc.  282,  144  N.  Y.  Supp.  163. 

81.  Certificates  of  indebtedness  issued  as  provided  in  Highway  Law,  sec.  96,  ante. 


HIGHWAY  MONEYS ; STATE  AID. 


871 


Highway  Law,  §§  106,  107. 


§ 17.  EXPENDITURES  FOR  BRIDGES  AND  OTHER  HIGHWAY  PUR- 
POSES. 

The  moneys  levied  and  collected,  or  raised  by  the  issue  and  sale  of 
bonds  or  certificates  of  indebtedness  in  anticipation  of  taxes,  as  provided 
in  this  article,31  for  purposes  other  than  the  repair  or  improvement  of 
highways,  as  specified  in  the  preceding  section,  shall  be  paid  out  by  the 
supervisor  upon  the  written  order  of  the  town  superintendent.  An  ac- 
count shall  not  be  so  paid  unless  the  expenditure  be  in  accordance  with 
the  annual  estimate  of  the  town  superintendent,  as  approved  or  modified 
by  the  town  board,  or  be  authorized  by  the  town  board  or  by  a vote  of  a 
town  meeting,  as  provided  in  this  article,  or  be  lawfully  a charge  upon 
the  town.  Except  as  herein  otherwise  provided  the  provisions  of  the 
town  law  relating  to  the  audit  of  town  accounts  and  claims  shall  apply 
to  accounts  and  claims  against  the  town  arising  under  this  chapter.32 
[Highway  Law,  § 106,  as  amended  by  L.  1916,  ch.  463;  B.  C.  & G. 
Cons.  L.,  p.  2236.] 

§ 18.  REPORTS  OF  SUPERVISOR  AS  TO  HIGHWAY  MONEYS. 

The  supervisor  shall  present  to  the  town  board  at  its  meeting  held  in 
each  year,  for  considering  the  estimates  contained  in  the  statement  of 
the  town  superintendent,  as  provided  in  section  ninety-one,  a verified 
report  showing: 

31.  Certificates  of  indebtedness  issued  as  provided  in  Highway  Law,  sec.  96,  ante. 

32.  Matters  made  town  charges.  The  following  are  some  of  the  special  high- 
way and  bridge  charges  which  may  be  audited  under  this  section.  (For  places  in 
this  manual  where  the  sections  here  referred  to  may  be  found,  see  Table  of  Laws, 
following  Table  of  Contents)  : 

Compensation  and  expenses  of  town  superintendents  and  their  deputies.  Highway 
Law,  § 45.  Removal  of  obstructions  caused  by  snow.  Idem,  § 47,  subd.  2.  Inspec- 
tion of  highways  to  be  constructed  or  improved  as  State  or  county  highways.  Idem, 
§ 47,  subd.  9.  Erection  and  repair  of  monuments  marking  the  boundaries  of  high- 
ways. Idem,  § 47,  subd.  11.  Purchase,  repair  and  storage  of  stone  crushers,  power 
rollers,  traction  engines,  road  machines,  tools  and  implements.  Idem,  §§  49,  90, 
91,  92.  Purchase  of  gravel  and  stone.  Idem,  § 51.  Removal  of  obstructions, 
noxious  weeds  and  brush,  in  the  first  instance.  Idem,  §§  52,  54.  Purchase  of  wire 
fences  to  be  used  in  place  of  fences  causing  the  drifting  of  sifow.  Idem,  § 56. 
Damages  for  entry  upon  lands  by  town  superintendent  for  opening  ditches,  etc. 
Idem,  § 57.  Damages  for  change  of  grade.  Idem,  § 59.  Maintenance  and  repair  of 
sidewalks.  Idem,  § 62.  Allowances  for  shade  trees.  Idem,  § 63.  Setting  out  and 
preservation  of  shade  trees.  Idem,  § 64.  Allowances  for  watering  troughs.  Idem, 
§ 65.  Credit  for  repairs  on  private  roads.  Idem,  § 66.  Erection  and  maintenance 
of  guide  boards.  Idem,  § 68.  Construction  and  repair  of  approaches  to  private 
lands,  when  authorized  by  town  board.  Idem,  § 71.  Damages  for  injuries  sustained 
by  defects  in  highways  and  bridges.  Idem,  §§  74,  76.  Expense  incurred  in  closing 
highways  for  repair  or  construction.  Idem,  § 77.  Amount  apportioned  to  town 
for  construction  of  .county  highway.  Idem,  § 141.  Cost  to  town  for  maintenance  of 
state  and  county  highways.  Idem,  § 172.  Costs  and  damages  awarded  in  proceed- 
ings to  lay  out,  alter  or  discontinue  highways.  Idem,  § 203.  Construction  and 
repair  of  bridges.  Idem,  § 250.  Cost  of  constructing  and  maintaining  bridges  over 
boundary  streams.  Idem,  § 254. 

Audit  of  town  accounts.  Meeting  of  town  board  for  audit,  Town  Law,  sec. 
133,  post.  Form  of  verified  accounts  against  town,  Town  Law,  sec.  175,  post. 


872 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 107. 

1.  The  moneys  received  from  the  state,  as  provided  in  section  one 
hundred  and  one,  during  the  year  ending  October  thirty-first. 

2.  The  moneys  received  by  him  during  such  year  on  account  of  taxes 
levied  and  collected  and  from  the  issue  and  sale  of  bonds  and  certificates 
of  indebtedness  in  anticipation  of  taxes,  for  highways,  bridges,  purchase 
and  repair  of  machinery,  tools  and  implements,  the  removal  of  obstruc- 
tions caused  by  snow  and  for  miscellaneous  purposes. 

3.  The  moneys  received  by  him  during  such  year  as  penalties  recovered 
pursuant  to  this  chapter,  or  from  any  other  source  and  available  for 
highway  purposes  in  his  town. 

4.  The  expenditures  during  such  year  for  the  improvement,  repair  and 
maintenance  of  highways,  for  the  maintenance  and  repair  of  bridges, 
for  the  construction  of  new  bridges,  for  damages  and  charges  in  laying 
out,  altering  and  discontinuing  highways,  for  the  removal  of  obstructions 
caused  by  snow,  for  the  purchase  of  machinery,  tools  and  implements,  for 
the  rental  or  hire  of  stone  crushers,  steam  rollers  and  traction  engines,  for 
town  superintendents’  salary  or  compensation  and  audited  expenses,  for 
allowances  as  fees  on  account  of  receiving  and  disbursing  highway  moneys, 
or  for  other  highway  purposes. 

5.  All  machinery,  tools  and  implements  owned  in  whole  or  in  part 
by  the  town,  the  present  value  of  each  article  thereof,  and  the  estimated 
cost  of  all  necessary  repairs  thereto,  as  shown  by  the  annual  inventory 
of  the  town  superintendent.33 

The  form  of  such  report  shall  be  prescribed  by  the  commission.34  Such 
report  shall  be  filed  in  the  office  of  the  town  clerk  within  three  days  after 
the  presentation  thereof  and  shall  be  open  to  public  inspection  during  the 
office  hours  of  such  town  clerk  and  a duplicate  shall  at  the  same  time 
be  mailed  to  the  commission.  A certified  copy  of  such  report  shall  also 
be  filed  by  the  supervisor  with  the  clerk  of  the  board  of  supervisors,  who 
shall  cause  the  same  to  be  printed  in  the  next  issue  of  the  annual  pro- 
ceedings of  the  board  of  supervisors.  The  town  board  shall  cause  a certi- 
fied copy  of  the  report  to  be  published  in  a newspaper  published  in  the  town, 
or  if  there  be  none  published  therein,  then  in  a newspaper  published 
within  the  county  and  having  the  greatest  circulation  within  the  town. 

Allowance  of  travelling  fees,  Town  Law,  sec.  176,  post.  Town  abstracts,  Town  Law, 
sec.  155,  post. 

Presentation  of  claim  for  audit;  action  upon  claim;  judgment  “ npon 
tlie  merits.”  Under  the  provisions  of  this  section  a claim  against  a town  for  the 
contract  price  of  building  a bridge  with  a span  of  more  than  five  feet  over  a creek 
in  said  town,  and  for  extra  work,  should  be  presented  to  the  town  board  for  audit. 
A judgment  dismissing  the  complaint  in  an  action  against  the  town  to  recover  upon 
such  claim  should  be  modified  by  striking  therefrom  the  words  “ upon  the  merits,” 
as  it  may  in  the  future  be  urged  that  there  was  no  merit  to  the  claim.  Gaffey  v. 
Town  of  Newfield  (1914),  163  App.  Div.  66,  148  N.  YT.  Supp.  772. 

33.  Inventory  of  machinery,  tools  and  implements  to  be  made  by  town  super- 
intendent and  presented  to  the  supervisor.  Highway  Law,  sec.  49,  ante. 

34.  Commission  required  to  prescribe  and  furnish  blank  forms  of  reports.  High- 
way Law,  sec.  18,  ante.  For  form  of  report,  see  Form,  No.  119,  post. 


HIGHWAY  MONEYS;  STATE  AID.  £73 

Highway  Law  §§  108-110. 

The  expense  of  such  publication,  which  shall  not  exceed  ten  dollars,  shall 
be  a town  charge.  The  clerk  of  the  board  of  supervisors  shall  transmit 
three  copies  of  the  journal  of  the  proceedings  of  the  board  containing 
such  report  to  the  commission  and  three  copies  to  the  comptroller. 
[Highway  Law,  § 107;  B.  C.  & G.  Cons.  L.,  p.  2237.] 

§ 19.  HIGHWAY  ACCOUNTS,  FORMS  AND  BLANKS. 

The  commission  shall  prescribe  the  method  of  keeping  town  accounts 
of  moneys  received  and  expended,  as  provided  in  this  article,  for  highways, 
bridges,  purchase,  leasing,  rental  or  hire  and  repair  of  machinery,  tools 
and  implements,  the  removal  of  obstructions  caused  by  snow,  and  miscel- 
laneous purposes,  which  shall  be  uniform,  so  far  as  practicable,  throughout 
the  state.  Such  commission  may  adopt  forms  and  blanks  for  keeping 
such  accounts.  The  commission  shall  also  prescribe  the  form  of  order  to 
be  made  by  the  town  superintendent,  upon  the  supervisor,  and  the  form 
of  the  agreement  to  be  entered  into  by  the  town  board  and  town  super- 
intendent as  provided  in  section  one  hundred  and  five.  The  town  super- 
intendent and  supervisor  shall  keep  their  accounts  in  the  method,  and 
shall  use  the  blanks  and  forms,  prescribed  by  the  commission.  All  orders 
and  records  of  accounts  shall  be  filed  in  the  town  clerk’s  office  and  pre- 
served as  a part  of  the  town  records.35  [Highway  Law,  § 108;  B.  C.  & 
G.  Cons.  L.,  p.  2239.] 

§ 20.  DUTY  OF  TOWN  CLERK. 

It  shall  be  the  duty  of  the  town  clerk,  annually,  between  the  fifteenth 
day  of  November,  and  the  fifteenth  day  of  December,  to  transmit  to  the 
commission  a list  containing  the  names  of  each  supervisor,  town  super- 
intendent, justice  of  the  peace,  town  clerk,  assessor  and  collector,  showing 
his  post  office  address,  the  date  of  his  appointment  or  election  and  the 
expiration  of  his  term  of  office.  [Highway  Law,  § 109 ; B.  C.  & G.  Cons.. 
L.,  p.  2239.] 

§ 21.  COMPENSATION  OF  SUPERVISOR  AND  TOWN  CLERK. 

The  supervisor  and  town  clerk  of  each  town  shall  receive  annually,  as 
compensation  for  services  under  this  chapter  in  lieu  of  all  other  com- 
pensation and  fees,  an  amount  to  be  fixed  by  the  town  board.  Such 


35.  Commission  to  have  access  to  accounts  and  records  required  to  be  kept 
under  this  chapter.  Highway  Law,  sec.  19,  ante. 


874 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 111. 

compensation  shall  be  a town  charge.36  [Highway  Law,  § 110;  B.  C.  & 
G.  Cons.  L.,  p.  2239.] 

§ 22.  ADDITIONAL  EXPENDITURE  FOR  IMPROVEMENT,  REPAIR 
AND  MAINTENANCE  OF  TOWN  HIGHWAYS. 

Upon  the  written  application  of  tweney-five  tax  payers  of  a town,  filed 
with  the  town  clerk,  the  electors  thereof  may,  at  a regular  or  special 
meeting,  vote  by  ballot  upon  a proposition  for  the  expenditure  of  a sum, 
not  exceeding  one-third  of  one  per  centum  of  the  total  taxable  property  of 
the  town,  including  incorporated  villages,  in  addition  to  the  sum  authorized 
by  this  chapter  for  the  improvement,  repair  and  maintenance  of  town 
highways  in  such  town.  Such  proposition  shall  be  submitted  in  the  manner 
provided  by  law  for  the  submission  of  questions  or  propositions  at  a town 
meeting.  If  such  proposition  be  adopted,  the  amount  specified  therein 
shall  be  a town  charge  and  shall  be  levied  and  collected  in  the  same  manner 
as  other  town  moneys,  and  when  collected  shall  be  paid  to  the  supervisor 
and  expended  for  the  purposes  specified  in  such  proposition  as  provided  in 
this  chapter.  [Highway  Law,  § 111 ; B.  C.  & G.  Cons.  L.,  p.  2239.] 


36.  Compensation  of  supervisor  and  town  clerk  for  duties  performed  under 
the  Highway  Law,  should  be  fixed  at  a stated  sum  annually.  When  so  fixed  the 
compensation  is  in  lieu  of  the  compensation  prescribed  by  Town  Law,  sec.  85, 
post.  The  compensation  of  a supervisor  for  services  under  the  Highway  Law 
is  fixed  by  the  town  board  and  he  is  not  entitled  to  commissions  on  bridge  and 
highway  moneys  paid  out  by  him.  Rept.  of  Atty.  Genl.,  May  22,  1911. 


STATE  AND  COUNTY  HIGHWAYS. 


Explanatory  note. 


875 


CHAPTER  LX. 

STATE  AND  COUNTY  HIGHWAYS. 

EXPLANATORY  NOTE. 


State  Highways. 

The  routes  of  the  state  highways  are  prescribed  by  § 120  of  the 
Highway  Law.  The  location  of  such  routes  may  he  ascertained  by 
referring  to  that  section.  Lack  of  room  prevents  our  including  them 
in  this  chapter.  The  boards  of  supervisors  and  town  officers  are  not 
directly  interested  in  their  construction  and  maintenance.  All  matters 
pertaining  to  such  highways  are  under  the  control  of  the  state  commis- 
sion and  its  officers. 

County  Highways. 

County  highways  are  constructed  at  the  joint  expense  of  the  state, 
county  and  town.  The  commission  finally  determines  as  to  the  high- 
ways to  he  improved  as  county  highways.  The  hoard  of  supervisors 
are  first  required  to  adopt  a preliminary  resolution  stating  that  public 
interests  demand  the  improvement  of  a highway  described  therein.  The 
clerk  of  the  board  must  transmit  a certified  copy  thereof  to  the  State 
commission.  After  examination  the  commission  approves  or  disap- 
proves the  resolution  and  certifies  the  same  to  the  board.  If  the  resolu- 
tion is  approved,  the  commission  causes  its  engineers  to  make  the  neces- 
sary maps,  plans,  specifications  and  estimates.  Such  maps,  plans  &c. 
are  then  referred  to  the  district  or  county  superintendent,  who  must 
examine  the  highway  to  be  improved  and  the  proposed  maps,  plans,  &c., 
and  report  thereon  to  the  commission.  If  the  commission  may  then 
adopt  the  proposed  plans  and  specifications  and  transmit  the  same  to  the 
board  of  supervisors,  with  its  certificate  of  approval  attached  thereto. 
The  board  of  supervisors  may  then  approve  such  plans  and  specifications, 


876 


HIGHWAYS  AND  BRIDGES. 


Explanatory  note. 

and  adopt  a resolution  that  the  highway  be  improved  in  accordance  with 
such  plans  and  specifications.  The  board  may  suggest  modifications 
which  become  effectual  when  approved  by  the  commission.  The  resolu- 
tion must  provide  available  funds  for  the  payment  of  the  county’s  and 
towns’  portion  of  the  cost  of  the  improvement. 

The  foregoing  is  an  outline  of  the  procedure  required  for  securing 
the  improvement.  The  law  provides  in  detail  for  the  method  of  con- 
struction; such  law  is  included  in  this  chapter. 


[Highway  Law,  art.  VI.] 


Section  l. 
2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

13. 


14. 

15. 

16. 


Highways  to  be  constructed  or  improved  by  the  State. 

Construction  or  improvement  of  State  highways. 

Construction  or  improvement  of  county  highways. 

Preliminary  resolution  of  board  of  supervisors. 

Examination  of  county  highway;  approval  or  disapproval  of  com- 
mission. 

Maps,  plans,  specifications  and  estimates. 

Submission  of  maps,  plans  and  specifications  to  district  or  county 
superintendent. 

Action  of  commission  in  respect  to  maps,  plans,  specifications  and 
estimates. 

Final  resolution  of  board  of  supervisors. 

Order  of  construction  of  county  highways. 

Contracts  for  construction  or  improvement  of  highways. 

Award  of  contracts  to  board  of  supervisors  or  town  board. 

Responsibility  of  State  superintendent  for  performance  of  contracts; 
suspension  of  work  under  contract,  completion  by  State  superin- 
tendent of  highways. 

Acceptance  of  State  highway  when  completed. 

Acceptance  of  county  highway. 

Entry  upon  adjacent  lands  for  drainage  purposes. 


17.  Damages  for  entry.  * 

18.  State  and  county  highways  in  villages  and  cities. 

18a.  State  and  county  highways  in  certain  cities  of  the  second  and  third 

class. 


19.  Connecting  highways  in  villages  and  cities. 

19a.  State  and  county  highways  of  additional  width  and  increased  cost 
at  expense  of  town. 

20.  Resolution  to  provide  for  raising  money. 

21.  Modifying  method  of  payment. 

22.  Division  of  cost  of  county  highways;  payments  by  county  treasurer. 

23.  County  or  town  may  borrow  money. 

23a.  Apportionment  and  payment  of  expense  of  constructing  county  high- 
way through  or  into  cities  of  the  second  and  third  classes. 

24.  Payments  from  State  treasury. 

25.  Payment  of  cost  of  State  highway. 

26.  Abolition  of  railroad  grade  crossings. 

27.  Street  surface  or  other  railroads  on  highways. 

28.  Where  cost  is  assessable  against  abutting  owners. 

29.  Acquisition  of  lands  for  right  of  way  and  other  purposes. 

30.  Purchase  of  lands. 

31.  Petition  to  acquire  lands. 

32.  Commissioners  to  be  appointed. 


STATE  AND  COUNTY  HIGHWAYS. 


877 


Highway  Law,  §§  120,  121,  122. 


Section  33. 

34. 

35. 

36. 

37. 

38. 

39. 

40. 


Duties  of  commissioners. 

County  treasurer  to  pay  award. 

Costs;  commissioners’  fees. 

Lands  may  be  sold  or  leased;  disposition  of  proceeds. 
Provisions  of  labor  law  not  applicable. 

Highways  and  bridges  on  Indian  reservations. 
Custody  of  moneys,  etc. 

Maintenance  of  detours  during  construction. 


§ 1.  HIGHWAYS  TO  BE  CONSTRUCTED  OR  IMPROVED  BY  THE  STATE. 

The  highways  which  have  been  heretofore  constructed  or  improved 
under  the  provisions  of  chapter  one  hundred  and  fifteen  of  the  laws  of 
eighteen  hundred  and  ninety-eight,  and  the  acts  amendatory  thereof, 
■which  are  included  in  the  routes  hereinafter  described,  together  wfith 
such  other  highways  as  are  constructed  or  improved  by  the  commission 
in  accordance  with  the  routes  set  forth  and  described  in  this  section,  shall 
be  state  highways  and  shall  be  constructed  or  improved  at  the  sole  ex- 
pense of  the  state  as  provided  in  this  article.  Such  routes  are  hereby  set 
forth  and  described  as  follows:  (The  description  of  these  routes  is  omit- 
ted.) [Highway  Law,  § 120 ; B.  C.  & G.  Cons.  L.,  p.  2251.] 

§ 2.  CONSTRUCTION  OR  IMPROVEMENT  OF  STATE  HIGHWAYS. 

The  mileage  of  state  highways  to  be  constructed  or  improved  from  the 
amount  available  from  the  sale  of  bonds  issued  as  provided  by  chapter 
four  hundred  and  sixty-nine  of  the  laws  of  nineteen  hundred  and  six,  as 
amended  by  chapter  seven  hundred  and  eighteen  of  the  laws  of  nineteen 
hundred  and  seven,  and  appropriated  for  the  construction  or  improve- 
ment of  state  highways,  shall  be  equitably  apportioned  by  the  commission 
among  the  ’ several  counties  without  discrimination ; but  not  more  than 
one-half  of  the  amount  appropriated  each  year  from  the  proceeds  of  the 
sale  of  such  bonds  shall  be  expended  under  this  article  for  the  construc- 
tion and  improvement  of  state  highways.  In  making  the  apportionment 
between  counties  the  commission  shall  take  into  consideration  the  mile- 
age which  may  be  constructed  from  the  amount  to  be  expended  under  this 
article  in  each  county  for  the  construction  or  improvement  of  county  high- 
ways, together  with  the  mileage  of  state  and  county  highways  theretofore 
constructed  out  of  moneys  derived  from  the  sale  of  bonds  issued  as  above 
provided. 

If  moneys  are  not  available  for  the  improvement  of  any  portion  of  a 
state  route  described  in  this  article,  the  same  may  be  improved  as  a county 
highway,  provided  the  board  of  supervisors  of  the  county  within  which  such 
section  is  located  designate  it  as  a county  highway  as  provided  in  this  chap- 
ter, and  proceed  in  all  respects  as  provided  herein  for  the  improvement  of 
county  highways.  [Highway  Law,  § 121,  as  amended  by  L.  1911,  ch.  646, 
and  L.  1917,  ch.  315;  B.  C.  & G.  Cons.  L.,  p.  2251.] 

§ 3.  CONSTRUCTION  OR  IMPROVEMENT  OF  COUNTY  HIGHWAYS. 

The  county  highways  to  be  constructed  or  improved  under  this  article 
at  the  joint  expense  of  the  state  and  county  shall  be  those  highways  in 
each  county  determined  by  the  commission  to  be  of  sufficient  public 


878 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  123,  124. 

importance  to  come  within  the  purposes  of  this  chapter,  so  as  to  constitute 
a part  of  a properly  developed  system  of  improved  market  roads  within  the 
county,  taking  into  account  the  use,  location  and  value  of  such  highways 
for  the  purposes  of  common  traffic  and  travel.  Such  county  highways 
shall  be  equitably  apportioned  by  the  commission  among  the  several  coun- 
ties without  discrimination.  In  making  such  apportionment  the  commis- 
sion shall  take  into  consideration  the  total  mileage  of  state  highways  which 
shall  be  hereafter  constructed  or  improved  in  each  county,  and  also  the 
highways  therein  which  have  been  constructed  or  improved  prior  to  the 
taking  effect  of  this  article  from  funds  made  available  by  the  issue  and  sale 
of  bonds  as  provided  in  section  twelve  of  article  seven  of  the  constitution, 
so  that  there  shall  be  an  equitable  distribution  as  between  the  counties  of 
all  highways  built  in  whole  or  in  part  from  such  funds.  [Highway  Law, 
§ 122,  as  amended  by  L.  1912,  ch.  83 ; B.  0.  & G.  Cons.  L.,  p.  2251.] 

§ 4.  PRELIMINARY  RESOLUTION  OF  BOARD  OF  SUPERVISORS. 

The  board  of  supervisors  of  any  county  may  pass  a resolution  1 stating 
that  public  interest  demands  the  improvement  of  a highway  or  section 
thereof  within  the  county,  and  requesting  that  it  be  constructed  or  im- 
proved as  provided  in  this  article.  Such  resolution  shall  contain  a descrip- 
tion of  such  highway  or  section  thereof.  Such  highway  or  section  thereof 
shall  not  include  a portion  of  a highway  within  a city,  except  that  portion 
of  the  cities  of  Rome  and  Oneida  lying  outside  of  the  respective  corporation 
tax  districts  of  said  cities,  nor  any  portion  of  a highway  within  an  incor- 
porated village,  unless  it  be  necessary  to  complete  the  connection  of  such 
highway  with  a highway  already  improved  or  to  be  improved  under  this 
article.  The  clerk  of  the  board  of  supervisors  shall,  within  ten  days 
after  the  passage  of  such  a resolution,  transmit,  a certified  copy  thereof 
to  the  commission.  [Highway  Law,  § 123,  as  amended  by  L.  1909,. 
ch.  487 ; B.  C.  & G.  Cons.  L.,  p.  2252.] 


§ 5.  EXAMINATION  OF  COUNTY  HIGHWAY;  APPROVAL  OR  DIS- 
APPROVAL BY  COMMISSION. 

The  commission  after  receipt  of  such  resolution,  and  at  such  times  as 
it  deems  proper,  shall  examine  the  highway  or  section  thereof  sought 
to  be  constructed  or  improved,  and  shall  determine  whether  it  is  of  the 
character  specified  in  section  one  hundred  and  twenty-two,  and  whether 


1.  The  resolution  to  be  adopted  under  this  section  should  be  in  the  form 
prescribed  by  the  commission,  blank  forms  of  which  will  be  furnished  upon 
application. 


STATE  AND  COUNTY  HIGHWAYS. 


879 


Highway  Law,  § 125. 

the  construction  or  improvement  thereof  will  provide  for  an  equitable 
apportionment  of  the  highways  among  the  several  counties  as  provided 
in  such  section.  After  such  examination  the  commission  shall  certify  its 
approval  or  disapproval  of  such  resolution  to  the  board  of  supervisors 
adopting  it;  if  it  disapprove  thereof  it  shall  certify  its  reasons  therefor. 
[Highway  Law,  § 124;  B.  C.  & G.  Cons.  L.,  p.  2252.] 


§ 6.  MAPS,  PLANS,  SPECIFICATIONS  AND  ESTIMATES. 

Whenever  the  commission  shall  have  determined  upon  the  construction 
or  improvement  of  a state  highway,  or  section  thereof,  or  shall  have 
approved  a resolution  adopted  by  a board  of  supervisors  in  any  county 
requesting  the  construction  or  improvement  of  a county  highway,  or  a 
section  thereof,  the  commission  shall  direct  the  division  engineer  of  the 
division  -wherein  such  highway  or  section  thereof  is  situated  to  make 
surveys,  and  prepare  suitable  preliminary  maps,  plans  and  specifications. 
Such  division  engineer  shall,  subject  to  the  direction  and  control  of  the 
commission,  have  the  following  powers  and  duties  in  respect  to  such 
highways : 

1.  He  shall  cause  the  highway  or  section  thereof  designated  hv  the 
commission,  or  described  in  such  resolution,  to  be  mapped  both  in  out- 
line and  profile. 

2.  He  may  provide  for  a deviation  from  the  line  of  a highway  already 
existing,  if  thereby  a shorter  or  more  direct  highway,  or  a lessened  gradient 
may  be  obtained  without  decreasing  the  usefulness  of  the  highway. 

3.  He  may  provide  for  the  widening  of  an  existing  highway. 

4.  He  shall  prepare  preliminary  plans  and  specifications  for  the  con- 
struction or  improvement  of  such  highway  or  section  thereof  providing 
for  a telford,  macadam  or  gravel  roadway,  or  other  suitable  construction, 
taking  into  consideration  climate,  soil  and  materials  to  be  had  in  the 
vicinity  thereof,  and  the  extent  and  nature  of  the  traffic  likely  to  be  upon 
such  highway,  specifying  in  his  judgment  the  kind  of  highway  a wise 
economy  demands. 

5.  He  shall  provide  in  such  plans  and  specifications  for  necessary  cul- 
verts, drains,  ditches,  waterways,,  embankments,  guard-rails  and  retaining 
walls. 

6.  He  may  provide  therein  for  the  removal  or  planting  of  trees,  and 
seeding  or  sodding,  within  the  boundaries  of  the  highway,  when  neces- 
sary for  the  preservation  thereof. 

6-a.  He  may  provide  therein  for  the  removal  of,  or  the  trimming  of 
any  trees  within  the  boundaries  of  the  highway  necessary  for  the  con- 
venience or  safety  of  the  public,  or  the  construction  or  preservation  of 
the  highway. 


880 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  126,  127. 

7.  He  shall  provide  therein  for  the  erection  of  suitable  guide  boards. 

8.  He  may  provide  for  such  other  work  as  may  be  required  to  com- 
plete the  construction  or  improvement  in  a proper  manner. 

9.  He  shall  cause  an  estimate  to  be  made  of  the  cost  of  the  construction 
of  such  highways,  or  section  thereof  in  accordance  with  such  plans  and 
specifications.  In  making  such  estimate  he  shall  ascertain  with  all  prac- 
tical accuracy  the  quantity  of  embankment,  excavation  and  masonry,  the 
quantity  of  all  materials  to  be  used  and  all  items  of  work  to  be  placed 
under  contract  and  specify  the  estimated  cost  thereof.  [Highway  Law, 
§ 125,  as  amended  by  L.  1911,  ch.  646;  B.  C.  & G.  Cons.  L.,  p.  2253.] 

§ 7.  SUBMISSION  OF  MAPS,  PLANS  AND  SPECIFICATIONS  TO  DISTRICT 
OR  COUNTY  SUPERINTENDENT. 

The  commission  shall  cause  the  preliminary  maps,  plans  and  specifica- 
tions for  either  a state  or  county  highway,  or  a copy  thereof,  to  be  pre- 
sented to  the  district  or  county  superintendent  of  the  district  or  county 
in  which  such  highway  or  section  thereof  is  situated,  who  shall  person- 
ally examine  the  highway  or  section  thereof  and  the  proposed  maps,  plans 
and  specifications,  and  shall  recommend  any  modification  thereof  which 
in  his  judgment  seems  to  be  necessary  and  shall  report  thereon  within 
fifteen  days  to  the  commission.  He  shall  also  take  such  other  action  in 
respect  thereto  as  may  be  required  by  law  or  by  the  commission.2  [High- 
way Law,  § 126,  as  amended  by  L.  1911,  ch.  646 ; B.  C.  & G.  Cons.  L.? 
p.  2253.] 

§ 8.  ACTION  OF  COMMISSION  IN  RESPECT  TO  MAPS,  PLANS, 
SPECIFICATIONS  AND  ESTIMATES. 

Upon  receiving  the  report  of  the-  district  or  county  superintendent, 
as  provided  in  the  preceding  section,  the  commission  shall  finally  adopt 
the  maps,  plans,  specifications  and  estimates  which  are  to  be  used  for  the 
construction  or  improvement  of  the  state  or  county  highway  to  be  con- 
structed or  improved.  If  such  highway  be  a state  highway  the  commission 
shall  thereupon  proceed  to  advertise  and  award  contracts  for  the  con- 
struction or  improvement  thereof  as  provided  in  section  one  hundred  and 
thirty.  If  such  highway  be  a county  highway  the  commission  shall  trans- 
mit such  plans,  specifications  and  estimates  as  adopted  by  them  to  the 
board  of  supervisors  of  the  county  from  which  the  resolution  proceeded, 
together  with  their  certificate  approving  the  construction  or  improvement 
of  the  highway  or  section  thereof  designated  in  such  resolution.  [Highway 
Law,  § 127;  B.  C.  & G.  Cons.  L.,  p.  2254.] 


2.  See,  also,  as  to  duty  of  commission  in  respect  to  final  plans,  specifications 
and  estimates  for  state  and  county  highways,  Highway  Law,  sec.  15,  subd.  11,  ante . 
The  determination  of  the  details  of  the  route  of  a state  highway  is  vested  in  the 
state  commissioner  of  highways  and  not  in  the  town  or  county  officers.  Kept,  of 
Atty.  Genl.  (1912),  vol.  2,  p.  225. 


STATE  AND  COUNTY  HIGHWAYS. 


881 


Highway  Law,  §§  128,  129. 

§ 9.  FINAL  RESOLUTION  OF  BOARD  OF  SUPERVISORS. 

The  board  of  supervisors,  after  the  receipt  of  plans,  specifications  and 
estimate  of  a county  highway  or  section  thereof,  and  after  such  modification 
thereof  as  may  be  made  by  a majority  vote  of  such  board,  with  the  consent 
of  the.  commission,  may  approve  *such  plans,  specifications  and  estimate, 
and  adopt  a resolution  requesting  that  such  county  highway  or  section 
thereof  be  constructed  or  improved  under  the  provisions  of  this  article, 
in  accordance  therewith.  In  the  case  of  a county  highway  or  a section 
thereof  which  divides  two  or  more  counties,  such  resolution  must  be 
separately  adopted  by  the  board  of  supervisors  of  each  county  within 
which  a portion  of  such  highway  lies.  The  form  of  such  resolution  shall 
be  prescribed  by  the  commission  and  shall  contain  the  matter  required 
by  this  article  to  be  inserted  therein.  Immediately  upon  the  adoption  of 
such  resolution  the  clerk  of  the  board  of  supervisors  shall  transmit  a 
certified  copy  thereof  to  the  commission.  When  a board  of  supervisors 
has  once  adopted  a resolution  providing  for  the  construction  or  improve- 
ment of  a highway  or  a section  thereof  in  accordance  with  such  plans 
and  specifications,  no  resolution  thereafter  adopted  by  such  board  shall 
rescind  or  annul  such  prior  resolution  either  directly  or  indirectly,  ex- 
cepting under  the  advice  and  with  the  consent  of  the  commission.  Not- 
withstanding the  adoption  of  such  a resolution,  the  commission  may 
modify  such  plans,  specifications  and  estimate,  prior  to  the  award  of  a 
contract  therefor  and,  upon  the  approval  thereof  by  the  board  of  super- 
visors as  above  provided,  such  highway  or  section  thereof  shall  be  con- 
structed or  improved  in  accordance  with  such  plans,  specifications  and 
estimate.23,  [Highway  Law,  § 128,  as  amended  by  L.  1909,  ch.  240 ; B. 
C.  & G.  Cons.  L.,  p.  2254.] 

§ 10.  ORDER  OF  CONSTRUCTION  OF  COUNTY  HIGHWAYS. 

Upon  the  receipt  of  such  resolution  the  commission  shall  proceed  with 
the  improvement  or  construction  of  such  county  highway  as  provided  in 
this  article.  The  construction  and  improvement  of  such  county  highways 
and  sections  thereof  shall  be  taken  up  and  carried  forward  within  a 
county  in  the  consecutive  order  as  determined  by  the  date  of  the  receipt 
by  the  commission  in  each  case  of  the  certified  copy  of  the  final  resolu- 
tion, so  far  as  is  practicable  in  the  opinion  of  the  commission.  No  such 
highway  shall  be  placed  upon  the  list  of  highways  to  be  constructed  or 
improved  nor  receive  a consecutive  number  on  such  list,  unless  such  reso- 
lution shall  appropriate  and  make  immediately  available  for  such  con- 

2a.  Alteration  in  proposed  highway.— Since  the  amendment  of  1909  it  is  evi- 
dent that  the  board  of  supervisors,  with  the  consent  of  the  Commission,  may 
make  alterations  in  a proposed  highway  at  any  time  before  the  bids  are  ac- 
cepted. Sutherland  v.  Skene,  142  App.  Div.  162,  126  N.  Y.  Supp.  901. 


882 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 130. 

struction  or  improvement  the  counties’  share  of  the  cost  thereof.  [High- 
way Law,  § 129,  as  amended  by  L.  1910,  ch.  247,  L.  1911,  ch.  646,  and 
L.  1912,  ch.  83.] 

§ 11.  CONTRACTS  FOR  CONSTRUCTION  OR  IMPROVEMENT  OF  WAYS. 

State  and  county  highways  shall  be  constructed  or  improved  by  con- 
tract. Upon  the  completion  and  final  adoption  or  approval,  as  provided 
by  law,  of  the  plans,  specifications  and  estimate  for  the  construction  or 
improvement  of  a state  or  county  highway,  contracts  therefor  shall  be 
executed  as  provided  herein. 

1.  Advertising  for  proposals. — The  commission  shall  advertise  for 
proposals  for  the  construction  or  improvement  of  such  highways  or  sec- 
tions thereof  according  to  the  plans,  specifications  and  estimate  prepared 
therefor.  The  advertisement  shall  be  limited  to  a brief  description  of  the 
work  proposed  to  be  done,  with  an  announcement  stating  where  the  maps, 
plans,  specifications  and  estimate  may  be  seen,  the  terms  and  conditions 
under  which  proposals  will  be  received,  the  time  and  place  where  the 
same  will  be  opened,  and  such  other  matters  as  the  commission  may  deem 
advisable  to  include  therein.  Such  advertisement  shall  be  published  at 
least  once  in  each  week  for  two  successive  weeks  in  a newspaper  pub- 
lished at  the  county  seat  of  the  county  in  which  such  highway  or  section 
thereof  is  to  be  constructed  or  improved,  and  in  such  other  newspapers  as. 
the  commission  may  designate.  If  no  newspaper  is  published  at  such 
county  seat,  then  the  publication  of  the  advertisement  shall  be  in  such 
newspaper  or  newspapers  within  the  county  as  the  commission  may  select. 
If  no  newspaper  is  published  in  the  county,  the  publication  of  the  adver- 
tisement shall  be  in  such  newspaper  or  newspapers  in  an  adjoining  county 
as  may  be  selected  by  the  commission.25  [Subd.  amended  by  L.  1917,  ch. 
261.] 

2.  Proposals . — Each  proposal  shall  specify  the  gross  sum  for  which  the 
work  will  be  performed  and  shall  also  include  the  amount  to  be  charged 
for  each  item  specified  in  the  estimate.  The  commission  may  prescribe  and 
furnish  forms  for  the  submission  of  such  proposals  and  may  prescribe  the 
manner  of  submitting  the  same  which  shall  not  be  inconsistent  herewith. 
The  proposals  when  opened  shall  be  subject  at*  all  reasonable  times  to  pub- 
lic inspection,  and  at  the  time  of  opening  shall  be  publicly  read,  and 
conspicuously  posted  in  such  a manner  as  to  indicate  the  several  items  of 
the  proposal.20 


2b.  Specifications  for  improvement  of  state  and  county  highways  should  be 
prepared  and  finally  adopted  before  advertising  for  proposals.  Kept,  of  Atty.  Genl., 
May  5,  1911. 

2c.  Proposal  changing  specifications.  Where  a proposal  for  the  construction  of  a 
section  of  State  or  county  highway  according  to  specifications  is  accompanied  by  a 
letter  modifying  or  changing  the  specifications  as  to  kind  of  material  proposed  to 
be  used,  though  of  the  same  kind  of  construction,  such  proposal  or  bid  is  not  en- 
titled to  compete  with  other  bids  which  are  strictly  according  to  the  specifications. 
Rept.  of  Atty.  Genl.,  May  5,  1911. 


STATE  AND  COUNTY  HIGHWAYS. 


883 


Highway  Law,  § 130. 

3.  Award  of  contracts. — The  contract  for  the  construction  or  improve- 
ment of  such  highway  or  section  thereof  shall  be  awarded  to  the  lowest 
responsible  bidder,  except  that  no  contract  shall  be  awarded  at  a greater 
sum  than  that  required  for  the  work  alone  as  shown  in  the  estimate  made 
for  the  construction  or  improvement  of  such  highway  or  section  thereof  in 
accordance  with  such  plans  and  specifications.  The  lowest  bid  shall  be 
deemed  to  be  that  which  specifically  states  the  lowest  gross  sum  for  which 
the  entire  work  will  be  performed,  including  all  the  items  specified  in  the 
estimate  therefor.  [Subd.  amended  by  L.  1917,  ch.  261.] 

4.  Estimates  may  be  amended. — If  no  proposal  otherwise  acceptable 
is  made  within  the  estimate  accompanying  the  plans  and  specifications, 
the  commission  may  cause  the  estimate  to  be  amended.  If  the  highway 
to  be  constructed  or  improved  is  a county  highway  the  commission  shall 
certify  the  amended  estimate  to  the  board  of  supervisors  and  the  board 
shall  take  action  thereon  as  in  a case  where  plans,  specifications  and  esti- 
mates are  originally  submitted  to  a board  of  supervisors.  Upon  the 
amendment  of  such  estimate,  and  its  approval  by  the  board  of  supervisors 
in  case  of  a county  highway,  the  commission  may  proceed  anew  to  obtain 
proposals  and  award  the  contract  as  provided  in  this  section. 

5.  Rejection  of  proposals. — The  commission  may  reject  any  or  all 
proposals  and  may  advertise  for  new  proposals  as  above  provided  if,  in 
their  opinion,  the  best  interests  of  the  state  will  thereby  be  promoted.2*1 

6.  Form  of  contract. — The  commission  shall  prescribe  the  form  of 
contract  and  may  include  therein  such  matters  as  they  may  deem  advan- 
tageous to  the  state.  Such  forms  shall  be  uniform  so  far  as  may  be. 

7.  Bond  of  contractor. — Each  contractor,  before  entering  into  a con- 
tract for  such  construction  or  improvement,  shall  execute  a bond  in  the 
form  prescribed  by  the  commission,  with  sufficient  sureties,  to  be  ap- 
proved by  the  commission,  conditioned  that  he  will  perform  the  work  in 
accordance  with  the  terms  of  the  contract,  and  with  the  plans  and  specifi- 
cations, and  that  he  will  commence  and  complete  the  work  within  the 
time  prescribed  in  the  contract.  Such  bond  shall  also  provide  against 
any  direct  or  indirect  damages  that  shall  be  suffered  or  claimed  on  ac- 
count of  such  construction  or  improvement  during  the  time  thereof,  and 
until  the  highway  is  accepted. 

Alternate  bids  should  not  be  invited  on  different  classes  of  construction  for 
improvement  of  the  same  section  of  highway;  the  kind  of  construction  should  be 
finally  determined  before  advertising  for  bids.  Kept,  of  Atty.  Genl.,  May  5,  1911. 

2d.  The  power  of  the  Commissioner  to  reject  bids  is  discretionary,  but 
should  be  exercised  for  the  benefit  of  the  state.  Kept,  of  Atty.  Genl.,  March  22,  1911. 

He  may  cancel  an  uncompleted  contract,  if  the  work  is  not  being  done  in  full 
accord  with  the  terms  of  the  contract  and  the  specifications.  Rept.  of  Atty.  Genl. 
(1912),  vol.  2,  p.  567. 

The  Commissioner  of  Highways  has  authority  to  reject  the  lowest  bids 

and  award  the  contract  to  the  next  lowest  bidder,  or  may  reject  all  the  bids  and 


884 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 130. 

8.  Payments  on  contract. — The  contract  may  provide  for  partial  pay- 
ments to  an  amount  not  exceeding  ninety  per  centum  of  the  value  of  the 
work  done,  which  shall  be  paid  in  the  manner  provided  by  this  article 
when  certified  to  by  the  commission.  Ten  per  centum  of  the  contract 
price  shall  be  retained  until  the  entire ’work  has  been  completed  and  ac- 
cepted.26 

9.  Contingencies. — All  contingencies  arising  during  the  prosecution 
of  the  wrork  shall  be  provided  for  to  the  satisfaction  of  the  commission 
and  as  may  be  agreed  upon  in  the  original  or  by  a supplemental  contract 
executed  by  the  commission ; the  amount  to  be  expended  shall  not  exceed 
the  original  estimate,  unless  such  estimate  shall  have  been  duly  amended 
by  the  commission  and,  in  the  case  of  a county  highway,  submitted  to  the 
board  of  supervisors  for  its  approval.  If  a supplemental  contract  be 
executed  by  the  commission  for  the  performance  of  work  or  furnishing 
of  material  not  provided  for  in  the  original  contract,  the  amount  to  be 
charged  thereunder  for  any  such  work  or  material  shall  not  exceed  the 
rate  for  which  similar  work  or  material  was  agreed  to  be  performed  or 
furnished  under  the  original  bid  upon  which  the  contract  was  awarded. 
Such  supplemental  contract  shall  not  be  binding  unless  it  be  approved 
by  the  commission  in  case  of  a state  highway  and  in  case  of  a county 
highway,  by  the  chairman  of  the  board  of  supervisors  and  the  district  or 
county  superintendent.  [Highway  Law,  § 130 ; B.  C.  & G.  Cons.  L.,  p. 
2255.] 


readvertise  the  work,  and  may  adopt  whichever  course  is  deemed  for  the  best  interest 
of  the  State,  but  the  course  to  be  pursued  in  that  respect  is  one  of  policy,  the  respon- 
sibility therefor  resting  upon  the  Highway  Department.  Atty.  Genl.  Opin.,  6 State 
Dep.  Rep.  413  (1915). 

Where  a contractor  has  defaulted  in  performing  several  contracts,  his  bid  on 
another  contract,  although  the  lowest,  may  be  rejected.  Atty.  Genl.  Opin.,  6 State 
Dep.  Rep.  413  (1915). 

2e.  The  State  Commissioner  of  Highways  may  pay  over  the  balance  of 
the  money  due  upon  a contract  to  the  assignee  thereof,  unless  conflicting 
claims  are  made  to  it,  notwithstanding  the  fact  that  the  contractor  refuses  to  enter 
into  or  sign  a special  agreement  covering  the  changes  made  in  the  contract.  Atty. 
Genl.  Opin.,  6 State  Dep.  Rep.  491  (1916). 

Retention  of  ten  per  cent,  of  contract  price.  The  provision  of  this  sub- 
division that  “ ten  percentum  of  the  contract  price  shall  be  retained  until  the  entire 
work  has  been  completed  and  accepted  ” is  mandatory,  and  a contractor  cannot  be 
paid  any  portion  of  such  amount  until  his  contract  has  been  finally  completed  and 
the  road  accepted.  Atty.  Genl.  Opin.,  6 State  Dep.  Rep.  428  (1915). 


STATE  AND  COUNTY  HIGHWAYS. 


885 


Highway  Law,  § 131. 

§ 12.  AWARD  OF  CONTRACTS  TO  BOARD  OF  SUPERVISORS  OR 
TOWN  BOARD. 

A board  of  supervisors  of  a county,  or  a town  board  of  a town,  in  which, 
nny  portion  of  a state  or  county  highway  is  situated,  may  present  pro- 
posals and  be  awarded  a contract  for  the  construction  or  improvement  of 
such  highway,  as  provided  in  this  article,  for  and  on  behalf  of  such 
county  or  town.  If  such  contract  be  awarded  to  a board  of  supervisors  or 
a town  board  such  board  shall,  by  resolution,  designate  some  suitable 
person  or  persons  to  carry  into  effect,  on  behalf  of  the  town,  such  con- 
tract, and  transact  all  business  in  respect  thereto  as  may  be  necessary. 
A member  of  the  board  of  supervisors  or  town  board  at  the  time  such 
contract  was  awarded  or  such  designation  was  made,  or  a person  who  is 
a partner  of,  or  a stockholder  in  the  same  corporation  as  that  of  such 
member,  shall  not  be  so  designated.  A member  of  the  board  of  super- 
visors or  town  board  at  the  time  such  designation  was  made,  or  a firm, 
corporation  or  association  of  which  he  is  a member  or  has  an  interest, 
shall  not  be  directly  or  indirectly  interested  in  any  such  contract  nor 
shall  such  member,  or  such  firm,  corporation  or  association  furnish 
materials  or  perform  labor  or  services,  either  directly  or  indirectly,  under 
or  in  connection  with  the  performance  of  any  of  the  work  required  in 
accordance  with  such  contract,  nor  shall  such  member,  firm  or  corpo- 
ration or  association,  be  paid  for  materials  furnished  or  services  rendered 
in  respect  to  such  contract.  The  clerk  of  the  board  of  supervisors  or  the 
town  clerk  shall  transmit  a certified  copy  of  the  resolution  designating 
the  person  or  persons  to  carry  into  effect  such  contract  to  the  commission 
prior  to  the  awarding  of  a contract  to  the  board  of  supervisors  or  town 
board.  The  person  or  persons  so  designated  shall,  before  the  contract  is 
executed,  give  an  undertaking  to  the  county  or  town,  with  sureties  to  be 
approved  by  the  commission  and  the  board  of  supervisors  or  town  board, 
for  an  amount  equal  to  at  least  twenty-five  per  centum  of  the  face  of  the 
contract.  Such  undertaking  shall  be  conditioned  on  the  faithful  per- 
formance of  their  duties  in  respect  to  such  contract  and  for  the  proper 
accounting,  safe-keeping  and  lawful  disbursement  of  all  moneys  that  may 
come  into  their  hands  thereunder.  Such  undertaking  shall  be  filed  in 
the  office  of  the  county  or  town  clerk  and  a copy  thereof  shall  be  trans- 
mitted to  the  commission.  The  person  or  persons  so  designated  shall 
thereupon  be  competent  to  receive  all  moneys  payable  under  such  con- 
tract under  the  provisions  of  this  article,  and  they  shall  account  therefor 


88G 


HIGHWAYS  AXD  BRIDGES 


Highway  Law,  § 131. 

to  the  county  or  town.  The  board  of  supervisors  or  town  hoard,  after 
such  contract  is  awarded,  shall  designate,  by  resolution,  a banking  corpo- 
ration or  a trust  company  wherein  the  moneys  received  under  such  con- 
tract shall  he  deposited.  Such  bank  or  trust  company  shall,  upon  the 
request  of  the  board  of  supervisors  or  town  hoard,  make  a statement  of 
the  money  so  deposited.  The  commission  shall,  by  rules  and  regulations, 
prescribe  the  manner  in  which  the  moneys  received  under  such  contract 
shall  be  expended  and  the  forms  of  accounts  he  kept  by  the  person  or 
persons  designated  as  above  provided ; and  where  convict  labor  is  used, 
as  hereinafter  provided,  an  account  shall  be  kept  of  the  items  incurred 
daily  for  maintenance  of  convicts  and  compensation  of  other  laborers, 
if  any.  Reports  may  be  required  by  the  commission  from  time  to  time 
from  such  person  or  persons. 

When  a contract  is  entered  into  under  the  provisions  of  this  section, 
the  board  undertaking  thereby  to  construct  or  improve  a highway  or 
section  thereof,  may,  by  resolution,  direct  the  person  or  persons  desig- 
nated for  carrying  out  the  contract  to  apply  to  the  superintendent  of 
state  prisons  for  convict  labor,  in  the  construction  of  such  highway  or 
section  thereof.  The  resolution  shall  specify  the  maximum  number  of 
convicts  to  he  applied  for,  for  such  work.  Such  designated  person  or 
persons  shall  make  request,  in  writing,  to  the  superintendent  of  state 
prisons  for  convict  labor,  in  conformity  to  the  provisions  of  such  reso- 
lution, such  request  to  be  accompanied  with  a copy  of  such  resolution. 
A copy  of  such  resolution  and  of  such  request  shall  also  he  filed  with  the 
commission.  The  superintendent  may  detail  for  labor,  pursuant  to  such 
resolution  and  request,  such  number  of  convicts  as  may  be  available 
therefor,  not  exceeding  the  number  applied  for.  Such  convicts  shall  be 
in  the  immediate  charge  and  custody  of  the  officers  and  guards  detailed 
by  the  superintendent  of  state  prisons,  and  at  all  times  subject  to  the 
control  of  such  superintendent,  except  that  the  work  to  he  done  shall 
he  directed  by  the  engineers  and  foremen  of  the  state  highway  de- 
partment. The  expense  of  maintenance  of  such  convicts  shall  be  paid 
by  the  county  or  town  entering  into  such  contract  from  funds  due  there- 
on, to  such  municipality.  A county  or  town  may  purchase  machinery 
and  tools  for  the  construction  of  a highway  or  section  thereof,  under  any 
such  contract,  out  of  moneys  to  be  paid  thereon,  within  the  estimates  for 
such  items  contained  in  the  proposals  at  the  time  of  the  letting  of  the  con- 
tract, but  such  machinery  and  tools  shall  he  the  property  of  the  state,  and 
after  the  completion  of  the  work  shall  be  subject  to  disposal  or  to  any  law- 


STATE  AND  COUNTY  HIGHWAYS. 


887 


Highway  Law,  § 132. 


ful  use  by  the  commission.  Moneys  realized  from  selling  or  renting  any 
such  used  machinery  or  tools  shall  be  paid  into  the  state  treasury  to  the 
credit  of  the  highway  fund.  Any  such  used  machinery  or  tools  may  be 
loaned  by  the  commission,  if  requested,  for  construction  of  a highway  or 
section  thereof,  by  a county  or  town,  by  contract  under  this  section,  to 
be  kept  in  repair  and  operated  at  the  expense  of  the  county  or  town  with 
moneys  payable  under  the  contract. 

If  a county  or  town  shall  construct  a highway  or  section  thereof,  by 
contract  as  above  provided,  for  a lesser  sum  than  the  contract  price,  as  the 
same  shall  appear  from  the  accounts  and  reports  herein  provided  for,  the 
county  or  town,  as  the  case  may  be,  shall  be  paid  only  the  amount  of 
the  actual  cost  of  such  construction,  paid  or  incurred,  and  the  surplus 
shall  remain  in  the  state  treasury  and  continue  available  for  any  state 
or  county  highway  construction  for  which  the  same  may  have  been  or 
shall  be  appropriated.  [Highway  Law,  § 131,  as  amended  by  L.  1914, 
ch.  60,  and  L.  1918,  ch.  328;  B.  C.  & Gr.  Cons.  L.,  p.  2257.] 

§ 13.  RESPONSIBILITY  OF  COMMISSIONER  OF  HIGHWAYS  FOR 
THE  PERFORMANCE  OF  CONTRACTS  FOR  CONSTRUCTION 
OR  IMPROVEMENT  OF  STATE  AND  COUNTY  HIGHWAYS; 
SUSPENSION  OF  WORK  UNDER  CONTRACT;  COMPLETION 
BY  COMMISSIONER  OF  HIGHWAYS. 

The  performance  of  every  contract  for  the  construction  or  improvement 
of  a state  or  county  highway  shall  be  under  the  supervision  and  control 
of  the  commissioner  of  highways,  and  it  shall  be  his  duty  to  see  that  every 
such  contract  is  performed  in  accordance  with  the  provisions  of  the  contract 
and  with  the  plans  and  specifications  forming  a part  thereof.  For  such 
purpose,  the  commissioner  of  highways,  shall  have  the  direction  and  con- 
trol of  the  deputies,  secretary,  division  engineers,  officers,  clerks  and 
employees  of  the  commission.  If  the  commissioner  of  highways  shall  deter- 
mine that  the  work  upon  any  contract  for  the  construction  or  improvement, 
maintenance,  repair  or  reconstruction,  of  a state  or  county  highway,  is  not 
being  performed  according  to  the  contract  or  for  the  best  interests  of  the 
state,  the  execution  of  the  work  by  the  contractor  may  be  temporarily  sus- 
pended by  the  commissioner  of  highways,  who  may  then  proceed  with  the 
work  under  his  own  direction  in  such  manner  as  will  accord  with  the  con- 
tract specifications  and  be  for  the  best  interests  of  the  state;  or  he  may 
cancel  the  contract  and  either  readvertise  and  relet  as  provided  in  section 
one  hundred  and  thirty,  or  complete  the  work  under  his  own  direction  in 
such  manner  as  will  accord  with  the  contract  specifications  and  be  for  the 
best  interests  of  the  state.  Any  excess  in  the  cost  of  completing  the  contract 
beyond  the  price  for  which  it  was  originally  awarded  shall  be  charged  to 
and  paid  by  the  contractor  failing  to  perform  the  work.  Every  contract  for 
the  construction  or  improvement,  maintenance,  repair  or  reconstruction  of 
a state  or  county  highway  shall  reserve  to  the  commission  the  right  to 


887a 


HIGHWAYS  AXD  BRIDGES. 


Highway  Law,  § 132. 

suspend  or  cancel  the  contract  as  above  provided,  and  to  complete  the  work 
thereunder  or  readvertise  and  relet  as  the  commission  may  determine. 

In  the  case  of  a contract  for  the  construction  or  improvement,  other 
than  maintenance,  repair  or  reconstruction,  of  a state  or  county  highway 
executed  under  the  provisions  of  this  chapter  prior  to  January  first,  nine- 
teen hundred  and  eighteen,  the  state  , commissioner  of  highways  shall,  upon 
the  written  request  of  the  contractor  and  the  surety  company  on  the  bond 
accompanying  such  contract,  suspend  or  defer  operations  on  any  portion 
or  portions  of  such  contract  on  which  no  work  has  been  performed  except 
the  installation  of  culverts  and  proper  backfill,  or  the  installation  of  curbs 
or  other  structures  which  do  not  interfere  with  such  portion  of  the 
highway  for  traffic  purposes,  and  he  may  also  upon  like  request 
suspend  or  defer  operations  on  any  portion  or  portions  which  have 
been  partially  completed,  where  it  is  shown  to  the  satisfaction  of  the  com- 
missioner of  highways  that  work  cannot  proceed  on  such  portion  or  por- 
tions either  because  there  is  no  market  supply  of  certain  necessary  materials 
or  because  lack  of  transportation  facilities  renders  it  impossible  to  obtain 
such  materials;  provided  that  the  contractor  before  the  suspension  of  such 
work  shall  place  such  partially  completed  portion  or  portions  in  a suitable 
condition  for  traffic  and  shall  agree  that  the  state  department  of  highways 
may,  during  the  period  of  suspension,  maintain  such  portion  or  portions  in 
a proper  condition  for  traffic,  the  expense  thereof  to  be  paid  from  moneys 
appropriated  for  such  contract  and  to  be  a charge  against  the  contractor  and 
to  be  deducted  from  any  moneys  which  may  be  due  or  hereafter  become  due 
the  contractor  under  such  contract. 

It  is  further  provided  that  such  contractor  and  surety  company  shall, 
in  connection  with  any  such  suspension,  enter  into  a written  agreement 
with  the  commissioner,  whereby  it  shall  be  stipulated  and  agreed  that  the 
acceptance  of,  and  full  payment  for,  all  the  work  performed  within  the 
completion  points  designated,  as  hereinafter  provided,  by  the  commissioner, 
shall  in  no  way  change  or  alter  the  terms  of  the  contract  or  the  obligations 
of  the  contractor  or  of  the  surety  company  on  the  bond  accompanying  said 
contract  with  regard  to  proceeding  to  the  completion  of  the  remainder  of 
the  contract;  except  that  upon  the  acceptance  in  the  manner  herein  pro- 
vided of  the  completed  portion  of  any  contract,  the  amount  of  the  bond 
accompanying  such  contract  shall,  from  the  date  of  such  acceptance  of 
such  completed  portion,  be  reduced  to  such  an  amount  as  will  equal  fifty 
per  centum  of  the  value  of  the  work  remaining  to  be  performed  under  such 
contract,  such  value  to  be  determined  by  applying  to  the  quantities  of  work 
to  be  performed  the  item  prices  therefor  contained  in  the  contract.  Such 
work  of  completion,  however,  shall  not,  except  by  mutual  consent  of  the 
parties  to  the  agreement,  begin  upon  a date  earlier  than  March  first,  nine- 
teen hundred  and  nineteen,  unless  the  war  in  which  the  United  States  is 
now  engaged  shall  have  terminated  prior  thereto  by  the  signing  of  peace 
terms,  and  in  that  event  not  earlier  than  the  date  of  such  signing.  In 


STATE  AND  COUNTY  HIGHWAYS. 


887b 


Highway  Law,  § 132. 

case  the  war  shall  not  have  terminated  by  the  signing  of  such  terms  of 
peace  on  or  before  March  first,  nineteen  hundred  and  nineteen,  then  the 
commissioner  may  extend  the  commencemnt  of  the  completion  of  such  con- 
tract to  March  first,  nineteen  hundred  and  twenty,  but  no  longer.  Should 
peace  terms  be  signed  during  the  period  of  suspension  as  above  authorized, 
such  suspension  may  thereupon  be  terminated  by  the  commissioner  by  the 
service  of  a written  notice  upon  the  contractor  and  his  surety  company 
directing  the  resumption  of  work  within  sixty  days  after  such  service. 

The  commissioner  of  highways  is  hereby  authorized  and  empowered  to 
enter  into  such  an  agreement  and  to  accept  as  finally  completed,  and  to 
order  full  payment  for,  all  work  embraced  in  such  contract  within  such 
points  as  shall  be  designated  by  the  commissioner  for  such  acceptance,  if 
within  such  points  all  work  provided  by  the  contract  is  fully  performed, 
notwithstanding  the  provision  for  the  retention  of  ten  per  centum  of  the 
contract  price  required  under  section  one  hundred  and  thirty,  subdivision 
eight  of  this  chapter. 

All  of  the  provisions  of  this  section  relating  to  the  suspension  of  con- 
tracts upon  the  joint  request  of  the  contractor  and  the  surety  company, 
shall  apply  in  like  manner  upon  the  written  request  of  the  surety  company 
only,  with  regard  to  a contract  which  shall  hereafter  be  abrogated 
or  cancelled  upon  failure  of  the  contractor  to  perform,  except  the  provision 
relating  to  the  payment  of  the  retained  percentage,  which  percentage  shall 
be  retained  until  the  final  completion  of  the  entire  contract. 

In  the  case  of  such  a suspension  of  operations  under  a contract  in  which 
there  is  provision  for  the  maintenance  of  the  road  by  the  contractor  for 
a period  of  three  years  from  the  final  completion  and  acceptance  of  the 
entire  contract  with  a bond  executed  by  a surety  company  guaranteeing 
such  maintenance,  the  operation  of  such  guarantee  clause  shall  commence 
immediately  upon  the  acceptance  of  the  completed  portion  or  portions  of 
the  road  and  shall  be  in  full  force  and  operation  over  such  portion  or  por- 
tions for  the  specified  period  of  three  years  from  the  date  of  such  acceptance. 
The  provisions  of  article  seven  of  this  chapter,  relative  to  maintenance  and 
repair,  shall  apply  to  such  portion  or  portions  of  any  contract  as  may  be 
completed  and  accepted  as  hereinbefore  provided  in  this  section. 

The  provisions  of  sections  one  hundred  and  thirty-three  and  one  hundred 
and  thirty-four  of  this  chapter,  relative  to  the  final  acceptance  of  fully 
completed  contracts,  shall  apply  with  respect  to  the  acceptance  of  portions 
of  contracts  under  this  section. 

The  town  superintendent  of  a town  within  which  is  located  the  portion 
of  a highway  which  is  included  in  such  a partially  completed  contract,  but 
upon  which  portion  no  work  has  been  performed  by  the  contractor  except 
the  installation  of  culverts  with  proper  backfill  and  the  completion  of  which 
has  been  suspended,  deferred  or  extended  as  hereinbefore  provide’d  in  this 
section,  is  hereby  authorized,  empowered  and  directed  to  keep  and  maintain 


888 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  133,  134. 

the  same  in  a good  and  passable  condition  in  the  same  manner  as  other 
town  highways  are  kept  and  maintained;  such  portion  of  highway  being 
deemed  during  the  period  of  such  suspension  a town  highway  for  the  pur- 
poses of  maintenance  and  upkeep,  the  jurisdiction  and  authority  of  the 
town  superintendent  over  such  highway  to  cease  when  work  is  resumed  by 
the  contractor  upon  such  portion,  provided,  however,  that  the  work  to  be 
performed  by  the  town  superintendent  shall  be  of  a surface  nature  only. 
[Highway  Law,  § 132,  as  amended  by  L.  1911,  ch.  646,  L.  1913,  ch.  517, 
and  L.  1918,  ch.  413;  B.  C.  & G.  Cons.  L.,  p.  2259.] 

* 

§ 14.  ACCEPTANCE  OF  STATE  HIGHWAY  WHEN  COMPLETED. 

Upon  the  completion  of  a state  highway  or  section  thereof  constructed 
or  improved  under  a contract  let  as  provided  in  this  article,  the  division 
engineer  shall  inspect  the  same  and  if  it  be  completed  as  provided  in  the 
contract,  he  shall  thereupon  so  report  to  the  commission,  which  shall,  if 
it  approve,  notify  the  county  or  district  superintendent  of  the  county  in 
which  the  road  is  located,  in  writing,  that  it  will  accept  the  work  within 
twenty  days  from  the  date  of  such  notice,  unless  protest  in  writing  be 
filed  by  such  county  or  district  superintendent.  In  case  a protest  is  filed 
the  commission  shall  hear  the  same  and  if  it  is  sustained  then  it  shall 
delay  the  acceptance  of  the  highway  or  section  thereof  until  the  same  is 
properly  completed.  In  case  no  protest  is  filed  the  highway  or  section 
thereof  shall  at  the  expiration  of  said  twenty  days  be  deemed  finally 
completed  and  accepted  and  shall  thereafter  be  maintained  as  provided 
in  this  chapter.2*  [Highway  Law,  § 133,  as  amended  by  L.  1911,  ch. 
646,  and  L.  1915,  ch.  548;  B.  C.  & G.  Cons.  L.,  p.  2259.] 

§ 15.  ACCEPTANCE  OF  COUNTY  HIGHWAY. 

Upon  the  completion  of  a county  highway  or  section  thereof,  con- 
structed or  improved  under  a contract  let  as  provided  in  this  article,  the 
division  engineer  shall  inspect  the  same  and  if  it  be  completed  as  pro- 
vided in  the  contract  he  shall  thereupon  so  report  to  the  commission, 

2f.  Payment  of  final  estimate  to  contractor  should  be  made  when  the  con- 
tract is  fully  performed  and  the  work  accepted,  without  waiting  for  the  expiration 
of  the  time  in  which  to  file  lien  under  section  12  of  the  Lien  Law.  Kept,  of  Atty. 
Genl.,  March  14,  1911. 

Where  liens  are  filed  against  contractors  between  the  time  of  issuance  of  requisi- 
tion upon  the  state  comptroller  for  final  estimate  but  before  the  delivery  of  the 
state  treasurer’s  check  to  the  contractor,  such  check  should  be  held  until  the  liens 
are  discharged.  Rept.  of  Atty.  Genl.,  March  20,  1911. 

Liability  for  injuries  to  persons  using  a state  highway  is  not  assumed  by  the 
town  until  such  highway  has  been  completed  and  accepted  by  the  state.  Farrell  v. 
Town  of  North  Salem,  205  N.  Y.  453. 


STATE  AND  COUNTY  HIGHWAYS. 


8S9 


Highway  Law,  § 135. 

which  shall,  if  it  approve,  notify,  in  writing,  the  county  or  district  super- 
intendent and  the  board  of  supervisors  of  the  county  in  which  such  high- 
way or  section  thereof  is  located  that  it  will  accept  the  highway  within 
twenty  days  from  the  date  of  such  notice  unless  protest  in  writing  be 
filed  with  the  commission  by  such  district  or  county  superintendent  or 
by  the  board  of  supervisors.2g  In  case  a protest  is  filed,  the  commission 
shall  hear  the  same,  and  if  it  is  sustained,  the  commission  shall  delay 
the  acceptance  of  the  highway  or  sectiort  thereof  until  it  be  properly 
completed.  In  case  no  protest  is  filed,  the  highway  or  section  thereof 
shall  at  the  expiration  of  the  said  twenty  days  be  deemed  finally  com- 
pleted and  accepted  on  behalf  of  the  county  and  the  state,  and  shall 
thereafter  be  maintained  as  provided  in  this  chapter.* * 3  [Highway  Law, 
§ 134,  as  amended  by  L.  1911,  ch.  646,  and  L.  1916,  ch.  460 ; B.  C & G. 
Cons.  L.,  p.  2259.] 

§16.  ENTRY  UPON  ADJACENT  LANDS  FOR  DRAINAGE  PURPOSES. 

Lands  adjacent  to  a state  or  county  highway  may  be  entered  upon  and 
occupied  for  the  purpose  of  opening  or  constructing  a drain  or  ditch  so 
as  to  properly  drain  such  highway : 

1.  By  a contractor,  or  any  of  his  agents  or  employees,  when  directed 
by  the  commission,  during  the  construction  or  improvement  of  such 
highway. 

2.  By  the  commission  or  its  duly  authorized  officers,  agents  or  em- 
ployees, at  any  time,  for  the  purpose  of  making  surveys  for  such  drain 
or  ditch. 


2g.  Waiver  of  twenty  day  period. — A resolution  by  the  board  of  supervisors 
waiving  the  twenty-day  period  prescribed  by  this  section  after  receiving  notice 
of  the  completion  of  the  work  on  a county  highway,  is  not  alone  sufficient  to  warrant 
the  immediate  acceptance  of  the  work  and  payment  of  the  contract  price  by  the 

State  Highway  Commission. 

3.  In  order  that  the  board  of  supervisors  may  be  properly  informed  as  to  the 
progress  of  the  work  it  is  provided  by  Highway  Law,  sec.  33,  subd.  9,  ante,  that  the 
district  or  county  superintendent  shall  inspect  the  work  during  the  construction  and 
certify  to  the  board  as  to  the  progress  thereof. 

Acceptance  of  a highway  may  he  revoked  by  the  State  Commissioner  of 
highways  at  any  time  before  the  final  account  is  paid,  where  such  acceptance  was 
procured  through  fraud,  mistake,  concealment  or  misrepresentations.  Atty.  Genl. 
Opin.,  4 State  Dep.  Rep.  547  (1915).  But  where  the  work  has  been  done  according 
to  contract  and  payment  made,  and  no  fraud  exists,  the  commissioner  cannot  revoke 
or  rescind  the  acceptance  of  a highway.  Atty.  Genl.  Opin.,  5 State  Dep.  Rep.  451 
(1915). 


890 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  135-137. 

3.  By  the  commission,  or  its  duly  authorized  officers,  agents  or  em- 
ployees, or  by  a county,  district  or  town  superintendent,  when  directed 
by  the  commission,  after  the  completion  and  acceptance  of  the  highway 
for  the  purpose  of  opening,  constructing  or  maintaining  ditches  or  drains 
upon  such  lands,  necessary  for  the  proper  maintenance  of  such  highway. 
[Highway  Law,  § 135 ; B.  C.  & G.  Cons.  L.,  p.  2260.] 

§17.  DAMAGES  FOR  ENTRY. 

The  commission  may  agree  with  the  owner  of  lands  entered  upon  and 
occupied  as  provided  in  the  preceding  section  for  the  payment  of  dam- 
ages caused  by  such  entry,  or  if  unable  to  so  agree  the  right  to  enter  and 
occupy  such  lands  may  be  acquired  and  the  damages  therefor  shall  be 
ascertained  as  provided  in  the  condemnation  law.  Such  damages  shall, 
in  the  case  of  a state  highway,  be  paid  out  of  moneys  available  for  the 
construction  or  improvement  of#such  highway,  and  in  the  case  of  a 
county  highway  shall  he  a county  charge  and  paid  in  the  same  manner 
as  other  county  charges.  [Highway  Law,  § 136;  B.  C.  & G.  Cons.  L., 

p.  2260.] 

§18.  STATE  AND  COUNTY  HIGHWAYS  IN  VILE  AGES. 

A state  or  county  highway  may  be  constructed  through  a village,  un- 
less the  street  through  which  it  runs  has,  in  the  opinion  of  the  commis- 
sion, been  so  improved  or  paved  as  to  form  a continuous  and  improved 
highway  of  sufficient  permanence  as  not  to  warrant  its  reconstruction, 
in  which  case  such  highway  shall  he  constructed  or  improved  to  the 
place  where  such  paved  or  improved  street  begins.  A state  or  county 
highway  within  a village  shall  he  of  the  same  width  and  type  of  con- 
struction as  the  highway  outside  of  the  village  which  connects  with  the 
highway  within  the  village,  unless  a greater  width  or  different  type  of 
construction  is  desired  by  the  municipality,  in  which  case  the  hoard  of 
trustees  of  such  village  shall  by  resolution  petition  the  commission  to 
provide  the  width  and  type  of  construction  desired.  The  additional 
expense  caused  by  the  increased  width  or  different  type  of  construction 
or  both  shall  he  home  wholly  by  the  village.  The  commission  shall,  in 
its  discretion,  upon  receipt  of  such  petition,  if  filed  prior  to  the  adver- 
tisement for  bids,  provide  for  the  width  and  type  of  construction  de- 
scribed in  such  petition.  Whenever  the  commission  shall  have  approved 
such  a village  petition  the  plans,  specifications  and  estimates  of  cost. 


STATE  AND  COUNTY  HIGHWAYS. 


891 


Highway  Law,  § 137. 

together  with  an  estimate  showing  the  additional  cost  to  be  borne  by  the 
village,  to  provide  for  the  greater  width  or  different  type  of  construction 
or  both,  shall  he  submitted  to  the  board  of  trustees  who,  if  it  approve 
such  plans,  specifications  and  estimate  of  cost,  shall  by  resolution  appro- 
priate the  funds  necessary  to  provide  for  the  portion  of  the  cost  of  con- 
struction to  be  borne  by  the  village.  Such  fund  shall,  prior  to  the  award 
of  the  contract,  be  deposited  by  the  village  with  the  state  comptroller 
subject  to  the  draft  or  requisition  of  the  state  commission  of  highways, 
and  a certified  copy  of  the  resolution  shall  be  filed  with  the  commission. 
The  moneys  so  required  shall  be  raised  by  tax  or  from  the  issue  and  sale 
of  bonds  as  provided  in  the  village  law.  Upon  the  completion  of  a 
highway  within  a village  where  a portion  of  the  cost  is  borne  by  the 
village  the  commission  shall  transmit  to  the  board  of  trustees  a state- 
ment showing  the  actual  cost  of  the  additional  width  or  changed  con- 
struction including  a proportionate  charge  for  engineering,  and  shall 
notify  the  village  clerk  that  it  will  accept  the  work  within  twenty  days 
from  the  date  of  such  notice,  unless  protest  in  writing  against  the  ac- 
ceptance shall  be  filed  by  such  clerk  with  the  commission.  In  case  a 
protest  is  filed  the  commission  shall  hear  the  same  and  if  it  is  sustained 
the  commission  shall  delay  the  acceptance  of  the  highway  or  section 
thereof  until  the  same  be  properly  completed.  If  no  protest  is  filed  the 
highway  or  section  thereof  shall  at  the  expiration  of  the  said  twenty 
days  be  deemed  finally  completed  and  accepted  on  behalf  of  the  village 
and  the  state,  and  shall  thereafter  be  maintained  in  the  manner  provided 
in  this  chapter  for  the  maintenance  and  repair  of  state  and  county  high- 
ways. The  provisions  of  the  village  law,  special  village  charters  and 
other  general  or  special  laws  relative  to  the  pavement  or  improvement 
of  streets  and  the  assessment  and  payment  of  the  cost  thereof  shall 
apply,  as  far  as  may  be,  to  such  additional  construction  and  the  assess- 
ment and  payment  of  the  cost  thereof,  except  that  the  provisions  of  any 
general  or  local  act  affecting  the  pavement  or  improvement  of  streets  or 
avenues  in  any  village  and  requiring  the  owners,  or  any  of  the  owners, 
of  the  frontage  on  a street  to  consent  to  the  improvement  or  pavement 
thereof,  or  requiring  a hearing  to  be  given  to  the  persons  who,  or  whose 
premises,  are  subject  to  assessment,  upon  the  question  of  doing  such 
paving  or  making  such  improvement  shall  not  apply  to  the  portion  of 
the  improvement  or  pavement  of  a state  or  county  highway  the  expense 
for  which  is  required  to  be  paid  by  the  village  to  the  state. 


892 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 138. 

The  provisions  of  this  act  shall  not  prevent  the  improvement  by  state 
aid  under  the  statute  as  it  existed  prior  to  the  passage  of  this  act,  of 
streets  in  cities  of  the  second  and  third  class,  where,  prior  to  the  passage 
of  this  act,  highway  numbers  had  been  assigned  as  provided  by  article 
six  of  this  act ; nor  shall  the  provisions  of  this  act  prevent  the  improve- 
ment in  such  cities  of  streets  heretofore  petitioned  for  and  approved,  in 
cases  where  the  proposed  improvement  of  each  street  does  not  exceed  one 
and  one-half  miles  in  length ; but  the  total  mileage  of  all  such  streets  not 
exceeding  one  and  one-half  miles  in  length,  shall  not  in  the  aggregate 
exceed  four  miles. 

Wherever  plans  for  such  improvement  in  a city  of  the  second  class 
have  been  approved  and  a highway  number  assigned,  and  the  work  is 
ready  for  contract  as  hereinbefore  described  and  the  common  council  of 
such  city  has  appropriated  and  made  available  the  city’s  share  of  the 
cost  of  such  improvement,  the  city  treasurer  of  such  city  is  hereby 
authorized  and  empowered  to  borrow  a sufficient  amount  in  anticipation 
of  the  collection  thereof,  and  to  pledge  the  faith  and  credit  of  the  city 
for  the  payment  of  such  amount  when  due,  with  interest,  and  is  further 
authorized,  empowered  and  directed  to  deposit  such  moneys  with  the 
state  comptroller  in  the  same  manner  as  is  provided  by  this  section  with 
regard  to  the  improvement  of  village  streets.4  [Highway  Law,  § 137, 
as  amended  by  L.  1910,  ch.  233,  L.  1911,  ch.  88,  L.  1912,  ch.  88,  L. 
1913,  chs.  131,  319,  and  L.  1916,  ch.  571.] 

§ 18a.  STATE  AND  COUNTY  HIGHWAYS  IN  CERTAIN  CITIES  OF 
THE  SECOND  AND  THIRD  CLASS. 

A state  or  county  highway  may  be  constructed  through  a city  of  the 
second  or  third  class  situated  in  a county  containing  over  three  hundred 
thousand  inhabitants  if  at  least  two  cities  in  such  county  adjoin  a city  of 


4.  Construction  of  county  highways  through  cities,  even  to  form  a connecting 
link,  is  not  authorized  by  statute.  Rept.  of  Atty.  Genl.,  Oct.  20,  1910. 

Liability  of  municipality  for  proportonate  share  of  cost.  Where  a board  of  super- 
visors has  charged  back  to  a town  included  therein  fifteen  per  cent,  of  the  cost  of 
constructing  a state  road  built  pursuant  to  L.  1898,  ch.  115,  an  incorporated  village 
situated  within  the  town,  or  a city  so  situated  where  the  city  has  subsequently 
become  incorporated  as  such,  is  liable  for  its  proportionate  part  of  the  fifteen  per 
cent.,  although  at  the  time  the  road  was  built  the  village  formed  a separate  road 
district  and  maintained  its  streets  at  its  own  expense  without  contribution  from  the 
town  at  large.  Town  of  Queensbury  v.  City  of  Glens  Falls,  143  App.  Div.  847,  128 
N.  Y.  Supp.  833. 


STATE  AND  COUNTY  HIGHWAYS. 


892a 


Highway  Law,  § 137a. 

the  first  class  containing  over  two  million  inhabitants,  unless  the  street 
through  which  it  runs  has,  in  the  opinion  of  the  commission,  been  so  im- 
proved or  paved  as  to  form  a continuous  and  improved  highway  of  sufficient 
permanence  as  not  to  warrant  its  reconstruction,  in  which  case,  if  the  com- 
mission approve,  such  highway  shall  be  constructed  or  improved  to  the  place 
where  such  paved  or  improved  street  begins,  but  not  more  than  fifty  per 
centum  of  money  appropriated  by  the  state,  and  now  or  hereafter  avail- 
able for  the  construction  of  state  or  county  highways  in  such  county,  shall 
be  applied  to  the  construction  of  a state  or  county  highway  through  a city 
of  the  second  or  third  class  in  such  county.  A state  or  county  highway 
within  such  a city  shall  be  of  the  same  width  and  type  of  construction  as 
the  highway  outside  of  such  city  which  connects  with  the  highway  within 
such  city,  unless  a greater  width  or  different  type  of  construction  is  desired 
by  the  municipality,  in  which  case  the  board  of  aldermen  or  common  coun- 
cil of  such  city  shall  by  resolution  petition  the  commission  to  provide  the 
width  and  type  of  construction  desired.  The  additional  expense  caused 
by  the  increased  width  or  different  type  of  construction  or  both  shall  be 
borne  wholly  by  such  city.  The  commission  shall  in  its  discretion  upon 
receipt  of  such  petition,  if  filed  prior  to  the  advertisement  for  bids,  provide 
for  the  width  and  type  of  construction  described  in  such  petition.  When- 
ever the  commission  shall  have  approved  such  a city  petition  the  plans, 
specifications  and  estimates  of  cost,  together  with  an  estimate  showing  the 
additional  cost  to  be  borne  by  such  city  to  provide  for  the  greater  width  or 
different  type  of  construction  or  both  shall  be  submitted  to  the  board  of 
aldermen  or  common  council  who,  if  it  approve  such  plans,  specifications 
and  estimate  of  cost,  shall  by  resolution  appropriate  the  funds  necessary  to 
provide  for  the  portion  of  the  cost  of  construction  to  be  borne  by  such  city. 
Such  fund  shall  prior  to  the  award  of  the  contract  be  deposited  by  such 
city  with  the  state  comptroller  subject  to  the  draft  or  requisition  of 
the  state  commission  of  highways,  and  a certified  copy  of  the  resolution  shall 
be  filed  with  the  commission.  The  moneys  so  required  shall  be  raised  by  tax 
or  from  the  issue  and  sale  of  bonds  as  provided  by  the  general  or  special 
act  governing  bond  issues  and  taxation  in  any  such  city.  Upon  the  comple- 
tion of  such  state  or  county  highway  within  such  city  of  the  second  or  third 
class,  where  a portion  of  the  cost  is  borne  by  such  city,  the  commission  shall 


892b 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 138. 

transmit  to  the  board  of  aldermen  or  common  council  a statement  showing 
the  actual  cost  of  the  additional  width  or  changed  construction  including 
a proportionate  charge  for  engineering,  and  shall  notify  the  city  clerk  that 
it  will  accept  the  work  within  twenty  days  from  the  date  of  such  notice 
unless  protest  in  writing  against  the  acceptance  shall  be  filed  by  such  clerk 
with  the  commission.  In  case  a protest  is  filed  the  commission  shall  hear 
the  same  and  if  it  is  sustained  the  commission  shall  delay  the  acceptance  of 
the  highway  or  section  thereof  until  the  same  be  properly  completed.  If  no 
protest  is  filed  the  highway  or  section  thereof  shall  at  the  expiration  of  said 
twenty  days  be  deemed  finally  completed  and  accepted  on  behalf  of  such 
city  and  the  state.  The  provisions  of  the  general  city  law,  special  city 
charters  and  other  general  or  special  laws  relative  to  the  pavement  or 
improvement  of  streets  and  the  assessment  and  payment  of  the  cost  thereof 
shall  apply  as  far  as  may  be  to  such  additional  construction  and  the  assess- 
ment and  payment  of  the  cost  thereof,  except  that  the  provisions  of  any 
general  or  local  act  affecting  the  pavement  or  improvement  of  streets  or 
avenues  in  any  such  city  and  requiring  the  owners  or  any  of  the  owners  of 
the  frontage  on  a street  to  consent  to  the  improvement  or  pavement  thereof, 
or  requiring  a hearing  to  be  given  to  the  persons  who  or  whose  premises  are 
subject  to  assessment  upon  the  question  of  doing  such  paving  or  making 
such  improvement  shall  not  apply  to  the  portion  of  the  improvement  or 
pavement  of  a state  or  county  highway  the  expense  for  which  is  required 
to  be  paid  by  such  city  to  the  state.  Such  street  so  improved  shall  there- 
after be  maintained  at  the  expense  of  the  municipality  within  which  such 
street  or  part  thereof  is  situated.  [Highway  Law,  § 137a,  as  added  by  L. 
1918,  ch.  386.] 

§ 19.  CONNECTING  HIGHWAYS  IN  VILLAGES. 

The  board  of  trustees  of  a village  may,  by  resolution,  petition  the 
commission  for  the  construction  or  improvement  of  a highway  to  con- 
nect streets  or  highways  within  the  village  which  have  been  paved  or 
improved  with  county  highways  which  have  been  heretofore  built  under 


STATE  AND  COUNTY  HIGHWAYS. 


893 


Highway  Law,  § 138. 

the  provisions  of  chapter  one  hundred  and  fifteen  of  the  laws  of  eighteen 
hundred  and  ninety-eight,  and  the  acts  amendatory  thereof. 2a  If  in  the 
judgment  of  the  commission  public  convenience  requires  the  construc- 
tion or  improvement  of  such  connecting  highway,  the  commission  shall 
cause  plans,  specifications  and  estimates  to  be  prepared,  and  shall  cause 
the  same  to  be  transmitted  to  the  board  of  supervisors  of  the  county 
wherein  such  highway  is  situated.  The  board  of  supervisors  shall 
thereupon  adopt  a resolution  providing  for  such  construction  or  improve- 
ment as  provided  in  this  article.  The  payment  of  the  cost  of  such 
construction  or  improvement  shall  be  provided  for  in  such  resolution 
and  such  payment  shall  be  made  in  the  same  manner  as  provided  for 
other  county  highways.  A certified  copy  of  such  resolution  shall  be 
filed  in  the  office  of  the  commission.  The  construction  or  improvement 
of  such  connecting  highway  shall  then  be  taken  up  in  the  order  and 
manner  provided  in  this  article  for  the  construction  or  improvement  of 
county  highways.  If  it  is  desired  to  construct  or  improve  any  portion 
of  such  a connecting  highway  at  a width  greater  than  that  provided  for 
in  the  plans  and  specifications  therefor,  or  if  a modification  of  such 
plans  and  specifications  is  desired  by  which  the  cost  thereof  will  be 
increased,  the  board  of  trustees  of  the  village  shall  proceed  as  in  the 
preceding  section  to  secure  such  a modification  of  the  plans  and  specifi- 
cations as  will  provide  for  such  desired  construction.  The  provisions 
of  the  preceding  section  shall  apply  in  like  manner  to  the  connecting 
highway  to  be  constructed  or  improved  as  provided  in  this  section. 

The  provisions  of  this  act  shall  not  prevent  the  improvement  by  state 
aid  under  the  statute  as  it  existed  prior  to  the  passage  of  this  act,  of 
streets  in  cities  of  the  second  and  third  class,  where,  prior  to  the  pas- 
sage of  this  act,  highway  numbers  had  been  assigned  as  provided  by 
article  six  of  this  act ; nor  shall  the  provisions  of  this  act  prevent  the 
improvement  in  such  cities  of  streets  heretofore  petitioned  for  and 
approved  in  cases  where  the  proposed  improvement  of  each  street  does 
not  exceed  one  and  one-half  miles  in  length ; but  the  total  mileage  of  all 
such  streets  not  exceeding  one  and  one-half  miles  in  length  shall  not  in 
the  aggregate  exceed  four  miles. 

Wherever  plans  for  such  improvement  in  a city  of  the  second  class 
have  been  approved  and  a highway  number  assigned,  and  the  work  is 
ready  for  contract  as  hereinbefore  described  and  the  common  council  of 
such  city  has  appropriated  and  made  available  the  city’s  share  of  the 


894 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 138-a. 

cost  of  such  improvement,  the  city  treasurer  of  such  city  is  hereby 
authorized  and  empowered  to  borrow  a sufficient  amount  in  anticipation 
of  the  collection  thereof,  and  to  pledge  the  faith  and  credit  of  the  city 
for  the  payment  of  such  amount  when  due,  with  interest,  and  is  further 
authorized,  empowered  and  directed  to  deposit  such  moneys  with  the 
state  comptroller  in  the  same  manner  as  is  provided  by  this  section  with 
regard  to  the  improvement  of  village  streets.  [Highway  Law,  § 138, 
as  amended  by  L.  1911,  ch.  88,  L.  1912,  ch.  88,  and  L.  1916,  ch.  570; 
B.  C.  & G.  Cons.  L.,  p.  2261.] 


§ 19a.  STATE  AND  COUNTY  HIGHWAYS  OF  ADDITIONAL  WIDTH 
AND  INCREASED  COST  AT  EXPENSE  OF  TOWN. 

Whenever  the  commission  shall  have  determined  upon  the  construc- 
tion or  improvement  of  a state  or  county  highway  or  section  thereof 
and  it  is  desired  by  any  town  in  which  such  proposed  highway  is  situ- 
ated to  construct  or  improve  the  same  at  a greater  width  or  in  a manner 
involving  greater  cost,  or  both,  than  that  provided  in  the  plans  and 
specifications  as  prepared  by  the  commission,  the  town  board  may  peti- 
tion the  commission  for  an  estimate  of  the  additional  cost  of  construct- 
ing or  improving  the  same  to  a width  or  in  a manner,  or  both,  as  desired 
by  such  board.  The  commission  shall  as  soon  as  practicable  make  an 
estimate  of  such  additional  cost  and  transmit  the  same  to  the  town 
board,  and  the  town  board  may  thereupon  by  resolution  petition  the 
commission  to  provide  the  width  and  type  of  construction  desired. 
The  additional  expense  caused  by  the  increased  width  or  different  type 
of  construction,  or  both,  shall  be  borne  wholly  by  the  town.  The  com- 
mission shall,  in  its  discretion,  upon  receipt  of  such  resolution,  if  filed 
prior  to  the  advertisement  for  bids,  provide  for  the  width  and  type  of 
construction  described  in  such  resolution.  Whenever  the  commission 
shall  have  approved  such  a resolution  the  plans,  specifications  and  esti- 
mate of  cost  shall  be  submitted  to  the  town  board,  who,  if  it  approve 
such  plans,  specifications  and  estimate  of  cost  shall,  by  resolution,  duly 
adopted  by  a vote  of  a majority  of  all  the  members  of  such  board,  appro- 
priate the  funds  necessary  to  provide  for  the  portion  of  the  cost  of  con- 
struction to  be  borne  by  the  town.  Such  funds  shall,  prior  to  the  award 
of  the  contract,  be  deposited  by  the  town  with  the  state  comptroller, 
subject  to  the  draft  or  requisition  of  the  state  commission  of  highways, 
and  a certified  copy  of  the  resolution  shall  be  filed  with  the  commission. 


STATE  AND  COUNTY  HIGHWAYS. 


894a 


Highway  Law,  §§  139,  140. 


If  the  town  board  adopts  a proposition  to  raise  such  funds  by  the  issue 
and  sale  of  town  bonds  the  bonds  may  be  issued  and  sold  in  the  manner 
prescribed  in  section  one  hundred  and  forty-two  of  this  chapter.  Upon 
the  completion  of  the  highway  within  a town  where  a portion  of  the 
cost  is  borne  by  the  town  the  commission  shall  transmit  to  the  town 
board  a statement  showing  the  actual  cost  of  the  additional  width  or 
changed  construction  including  a proportionate  charge  for  engineering 
and  shall  notify  the  town  clerk  that  it  will  accept  the  work  within 
twenty  days  from  the  date  of  such  notice  unless  protest  in  writing 
against  the  acceptance  shall  be  filed  by  such  clerk  with  the  commission. 
In  case  a protest  is  filed  the  commission  shall  hear  the  same  and  if  it  is 
sustained  the  commission  shall  delay  the  acceptance  of  the  highway  or 
section  thereof  until  the  same  be  properly  completed.  If  no  protest  is 
filed  the  highway  or  section  thereof  shall  at  the  expiration  of  the  said 
twenty  days  be  deemed  finally  completed  and  accepted  on  behalf  of  the 
town  and  the  state  and  shall  thereafter  be  maintained  in  the  manner 
provided  in  this  chapter  for  maintenance  and  repair  of  state  and  county 
highways.  [Highway  Law,  § 138a,  as  added  by  L.  1911,  ch.  375,  and 
amended  by  L.  1916,  ch.  461.] 

§ 20.  RESOLUTION  TO  PROVIDE  FOR  RAISING  MONEY. 

The  resolution  of  the  board  of  supervisors  providing  for  the  construc- 
tion or  improvement  of  a county  highway  or  section  thereof  shall  appro- 
priate and  make  immediately  available  to  the  requisition  of  the  commis- 
sion an  amount  sufficient  to  pay  the  share  of  the  cost  of  such  construction 
or  improvement  which  is  to  be  borne  by  the  county  within  which  such 
highway  or  section  thereof  is  located.  [Highway  Law,  § 139,  as 
amended  by  L.  1910,  ch.  247,  and  L.  1911,  ch.  83.] 

§21.  MODIFYING  METHOD  OF  PAYMENT. 

If  a resolution  has  been  heretofore  adopted  by  a board  of  supervisors 
requesting  the  state  to  pay  the  entire  cost  of  the  construction  or  improve- 
ment of  a county  highway  in  the  first  instance  and  that  the  state  charge 
the  county  and  town  or  towns  annually  with  their  share  of  the  interest 
and  sinking  fund,  as  provided  in  chapter  four  hundred  and  sixty-nine  of 
the  laws  of  nineteen  hundred  six,  and  the  acts  amendatory  thereof,  such 
board  of  supervisors  may  adopt  a resolution  rescinding  such  prior  resolu- 
tion and  appropriating  and  making  immediately  available  an  amount 
sufficient  to  pay  the  share  of  the  cost  of  the  construction  or  improvement 


894b 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 141. 

of  such  highway.  The  clerk  of  the  hoard  of  supervisors  shall  transmit 
certified  copies  of  such  resolution  to  the  commission  and  the  state  comp- 
troller.  If  such  prior  resolution  shall  not  be  so  rescinded  it  shall  have 
the  same  force  and  effect  which  it  had  prior  to  the  amendment  of  this 
section.  The  adoption  of  a resolution  modifying  the  method  of  pay- 
ment of  the  share  of  the  county  and  town  or  towns  shall  not  affect  or 
change  the  date  of  the  filing  of  the  original  resolution  providing  for  the 
construction  or  improvement  of  such  highway  nor  alter  in  any  way  the 
order  of  construction  determined  by  the  date  of  the  filing  of  the  original 
resolution. 

Wherever  a board  of  supervisors  has  in  the  past  by  resolution 
requested,  and  the  state  has  paid,  the  entire  cost  of  the  construction 
or  improvement  of  a county  highway,  the  board  of  supervisors  of  a 
county  wherein  any  such  highway  is  located  may,  by  resolution,  provide 
for  the  payment  of  such  share  of  the  cost  so  advanced  by  the  state 
towards  the  construction  of  such  county  highway,  and  said  board  of 
supervisors  is  hereby  authorized  to  appropriate  and  make  immediately 
available  an  amount  sufficient  to  pay  to  the  state  the  share  due  to  the 
state  on  account  of  the  construction  and  improvement  of  such  highways. 
If  any  board  of  supervisors  shall  pass  such  resolution  providing  for  the 
payment  to  the  state  of  the  moneys  so  advanced  the  said  board  of  super- 
visors shall  have  the  power  and  authority  to  borrow  the  moneys  neces- 
sary to  make  such  payment,  and  in  case  there  is  due  to  the  county  any 
sum  of  money  from  the  town  in  which  said  county  highway  is  located, 
the  said  town  is  also  authorized  to  borrow  and  appropriate  its  share  of 
the  cost  of  such  county  highway  to  the  county  treasurer  of  the  county 
in  which  said  highway  is  located. 

All  moneys  paid  to  the  state  pursuant  to  the  provisions  of  this  section 
shall  be  deposited  by  the  comptroller  with  the  state  treasurer  to  the 
credit  of  the  highway  improvement  fund,  from  which  fund  the  said 
moneys  so  advanced  to  said  counties  were  originally  taken,  and  may  be 
used  by  the  state  commission  of  highways  in  the  construction  of  state 
and  county  highways  in  any  county  or  counties  designated  by  the  state 
commission  of  highways.  [Highway  Law,  § 140,  as  amended  by  L. 
1910,  ch.  247,  and  L.  1915,  ch.  400.] 

§ 22.  DIVISION  OF  COST  OF  COUNTY  HIGHWAYS;  PAYMENT  BY 
COUNTY  TREASURER. 

Whenever  the  construction  or  improvement  of  a county  highway  or 
section  thereof  under  a contract  shall  be  completed  and  final  payment 


STATE  AND  COUNTY  HIGHWAYS. 


894c 


Highway  Law,  § 141. 

therefor  shall  have  been  made  the  commission  shall  prepare  a statement 
of  the  cost  of  such  construction  or  improvement,  including  engineering 
expenses,  inspection  and  all  charges  and  expenses  properly  chargeable 
thereto,  showing  in  detail  the  date  of  each  payment,  and  the  purpose  and 
amount  of  such  payment.  Such  payments  shall  be  grouped  as  far  as 
practicable  by  dates  and  the  total  thus  obtained  shall  be  deemed  the  cost 
of  such  construction  or  improvement,  and  a certified  copy  of  said  state- 
ment shall  be  filed  by  the  commission  in  the  office  of  the  comptroller.  If 
a county  highway  or  section,  thereof  so  constructed  or  improved  shall  be 
situate  in  two  or  more  counties,  the  commission  shall  apportion  such 
expense  to  such  counteis  according  to  the  cost  of  such  construction  or  im- 
provement in  each  of  such  counties.  Such  statement  when  audited  and 
approved  by  the  comptroller  shall  be  filed  in  his  office  and  shall  be  final, 
and  a duplicate  thereof  shall  be  filed  with  the  county  treasurer  of  each 
county  wherein  the  highway  or  section  thereof  has  been  improved.  If 
the  board  of  supervisors  of  any  county  shall  have  theretofore  provided 
funds  to  pay  two  per  centum  of  the  cost  of  such  county  highway  as  thus 
determined,  for  each  one  thousand  dollars  of  assessed  valuation  of  real 
and  personal  property  liable  to  taxation  in  said  county  for  each  mile  of 
public  highway  within  such  county  to  be  ascertained  and  determined  by 
dividing  the  total  assessed  valuation  of  taxable  property  in  said  county 
as  equalized  for  state  purposes  by  the  total  mileage  of  highways  in  said 
county,  exclusive  of  the  streets  and  highways  within  any  incorporated 
city  or  village  in  said  county,  but  not  exceeding  thirty-five  per  centum 
of  the  cost  for  the  county  as  shown  by  such  statement,  it  shall  be  the  duty 
of  the  county  treasurer  to  pay  the  amount  thereof  upon  the  requisition  of 
the  commission  and  thereafter  the  county  shall  be  deemed  to  be  fully  dis- 
charged of  its  obligation  to  the  state  on  account  of  the  construction  or  im- 
provement of  such  county  highway,  except  the  obligation  to  pay  their 
proportionate  amount  of  the  state  tax  for  the  state’s  share  of  the  cost  of 
construction.  At  least  ten  days’  notice  shall  be  given  by  the  commission 
to  the  county  treasurer  prior  to  the  making  of  such  a requisition.  A copy 
of  each,  contract  providing  for  the  construction  or  improvement  of  a 
county  highway,  and  the  plans  and  specifications  therefor,  together  with 
copies  of  certificates  showing  the  progress  of  the  work,  upon  which 
requisitions  are  drawn,  shall  be  filed  with  the  county  treasurer.  The 
mileage  of  highways  to  bo  used  in  determining  the  amounts  to  be 
charged  to  a county  or  town  under  this  section  shall  be  the  tables  of 


894d 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 141 -a. 

mileage  formerly  prepared  by  the  state  engineer  until  the  tables  as  pro- 
vided in  this  chapter  are  filed.  [Highway  Law,  § 141,  as  amended  by 
L.  1912,  ch.  83;  B.  C.  & G.  Cons.  L.,  p.  2263.] 


§ 22a.  ALTERNATIVE  METHOD  OF  APPORTIONING  THE  EXPENSE 
OF  COUNTY  HIGHWAYS. 

The  board  of  supervisors  of  ally  county  may  in  its  discretion  provide 
by  resolution  that  fifty  per  centum  of  the  cost  of  construction  or  improve- 
ment of  any  county  highway  within  the  county  shall  be  borne  by  the  county. 
The  portion  of  the  cost  to  be  borne  by  the  county  shall  be  appropriated  and 
made  immediately  available  to  the  requisition  or  draft  of  the  state  com- 
mission of  highways  at  the  time  of  the  final  resolution  of  the  board  of  super- 
visors approving  the  plans  and  estimate  of  cost  submitted  by  the  state  com- 
missioner of  highways  as  provided  by  section  one  hundred  and  twenty- 
eight  of  this  act.  If,  in  any  county,  a town  shall  have  heretofore  paid  or 
become  liable  to  pay  fifteen  per  centum  or  less  of  the  cost  of  construction  or 
improvement  of  any  such  county  highway  pursuant  to  the  former  provisions 
of  this  section,  the  amount  so  paid  or  to  be  paid  may  be  repaid  by  the  county 
to  such  town,  and  a tax  may  be  levied  by  the  board  of  supervisors  on  the 
taxable  property  in  the  county  at  large  sufficient  to  provide  moneys  for 
such  repayment  so  far  as  other  county  moneys  are  not  available  therefor. 

In  the  case  of  a county  highway  where  the  plans  have  heretofore  been 
approved  by  the  board  of  supervisors  of  a county,  and  the  distribution 
of  cost  for  such  highway  has  been  made  as  provided  by  section  one  hun- 
dred and  forty-one  of  this  act,  and  the  county  has  heretofore  appropriated 
and  made  available  its  share  of  the  cost  of  the  construction  or  improve- 


STATE  AND  COUNTY  HIGHWAYS. 


894e 


Highway  Law,  §141-a. 

ment  of  such  highway  based'  upon  an  apportionment  other  than  that  pro- 
vided by  this  section,  but  the  final  payment  has  not  been  made  by  the  county, 
the  board  of  supervisors  may  in  accordance  with  the  provisions  of  section 
one  hundred  and  twenty-eight  of  this  act  rescind  the  resolution  previously 
adopted  appropriating  its  share  of  the  cost,  and  in  such  sase,  shall  adopt  a 
resolution  appropriating  such  an  amount  as  will  equal  fifty  per  centum  of 
the  total  estimated  cost  of  such  highway  as  shown  in  an  estimate  to  be 
provided  by  the  state  commissioner  of  highways,  making  such  amount  so 
appropriated  immediately  available  to  the  draft  or  requisition  of  the  com- 
mission for  the  construction  or  improvement  of  such  highway. 

If  there  be  not  sufficient  funds  in  the  county  treasury  to  pay  the  share 
of  the  county,  the  county  treasurer  is  hereby  authorized  and  empowered  to 
borrow,  in  anticipation  of  taxes  to  be  collected  therefor  or  of  the  issuance  of 
bonds  as  hereby  provided,  such  an  amount  as  may  be  necessary,  and  is  here- 
by authorized  to  pledge  the  faith  and  credit  of  the  county  for  the  payment, 
with  interest,  of  the  moneys  so  borrowed. 

The  board  of  supervisors  of  the  county  may  by  resolution  authorize  the 
issuance  of  county  highway  bonds,  in  amounts  to  be  determined  by  such 
board  the  proceeds  of  which  shall  be  applied  to  the  payment  of  the  share 
of  the  cost  of  construction  or  improvement  of  such  highway  to  be  borne  by 
the  county  as  hereinbefore  provided.  Such  bonds  shall  be  payable  not  more 
than  thirty  years  from  their  date. 

The  board  of  supervisors  shall  provide  for  the  assessment,  levy  and 
collection  by  tax  of  the  moneys  required  to  meet  the  obligation  of  the  county 
for  its  share  of  the  cost  of  such  improved  highway ; and  the  moneys  so  raised 
shall  be  paid  into  the  county  treasury  and  shall  become  available  for  the 
draft  or  requisition  of  the  state  commission  of  highways,  or  for  the  pay- 


894f 


HIGHWAYS  AXD  BRIDGES. 


Highway  Law,  § 142. 

ment  of  moneys  borrowed  by  the  comity  treasurer  as  hereinbefore  pro- 
vided together  with  interest  thereon,  or  for  the  payment  of  bonds  and  the 
interest  thereon  issued  as  hereinbefore  provided,  or  any  part  thereof. 
[Highway  Law,  § 141a,  as  added  by  L.  1916,  ch.  179,  and  amended  by  L. 
1917,  ch.  550.]  , 

§ 23.  COUNTY  OR  TOWN  MAY  BORROW  MONEY. 

Whenever  the  board  of  supervisors  shall  have,  by  resolution,  appro- 
priated and  made  immediately  available  to  the  requisition  of  the  com- 
mission an  amount  sufficient  to  pay  its  share  of  the  cost  of  such  construc- 
tion or  improvement  which  is  to  be  borne  by  the  county  within  which 
such  highway  or  section  thereof  is  located,  such  amount  so  appropriated 
shall  be  a county  charge  and  shall  be  paid  by  the  county  treasurer  of 
the  county  in  which  such  highway  or  section  thereof  is  located,  upon  the 
requisition  of  the  commission.  If  there  is  not  sufficient  funds  in  the 
county  treasury  to  pay  such  share  of  the  county  of  the  cost  of  construc- 
tion of  such  improvement  so  appropriated  and  made  available,  the 
county  treasurer  is  authorized  to  borrow  a sufficient  amount  to  pay  such 
share  in  anticipation  of  taxes  to  be  collected  therefor,  or  the  issuance  of 
bonds  as  hereinafter  provided,  and  to  pledge  the  faith  and  credit  of  the 
county  for  the  payment  of  the  amount  when  due,  with  interest.  The 
board  of  supervisors  may,  by  resolution,  authorize  the  issuance  and  sale 
of  bonds  of  the  county  to  an  amount  not  exceeding  the  share  of  the 
county  as  apportioned  by  the  commission,  or  if  such  apportionment  has 
not  been  made,  to  an  amount  not  exceeding  thirty-five  per  centum  of 
the  estimated  cost  of  the  construction  or  improvement  of  such  county 
highway  as  shown  by  the  estimate  approved  by  the  board  of  supervisors 
pursuant  to  section  one  hundred  and  twenty-eight  of  this  chapter,  and 
apply  the  proceeds  of  such  bonds  to  the  payment  of  the  share  of  the  cost  of 
construction  of  such  highway  to  be  borne  by  the  county,  appropriated  and 
made  immediately  available  as  aforesaid  or  to  the  payment  and  redemp- 


STATE  AND  COUNTY  HIGHWAYS. 


894g 


Highway  Law,  § 143. 

tion  of  any  certificates  of  indebtedness  issued  as  above  provided.  Said 
bonds  shall  be  payable  not  more  than  thirty  years  from  their  date.  The 
board  of  supervisors  shall  provide  for  the  assessment,  levy  and  collec- 
tion by  tax  of  all  or  any  part  of  the  share  of  the  cost  of  such  improve- 
ment apportioned  to  the  county  which  has  not  been  provided  for  by  the 
issuance  of  county  bonds  as  a county  charge.  Upon  the  petition  of  the 
town  board  of  any  town,  the  board  of  supervisors  of  the  county  may,  by 
resolution,  authorize  the  town  to  borrow  a sufficient  sum  to  pay  the  share 
of  the  cost  of  the  construction  or  improvement  of  a county  highway, 
which  is  to  be  borne  by  the  town  as  apportioned  by  the  commission  and 
to  issue  and  sell  town  bonds  therefor.  Such  bonds  shall  be  payable  not 
more  than  thirty  years  from  their  date,  to  be  sold  by  the  supervisor  for 
not  less  than  par,  and  the  proceeds  thereof  shall  be  paid  into  the  county 
treasury  to  be  applied  in  payment  of  the  share  of  such  cost  which  is  to 
be  borne  by  such  town  and  the  redemption  of  any  bonds  or  certificates 
of  indebtedness  issued  by  the  county  to  pay  such  share.  The  board  of 
supervisors  shall,  from  time  to  time,  impose  upon  the  taxable  property 
of  the  town  a tax  sufficient  to  pay  the  principal  and  interest  of  such 
bonds  as  the  same  shall  become  due.  The  board  of  supervisors  shall 
provide  for  the  assessment,  levy  and  collection  by  tax  of  all  or  any  part 
of  the  share  or  shares  of  the  town  or  towns  which  has  not  been  provided 
for  by  the  issuance  of  town  bonds  as  a town  charge.  [Highway  Law, 
§ 142,  as  amended  by  L.  1909,  ch.  486,  L.  1910,  ch.  580,  L.  1912,  ch.  83, 
and  L.  1913,  chs.  538,  623.] 

§ 23a.  APPORTIONMENT  AND  PAYMENT  OF  EXPENSE  OF  CON- 
STRUCTING COUNTY  HIGHWAY  THROUGH  OR  INTO 
CITIES  OF  THE  SECOND  AND  THIRD  CLASSES. 

If  a county  highway  be  constructed,  under  the  provisions  of  this  chap- 
ter, through  or  within  a city  of  the  second  or  third  class,  the  board  of  su- 
pervisors of  the  county  in  which  the  city  is  situated  shall,  by  resolution, 
apportion  the  cost  thereof  between  the  county  and  city  as  follows:  Fif- 
teen per  centum  of  the  portion  of  such  highway  within  a city  shall  be 


894h 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  144,  145. 

borne  by  tbe  city  and  thirty-five  per  centum  thereof  by  the  county. 
The  share  to  be  borne  by  the  county  shall  be  paid  or  provided  for  in  the 
manner  required  by  this  chapter  in  the  case  of  an  apportionment  of  such 
cost  between  the  county  and  a town.  The  share  to  be  borne  by  the  city 
shall  be  paid  by  the  imposition  of  a tax  therein  for  the  full  amount 
thereof  or,  in  case  of  a city  of  the  second  class,  if  the  common  council 
and  the  board  of  estimate  and  apportionment  shall  so  determine,  then 
by  the  issuance  and  sale  of  city  bonds  as  provided  in  the  second  class 
cities  law,  and  in  the  case  of  a city  of  the  third  class,  if  the  common 
council  or  board  of  aldermen  thereof  so  determine,  then  by  the  issuance 
and  sale  of  city  bonds,  to  be  payable  in  not  more  than  thirty  years  from 
their  date,  bearing  interest  at  not  to  exceed  the  legal  rate,  and  to  be  sold 
for  not  less  than  par ; or,  such  common  council  or  board  of  aldermen  may 
cause  a portion  of  the  city’s  share  to  be  raised  by  tax  at  the  time  of  the 
next  ensuing  annual  city  tax  levy  and  the  balance  to  be  raised  by  the 
issuance  and  sale  of  bonds  as  herein  above  provided.  [Highway  Law, 
§ 143,  as  added  by  L.  1912,  ch.  88.] 

§ 24.  PAYMENT  OF  COST  OF  STATE  HIGHWAY. 

The  entire  expense  of  the  construction  or  improvement  of  a state  high- 
way shall  be  paid  by  the  state  treasurer  upon  the  warrant  of  the  comp- 
troller issued  upon  the  requisition  of  the  commission  out  of  any  specific 
appropriation  made  available  for  the  construction  or  improvement  of 
state  highways.  [Highway  Law,  § 144;  B.  C.  & G.  Cons.  L.,  p.  2266.] 

§ 25.  ABOLITION  OF  RAILROAD  GRADE  CROSSINGS. 

The  commission  shall  provide  for  and  cause  the  abolition  of  railroad 
grade  crossings  on  a state  or  county  highway  whenever  practicable,  in 
the  manner  provided  by  the  railroad  law.5  The  portion  of  the  cost  of 


5.  Apportionment  against  town  need  not  be  made  until  after  a contract  is 
let,  or  it  is  definitely  known  what  the  cost  of  the  wTork  will  be.  Matter  of  Business 
Men’s  Association,  54  Misc.  11,  103  N.  Y.  Supp.  847. 

For  proceedings  relative  to  abolition  of  railroad:  grade  crossings,  see  Railroad, 
Law  (L.  1910,  ch.  481),  §§  89-96,  post,  p.  991. 


STATE  AND  COUNTY  HIGHWAYS. 


894i 


Highway  Law,  § 146. 

abolishing  such  grade  crossings,  which  is  payable  under  the  railroad  law 
by  the  state  and  town  or  village,  shall  be  paid  out  of  the  funds  available 
for  the  construction  or  improvement  of  such  state  or  county  highway  as 
provided  in  this  article.  [Highway  Law,  & 145 ; B.  C.  & G.  Cons.  L., 

p.  2266.] 

§ 26.  STREET  SURFACE  OR  OTHER  RAILROADS  AND  OTHER 

WORKS  AND  STRUCTURES  ON  HIGHWAYS. 

Ho  street  surface  or  other  railroad  shall  be  constructed  upon  any 
portion  of  a state  or  county  highway  which  has  been  or  may  be  improved 
under  the  provisions  of  this  article,  nor  shall  any  person,  firm  or  cor- 
poration enter  upon  or  construct  any  works  in  or  upon  any  such  highway, 
or  construct  any  overhead  or  underground  crossing  thereof,  or  lay  or 
maintain  therein  drainage,  sewer  or  water  pipes  underground,  except 
under  such  conditions  and  regulations  as  may  be  prescribed  by  the  com- 
missioner of  highways,  notwithstanding  any  consent  or  franchise 
granted  by  any  town,  county  or  district  superintendent,  or  by  the  munici- 
pal authorities  of  any  town.  Any  person,  firm  or  corporation  violating 
this  section  shall  be  liable  to  a fine  of  not  less  than  one  hundrede*  dollars 
nor  more  than  one  thousand  dollars  for  each  day  of  such  violation,  to 
be  recovered  by  the  commissioner  of  highways  and  paid  to  the  state 
treasurer  to  the  credit  of  the  fund  for  the  maintenance  and  repair  of 
state  and  county  highways,  and  may  also  be  removed  therefrom  as  a 
trespasser  by  the  commissioner  of  highways  upon  petition  to  the  county 
court  of  the  county  or  the  supreme  court  of  the  state.  [Highway  Law, 
§ 146,  as  amended  by  L.  1911,  ch.  646,  and  L.  1913,  ch.  80;  B.  C.  & 
G.  Cons.  L.,  p.  2266.] 

Where  a street  surface  railroad  shall  be  laid  in  any  street,  highway  or 
public  place  in  any  town,  village,  or  in  any  city  of  the  second  or  third 
classes,  which  it  was  heretofore  or  shall  hereafter  be  determined  to  pave, 
improve,  reconstruct  or  repair,  as  provided  in  this  chapter,  the  proposals 
and  contract  for  such  improvement,  reconstruction  or  repair  shall  in- 
clude the  improvement,  reconstruction  or  repair  of  the  space  between 


HIGHWAYS  AND  BRIDGES. 


894 j 


Highway  Law,  §§  142-a,  147. 


the  tracks  of  such  street  surface  railroad,  the  rails  of  such  tracks  and 
two  feet  in  width  outside  of  such  tracks,  and  the  work  of  improvement, 
reconstruction  or  repair  in  such  space  shall  he  done  at  the  same  time 
and  under  the  same  supervision  as  the  work  of  improvement,  recon- 
struction or  repair  of  the  remainder  of  such  street,  highway  or  public 
place.  The  commission  may  prescribe  the  materials  to  be  used  in  pav- 
ing, improving,  reconstructing  or  repairing  such  street,  highway  or 
public  place  within  the  railroad  space  above  described,  and  upon  the 
proper  completion  of  the  work,  the  commission  shall  certify  to  the 
board  of  trustees  of  such  village,  or  the  common  council  of  cities  of  the 
second  or  third  classes,  as  the  case  may  be,  the  cost  of  the  pavement, 
improvement,  reconstruction  or  repair  of  such  street,  highway  or  public 
place  within  such  railroad  space,  and  the  entire  expense  of  the  pave- 
ment, reconstruction  or  repair  within  such  railroad  space  whether  here- 
tofore or  hereafter  made  or  ordered,  shall  be  assessed  and  levied  upon 
the  property  of  the  company  owning  or  operating  such  railroad,  and 
shall  be  collected  in  the  same  manner  as  other  expenses  for  local  im- 
provements are  assessed,  levied  and  collected  in  such  town,  village  or 
city ; and  an  action  may  also  be  maintained  by  the  municipality  against 
the  company  in  any  court  of  record  for  the  collection  of  such  expense 
and  assessment.  This  section  shall  not  apply  to  such  pavement,  recon- 
struction or  repairs  in  villages  in  counties  adjoining  cities  of  the  first 
class.  [Highway  Law,  § 142a,  as  added  by  L.  1913,  ch.  ITT,  and 
amended  by  L.  1916,  ch.  5T8.] 

§ 27.  WHERE  COST  IS  ASSESSABLE  AGAINST  ABUTTING  OWNERS. 

If  fifteen  per  centum  of  the  cost  of  constructing  or  improving  a high- 
way has  been  or  may  be  assessed  upon  abutting  owners,  as  authorized  by 
section  ten  of  chapter  one  hundred  and  fifteen  of  the  laws  of  eighteen 
hundred  and  ninety-eight,  as  the  same  existed  prior  to  its  repeal  by 
chapter  four  hundred  and  sixty-eight  of  the  laws  of  nineteen  hundred 
and  six,  such  highway  shall  be  constructed  or  improved  at  the  joint  ex- 
pense of  the  state,  county  and  town  as  provided  herein,  and  the  portion 
of  the  cost  so  assessable  upon  such  owners  shall  be  paid  by  the  town  in 


STATE  AND  COUNTY  HIGHWAYS. 


894k 


Highway  Law,  §§  148,  149. 

which  such  highway  is  located,  as  provided  in  this  article.  [Highway 
Law,  § 147 ; B.  C.  & G.  Cons.  L.,  p.  22 66.] 

§ 28.  ACQUISITION  OF  LANDS  FOR  RIGHT  OF  WAY  AND  OTHER 
PURPOSES. 

If  a state  or  county  highway,  proposed  to  he  constructed  or  improved  as 
provided  in  this  article,  or  which  shall  have  been  heretofore  constructed, 
or  which  it  is  proposed  to  repair  or  reconstruct  as  provided  in  article  seven 
of  this  chapter,  or  in  which  it  is  proposed  to  change  the  course  of  a dangerous 
section  thereof,  shall  deviate  from  the  line  of  a highway  already  existing, 
the  board  of  supervisors  of  the  county  where  such  highway  is  located,  shall 
acquire  land  for  the  requisite  right  of  way  prior  to  the  advertisement  for 
proposals.  The  board  of  supervisors  may  also  acquire  lands  for  the  pur- 
pose of  obtaining  gravel,  stone  or  other  material,  when  required  for  the 
construction,  reconstruction,  improvement  or  maintenance  of  highways, 
or  for  spoil  banks  together  with  a right  of  way  to  such  spoil  banks  and  to 
any  bed,  pit,  quarry,  or  other  place  where  such  gravel,  stone  or  other  material 
may  be  located.6  [Highway  Law,  § 148,  as  amended  by  L.  1917,  ch.  261, 
and  L.  1918,  ch.  326;  B.  C.  & G.  Cons.  L.,  p.  2267.] 

§ 29.  PURCHASE  OF  LANDS. 

The  board  of  supervisors  may,  by  resolution,  authorize  its  chairman,  a 
member,  or  a committee  to  purchase  the  lands  to  be  acquired  for  the  pur- 
poses specified  in  the  preceding  section.  But  the  amount  to  be  paid  under 
this  section  to  a single  owner  shall  not  exceed  the  sum  of  two  hundred 
dollars,  unless  approved  by  the  county  judge  and  county  treasurer,  and 
in  no  case  shall  such  amount  exceed  the  sum  of  one  thousand  dollars. 
The  purchase  price  of  such  lands  shall  be  a county  charge,  and  shall  be  paid 
in  the  same  manner  as  awards  are  paid  in  cases  where  the  proceedings 
are  taken  as  herein  required.  [Highway  Law,  § 149;  B.  C.  & G.  Cons.  L., 
p.  2267.] 


6.  Eminent  domain.  The  act  of  1901,  ch.  240,  from  which  this  section  was  in 
part  derived,  was  intended  to  confer  upon  the  board  of  supervisors,  as  the  official 
representative  of  the  county  in  its  corporate  capacity,  the  power  of  eminent  domain 
in  respect  to  rights  of  way,  required  for  the  construction  and  improvement  of  state 
and  county  highways.  County  of  Orange  v.  Ellsworth,  9'8  App.  Div.  275,  90  N.  Y. 
Supp.  576. 

An  order  appointing  commissioners  to  acquire  lands  at  the  base  of  a mountain 
so  as  to  furnish  a piace  to  place  excavated  materials  from  a state  road  being  con- 
structed along  such  mountain  is  not  appealable,  since  the  taking  of  land  for  such 
purpose  is  for  a permitted  public  use  and  is  not  in  excess  of  the  right  of  eminent 
domain.  County  of  Orange  v.  Storm  King  Stone  Co.  (1917)  180  App.  Div.  208. 


8941 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  149-a;  150. 

Purchase  of  land  in  certain  counties.  The  hoard  of  supervisors  in  a 
county  adjoining  a city  of  the  first  class  containing  over  two  million 
inhabitants  may,  by  resolution,  authorize  the  purchase  of  lands  to  be 
acquired  for  the  purpose  specified  in  section  one  hundred  and  forty- 
eight  of  this  chapter.  The  purchase  price  of  such  lands,  however,  shall 
not  exceed  the  sum  of  five  thousand  dollars ; it  shall  be  a county  charge 
and  shall  be  paid  in  the  same  manner  as  other  county  charges  are  paid. 
[Highway  Law,  § 149a,  as  added  by  L.  1946,  ch.  12.] 

§ 30.  PETITION  TO  ACQUIRE  LANDS. 

If  the  board  of  supervisors  is  unable  to  acquire  land  by  purchase  as 
provided  for  in  the  last  section,  the  board  may  present  to  the  county 
court  of  the  county  or  to  the  supreme  court,  at  a special  term  thereof, 
to  be  held  in  the  judicial  department  in  which  said  county  is  located,  a 
petition  for  the  appointment  of  three  commissioners  of  appraisal  to  ascer- 
tain and  determine  the  compensation  to  be  paid  to  the  owners  of  the  land 
to  be  acquired  and  to  all  persons  interested  therein.  Such  petition  shall 
describe  the  land  to  be  acquired  with  a reference  to  the  map  upon  which 
the  same  is  shown  which  shall  be  annexed  to  such  petition.  A copy  of 
such  petition  and  map  shall  be  filed  in  the  office  of  the  county  clerk.  Such 
petition  shall  be  signed  and  verified  in  the  name  of  the  board  of  supervisors, 
by  the  chairman  or  a member  thereof  designated  for  that  purpose  by  resolu- 
tion. Notice  of  presentation  of  such  petition  to  such  court  shall  be  given 
by  the  petitioner  by  publishing  such  notice  in  two  newspapers  published  in 
such  county,  once  in  each  week  for  two  weeks  successively  preceding  the 
day  of  such  presentation,  and  also  at  least  eight  days  preceding  the  day  of 
such  presentation  by  serving  a copy  of  such  notice,  personally  or  by  mail, 
on  the  occupant  or  owner  of  the  land  to  be  acquired,  and  by  posting  a copy 
of  said  notice  in  not  less  than  three  public  places  in  each  town  in  which 
property  to  be  acquired  is  located.7  [Highway  Law,  § 150,  as  amended 
by  L.  1911,  ch.  503,  and  L.  1917,  ch.  140;  B.  C.  & G.  Cons.  L.,  p.  2267.] 


7.  Pleading  of  land  owner.  While  this  section  does  not  provide  that  the 


STATE  AND  COUNTY  HIGHWAYS. 


895 


Highway  Law,  §§  151,  152. 

§ 31.  COMMISSIONERS  TO  BE  APPOINTED. 

Upon  such  presentation,  such  court  shall,  after  hearing  any  person 
owning  or  claiming  an  interest  in  the  lands  to  be  acquired  who  may  appear, 
appoint  three  disinterested  persons  as  commissioners.  And  in  case  a com- 
missioner shall  at  any  time  decline  to  serve,  or  shall  die,  or  for  any  cause 
become  disqualified  or  disabled  from  serving  as  such,  the  said  court,  at  a 
similar  special  term,  may,  upon  similar  notice,  application  and  hearing, 
and  upon  such  notice  to  the  land  owners  as  the  court  may  prescribe,  appoint 
another  person,  similarly  qualified,  to  fill  the  vacancy  caused  thereby. 
[Highway  Law,  § 151;  B.  C.  & G.  Cons.  L.,  p.  2268.] 


§32.  DUTIES  OF  COMMISSIONERS. 

The  said  comissioners  shall  take  the  oath  of  office  prescribed  by  the 
constitution,  which  oath  shall  be  filed  in  the  office  of  the  county  clerk  of 
the  county.  Upon  the  filing  of  such  oath  the  title  to  the  lands  described 
in  the  petition  and  map  filed  in  the  office  of  the  county  clerk  shall  vest 
in  the  county  for  the  purpose  of  a highway  forever.  The  commissioners 
shall,  with  all  reasonable  diligence,  proceed  to  examine  such  highways  and 
lands.  Said  commissioners  shall  cause  a notice  to  be  published  in  two 
such  newspapers  as  aforesaid,  once  eadh  week  for  two  weeks  successively 
next  preceding  the  day  of  meeting  mentioned  in  such  notice,  that  at  a 
stated  time  and  place  within  such  county  they  will  meet  for  the  purpose 
of  hearing  the  parties  claiming  an  interest  in  the  damages  to  be  awarded 
for  the  lands  taken  for  such  highways.  Said  notice  shall  also  state  the 
fact  that  a map  or  maps  showing  the  land  acquired  has  been  filed  in  the 
county  clerk’s  office.  At  the  time  and  place  of  said  meeting  and  at  any 
adjournment  thereof  which  said  commissioners  shall  publicly  make,  they 
shall  hear  the  proofs  and  allegations  of  all  interested  parties.  They  may 
adjourn  the  proceedings  before  them  from  time  to  time,  issue  subpoenas 
or  administer  oaths  in  such  proceedings;  and  shall  keep  minutes  of  their 
proceedings  and  reduce  to  writing  all  oral  evidence  given  before  them. 
They  shall  thereafter  make  and  sign  a report  in  writing,  in  which  they 
shall  assess,  allow  and  state  the  amount  of  damages  to  be  sustained  by 
the  owners  of  the  several  lots,  pieces  or  parcels  of  land  to  be 
taken  for  the  purposes  aforesaid.  Such  report  shall  contain  the 
names  of  the  owners  of  any  parcel  of  land  acquired  as  aforesaid, 


defendant  land  owner  shall  have  an  opportunity  to  deny  or  controvert  the 
petition,  or  to  interpose  any  pleading  or  defense  or  to  litigate  the  right  of  the 
plaintiff  to  maintain  the  proceeding,  such  land  owner  may  interpose  a defense 
by  petition  and  do  whatever  is  authorized  to  be  done  under  the  Condemnation 
Law  to  protect  his  interests  in  respect  to  the  premises  sought  to  be  acquired. 
County  of  Orange  v.  Ellsworth,  98  App.  Div.  275,  90  N.  Y.  Supp.  576. 


896 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 153. 

except  that  in  case  the  commissioners  are  unable  to  ascertain  the  names 
of  such  owners,  they  may  in  place  of  the  names  of  such  undiscovered  parties 
insert  the  words  “ unknown  owners/’  in  their  report.  The  said  commis- 
sioners shall  file  their  said  report,  together  with  the  minutes  of  their  pro 
ceedings,  in  the  office  of  county  clerk  of  such  county.  After  said  report 
shall  have  been  completed  and  filed  as  aforesaid,  the  commissioners  shall, 
after  publishing  a notice  in  like  manner  as  that  provided  in  section  one 
hundred  and  fifty-two,  apply  to  the  county  court  of  the  county  or  to  the 
supreme  court,  at  a special  term  thereof  to  be  held  in  the  judicial  depart- 
ment in  which  said  county  is  located,  to  have  the  said  report  confirmed.  If 
no  sufficient  reason  to  the  contrary  shall  appear,  the  court  shall  confirm 
said  report.  Otherwise  it  may  refer  the  same  back  to  the  said  commissioners 
for  revision  or  correction;  and  after  such  revision  or  correction  the  same 
proceedings  shall  be  taken  as  are  hereinbefore  provided  for,  and  the  com- 
missioners shall  in  the  same  manner  make  renewed  application  for  the 
continuation  of  such  report,  and  the  court  shall  thereupon  confirm  or  refer 
back  the  said  report,  and  such  proceedings  shall  be  repeated  until  a report 
shall  be  presented  which  shall  be  confirmed  by  the  said  court.  [Highway 
Law,  § 152,  as  amended  by  L.  1911,  eh.  503;  B.  C.  & G.  Cons.  L.,  p. 
2268.] 

§ 33.  COUNTY  TREASURER  TO  PAY  AWARDS. 

Within  six  months  after  the  report  of  said  commissioners  shall  be  con- 
firmed as  aforesaid,  the  county  treasurer  of  such  county  shall  pay  to  the 
persons  named  therein  the  amounts  awarded  to  them  for  damages  with 
six  per  centum  interest  thereon  from  the  day  of  the  filing  of  the  oath  of 
the  commissioners  in  the  office  of  the  county  clerk.  Such  amounts  with 
interest  and  the  amounts  paid  in  pursuance  of  this  article  shall  be  a 
county  charge  and  shall  be  paid  by  the  county  treasurer,  in  case  of  pur- 
chase upon  requisition  of  the  chairman  of  the  board  of  supervisors  of 
said  county,  or  by  any  member  or  committee  thereof  designated  for  that 
purpose  by  said  board  and  in  case  of  a petition  for  the  acquisition  of 
such  lands,  upon  service  of  a certified  copy  of  the  order  confirming  such 
awards.  In  case  there  are  unknown  owners,  to  whom  the  award  is  made 
in  said  report,  the  said  county  treasurer  shall  deposit  the  amounts  awarded 
to  them  with  like  interest  in  some  trust  company  or  bank  in  such  manner 
as  the  court  shall  in  the  order  of  confirmation  direct,  such  amount  to  be  paid 
out  upon  the  application  of  said  unknown  owners  when  discovered.  [High- 
way Law,  § 153,  as  amended  by  L.  1911.  ch.  503;  B.  C.  & G.  Cons.  L.  p. 
2269.] 


Damages  to  well  on  adjacent  lands.  When  it  appears  that  a well  on  adjacent 
lands,  which  is  fed  by  a subterranean  water,  was  depleted  by  the  blasting  for  a high- 
way, the  owner  of  the  lands  is  entitled  to  damages  for  such  injury  as  an  incident 
to  the  taking  of  his  lands  for  highway  purposes.  County  of  Erie  v.  Fridenburg 
(1917),  221  N.  Y.  389. 


STATE  AND  COUNTY  HIGHWAYS. 


897 


Highway  Law,  §§  154-155. 

§ 34.  COSTS;  COMMISSIONERS’  FEES. 

In  all  cases  of  assessment  of  damages  by  commissioners  appointed  by  the  court, 
the  costs  thereof  shall  be  awarded  pursuant  to  the  provisions  of  section  thirty-three 
hundred  and  seventy-two  of  the  code  of  civil  procedure  and  shall  be  a county  charge 
in  the  first  instance,  and  be  paid  by  the  county  treasurer  as  hereinbefore  provided, 
except  when  reassessment  of  damages  shall  be  had  on  the  application  of  the  party 
for  whom  damages  were  assessed,  and  such  damages  shall  not  be  increased  on  such 
reassessment,  the  costs  shall  be  paid  by  the  party  applying  for  the  reassessment, 
and  when  application  shall  be  made  by  two  or  more  persons  for  reassessment  of 
damages  all  persons  who  may  be  liable  for  costs  under  this  section  shall  be  liable  in 
proportion  to  the  amount  of  damages  respectively  assessed  to  them  by  the  first 
assessment,  and  may  be  recovered  by  action.  Each  commissioner  appointed  by  the 
court  as  provided  in  this  article  for  each  full  day  necessarily  employed  as  such, 
shall  be  entitled  to  the  sum  of  six  dollars  and  his  necessary  expenses.  The  amount 
of  compensation  to  which  such  commissioners  are  entitled  shall  be  determined  by 
the  court  in  which  the  proceeding  is  pending,  upon  verified  accounts  presented  by 
such  commissioners,  stating  in  detail  the  number  of  hours  necessarily  employed  in 
the  discharge  of  their  duties;  and  the  nature  of  the  services  rendered,  upon  eight 
days’  notice  to  the  attorney  for  the  petitioner  in  the  proceeding.^  [Highway 
Law,  § 154,  as  amended  by  L.  1912,  ch.  182,  and  L.  1915,  ch.  497;  B.  C.  & G.  Cons. 
L.,  p.  2270. 

§ 35.  LAND  MAY  BE  SOLD  OR  LEASED;  DISPOSITION  OF  PRO- 
CEEDS. 

Any  lands  acquired  by  purchase  or  condemnation,  for  the  purpose  of  obtaining 
gravel,  stone  or  other  materials,  for  the  construction  or  maintenance  of  highways 
improved  or  constructed  as  provided  in  this  article,  or  required  for  spoil  banks,  may 
be  sold  or  leased  by  the  board  of  supervisors  of  any  county,  when  no  longer  needed 
for  any  such  purposes.  The  proceeds  thereof  shall  be  paid  into  the  county  treasury 
and  shall  be  retained  therein  as  a separate  fund  available  for  the  construction  or 
maintenance  of  highways  improved  or  constructed  under  this  article.  The  board  of 
supervisors  may,  where  it  has  acquired  land  by  purchase  or  condemnation  as  a 
right-of-way  for  a state  or  county  highway,  sell,  convey,  grant  or  lease  to  the  owner 
or  owners  of  property  adjoining  the  same,  so  much  thereof  as  may  be  unnecessary 
for  such  highway  purposes,  provided  the  strip  of  land  retained  for  such  highway 
purposes  is  not  less  than  sixty  feet  in  width,  and  provided  such  sale,  conveyance, 
grant  or  lease  will  give  said  adjoining  owner  or  owners  of  land  a frontage  imme- 
diately in  front  of  their  respective  premises  upon  the  new  highway  and  right-of- 
way  when  completed.  The  board  of  superivisors  may  make  such  sale,  conveyance, 
grant  or  lease  to  such  owner  or  owners  of  real  property  for  the  purpose  of  compen- 
sating such  owner  or  owners  for  damages  sustained  by  reason  of  the  change  of  the 
location  of  such  highway  and  in  full  settlement  thereof.  [Highway  Law,  § 155,  as 
amended  by  L.  1911,  ch.  552;  B.  C.  & G.  Cons.  L.,  p.  2270.] 


6a.  Effect  of  Amendment  of  1915.  The  amendment  of  this  section  by  chapter  497 
of  L.  1915  does  not  deprive  the  court  of  the  power  to  allow  costs  in  a condemnation 
proceeding,  unless  such  costs  may  be  allowed  under  § 3372  of  the  Code  of  Civil 
Procedure.  Costs  are  allowable  where  essential  to  secure  to  the  owner  just  com- 
pensation for  his  property.  The  court  may  not,  however,  grant  an  extra  allowance. 
County  of  Erie  v.  Fridenberg  (1917),  221  N.  Y.  389. 


893 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  156,  157,  158,  159. 

§ 36.  APPLICATION  OF  PROVISIONS  OF  LABOR  LAW. 

The  provisions  of  section  three  of  the  labor  law,  as  amended  by  chapter 
five  hundred  and  six  of  the  laws  of  nineteen  hundred  and  six,  which  ex- 
cept from  the  provisions  of  that  section  labor  performed  in  the  construc- 
tion, maintenance  and  repair  of  highways  outside  the  limits  of  cities  and 
villages,  shall  apply  to  the  construction,  improvement  and  maintenance 
of  state  and  county  highways  as  provided  in  this  chapter.  [Highway 
Law,  § 156;  B.  C.  & G.  Cons.  L.,  p.  2270.] 

§ 37.  HIGHWAYS  AND  BRIDGES  ON  INDIAN  RESERVATIONS. 

When  any  portion  of  a county  highway  designated  for  improvement 
or  construction  in  a county,  as  provided  in  this  article,  is  located  on  an 
Indian  reservation,  the  entire  cost  of  the  improvement  or  construction 
of  such  portion  shall  be  paid  by  the  state  in  the  same  manner  as  the 
state’s  share  of  the  cost  of  such  county  highway,  out  of  any  specific  ap- 
propriation made  available  for  the  construction  or  improvement  of 
county  highways.  The  commission  shall  have  exclusive  supervision  and 
control  of  all  bridges  constructed  or  to  be  constructed  by  the  state  on  any 
Indian  reservation,  and  may  make  and  enforce  such  reasonable  rules 
and  regulations  concerning  their  use,  as  it  shall  deem  necessary.  [High- 
way Law,  § 157 ; B.  C.  & G.  Cons.  L.,  p.  2271.] 

§ 38.  APPOINTMENT  OF  RESERVATION  SUPERINTENDENT. 

The  commission  may  appoint  a reservation  superintendent  for  any  Indian  reserva- 
tion in  the  state  who  shall  exercise  the  powers  and  perform  the  duties  conferred  and 
imposed  upon  town  superintendents,  except  that  the  written  statement  as  provided 
for  by  section  ninety  of  the  highway  law  shall  be  filed  with  the  commission  on  or 
before  the  thirty-first  day  of  October  in  each  year,  and  excepting  that  all  orders  of 
the  Indian  reservation  superintendent  shall  be  drawn  upon  and  presented  for  pay- 
ment as  hereinafter  provided  to  the  county  treasurer  of  the  county  in  which  such 
Indian  reservation  or  major  portion  thereof  exists. 

While  any  such  reservation  superintendent  shall  be  acting  in  that  capacity  no 
highway  within  such  reservation  shall  be  laid  out,  altered,  or  discontinued,  with- 
out his  consent.  Whenever  land  may  be  acquired  without  expense  or  is  dedicated 
for  highway  purposes  within  any  Indian  reservation,  the  reservation  superintendent 
in  charge  thereof  may  make  .an  order  laying  out  the  said  highway  by  filing  and  re- 
cording said  order  in  the  town  clerk’s  office  of  the  town  in  which  said  highway  is 
located.  He  shall  also  file  said  order  with  the  recording  officer  of  the  tribe  through 
whose  lands  such  highway  extends.  [Highway  Law,  § 158,  as  added  by  L.  1910,  ch. 
46,  and  amended  by  L.  1913,  ch.  474.] 

§ 39.  CUSTODY  OF  MONEYS,  ET  CETERA. 

There  shall  be  paid  by  the  state  treasurer  to  the  county  treasurer  of  each  county 
in  the  state  containing  an  Indian  reservation,  reservations  or  major  portion  of  an 
Indian  reservation,  an  amount  which  shall  be  not  less  than  thirty  dollars  per  mile, 
based  on  the  entire  mileage  of  the  public  highways  within  the  Indian  reservation  in 
such  county.  All  moneys  of  the  state  available  for  the  improvement,  repair  and 
maintenance  of  highways  and  bridges  and  for  the  purchase  of  machinery,  tools  and 
implements  within  Indian  reservations  shall  be  paid  to  the  county  treasurer  of  each 
county  containing  such  Indian  reservation  or  major  portion  thereof,  who  shall 
be  the  custodian  thereof  and  accountable  therefor,  and  it  shall  be  ex- 
pended for  the  repair  and  improvement  of  the  public  highways  and 
bridges  and  for  the  purchase  of  machinery,  tools  and  implements  within 


STATE  AND  COUNTY  HIGHWAYS.  899 

Highway  Law,  §§  159,  160. 

such  Indian  reservations  at  such  places  and  in  such  manner  as  may  be  di- 
rected by  the  commission,  and  such  moneys  shall  be  paid  out  by  the  county 
treasurer  upon  the  written  order  of  the  Indian  reservation  superintendent  in 
accordance  with  such  directions.  The  county  treasurer  and  the  Indian  reser- 
vation superintendent  shall  keep  their  accounts  according  to  the  methods  and 
use  the  blanks  as  prescribed  by  the  commission.  All  orders  and  records  of 
accounts  shall  be  filed  in  the  office  of  the  commission  on  or  before  the  thirty- 
first  day  of  October  in  each  year  and  shall  be  preserved  by  the  commission 
as  Indian  reservation  records.  The  reservation  superintendent  shall  receive 
a per  diem  or  annual  allowance  as  compensation  for  services  and  expenses  in 
an  amount  to  be  fixed  by  the  commission,  which  shall  be  paid  by  the  county 
treasurer  to  the  reservation  superintendent  upon  orders  of  the  commission. 
The  commission  shall  annually  cause  to  J)e  inspected  all  of  the  bridges  within 
Indian  reservations  of  each  county  and  shall  require  a complete  report  of 
such  inspection  which  shall  show  in  detail  the  condition  of  the  bridges  inspected, 
the  necessary  work  to  be  performed  in  the  repair  and  maintenance  of  such 
bridges  and  the  estimated  cost  thereof.  The  commission  shall  revise  such 
estimates  and  annually  report  to  the  legislature  its  estimated  cost  for  such 
repairs  and  construction  for  the  ensuing  year  in  detail  by  reservation  and 
county.  The  maintenance,  repair  and  construction  of  the  public  highways 
within  the  Indian  reservations  shall  be  under  the  direct  supervision  and  control 
of  the  commission  and  the  state  superintendent  of  highways  and  they  shall  be 
responsible  therefor  as  herein  provided.  There  shall  be  annually  appropriated 
for  the  construction,  repair  and  maintenance  of  such  highways  and  bridges  and 
for  the  purchase  and  repair  of  machinery,  tools  and  implements,  an  amount 
sufficient  to  provide  therefor,  based  upon  the  estimates  prepared  and  submitted 
by  the  commission  to  the  legislature.  The  comptroller  upon  requisition  of  the 
commission  shall  draw  his  warrant  on  the  state  treasurer  in  favor  of  the  county 
treasurer  who  is  the  custodian  of  such  funds  as  herein  provided  for  an  amount 
which  shall  not  be  in  excess  of  the  total  amount  apportioned  by  the  commission  to  the 
Indian  reservation  of  any  county.  The  moneys  so  paid  shall  be  deposited  by  said 
county  treasurer  to  the  credit  of  the  fund  for  the  maintenance,  repair  and  construc- 
tion of  highways  and  bridges  and  the  purchase  and  repair  of  machinery,  tools  and 
implements  in  the  Indian  reservation  of  said  county. 2b  [Highway  Law,  § 159,  as 
added  by  L.  1910,  ch.  46,  and  amended  by  L.  1911,  ch.  646,  and  L.  1913,  ch.  474.] 

§ 40.  MAINTENANCE  OF  DETOURS  DURING  CONSTRUCTION. 

The  maintenance  and  repair  of  any  highway  or  right  of  way  designated'  by  the 
commission  for  use  as  a detour,  during  the  construction,  reconstruction  or  repair 
of  a state  or  county  highway,  shall  be  under  the  supervision  of  the  commission  and 
shall  be  paid  for  out  of  the  construction  fund,  in  cases  of  construction  or  improve- 
ment contracts,  or  the  state’s  share  of  the  money  available  for  maintenance  and 
repair  of  improved  roads  in  such  county  in  cases  of  reconstruction  or  repair  con- 
tracts. Such  highway  or  right  of  way  designated  as  a detour  by  the  commission 
shall  be  deemed  as  an  improved  highway  during  construction,  reconstruction  or  repair. 
[Highway  Law,  § 160,  as  added  by  L.  1912,  ch.  83,  and  amended  by  L.  1916,  ch.  578.] 


7.  Construction  of  bridges  on  Indian  reservation  is  within  the  control  of 
the  Commission.  Towns  have  no  authority  to  build.  Rept.  of  Atty.  Genl.,  Jan.  21, 
1911. 


899a 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 161. 


CHAPTER  LX-A. 

IMPROVEMENT  OF  HIGHWAYS  WITH  FEDERAL  AID. 

(This  chapter  contains  Article  6-A  of  the  Highway  Law  as  added  by  L.  1917,  ch. 

462,  in  effect  May  14,  1917.) 

Section  1.  Commissioner  of  highways  to  designate  roads. 

2.  Cost  of  perliminary  surveys. 

3.  Approval  of  plans. 

4.  Advertisements,  proposals,  contracts,  appropriation,  closing  roads,  de- 

tours, termination  of  contract,  entry  for  drainage,  permits,  main- 
tenance and  repair,  contingencies  and  agreements. 

5.  Acceptance  of  work. 

6.  Acquisition  of  right  of  way. 

7.  State’s  share  of  cost. 

8.  General  authorization. 

§ 1.  COMMISSIONER  OF  HIGHWAYS  TO  DESIGNATE  ROADS. 

The  state  commissioner  of  highways  is  hereby  authorized,  empowered 
and  directed  to  designate  the  public  highways  or  portions  thereof,  outside 
of  cities,  which,  in  his  discretion,  he  may  deem  proper  to  be  improved  or 
constructed  as  co-operative  roads  with  the  moneys  to  be  appropriated  by 
the  state  of  New  York  and  the  moneys  contributed  to  the  state  of  New  York 
for  highway  improvement  by  the  federal  government  under  the  provisions 
of  an  act  of  congress,  entitled  “ An  act  to  provide  that  the  United  States 
shall  aid  the  states  in  the  construction  of  rural  post  roads,  and  for  other 
purposes/’  approved  J uly  eleventh,  nineteen  hundred  and  sixteen ; provided 
that  the  highways  or  portions  thereof  thus  designated  shall  form  a portion 
of  the  system  of  state  or  of  county  highways  as  provided  by  this  chapter, 
or  shall  form  a connection  between  state,  county  and  federal  highways  duly 
authorized  by  law  of  this  or  any  other  state  or  nation,  for  the  purpose  of 
aiding  in  the  completion  of  a system  of  improved  highways  in  the  United 
States  of  America.  The  highways  thus  designated  shall  be  tentatively 
indicated  on  a map  to  be  prepared  by,  and  filed  in  the  office  of,  the  state 
commissioner  of  highways ; and  a duplicate  thereof  shall  be  filed  in  the  office 
of  the  secretary  of  state  of  New  York  state  on  or  before  the  fifteenth  day  of 
May,  nineteen  hundred  and  seventeen;  subject,  however,  to  such  modifica- 
tion as  may  hereafter  be  submitted  by  the  state  commissioner  of  highways 
and  approved  by  the  United  States  secretary  of  agriculture  in  accordance 
with  section  one  of  the  act  of  congress  hereinbefore  refererd  to.  The  desig- 
nations indicated  on  such  map  are  dependent,  however,  on  provision  being 
made  by  the  governing  boards  of  the  political  subdivisions  of  the  state  for 


IMPROVEMENT  OF  HIGHWAYS  WITH  FEDERAL  AID. 


899b 


Highway  Law,  §§  162,  163,  164. 

the  improvement  of  such  other  highways  as  are  deemed  necessary,  in  the 
opinion  of  the  state  commissioner  of  highways,  to  complete  the  combined 
highway  system  of  the  state.  [Highway  Law,  § 161,  as  added  by  L.  1917, 
nh.  462.] 

§ 2.  COST  OF  PRELIMINARY  SURVEYS. 

Preliminary  surveys,  plans,  specifications  and  estimates  of  cost  for  the 
highways  or  portions  thereof  so  designated  shall  be  made  by  the  state  depart- 
ment of  highways  in  the  same  manner  as  prescribed  in  section  one  hundred 
and  twenty-five  of  the  highway  law  and  the  expense  thereof  shall  be  paid 
out  of  the  moneys  appropriated  by  the  state  for  the  purposes  of  this  article. 
[Highway  Law,  § 162,  as  added  by  L.  1917,  ch.  462.] 

§ 3.  APPROVAL  OF  PLANS. 

After  the  submission  to,  and  approval  by  the  secretary  of  the  United 
States  department  of  agriculture,  of  such  plans,  specifications  and  esti- 
mates of  cost,  as  required  by  the  provisions  of  said  act  of  congress,  the  same 
shall  be  approved  by  the  commissioner  of  highways  by  executive  order; 
which  order  shall  give  a consecutive  number  to  the  highway  or  portion 
thereof  covered  by  said  plans.  A certified  copy  of  such  order  shall  be  filed 
with  the  said  secretary  of  agriculture  and  with  the  state  comptroller.  Roads 
shall  be  taken  up  for  construction  or  improvement  in  the  order  of  final 
approval  unless  the  commissioner  of  highways  deems  otherwise  advisable, 
in  which  event  an  executive  order  shall  be  filed  in  the  office  of  the  highway 
department  giving  the  reasons  for  deviating  from  such  order,  and  a certified 
copy  thereof  filed  with  said  secretary  and  with  the  state  comptroller.  [High- 
way Law,  § 163,  as  added  by  L.  1917,  ch.  462.] 

§ 4.  ADVERTISEMENTS,  PROPOSALS,  CONTRACTS,  APPROPRIA- 
TION, CLOSING  ROADS,  DETOURS,  TERMINATION  OF  CON- 
TRACT, ENTRY  FOR  DRAINAGE,  PERMITS,  MAINTENANCE 
AND  REPAIR,  CONTINGENCIES  AND  AGREEMENTS. 

The  form  of  proposal,  contract  and  bond,  the  method  of  advertising  for 
proposals,  the  rejection  of  proposals,  the  award  of  contracts  and  the  pay- 
ments to  contractors  shall  be  governed  by  the  provisions  of  section  one 
hundred  and  thirty  of  this  chapter.  To  expedite  the  payment  of  the  share 
of  the  federal  government  as  shown  by  monthly  estimates  rendered  on 
-existing  contracts  as  provided  herein  it  is  hereby  provided  that  upon  the 
filing  of  the  report  of  the  commissioner  of  highways  with  the  legislature, 
showing  the  amount  of  construction  under  federal  aid  contemplated  for 
the  ensuing  year,  and  in  case  an  appropriation  is  made  by  the  legislature 
to  provide  the  state’s  share  of  the  construction  shown  in  such  report,  there 
shall  also  be  appropriated  such  an  additional  amount  as  is  necessary  to 


899c 


HIGHWAYS  AXD  BRIDGES. 


Highway  Law,  § 164. 

pay  in  the  first  instance  the  share  of  the  federal  government  of  the  cost 
of  such  work.  Itemized  statements  showing  the  entire  cost  of  construction 
of  such  roads  shall  be  rendered  by  the  commissioner  of  highways  to  the 
state  comptroller  and  the  federal  government  as  the  work  progresses  and 
such  statements  shall  show  the  subdivision  of  cost  between  the  state  and  the 
federal  government  and  shall  be  accompanied  by  drafts  on  the  federal 
government  for  the  amount  of  its  share  of  such  cost.  Upon  the  payment 
of  such  drafts  the  proceeds  shall  be  deposited  by  the  commissioner  of  high- 
ways with  the  treasurer  of  the  state  for  the  purpose  of  reimbursing  the 
appropriation  made  by  the  state  on  account  of  such  advance  payments, 
and  upon  the  final  completion  of  the  work  a report  thereof  filed  with  the 
state  comptroller.  The  provisions  of  sections  seventy-seven  and  one  hun- 
dred and  sixty  of  this  chapter,  relative  to  closing  highways  for  repair  or 
construction  and  the  maintenance  of  detours  during  construction;  also  the 
provisions  of  section  one  hundred  and  thirty-two  of  this  chapter  relative  to 
the  authority  of  the  commissioner  to  secure  the  completion  of  the  work; 
also  the  provisions  of  sections  one  hundred  and  thirty-five  and  one  hundred 
and  thirty-six  of  this  chapter,  relative  to  the  entry  upon  adjacent  lands  for 
drainage  purposes  and  the  payment  of  damages  for  such  entry;  also  the 
provisions  of  sections  one  hundred  and  thirty-seven,  one  hundred  and  thirty- 
eight  and  one  hundred  and  thirty-eight-a,  relative  to  construction  in  villages 
and  to  additional  width  and  increased  cost;  also  the  provisions  of  section 
one  hundred  and  forty-six  of  this  act,  relative  to  the  issuance  of  permits 
for  work  by  persons,  firms  or  corporations;  also  the  provisions  of  section 
one  hundred  and  fifty-six  relative  to  the  application  of  the  labor  law ; shall 
all  be  applicable  for  the  purposes  of  highways  improved  or  constructed  under 
the  provisions  of  this  article.  The  provisions  of  article  seven  of  this  chapter 
relative  to  the  maintenance  of  state  and  county  highways  shall  apply  to  the 
maintenance  and  repair  of  highways  improved  or  constructed  under  the 
provisions  of  this  article.  All  contingences  arising  during  the  prosecution 
of  the  work  shall  be  provided  for  to  the  satisfaction  of  the  commissioner 
of  highways  and  as  may  be  agreed  upon  in  the  original  or  by  a supple- 
mental contract  executed  by  the  commissioner.  If  a supplemental  contract 
be  executed  for  the  performance  of  work  or  the  furnishing  of  material  not 
provided  for  in  the  original  contract,  the  amount  to  be  charged  thereunder 
for  any  such  work  or  material  shall  not  exceed  the  rate  for  which  similar 
work  or  material  was  agreed  to  be  performed  or  furnished  under  the 
original  bid  upon  which  the  contract  was  awarded.  Any  work  necessarily 
required  for  the  proper  completion  of  the  contract  and  for  which  no  item 
price  bid  was  contained  in  the  proposal  shall  be  performed  upon  prices  to 
be  agreed  upon  by  the  contractor  and  the  commissioner  prior  to  the  perform- 
ance of  such  work,  and  such  work  and  the  prices  therefor  shall  be  provided 


IMPROVEMENT  OF-  HIGHWAYS  WITH  FEDERAL  AID. 


899d 


Highway  Law,  §§  165,  166,  167,  168. 

in  a supplemental  contract.  The  total  amount  to  be  expended  in  the  im- 
provement or  construction  of  a highway  or  section  thereof  shall  not  exceed 
the  original  estimate,  unless  such  estimate  shall  have  been  duly  amended  by 
the  commissioner  with  the  approval  of  the  secretary  of  agriculture.  [High- 
way Law,  § 164,  as  added  by  L.  1917,  ch.  462.] 

§ 5.  ACCEPTANCE  OF  WORK. 

Upon  the  completion  of  a highway  or  section  thereof  constructed  or 
improved  under  the  provisions  of  this  article,  the  division  engineer  shall 
inspect  the  same  and  shall  report  in  writing  to  the  state  commissioner  of 
highways  his  recommendation  as  to  whether  or  not  the  contract  should  be 
finally  accepted,  and  the  decision  of  the  said  commissioner,  which  shall  be 
conclusive,  as  to  the  acceptance  of  said  highway  or  portion  thereof  thus 
constructed  or  improved,  shall  be  entered  in  the  form  of  an  executive  order, 
a certified  copy  of  which  shall  be  filed  with  the  secretary  of  agriculture. 
[Highway  Law,  § 165  as  added  by  L.  1917,  ch.  462.] 

§ 6.  ACQUISITION  OF  RIGHT  OF  WAY. 

The  provisions  of  article  six  of  this  chapter  relative  to  the  acquisition 
of  lands  for  right  of  way  and  other  purposes  shall  be  applicable  for  the 
purposes  of  highways  improved  or  constructed  under  the  provisions  of 
this  article.  [Highway  Law,  § 166,  as  added  by  L.  1917  ch.  462.] 

§ T.  STATE’S  SHARE  OF  COST. 

The  proportion  of  the  total  cost  of  the  improvement  or  construction  of 
highways  to  be  borne  by  the  state  of  Hew  York  under  the  provisions  of  this 
article,  exclusive  of  the  expenses  incurred  prior  to  the  beginning  of  con- 
struction work  for  the  purposes  of  making  surveys,  plans,  specifications 
and  estimates  of  cost,  shall  not  exceed  fifty  per  centum  of  such  total  cost. 
[Highway  Law,  § 167,  as  added  by  L.  1917,  ch.  462.] 

§ 8.  GENERAL  AUTHORIZATION. 

The  state  commissioner  of  highways  is  hereby  authorized,  empowered 
and  directed  to  perform  and  do  such  other  and  further  acts  not  hereby 
specifically  provided  in  this  article  as  may  be  necessary  to  conduct  the 
improvement  or  construction  of  co-operative  highways  with  state  and 
federal  aid  in  compliance  with  the  act  of  congress  hereinbefore  referred 
to  and  the  rules  and  regulations  promulgated  by  the  secretary  of  agricul- 
ture under  authority  conferred  upon  him  by  said  act  of  congress,  the  pro- 
visions of  which  act  are  hereby  assented  to,  the  good  faith  of  the  state  of 
Hew  York  being  hereby  pledged  to  make  such  provision  from  time  to  time 
as  may  be  necessary  to  provide  its  share  of  the  cost  of  improvement  of  such 
highways.  [Highway  Law,  § 168,  as  added  by  L.  1917,  ch.  462.] 


HIGHWAYS  AND  BRIDGES. 


<X)0 


Highway  Law,  § 170. 


CHAPTER  LXI. 

MAINTENANCE  OF  STATE  AND  COUNTY  HIGHWAYS. 

[Highway  Law,  art.  VIL] 

Section  1.  Commission  to  provide  for  maintenance  and  repair. 

la.  State  to  maintain  roads  improved  by  state  appropriation  under  special 

laws. 

lb.  Maintenance  and  repair  by  the  state  of  certain  improved  roads. 

lc.  Maintenance  by  state  of  canal  bridge  approach. 

2.  Appropriations  by  state;  apportionment  of  moneys. 

3.  Cost  to  town  for  maintenance  of  state  and  county  highways. 

4.  Disbursement  of  maintenance  funus. 

5.  Reports  of  county  treasurer. 

6.  Compensation  of  town  superintendents. 

7.  Liability  of  state  for  damages. 

8.  Additional  width  or  different  type  of  construction  under  repair  contracts. 

9.  Sprinkling;  removal  of  filth  and  refuse. 

10.  Payment  by  counties  of  a portion  of  the  cost  of  construction  under 
repair  contracts. 

§ 1.  COMMISSION  TO  PROVIDE  FOR  MAINTENANCE  AND  REPAIR. 

The  maintenance  and  repair  of  improved  state  and  county  highways 
in  towns  and  incorporated  villages,  exclusive,  however,  of  the  cost  of 
maintaining  and  repairing  bridges  having  a span  of  five  feet  or  over, 
shall  be  under  the  direct  supervision  and  control  of  the  commissioner  of 
highways  and  he  shall  be  responsible  therefor.1  Such  maintenance  and 
repair  may  be  done  in  the  discretion  of  the  commissioner  either  directly 
by  the  department  of  highways  or  by  contract  awarded  to  the  lowest  re- 
sponsible bidder  at  a public  letting  after  due  advertisement,  and  under 
such  rules  and  regulations  as  the  commissioner  of  highways  may  pre- 

1.  Orange  County  Act.  The  special  law  (L.  1901,  eh.  83)  providing  for  the 
construction  and  maintenance  of  highways  in  the  county  of  Orange  is  not  repealed 
by  the  provision  of  this  section  relative  to  the  maintenance  and  repair  of  state  and 
county  highways.  Matter  of  Business  Men’s  Association,  54  Misc.  13,  103  N.  Y. 
Supp.  843  (1907). 

Duty  of  abutting  owners  to  construct  and  keep  in  repair  approaches 
or  driveways  from  highways.  On  examination  of  the  provisions  of  articles  4, 
6 and  7 of  the  Highway  Law  as  they  stood  on  July  21,  1909,  held,  that  the  statute 
required  abutting  owners  under  the  direction  of  the  district  or  county  superintendent, 
to  construct  and  keep  in  repair  approaches  or  driveways  from  the  highway,  but  that 
the  duty  of  maintenance  did  not  rest  on  the  town  unless  the  town  board  decided  to 
assume  it,  and  only  in  that  event  was  the  town  superintendent  under  any  duty  of 
inspection,  which  is  but  an  incident  to  the  duty  of  maintenance  and  repair.  Fer- 
guson v.  Town  of  Lewisboro,  213  N.  Y.  141. 


MAINTENANCE  OF  STATE  AND  COUNTY  HIGHWAYS. 


901 


Highway  Law,  §§  170a,  170b. 

scribe.  The  commissioner  of  highways  shall  also  have  the  power  to  adopt 
such  system  as  may  seem  expedient  so  that  each  section  of  such  highway  shall 
be  under  constant  observation  and  be  effectively  and  economically  pre- 
served, maintained  and  repaired.  The  commissioner  of  highways  shall 
have  the  power  to  purchase  materials  for  such  maintenance  and  repairs, 
except  where  such  work  is  done  by  contract,  and  contract  for  the  delivery 
thereof  at  convenient  intervals  along  such  highways.  [Highway  Law, 
§ 170,  as  amended  by  L.  1911,  ch.  646,  L.  1912,  ch.  83,  L.  1913,  ch.  80, 
and  L.  1916,  ch.  578;  B.  C.  & G.  Cons.  L.,  p.  2271.] 

f la.  STATE  TO  MAINTAIN  ROADS  IMPROVED  BY  STATE  APPRO- 
PRIATIONS UNDER  SPECIAL  LAWS. 

When  any  highway  has  been  constructed  or  improved  under  a special 
law,  with  moneys  taken  from  the  state  treasury  and  under  plans  prepared 
by  a state  department,  the  commissioner  of  highways  may  at  any  time  in- 
spect such  highway  and  if  he  determine  it  to  be  of  sufficient  importance 
and  properly  constructed,  he  may  make  an  order  directing  that  such  high- 
way become  a part  of  the  system  of  state  and  county  highways  in  such 
county,  and  thereafter  such  highway  shall  be  maintained  as  a state  or  county 
highway  in  the  manner  provided  in  article  seven  of  the  highway  law.  Such 
order  shall  be  served  upon  the  chairman  of  the  board  of  supervisors,  and 
a certified  copy  thereof  shall  be  filed  in  the  office  of  the  county  clerk  and 
one  in  the  office  of  the  state  comptroller.  [Highway  Law,  § 170a,  as  added 
by  L.  1917,  ch.  261.] 

§ lb.  MAINTENANCE  AND  REPAIR  BY  THE  STATE  OF  CERTAIN 
IMPROVED  ROADS. 

Whenever  a county  shall  have  constructed  therein,  at  its  expense,  an  im- 
proved stone  road  for  a distance  of  not  exceeding  two  miles,  extending  be- 
tween two  points,  each  on  the  dividing  line  between  such  county  and  an 
adjoining  county,  and  connecting  at  both  points  with  a county  highway  in 
such  adjoining  county,  the  commissioner  of  highways  may  at  any  time  in- 
spect such  road  and  if  he  deems  it  to  be  of  sufficient  importance  and  prop- 
erly constructed,  he  may  determine  that  such  road  shall  be  thereafter  main- 
tained and  kept  in  repair  by  the  state ; in  which  case,  such  maintenance  and 
repair  shall  be  under  the  supervision  of  such  commissioner.  Such  deter- 
mination shall  be  in  the  form  of  an  order  and  shall  be  served  upon  the 
chairman  of  the  board  of  supervisors  of  the  county  in  which  the  road  is 
located  that  is  to  be  maintained  by  the  state,  and  a certified  copy  thereof 
shall  be  filed  in  the  office  of  the  county  clerk  and  one  in  the  office  of  the 
state  comptroller.  [Highway  Law,  § 170b,  as  added  by  L.  1918,  ch.  1*46.] 


902 


HIGHWAY S AND  BRIDGES. 


Highway  Law,  §§  170c,  171. 

§ lc.  MAINTENANCE  BY  STATE  OF  CANAL  BRIDGE  APPROACHES. 

Where  a waterway  which  is  a part  of  the  canal  system  of  the  state  inter- 
sects a state  or  county  highway  which  is  maintained  adjacent  to  such  in- 
tersection pursuant  to  this  article,  the  pavement  and  shoulders  of  the  ap- 
proaches to  the  bridge  structure  carrying  such  highway  across  such  water- 
way shall  be  considered  eligible  for  maintenance  under  this  article,  pro- 
viding such  approach  has,  in  the  opinion  of  the  state  commissioner  of 
highways,  been  properly  graded  in  connection  with  the  construction  of  the 
canal  system  of  the  state.  The  state  commissioner  of  highways  may  at 
any  time  make  an  order  directing  that  such  section  of  highway  become  a 
part  of  the  system  of  state  or  county  highways  in  such  county,  and  there- 
after the  pavement  and  shoulders  of  such  approach  shall  be  maintained 
as  a state  or  county  highway  in  the  manner  provided  in  article  seven  of 
this  chapter.  Such  order  shall  be  served  upon  the  chairman  of  the  board 
of  supervisors  and  a certified  copy  thereof  shall  be  filed  in  the  office  of  the 
county  clerk  and  one  in  the  office  of  the  state  comptroller.  In  maintain- 
ing such  section  of  highway  the  commissioner  may  lay  such  type  of  pave- 
ment as  in  his  opinion  is  advisable.  [Highway  Law,  § 170c,  as  added  by 
L.  1918,  ch.  324.] 

§ 2.  APPROPRIATIONS  BY  STATE;  APPORTIONMENT  OF  MONEYS. 

There  shall  be  annually  appropriated  for  the  maintenance  and  repair  of 
improved  state  and  county  highways  an  amount  sufficient  to  provide  there- 
for, based  upon  the  estimates  prepared  and  submitted  by  the  commission 
to  the  legislature  as  provided  in  section  twenty- three  of  this  chapter.  Not 
less  than  ninety  per  centum  of  the  amount  so  appropriated  shall  be  appor- 
tioned by  the  commission  each  year  among  the  counties  in  accordance  with 
the  proportion  which  the  amount  to  be  apportioned  bears  to  the  total 
amount  of  such  estimates.  The  comptroller,  upon  the  requisition  of  the 
commission,  shall  draw  his  warrant  upon  the  state  treasurer  in  favor  of  the 
county  treasurer  of  the  county  in  which  the  improved  state  or  county  high- 
ways are  located,  for  an  amount  which  shall  not  be  in  excess  of  the  total 
amount  apportioned  by  the  commission  to  such  county.  The  moneys  so 
paid  shall  be  deposited  by  the  county  treasurer  to  the  credit  of  the  fund 
for  the  maintenance  of  improved  state  and  county  highways  in  the  county. 
Any  moneys  so  deposited  and  placed  to  the  credit  of  the  fund  for  such  main- 
tenance shall  be  available  and  subject  to  the  order  of  the  state  highway 
commission  at  any  time  prior  to  the  total  expenditure  thereof.  Not  more 
than  ten  per  centum  of  the  amount  so  appropriated  each  year  may  be  re- 
served by  the  commission  for  the  repair  or  rebuilding  of  improved  state 
or  county  highways,  which  ten  per  centum  shall  not  be  deemed  to  be  avail- 
able until  after  the  moneys  paid  the  county  treasurer  of  a county  as 


MAINTENANCE  OF  STATE  AND  COUNTY  HIGHWAYS. 


903 


Highway  Law,  § 172. 

heretofore  provided  shall  have  been  expended,  and  which  shall  be  paid  by 
the  state  treasurer  upon  the  warrant  of  the  comptroller  drawn  upon  the 
requisition  of  the  commission  issued  when  required  for  such  purposes. 
[Highway  Law,  § 171,  as  amended  by  L.  1912,  ch.  83,  and  L.  1916,  ch. 
578;  B.  C.  & G.  Cons.  L.,  p.  2272.] 

§ 3.  COST  TO  TOWN  FOR  MAINTENANCE  OF  STATE  AND  COUNTY 
HIGHWAYS. 

Each  town  shall  pay  for  the  maintenance  and  repair  of  state  and  county 
highways  each  year  the  sum  of  fifty  dollars  for  each  mile  or  major  frac- 
tion of  a mile  of  the  total  mileage  of  state  and  county  highways  within  the 
town,  each  incorporated  village  shall  pay  for  such  maintenance  and  repair 
at  the  rate  of  one  and  one-half  cents  for  each  square  yard  of  surface  of 
such  improved  highway  maintained  by  the  state  within  its  corporate  limits ; 
except  where  a maintenance  bond  for  a period  of  five  years  satisfactory  in 
form  and  sufficiency  to  the  commission  shall  have  been  given  to  the  village 
prior  to  January  first,  nineteen  hundred  and  sixteen,  such  tax  herein  pro- 
vided for  shall  not  be  levied  or  paid  until  the  period  covered  by  such  main- 
tenance bonds  shall  have  expired,  or  shall  have  failed  in  sufficiency. 

On  or  before  the  first  day  of  November  in  each  year  the  commission 
shall  transmit  to  the  clerk  of  the  board  of  supervisors  of  each  county  and 
to  the  board  of  trustees  of  each  village  a statement  specifying  the  number 
of  miles  of  improved  state  and  county  highways  in  each  town,  the  number 
of  square  yards  of  surface  of  such  improved  highway  as  hereinbefore  pro- 
vided in  each  village  in  such  county  and  the  amount  which  each  of  such 
towns  and  villages  is  required  to  pay  into  the  county  treasury  on  account 
of  the  maintenance  of  state  and  county  highways  and  a copy  of  such  state- 
ments shall  be  forwarded  to  the  county  treasurer.  The  board  of  supervisors 
of  the  county  and  the  board  of  trustees  of  an  incorporated  village  shall 
cause  the  amount  to  be  paid  by  each  town  and  incorporated  village  of  the 
county,  to  be  assessed,  levied  and  collected  therein  in  the  same  manner  as 
other  town  and  village  charges,  in  the  several  towns  and  villages  and  such 
amount  when  collected  shall  be  paid  into  the  county  treasury  to  the  credit 
of  the  fund  for  the  maintenance  of  state  and  county  highways  in  the  sev- 
eral towns  and  incorporated  villages  of  the  county.2  [Highway  Law,  § 172, 

2.  Duty  of  supervisors  to  levy  tax.  Upon  receipt  of  the  notices  of  the  state  com- 
missioner of  highways  transmitted  pursuant  to  this  section  of  the  Highway  Law 
a mandatory  statutory  duty,  ministerial  in  character,  devolves  upon  the  board 
of  supervisors,  and  under  this  duty  the  board  is  required  to  take  such  action  as  shall 
result  in  the  levying  of  a tax  by  the  towns  to  raise  their  respective  proportion  of 
the  fund  appliable  to  the  maintenance  of  such  highways.  This  duty  is  not  depend- 
ent upon  the  acceptance  of  the  highways  by  the  proper  officials.  People  ex  rel. 
Carlisle  v.  Board  of  Supervisors,  217  N.  Y.  424,  affg.  164  App.  Div.  922. 


904 


HIGHWAYS  AXD  BRIDGES. 


Highway  Law,  §§  172a,  173. 

as  amended  by  L.  1912,  ch.  83,  L.  1916,  ch.  578,  and  L.  1917,  ch.  124; 
B.  C.  & G.  Cons.  L.,  p.  2272.] 

Saving  clause ; temporary  provisions. — Whenever  any  city  has  deposited 
certain  moneys  with  a county  treasurer  for  the  maintenance  of  streets  with- 
in such  city  in  accordance  with  the  provisions  of  section  one  hundred  and 
seventy-two  of  this  chapter  as  it  existed  prior  to  April  first,  nineteen  hun- 
dred and  sixteen,  and  there  remains  an  unexpended  balance  of  such  moneys 
in  the  hands  of  the  county  treasurer,  such  unexpended  balance  shall,  when 
such  section  as  hereby  amended  takes  effect,  revert  to  such  city  and  the 
county  treasurer  is  hereby  authorized,  empowered  and  directed  to  return 
such  unexpended  balance  to  the  treasurer  of  such  city.  The  moneys  re- 
turned by  a county  treasurer  to  a city  in  accordance  with  the  provisions  of 
this  section  shall  be  expended  by  the  city  in  the  maintenance  and  repair 
of  the  streets  within  such  city  which  have  been  constructed  or  improved  by 
state  aid.  The  highway  commission  shall  retain  jurisdiction  and  author- 
ity over  any  city  street  heretofore  improved  as  a state  or  county  highway, 
until  the  expiration  of  the  period  of  time  covered  by  the  bond  guaranteeing 
the  maintenance  and  repair  of  such  street,  and  may  take  such  proceedings 
as  may  be  necessary  to  enforce  the  provisions  of  such  guaranty  bond  and 
in  case  of  the  failure  of  the  contractor  or  the  surety  company  on  the  bond 
to  perform  such  work  as  may  be  lawfully  required  of  them,  the  highway 
commission  is  authorized  to  perform  such  work  in  the  first  instance,  charg- 
ing the  expense  incurred  thereby  to  the  contractor  and  the  surety  com- 
pany in  the  manner  provided  by  the  contract  and  bond.  Upon  the  termina- 
tion of  the  guaranty  period  covered  by  such  bond,  the  highway  commis- 
sion shall  notify  the  city  clerk  thereof  and  upon  service  of  such  notice  the 
authority  and  responsibility  of  the  state  over  such  street  shall  cease  and 
thereafter  such  street  shall  be  maintained  in  the  manner  provided  by  law 
for  the  maintenance  and  repair  of  city  streets.  [Highway  Law,  § 172a,  as 
added  by  L.  1916,  ch.  578,  and  amended  by  L.  1917,  ch.  261.] 

§ 4.  DISBURSEMENT  OF  MAINTENANCE  FUNDS. 

The  amount  apportioned  by  the  commission  for  the  maintenance  and 
repair  of  state  and  county  highways  in  each  county  shall  be  expended  for 
the  repair  and  maintenance  of  such  highways  in  such  county,  but  the 
amount  paid  by  each  town  or  incorporated  village  a&  provided  by  section 
one  hundred  and  seventy  two  shall  be  expended  for  the  repair  and  main- 
tenance of  such  highways  in  such  town  or  incorporated  village.  The  county 
treasurer  shall  pay  out  the  moneys  received  by  him  as  provided  in  this  article 
upon  the  written  order  of  the  representative  of  the  commission,  who,  before 
drawing  any  such  orders  shall  give  a bond  in  an  amount  to  be  specified  by 
the  commission,  and  with  such  sureties  as  shall  be  approved  by  the  com- 


MAINTENANCE  OF  STATE  AND'  COUNTY  HIGHWAYS. 


905 


Highway  Law,  §§  174,  175,  176. 

mission;  such  bond  shall  be  filed  in  the  office  of  the  state  comptroller  and 
certified  copy  thereof  filed  in  the  office  of  the  state  highway  commission 
and  in  the  office  of  the  county  treasurer.  Such  orders  shall  be  issued  upon 
vouchers  duly  presented  to  the  representative  of  the  commission  in  the  form 
to  be  prescribed  by  it.  The  commission  may  adopt  rules  and  regulations 
providing  for  the  presentation  and  payment  of  accounts  for  maintenance 
and  repair.  [Highway  Law,  § 173,  as  amended  by  L.  1912,  ch.  83,  and 
L.  1916,  ch.  578;  B.  C.  & G.  Cons.  L.,  p.  2273.] 

§ 5.  REPORTS  OF  COUNTY  TREASURERS. 

The  county  treasurer  shall  report  to  the  commission  annually  and  at 
such  other  times  as  required  by  the  commission,  the  amount  received  by 
him  on  account  of  the  maintenance  and  repair  of  improved  state  and  county 
highways  in  the  several  towns  and  incorporated  villages  in  his  county  and 
the  expenditures  made  by  him  out  of  such  moneys.  The  form  and  con- 
tents of  such  report  shall  be  prescribed  by  the  commission.  [Highway 
Law,  § 174,  as  amended  by  L.  1912,  ch.  83,  and  L.  1916,  ch.  578;  B.  C.  & G. 
Cons.  L.,  p.  2273.] 

§ 6.  COMPENSATION  OF  TOWN  SUPERINTENDENTS. 

If  a town  superintendent  shall  be  directed  by  the  commission  to  per- 
form services  in  respect  to  the  maintenance  and  repair  of  improved  state 
and  county  highways  within  his  town  his  compensation  therefor  shall  be 
paid  out  of  the  moneys  set  apart  as  provided  in  this  article  for  such 
maintenance  and  repair.  Such  compensation  shall  be  fixed  by  the  com- 
mission but  shall  in  no  case  exceed  the  amount  fixed  by  the  town  board 
as  compensation  for  his  services  performed  for  the  town  under  this  chap- 
ter,3 and  in  rendering  his  monthly  bill  to  the  supervisor,  and  his  annual 
bill  to  the  town  board,  no  charge  shall  be  made  against  the  town  for  an 
expense  or  per  diem  charge  upon  any  date  for  which  an  audit  shall  have 
been  allowed  by  the  state  commission.  And  said  state  commission  shall 
make  proper  rules  and  regulations  to  carry  into  effect  this  provision  and 
to  furnish  to  the  town  board  prior  to  the  annual  audit  day  due  informa- 
tion as  to  the  dates,  compensation  and  expenses  allowed  by  them  to  said 
town  superintendent  from  the  state  repair  fund.  [Highway  Law,  § 175, 
as  amended  by  L.  1912,  ch.  83;  B.  C.  & G.  Cons.  L.,  p.  2273.] 

§ 7.  LIABILITY  OF  STATE  FOR  DAMAGES. 

The  state  shall  not  be  liable  for  damages  suffered  by  any  person  from 
defects  in  state  and  county  highways,  except  such  highways  as  are  main- 

3.  Compensation  of  town  superintendent  is  fixed  by  the  town  board  at  not  less 
than  two  nor  more  than  five  dollars  per  day.  Highway  Law,  sec.  45,  ante. 


905a 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  177,  179'. 

tained  by  the  state  by  the  patrol  system,  but  the  liability  for  such  dam- 
ages shall  otherwise  remain  as  now  provided  by  law,4  notwithstanding 
the  construction  or  improvement  and  maintenance  of  such  highways  by 
the  state  under  this  chapter;  but  nothing  herein  contained  shall  be  con- 
structed to  impose  on  the  state  any  liability  for  defects  in  bridges  over 
which  the  state  has  no  control.  Within  the  limits  of  incorporated  vil- 
lages the  state  shall  maintain  a width  of  pavement  equal  to  the  width  of 
pavement  constructed  or  improved  at  the  expense  of  the  state,  if  a state 
highway,  or  of  the  state  and  county,  if  a county  highway,  the  location  of 
the  state’s  portion  of  such  roadway  within  said  incorporated  limits  to  be 
determined  by  the  center  line  of  the  roadway  as  shown  on  the  plans  on 
file  with  the  state  highway  department,  and  the  state  shall  be  liable  for 
damages  to  persons  or  property  only  when  such  damages  shall  oocur  as 
a result  of  the  defective  condition  of  the  portion  of  improved  highway 
as  above  described.  [Highway  Law,  § 176,  as  amended  by  L.  1910,  ch. 
570,  L.  1912,  ch.  83,  and  L.  1916,  ch.  578.] 

§ 8.  ADDITIONAL  WIDTH  OR  DIFFERENT  TYPE  OF  CONSTRUC- 
TION UNDER  REPAIR  CONTRACTS. 

Whenever  in  the  maintenance  and  repair  of  state  and  county  highways 
the  commission  shall  have  determined  upon  the  necessity  of  resurfacing 
such  highway,  the  town  or  village  wherein  the  highway  is  located  may 
petition  the  commission  to  provide  an  additional  width  or  a different 
type  of  pavement,  or  both,  in  the  plans  providing  for  such  resurfacing. 
The  additional  expense  of  such  widening  or  different  type  of  construction 
shall  be  borne  wholly  by  such  town  or  village  and  the  provisions  of  sections 
one  hundred  and  thirty-seven  and  one  hundred  and  thirty-eight-a  shall 
apply  to  such  additional  width  or  different  type  of  construction  under  such 
repair  contract  in  the  same  manner  as  under  a construction  contract  as 
provided  in  those  sections.  [Highway  Law,  § 177,  as  added  by  L.  1916, 
ch.  578.] 

§ 9.  SPRINKLING;  REMOVAL  OF  FILTH  AND  REFUSE. 

Upon  petition  signed  by  a majority  of  the  taxpayers  owning  property 
abutting  upon  an  improved  state  or  county  highway  and  filed  with  the 
town  clerk,  the  town  board  may  set  aside  any  section  of  such  highway 
outside  of  a village  and  contract  for  the  sprinkling  of  the  readbed  with 


4.  Under  Highway  Law,  sec.  74,  ante,  a town  is  liable  for  injuries  sustained  “by 
reason  of  any  defect  in  its  highways  or  bridges  existing  because  of  the  neglect  of 
any  town  superintendent  of  such  town.”  There  can  be  no  liability  imposed  upon  the 
town  under  this  section  unless  it  appears  that  the  defect  causing  the  injury  was  due 
to  the  neglect  of  the  town  superintendent. 


MAINTENANCE  OF  STATE  AND  COUNTY  HIGHWAYS. 


905b 


Highway  Law,  § 180. 

water  and  also  contract  for  the  removal  of  filth  and  refuse  therefrom. 
ISTo  such  contract  shall  be  entered  into  unless  previously  approved  by  the 
county  superintendent.  The  amount  of  any  such  contract  so  entered 
into  shall  be  assessed  upon  the  property  abutting  upon  such  section  in 
the  proportion  which  the  frontage  of  each  parcel  thereof  bears  to  the 
length  of  the  section  exclusive  of  intersecting  highways.  Such  assess- 
ment shall  be  made,  levied  and  collected  in  the  same  general  manner, 
and  at  the  same  time  and  by  the  same  officers  as  the  town  taxes  of  said 
town  are  assessed,  levied  and  collected.  [Highway  Law,  § 179;  B.  C.  & 
Gr.  Cons.  L.,  p.  2275.] 

§ 10.  PAYMENT  BY  COUNTIES  OF  A PORTION  OF  THE  COST  OF 
CONSTRUCTION  UNDER  REPAIR  CONTRACTS. 

Whenever  in  the  maintenance  and  repair  of  state  and  county  highways 
under  the  provisions  of  article  seven  of  this  chapter,  the  commission  shall 
have  determined  upon  the  necessity  of  resurfacing,  reconstructing  or  re- 
pairing such  highway,  the  county  wherein  the  highway  is  located  may  by 
resolution  provide  that  not  to  exceed  thirty-five  per  centum  of  the  estimated 
cost  of  such  resurfacing,  reconstructing  or  repairing  shall  be  borne  by  the 
county.  The  provisions  of  sections  one  hundred  and  twenty-five,  one  hun- 
dred and  twenty-six,  one  hundred  and  twenty-seven,  one  hundred  and 
twenty-eight,  one  hundred  and  thirty,  one  hundred  and  thirty-two,  one  hun- 
dred and  thirty-four,  one  hundred  and  thirty-five,  one  hundred  and  thirty- 
six,  one  hundred  and  thirty-seven,  one  hundred  and  thirty-nine,  one  hun- 
dred and  forty-one,  one  hundred  and  forty-one-a,  one  hundred  and  forty- 
two,  one  hundred  and  forty-two-a,  one  hundred  and  forty-eight,  one  hundred 
and  forty-nine,  one  hundred  and  forty-nine-a,  one  hundred  and  fifty,  one 
hundred  and  fifty-one,  one  hundred  and  fifty-two,  one  hundred  and  fifty- 
three,  one  hundred  and  fifty-four,  one  hundred  and  fifty-five  and  one  hun- 
dred and  fifty-six  of  this  chapter  shall  apply  to  such  resurfacing,  recon- 
structing and  repairing  of  state  and  county  highways  in  the  same  manner 
as  to  the  original  construction  thereof  in  so  far  as  the  same  may  be  appli- 
cable thereto.  [Highway  Law,  § 180,  as  added  by  L.  1917,  ch.  91.] 


HIGHWAYS  AND  BRIDGES. 


Explanatory  note. 


CHAPTER  XLII. 

LAYING  OUT,  ALTERING  AND  DISCONTINUING  HIGHWAYS;  PRIVATE 

ROADS. 

EXPLANATORY  NOTE. 

Proceedings  to  Lay  Out,  etc,  Highways. 

A town  superintendent  of  highways  must  follow  the  proceedings 
described  in  this  chapter,  in  laying  out,  altering  or  discontinuing  high- 
ways. These  proceedings  are  judicial  in  their  character,  and,  for  the 
most  part,  involve  an  application  to  the  court,  the  appointment  of  com- 
missioners, the  taking  of  testimony  and  the  assessment  of  damages. 
The  superintendent  and  other  persons  interested  will  usually  require  the 
services  of  attorneys.  There  must  he  a strict  compliance  with  the 
requirements  of  the  statute,  and  reference  must  be  made  thereto  in 
accomplishing  the  desired  object. 

Private  roads. 

This  chapter  also  contains  the  provisions  of  chapter  VIII  of  the 
Highway  Law,  relating  to  laying  out  private  roads.  Application  for  a 
private  road  must  be  made  to  the  town  superintendent,  whose  duty  it  is 
to  appoint  a time  and  place  for  a hearing  before  a jury  to  determine 
as  to  the  necessity  of  such  road  and  to  assess  the  damages.  The  practice 
is  prescribed  by  the  statute  and  must  be  closely  abserved. 


[High  Law,  art.  VIII.] 

Section  1.  Survey  for  the  laying  out  of  a highway. 

2.  Highways  by  dedication. 

3.  Application. 

4.  Application  for  condemnation  commissioners. 

5.  Appointment  of  condemnation  commissioners  and  their  duties. 

6.  Notice  of  meeting. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 


907 


Highway  Law,  § 190. 

Section  7.  Decision  of  condemnation  commissioners  in  favor  of  application. 

8.  Damages  in  certain  cases,  how  estimated. 

9.  Decision  of  condemnation  commissioners  denying  application. 

10.  Motion  to  confirm,  vacate  or  modify. 

11.  Limitations  upon  laying  out  highways. 

12.  Laying  out  highways  through  burying-grounds. 

13.  Costs,  by  whom  paid. 

14.  Damages  assessed  and  costs  to  be  audited. 

15.  When  officers  of  different  towns  disagree  about  highway. 

16.  Difference  about  improvements. 

17.  Highway  in  two  or  more  towns. 

18.  Laying  out,  dividing  and  maintaining  highway  upon  town  line. 

19.  Final  determination,  how  carried  out. 

20.  Highways  by  use. 

21.  Fences  to  be  removed. 

22.  Private  Toad. 

23.  Jury  to  determine  necessity  and  assess  damages. 

24.  Copy  application  and  notice  delivered  to  applicant. 

25.  Copy  and  notice  to  be  served. 

26.  List  of  jurors. 

27.  Names  struck  off. 

28.  Place  of  meeting. 

29.  Jury  to  determine  and  assess  damages. 

30.  Their  verdict. 

31.  Value  of  highway  discontinued. 

32.  Papers  to  be  recorded  in  town  clerk’s  office. 

33.  Damages  to  be  paid  before  opening  the  road. 

34.  Fees  of  officers. 

35.  Motion  to  confirm,  vacate  or  modify. 

36.  Costs  of  new  hearing. 

37.  For  what  purpose  private  road  to  be  used. 

38.  Highways  or  roads  along  division  lines. 

39.  Adjournments. 

40.  Widening  roads,  petition. 

41.  Powers  and  duties  of  commissioners. 

42.  Notice  of  decision  to  supervisors. 

43.  Widening,  how  constructed. 

44.  Actions  to  compel  widening,  how  affected  by  petition. 

45.  Highways  abandoned. 

46.  Highways  in  lands  acquired  by  the  United  States,  for  fortification 

purposes,  deemed  abandoned. 

47.  Discontinuance  of  highway. 

48.  Description  to  be  recorded. 

49.  Damages  caused  by  discontinuance. 

50.  Papers,  where  filed. 

51.  Costs  of  motion. 


§ 1.  SURVEY  FOR  THE  LAYING  OUT  OF  A HIGHWAY. 

Whenever  the  town  superintendent  shall  lay  out  any  highway,  either 
upon  application  to  him  or  otherwise,  he  shall  notify  the  district  or  county 


908 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 191. 

superintendent,  whose  duty  it  shall  be  to  either  make  a survey,  or  cause 
the  same  to  be  made,  and  the  town  superintendent  shall  incorporate  the 
survey  in  an  order  to  be  signed  by  him,  and  to  be  filed  and  recorded  in 
the  office  of  the  town  clerk,  who  shall  note  the  time  of  recording  the  same.1 
[Highway  law,  § 190;  B.  C.  & G.  Cons.  L.,  p.  2276.] 


§ 2.  HIGHWAYS  BY  DEDICATION. 

Whenever  land  is  dedicated  to  a town  for  highway  purposes  therein,  the 
town  superintendent  may  with  the  consent  of  the  town  board,  either  with 


1.  Board  of  supervisors  may  require  commissioners  to  make  surveys  of  high- 
ways. County  Law,  sec.  71,  post. 

Sufficiency  of  survey.  The  survey  or  description  of  the  highway  laid  out,  in- 
cluded in  or  made  part  of  the  order  should  be  definite  and  certain.  It  should 
clearly  specify  the  highway  as  to  line  and  width.  If  there  is  no  width  ex- 
pressed in  it,  and  it  is  wholly  uncertain  both  as  to  starting  point  and  terminus, 
it  is  insufficient.  People  ex  rel.  Waters  v.  Diver,  19  Hun  263.  The  omission  to 
incorporate  a survey  in  the  order,  or  to  make  it  a part  of  it,  is  fatal.  Pratt  v. 
People,  13  Hun  664.  The  survey,  to  be  sufficient,  should  show  distinctly  the 
line  of  the  proposed  road  so  that  persons  through  whose  lands  the  road  is  to  be 
laid  out,  and  others  interested,  can  determine  its  route;  there  must  be  no  un- 
certainty in  the  description  of  the  property  to  be  taken;  the  description  should 
be  such  that  from  it  alone,  without  resort  to  other  papers,  the  road  could  be 
laid  out.  Matter  of  De  Camp,  19  App.  Div.  564,  46  N.  Y.  Supp.  293;  Pratt  v. 
People,  13  Hun  664.  The  objects  at  each  end  of  the  line  of  the  highway,  as 
pointed  out  in  the  record,  will  direct  the  course  of  the  line,  despite  the  fact 
that  the  direction  of  the  compass  between  them  as  given  in  the  description,  is 
inaccurate.  Johnson  v.  Loveless,  18  Wk.  Dig.  49. 

It  has  been  held  that  it  is  sufficient  to  run  a single  line  as  the  center  of  the 
highway,  with  definite  points  of  starting  and  ending,  since  the  width  being 
prescribed  by  statute  the  boundaries  of  the  highway  would  be  a matter  of  simple 
calculation.  People  ex  rel.  Hawver  v.  Commissioners  of  Highways  of  Redhook, 
13  Wend.  310;  People  ex  rel  McFarland  v.  Commissioners  of  Highways  of 
Salem,  1 Cow.  23;  Tucker  v.  Rankin,  15  Barb.  471. 

Incorporation  of  survey  in  order.  The  objection  to  the  order  of  the  com- 
missioners, laying  out  the  road,  that  it  did  not  incorporate  the  survey,  is  of  no 
force,  where  the  survey  was  attached  to  the  order.  Van  Bergen  v.  Bradley,  36 
N.  Y.  316.  A substantial  compliance  with  the  section  requiring  incorporation 
of  an  order  in  the  survey  is  sufficient.  Tucker  v.  Rankin,  15  Barb.  471.  Where 
the  recital  of  the  laying  out  of  the  highway  and  the  survey,  though  dated 
several  months  before,  are  recorded  immediately  after  the  order  in  the  book  of 
town  records,  and  the  order  purports  to  accord  with  a survey  and  both  papers 
describe  the  same  highway,  the  statute  requiring  the  survey  to  be  incorporated 
in  the  order  is  substantially  complied  with.  McCarthy  v.  Whalen,  19  Hun  503; 
affirmed,  87  N.  Y.  148. 

Recording'  order.  The  clerk’s  act  in  recording  an  order  of  a town  superin- 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS.  909 

Highway  Law,  § 191. 

or  without  a written  application  therefor,  and  without  expense 
to  the  town  make  an  order  laying  out  such  highway,  upon  filing 
and  recording  in  the  town  clerk’s  office  with  such  order 
a release  of  the  land  from  the  owner  thereof.* 2  A highway 


tendent  is  ministerial.  He  has  no  discretion  in  its  performance.  He  cannot 
refuse  to  file  and  record  the  order  because  it  is  improperly  executed.  People 
y.  Collins,  7 Johns.  549. 

2.  For  form  of  order  of  town  superintendent  laying  out  highway  on  release 
of  land  by  owners,  see  Form  No.  120,  post.  For  form  of  dedication  and  release 
by  owner,  see  Form  No  121,  post. 

Method  of  creating  highways.  Public  highways  may  be  created  in  four  ways: 
(1)  By  proceedings  under  the  statute;  (2)  by  prescription  or  used  for  twenty 
years;  (3)  by  dedication  through  offer  and  implied  acceptance;  (4)  by  dedica- 
tion through  offer  and  actual  acceptance.  Cohoes  v.  D.  & H.  C.  Co.,  134  N.  Y. 
397;  31  N.  E.  887,  and  authorities  cited;  Town  of  Corning  v.  Head,  86  Hun,  12; 
33  N.  Y.  Supp.  360. 

Dedication  and  acceptance.  Though  a highway  has  never  been  laid  out  or 
recorded  as  a highway,  if  it  has  been  dedicated  and  used  as  such  for  more 
than  twenty  years  and  accepted  and  worked  by  the  authorities  it  becomes  a 
legal  highway.  Town  of  Corning  v.  Head,  86  Hun,  12;  33  N.  Y.  Supp.  360; 
McVee  v.  City  of  Watertown,  92  Hun,  306;  36  N.  Y.  Supp.  870. 

Where  a town  for  the  purpose  of  straightening  a highway  shifted  it  to  one  side 
at  the  instance  and  expense  of  the  owner  of  the  abutting  land,  the  owner  will  be 
deemed  to  have  dedicated  and  the  town  to  have  accepted  the  additional  land,  al- 
though there  was  no  conveyance.  Huber  v.  Goig  (1918)  181  App.  Div.  369. 

To  constitute  a highway  there  must  be  not  only  a dedication  but  there  must  also 
be  an  acceptance  by  the  public,  accompanied  either  by  an  official  act  by  the  author- 
ities competent  to  accept  the  highway,  or  by  common  or  public  user ; and  such  an 
acceptance  is  not  established  by  a sale  of  lots  by  reference  to  a map  on  which  streets 
are  laid  down;  nor  by  the  enjoyment  by  the  purchasers  of  such  lots  of  the  private 
easements  thereby  created;  nor  by  mere  public  travel,  without  action  by  the  author- 
ities in  repairing  and  maintaining  or  using  the  street;  nor  by  the  patrolling  thereof 
by  police  officers.  Matter  of  Starr  Street,  73,  Misc.  381. 

The  grade  of  a street  may  be  established,  without  a municipal  ordinance,  by  usage, 
acquiesence  and  recognition  for  a period  of  forty  years.  Hunt  v.  Otego,  160  App. 
Div.  158,  145  N.  Y.  Supp.  495. 

Dedication  alone  is  not  sufficient.  There  must  be  either  an  actual  or  implied 
acceptance.  Streets  and  highways  dedicated  by  individuals  to  public  use,  but 
not  adopted  or  accepted  by  the  local  authorities,  or  declared  to  be  highways 
by  statute,  are  not  highways  within  the  meaning  of  the  Highway  Law,  and  there 


910 


HIGHWAYS  AXD  BRIDGES. 


Highway  Law,  § 191. 

so  laid  out  must  not  be  less  than  two  rods  in  width, 2a  except  that  where 
such  highway  is  located  on  a sand  beach  separated  by  more  than  two 
miles  of  water  from  the  main  body  of  the  town  of  which  it  forms  a part 
and  is  not  an  extension  or  continuation  of  a public  highway  already  in 
use  and  has  erected  thereon  a board  walk  not  less  than  one-third  the  width 
of  said  highway,  such  highway  so  laid  out  may  be  less  than  two  rods  in 
width  and  must  not  be  less  than  ten  feet  in  width.  Section  two  hun- 
dred does  not  apply  to  a highway  by  dedication.  Such  town  superin- 
tendent may  also,  upon  written  application  and  with  the  written  consent 
of  the  town  board,  make  an  order  laying  out  or  altering  a highway, 

is  no  law  by  which  a town  or  its  officers  can  be  compelled  to  keep  them  in  repair. 
City  of  Oswego  v.  Oswego  Canal  Co.,  6 X.  Y.  257 ; Bissell  v.  X.  I7.  Cent.  R.  Co.,  23 
X.  Y.  61;  Clements  v.  Village  of  West  Troy,  16  Barb.  251. 

A public  street  or  highway  cannot  be  created  by  mere  dedication.  There  must 
also  be  something  amounting  to  an  acceptance  of  the  street  as  such  either  by  the 
public  authorities  or  directly  by  the  public.  People  ex  rel.  WTashburn  v.  Common 
Council,  128  App.  Div.  44,  47,  112  X.  Y.  Supp.  387. 

There  must  be  an  acceptance  of  the  dedication  by  one  authorized  to  act  for  the 
town.  Trustees  of  Jordan  v.  Otis,  37  Barb.  50;  Morse  v.  City  of  Troy,  38  Hun,  301 ; 
People  v.  Underhill,  144  X.  Y.  316^  39  X.  E.  333. 

The  use  by  the  public  of  a private  way  does  not  make  it  a public  highway,  without 
proof  of  dedication  and  user.  Palmer  v.  Palmer,  150  X.  Y.  139,  44  X.  E.  966.  But 
where  a highway  has  been  laid  out  by  an  order  of  highway  commissioners  duly 
entered,  made  with  the  full  consent  of  the  owners  of  the  land  through  which  it 
runs,  and  such  highway  was  included  by  such  commissioners  in  one  of  the  road 
districts  of  the  town,  it  must  be  deemed  a duly  dedicated  public  highway,  although 
its  use  by  the  public  has  been  limited,  and  its  boundaries  as  so  used  had  not  been 
determined  by  the  commissioners.  Wakeman  v.  Wilbur,  147  X.  Y.  657,  661 ; 42 
X.  E.  341. 

An  acceptance  may  be  proved  by  long  public  use  or  by  the  acts  of  the  proper 
public  authorities  in  recognizing  and  adopting  the  highway  People  v.  Lochfelm, 
102  X.  Y.  1;  Cook  v.  Harris,  61  X.  Y.  448;  Holdane  v.  Cold  Spring,  21  X.  Y.  474; 
Denning  v.  Roome,  6 Wend.  651;  Hunter  v.  Trustees,  6 Hill,  407;  McMannis  v. 
Butler,  51  Barb.  436.  The  use  must  be  the  main  use  of  substantially  the  entire 
highway.  McCutcheon  v.  Terminal  Station  Commission,  88  Misc.  601,  151  X.  Y. 
Supp.  451,  affd.  168  App.  Div.  301.  Even  the  laying  out  of  a highway  on  a map 
prepared  by  municipal  authority  will  not  suffice  to  constitute  a lane  as  a highway, 
where  it  appears  that  the  public  were  excluded  therefrom  during  a portion  of  the 
time  by  barriers  and  fences.  Farmers’  & M.  Sav.  Bank  v.  Lockport,  89  Misc.  157,  151 
X.  Y.  Supp.  865.  See,  also,  as  to  evidence  of  acceptance,  Matter  of  Beach  Avenue, 
70  Hun,  351,  24  X.  Y.  Supp.  37;  Eckerson  v.  Haverstraw,  6 App.  Div.  102,  39  X.  Y. 
Supp.  635. 

Consent  to  close  a highway  must  be  by  a majority  of  the  town  board,  and  the 
subsequent  signature  of  one  member  of  the  board,  procured  after  adjournment,  is 
ineffective  to  make  a majority.  Greene  v.  Goodwin  Sand  & Gravel  Co.,  72  Misc.  192. 

Where  a map  was  filed  in  1836,  laying  out  a tract  of  land  into  blocks  of  build- 
ing lots  bounded  by  streets,  and  subsequent  conveyances  of  portions  thereof 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS.  <)yOa 

Highway  Law,  § 191. 

or  discontinuing  a highway,  which  has  become  useless  since  it  was  laid 
out,  upon  filing  and  recording  in  the  town  clerk’s  office,  with  such  appli- 


were  made  with  reference  to  such  map,  such  acts  amounted  to  a dedication  of 
the  land  within  the  lines  of  the  streets  as  designated  on  such  map  for  street 
purposes,  and  the  subsequent  adoption  in  1910  by  the  common  council  of  the 
city  in  which  the  lands  lay  of  a resolution  approving  a petition  of  adjoining 
lot  owners  to  open  a portion  of  one  of  the  streets  was  an  acceptance  of  it  and 
constituted  the  same  a highway.  Stillman  v.  City  of  Olean,  72  Misc.  196. 

Order  closing  highway.  Where  an  order,  made  by  the  highway  commis- 
sioners of  a town,  closing  a portion  of  a highway,  is  filed  in  the  town  clerk’s 
office,  but  is  not  recorded  by  him  as  required  by  the  above  section,  the  failure  to 
record  the  order  does  not  invalidate  the  proceedings  of  the  commissioners. 
People  ex  rel.  Dinsmore  v.  Vandewater,  83  App.  Div.  60,  82  N.  Y.  Supp.  626. 

Revocation  of  dedication.  A dedication  of  a highway  once  made  and  ac- 
cepted cannot  be  revoked.  Cook  v.  Harris,  61  N.  Y.  448.  But  if  a dedication  is 
not  accepted  within  a reasonable  time,  the  owner  may  recall  the  dedication; 
and  he  may  at  any  time  recall  the  dedication  if  no  adverse  rights  have  attached 
prior  thereto.  What  is  reasonable  time  must  depend  upon  the  particular  cir- 
cumstances of  the  case.  Matter  of  Opening  of  Beck  Street,  19  Misc.  571,  44 
N.  Y.  Supp.  1087;  Lee  v.  Sandy  Hill,  40  N.  Y.  442;  Matter  of  Fox  Street,  54  App. 
Div.  479,  67  N.  Y.  Supp.  57;  Buffalo  v.  D.,  L.  & W.  R.  R.  Co.,  68  App.  Div.  488; 
74  N.  Y.  Supp.  343.  Such  dedication  cannot  be  revoked  after  a user  of  twenty 
years  regardless  of  acceptance.  Eckerson  v.  Haverstraw,  6 App.  Div.  102;  39 
N.  Y.  Supp.  635. 

Mere  lapse  of  time  does  not  effect  an  abandonment  or  revocation  of  dedication 
of  a highway.  Stillman  v.  City  of  Olean,  72  Misc.  196. 

Where  an  owner  of  land  dedicated  it  to  the  public  for  a highway,  but  died 
before  its  acceptance  by  the  public,  her  death  was  held  to  be  a revocation  of 
the  proposed  dedication.  People  v.  Kellogg,  67  Hun,  546;  22  N.  Y.  Supp.  490. 

Release  by  owner.  Where  the  owner  of  land  applied  for  and  consented  to 
the  alteration  of  a highway  which  was  wholly  upon  his  farm,  and  himself  closed 
a part  of  the  highway  which  was  abandoned,  and  opened  and  worked  the  new 
part,  the  failure  to  record  a formal  release  did  not  render  the  order  void  so  as 


910b 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 191. 

cation,  consent  and  order,  a release  from  all  damages  from  tbe  owners  of 


to  justify  the  invasion  of  the  closed  highway  by  persons  having  no  rights 
except  those  common  to  the  public.  Engleman  v.  Longhorst,  120  N.  Y.  332. 
Compare  People  ex  rel.  Clark  v.  Commissioner  of  Highways  of  Town  of  Read- 
ing, 1 T.  & C.  193,  where  it  was  held  that  the  fact  the  damages  had  neither  been 
released  nor  assessed  constituted  a complete  answer  to  an  application  for  a 
writ  of  mandamus  to  open  and  improve  a highway. 


Where  a release  of  lands  by  the  owner  for  highway  purposes  though  left  with 
the  clerk  for  filing  is  lost  and  there  is  no  evidence  of  its  contents,  mandamus 
will  not  issue  to  compel  the  commissioners  to  open  the  highway.  People  ex 
rel.  Eastman  v.  Scott,  75  N.  Y.  Supp.  410. 


The  order  laying  out  the  highway  must  either  be  signed  by  all  the  commis- 
sioners or  must  show  that  they  were  all  notified  to  participate.  Fitch  v.  Com- 
missioners, 22  Wend.  132;  People  v.  Hynds,  30  N.  Y.  470;  s.  c.,  27  Barb.  94; 
People  v.  Williams,  36  N.  Y.  441;  Simmons  v.  Sines,  4 Abb.  Dec.  246;  Matter 
of  Summit  Street,  3 How.  Pr.  26;  Matter  of  Church  Street,  49  Barb.  455; 
Christy  v.  Newton,  60  Barb.  332;  Chapman  v.  Swan,  65  Barb.  210;  Pratt  v. 
People,  13  Hun,  664;  Stewart  v.  Wallis,  30  Barb.  344. 


Injunction  to  restrain  change  of  highway. — Those  living  upon  a highway  that 
affords  them  access  to  other  places  may  maintain  an  action  to  prevent  the 
demolition  of  a section  of  the  highway,  though  that  portion  threatened  with 
destruction  is  not  the  part  upon  which  their  lands  abut  and  the  abutting  owners 
at  the  point  of  demolition  consent  thereto.  Greene  v.  Goodwin  Sand  & Gravel 
Co.,  72  Misc.  192. 


2a.  A strip  of  land  eleven  feet  wide  cannot  become  a highway  by  dedication 
Ricketson  v.  Village  of  Saranac  Lake,  73  Misc.  52. 


Failure  to  record  order  laying  ont  highway. — The  provision  of  this  section, 
requiring  an  order  laying  out  a highway  to  be  filed  and  recorded  in  the  town 
clerk’s  office,  is  not  mandatory  and  failure  to  comply  therewith  does  not  make 
the  town  a trespasser.  Tomlinson  v.  Town  of  Southampton,  143  App.  Div.  487, 
127  N.  Y.  Supp.  965. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 


911 


Highway  Law,  § 192. 

lands  taken  or  affected  tbereby?2b  when  the  consideration  for  such  release, 
ns  agreed  upon  between  such  town  superintendent,  and  owner  or  owners, 
shall  not  in  any  one  case,  from  any  one  claimant,  exceed  one  hundred 
dollars,  and  from  all  claimants  five  hundred  dollars.* * 3  An  order  of  the 
town  superintendent,  as  herein  provided,  shall  be  final.  [Highway  Law, 
§ 191,  as  amended  by  L.  1915,  ch.  322 ; B.  C.  & G.  Cons.  L.,  p.  2277.] 

§ 3.  APPLICATION. 

Any  person  or  corporation  assessable  for  highway  taxes  may  make 
written  application  to  the  town  superintendent  of  the  town  in  which  he 
or  it  shall  reside,  or  is  assessable,  to  alter  or  discontinue  a highway,  or 
to  lay  out  a new  highway.4  Such  application  must  he  approved  hv  the 
written  consent,  indorsed  thereon  and  attached  thereto,  of  a majority 
of  the  members  of  the  town  board.  [Highway  Law,  § 192,  as  amended 
by  L.  1913,  ch.  472;  B.  C.  & G.  Cons.  L.,  p.  2282.] 


2b.  Filing  papers.  It  is  not  sufficient,  under  this  provision,  to  record  release 
and  file  application,  consent  and  order;  all  such  papers  must  be  both  filed  and 

recorded.  People  ex  rel.  Simmons  v.  Dowling,  84  Misc.  201,  146  N.  Y.  Supp.  919. 

3.  For  form  of  order  of  town  superintendent  laying  out  or  altering  highway 
with  consent  of  town  board,  see  Form  No.  122,  post.  For  form  of  release  of  damages 
by  owners  of  the  land,  see  Form  No.  123,  post.  For  form  of  consent  of  town  board, 
see  Form  No.  124,  post. 

4.  Who  may  make  application.  To  give  a town  superintendent  jurisdiction 
of  proceedings  to  lay  out  a highway,  an  application  must  be  made  in  writing  by 
a person  liable  to  be  assessed  for  highway  labor.  Harrington  v.  People,  6 Barb.  607. 

Any  person  assessable  for  highway  labor  may  make  the  application.  People  v. 
Eggleston,  13  How.  Pr.  123. 

A person  liable  to  be  assessed  for  highway  labor  in  one  town  may  initiate  pro- 
ceedings to  lay  out  a highway  located  partly  in  his  own  town  and  partly  in  another 
town.  People  ex  rel.  Knapp  v.  Keck,  90  Hun,  499 ; 36  N.  Y.  Supp.  51. 

Residents  of  a village  within  a town  are  not  proper  applicants  for  the  laying  out 
of  a road  in  the  town  outside  of  the  village.  Commissioners  v.  Meserole,  10  Wend. 
123. 

A municipal  corporation  assessable  for  highway  taxes  in  a town  may  make 
application.  N.  Y.,  N.  H.  & H.  R.  R.  Co.  v.  Village  of  New  Rochelle,  29  Misc.  195, 
60  N.  Y.  Supp.  904. 

Town  superintendents  of  highways,  as  such,  may  not  make  application  to  lay 
out  a highway  People  ex  rel.  Bevins  v.  Supervisors,  82  Hun,  298,  31  N.  Y.  Supp. 
248.  But  they  may  lay  out  a road  of  their  own  motion  without  any  application 
therefor.  Marble  v.  Whitney,  28  N.  Y.  297. 

Application  by  a person  liable  to  assessment  is  not  necessary  to  confer  jurisdiction 
upon  the  town  superintendent  of  highways  to  discontinue  a road;  they  have  power  to 
discontinue  on  their  own  motion,  and  therefore,  a defective  application  does  not 
invalidate  such  proceedings.  People  ex  rel.  Bristol  v.  Nichols,  51  N.  Y.  470. 

The  appearance  of  the  attorney  for  the  town  superintendent  of  highways  as  attor- 
ney for  the  applicants  in  a proceeding  for  the  improvement  of  a highway  is  not 
necessarily  a sufficient  ground  to  invalidate  the  proceeding.  Matter  of  Laidlaw 
(1914),  162  App.  Div.  755,  148  N.  Y.  Supp.  56. 


912 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 193. 

§ 4.  APPLICATION  FOR  CONDEMNATION  COMMISSIONERS. 

Whenever  the  land  is  not  dedicated  to  the  town  for  highway  purposesr 
and  not  released  as  herein  provided,  the  applicant  shall,  within  thirty 
days  after  presenting  the  application  to  the  town  superintendent,  and  after 
at  least  five  days’  notice  to  said  town  superintendent  of  the  time  and  place 
of  the  application  to  the  county  court,  in  this  section  provided  for,  by  veri- 
fied petition  showing  the  applicant’s  right  to  so  present  the  same,  and  that 
such  application  has  been  in  good  faith  presented,  and  if  the  county  judge 
require  on  such  notice  to  such  parties  interested  as  he  shall  direct,  apply 
to  the  county  court  of  the  county  where  such  highway  shall  be,  for  the 
appointment  of  three  commissioners  to  determine  upon  the  necessity  of 
such  highway  proposed  to  be  laid  out  or  altered,  or  to  the  uselessness  of 
the  highway  proposed  to  be  discontinued  and  to  assess  the  damages  by 
reason  of  laying  out,  opening,  altering  or  discontinuing  such  highway.* * * * 5- 


Necessity  of  application.  It  is  not  necessary  to  the  valid  laying  out  of  a high- 
way that  there  should  have  been  a written  application  therefor;  the  commissioner 
may  act  of  his  own  motion.  McCarthy  v.  Whalen,  19  Hun  503;  affd.  87  N.  Y.  148; 
Gould  v.  Glass,  19  Barb.  179;  People  v.  Supervisors  of  Richmond,  20  N.  Y.  252. 

A proceeding  under  this  section  to  determine  whether  a highway  has  become  use- 
less and  should  be  abandoned,  may  be  maintained  although  the  highway  in  question 
has  not  yet  been  opened.  Any  change  of  conditions  rendering  a highway  useless 
is  as  effective  as  if  its  uselessness  had  arisen  from  age  and  use.  Matter  of  Mc- 
Fadden,  96  App.  Div.  58,  89  N.  Y.  Supp.  104. 

Sale  of  property  pending  application.  A proceeding  to  alter  a highway,  instituted 
by  the  owner  of  a farm  in  the  town  where  the  highway  is  located,  is  not  impaired 
by  the  applicant’s  sale  of  the  farm  during  the  pendency  of  the  proceeding  and  be- 
fore confirmation  of  the  report  of  the  commissioners,  where  the  owner  released  all 
claim  for  damages  and  in  the  conveyance  reserved  the  lands  released  for  highway 
purposes  and  for  the  purposes  of  the  proceeding.  Matter  of  Morse,  69r  Misc.  29, 
125  N.  Y.  Supp.  739. 

Consent  of  town  board  is  jurisdictional  and  cannot  be  waived  by  the  board;  hence 
where  such  consent  has  not  been  obtained  the  proceeding  should  be  dismissed.  Mat- 
ter of  Fenton  (1916),  173  App.  Div.  284,  160  N.  Y.  Supp.  1129. 

For  forms  of  applications  to  lay  out,  alter  or  discontinue  a highway,  see 
Forms  Nos.  125,  126  and  127,  post. 

For  form  of  application  to  county  court  for  the  appointment  of  commissioners 
under  the  above  section,  see  Form  No.  128,  post. 

5.  Proceedings  to  determine  necessity  for  highway,  or  for  its  alteration  or  dis- 
continuance. Sections  193-203  of  the  Highway  Law  provide  the  procedure  for 
the  determination  of  the  necessity  of  a highway  proposed  to  be  laid  out  or 
altered  or  the  usefulness  of  a highway  proposed  to  be  discontinued.  The  stat- 
ute contemplates  that  an  application  shall  first  be  made  to  the  highway  com- 
missioner as  provided  in  section  192  of  the  Highway  Law,  ante,  p.  911,  and 
within  thirty  days  thereafter  an  application  may  be  made  to  the  County  Court 
for  the  appointment  of  commissioners.  See  People  ex  rel.  Knapp  v.  Keck,  90 
Hun,  497;  36  N.  Y.  Supp.  51;  People  ex  rel.  Smith  v.  Allen,  37  App.  Div.  248; 
55  N.  Y.  Supp.  1057. 

Section  193  of  the  Highway  Law  and  the  immediately  following  sections  are 
designed  to  point  out  the  initiatory  steps  in  all  proceedings  to  lay  out  a new 
highway.  Matter  of  Taylor  and  Allen,  8 App.  Div.  395;  40  N.  Y.  Supp.  839. 
There  must  be  a strict  compliance  with  the  requirements  of  the  statute  in 
instituting  proceedings  relating  to  the  laying  out,  alteration  or  discontinuance 
of  highways.  People  ex, rel.  Scrafford  v.  Stedman,  57  Hun,  280;  10  N.  Y.  Supp. 
787. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS.  913 

Highway  Law,  § 193. 

Such  application  shall  be  accompanied  by  the  written  undertaking  of  the 

Waiver  by  town  superintendent.  The  provision  of  this  section  that  an  appli- 
cation be  made  to  the  county  court  for  an  order  appointing  commissioners  to  deter- 
mine the  necessity  for  the  proposed  highway  may  not  be  waived  by  the  town  super- 
intendent. Matter  of  Laidlaw,  153  App.  Div.  343,  137  N.  Y.  Supp.  1076. 

When  proceedings  will  lie.  The  statute  does  not  impose  upon  the  town  any 
liability  for  damages  sustained  by  an  abutting  owner  by  reason  of  a change  of 
grade  of  a highway.  Smith  v.  Boston  & Albany  R.  R.  Co.,  99  App.  Div.  94,  91 
N.  Y.  Supp.  412. 

A land  owner  from  whose  town  a private  road  leads  into  another  town  and 
there  ends  in  a cul-de-sac,  may  properly  apply  to  have  this  road  which  has  been 
used  for  more  than  twenty  years  laid  out  as  a public  road  to  the  boundary  line 
between  the  towns.  Matter  of  Burdick,  27  Misc.  298,  58  N.  Y.  Supp.  759. 

Sufficiency  of  application.  The  above  section  does  not  require  that  an 
application  to  the  County  Court  for  the  appointment  of  commissioners  in  a 
proceeding  to  lay  out  a highway  shall  contain  affirmative  allegations  that 
the  land  proposed  to  be  taken  has  not  been  dedicated  to  the  town  for  high- 
way purposes,  or  has  not  been  released  by  the  owner  for  that  purpose,  or 
that  it  has  been  made  within  thirty  days  after  its  presentation  to  the  com- 
missioners of  highways,  and  the  failure  of  the  applicant  to  allege  such  facts 
does  not  deprive  the  court  of  jurisdiction  to  entertain  the  proceeding.  Matter 
of  Buell,  168  N.  Y.  423.  The  petition  must  show  that  the  petitioner  was 
assessable  in  the  town  and  that  the  land  to  be  taken  for  the  new  highway 
was  not  dedicated  to  the  town  for  highway  purposes  or  released  by  the  owners. 
Matter  of  Pugh  46  App.  Div.  634,  61  N.  Y.  Supp.  1145,  reversing  22  Misc.  43, 
49  N.  Y.  Supp.  398. 

Proceedings  for  discontinuance.  A proceeding  for  the  appointment  of  com- 
missioners to  determine  whether  a highway  has  become  useless  and  should  be 
abandoned,  may  be  maintained  although  the  highway  in  question  has  not  yet 
been  opened  nor  the  damages  been  paid  for  the  same.  Matter  of  McFadden, 
96  App.  Div.  58,  89  N.  Y.  Supp.  104. 

A petition  for  the  discontinuance  of  a highway  need  not  set  forth  any  facts 
except  such  as  are  required  by  this  section;  it  need  not  allege  that  the  portion  of 
the  highway  proposed  to  be  discontinued  is  useless.  Matter  of  Rushmore,  57 
Misc.  555,  109  N.  Y.  Supp.  1099. 

Uselessness  must  be  shown.  The  term  “ useless,”  as  used  in  this  section, 
means  “ practically  useless,”  and  not  “ absolutely  useless.”  Matter  of  Trask, 
45  Misc.  244,  92  N.  Y.  Supp.  156.  The  uselessness  of  a highway  proposed  to  be 
discontinued,  refers  to  that  of  a road  fcr  a time  opened,  but  by  change  of 
circumstances  losing  its  usefulness;  not  to  a uselessness  existing  at  the  time 
it  was  laid  out.  People  ex  rel.  Miller  v.  Griswold,  67  N.  Y.  59.  Any  change 
of  conditions  rendering  a highway  useless  is  as  effective  as  if  its  uselessness 
had  arisen  from  age  and  use.  Matter  of  McFadden,  96  App.  Div.  58,  89  N.  Y. 
Supp.  104.  To  authorize  the  discontinuance  of  a highway,  the  weight  of 
evidence  must  show  and  the  commissioners  must  find  that  it  is  useless;  a 
finding  that  it  is  not  necessary,  or  that  a proposed  new  road  would  be  better, 
is  insufficient.  Matter  of  Coe,  19  Misc.  549,  44  N.  Y.  Supp.  910. 

Notice.  Omission  to  give  the  required  notice  to  persons  entitled  thereto  is 
fatal.  People  ex  rel.  Willis  v.  Smith,  7 Hun  17.  Notice  served  upon  the  after- 
noon of  June  sixth  of  an  application  to  be  made  in  the  morning  of  June 
eleventh  for  the  appointment  of  commissioners  pursuant  to  this  section  is 


914 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 193. 

applicant  executed  by  one  or  more  sureties,  approved  by  the  county  judge,* * * * * 6 
to  the  effect  that  if  the  commissioners  appointed  determine  that  the  pro- 
posed highway  or  alteration  is  not  necessary  or  that  the  highway  pro- 
posed to  be  discontinued  is  not  useless,  the  sureties  will  pay  to  the  com- 
missioners their  compensation  at  the  rate  of  four  dollars  for  each  day 
necessarily  spent  and  all  costs  and  expenses  necessarily  incurred  in  the 
performance  of  their  duties,  which  amount  shall  not  exceed  the  sum  of  one 
hundred  dollars.  Whenever  the  town  superintendent  of  highways  of  any 
township  shall  determine  that  public  necessity  requires  the  laying  out 
of  a newr  or  additional  highway,  and  the  land  thereof  cannot  be  obtained 
by  the  dedication  of  the  owners  thereof,  he  may  apply  to  the  town  board 
of  his  town  for  permission  to  institute  a proceeding  to  acquire  so  much  land 
as  may  be  necessary  to  lay  out  such  new  or  additional  highway,  and  when 
such  consent  shall  have  been  given  by  the  town  board  of  such  town,  the 
said  town  superintendent  of  highways  may  apply  to  the  county  court  of 
the  county  in  which  such  proposed  highway  is  situated,  for  the  appoint- 
ment of  commissioners  in  like  manner  as  is  provided  by  this  section  where 
such  application  is  made  by  any  person  or  corporation  assessable  for  high- 
way taxes,  except  that  when  such  application  shall  be  made  by  the  town 
superintendent  of  highways,  that  at  least  five  days’  notice  of  the  time  and 
place  of  the  application  shall  be  given  to  the  owners  of  the  lands  sought 
to  be  acquired,  providing  such  owners  can  be  ascertained  by  such  town 
superintendent,  or  if  the  owners  thereof  are  not  known  to  the  town  super- 
intendent, by  the  serving  of  a copy  of  the  notice  of  such  application  upon 
the  occupants  of  said  premises.  When  such  application  is  made  by  the  town 


five  days’  notice  within  the  meaning  of  the  statute.  Matter  of  Niel,  55  Misc.  317, 

106  N.  Y.  Supp.  479. 

Waiver  of  notice.  Although  town  superintendents  are  entitled  by  this  section 

to  five  days’  notice  of  the  application  to  lay  out  a new  highway,  they  waive  such 
notice  by  appearing  before  the  county  court  without  objection.  Matter  of  Wood, 
111  App.  Div.  781,  97  N.  Y.  Supp.  871.  The  town  superintendent,  who  is  the  only 
person  entitled  as  a matter  of  right  to  notice  of  the  application,  has  the  power  to 
waive  such  notice  and  appear  without  notice.  Matter  of  Wood,  107  App.  Div.  514, 
95  N.  Y.  Supp.  260. 

Employment  of  attorneys.  Town  superintendents  upon  receiving  notice  of  an 
application  for  the  appointment  of  commissioners  to  lay  out  a highway  may  employ 
attorneys  to  oppose  such  application,  and  the  expense  thereof  may  be  paid  by  them 
and  thereafter  audited  by  the  town  board.  McCoy  v.  McClarty,  53  Misc.  69,  104 
N.  Y.  Supp.  80.  But  compare  People  ex  rel.  Bevins  v.  Supervisors,  82  Hun  298,  31 
N.  Y.  Supp.  248. 

6.  TTie  undertaking  of  the  applicant  is  insufficient  unless  it  is  approved  by 
the  judge  as  required  in  the  above  section.  Matter  of  Fanning,  26  App.  Div.  627 ; 
50  N.  Y.  Supp.  1126. 

An  omission  to  file  the  undertaking  of  commissioners  under  section  193  of  the 
Highway  Law  may  be  corrected  under  section  721  of  the  Code  of  Civil  Procedure. 
Matter  of  Laidlaw,  162  App.  Div.  755,  148  N.  Y.  Supp.  56. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 


915 


Highway  Law,  § 194. 

superintendent  of  highways,  no  undertaking  shall  be  required  of  the  ap- 
plicant.7 [Highway  Law,  § 193,  as  amended  by  L.  1910,  ch.  344.] 

§ 5.  APPOINTMENT  OF  CONDEMNATION  COMMISSIONERS,  AND 
THEIR  DUTIES. 

Upon  the  presentation  of  such  petition,  the  county  court  must  appoint 
three  disinterested  freeholders,  who  shall  not  be  named  by  any  person 
interested  in  the  proceedings,  who  shall  be  residents  of  the  county,  but 
not  of  the  town  wherein  the  highway  is  located,  and  who  shall  not  be 
related  by  consanguinity  or  affinity  within  the  sixth  degree  to  the  appli- 
cant or  to  any  person  interested  in  the  proceeding  or  to  the  owner  of  any 
lands  to  be  taken  or  affected  by  the  laying  out,  alteration  or  discontinuance 
of  a highway,  as  commissioners  to  determine  the  questions  mentioned  in 
the  last  section.8  They  shall  take  the  constitutional  oath  of  office,  and 


7.  Expense  of  proceedings.  The  intent  of  the  statute  is,  if  the  proposed 
improvement  should  be  carried  into  effect,  the  costs  and  expenses  occasioned 
by  it  should  be  defrayed  by  the  town,  but  in  case  of  a determination  ad- 
verse to  the  proposed  improvement  the  expense  should  be  borne  by  the 
applicant.  See  Highway  Law,  sec.  202,  as  to  costs  in  cases  of  assessment  of 
damages,  post,  p.  924.  In  the  case  of  Matter  of  Miller,  9 App.  Div.  260; 
41  N.  Y.  Supp.  581,  a proceeding  instituted  by  a private  individual  for  the 
laying  out  of  a highway  failed  because  the  owner  of  a brick  yard,  through 
which  the  highway  was  laid  out,  did  not  consent,  and  because  the  highway 
commissioners  did  not  certify  that  the  public  interests  would  be  promoted 
by  the  opening  of  the  highway.  It  was  held  that  although  the  commis- 
sioners appointed  by  the  court  reported  in  favor  of  the  highway  that  it  was 
improper  for  the  County  Court  to  impose  upon  the  town  the  payment  of  the 
fees  of  the  commissioners;  the  town  cannot  be  made  responsible  for  such 
fees  unless  there  is  a valid  assessment  of  damages,  and  in  no  case  can  the 
town  be  chargeable  where  the  proposed  improvement  fails.  The  limit  of 
the  sum  chargeable  to  the  applicant  is  fixed  at  $50,  and  where  this  amount  has 
already  been  paid  as  costs  of  the  adverse  parties  the  applicant  cannot  be 
compelled  to  pay  the  compensation  of  the  commissioners.  Patton  v.  Miller, 
28  App.  Div.  517;  51  N.  Y.  Supp.  202. 

8.  For  form  of  order  of  County  Court  appointing  commissioners,  see  Form 
No.  129,  post.  For  form  of  notice  to  commissioners  of  their  appointment,  see 
Form  No.  130,  post. 

Qualifications  of  commissioners.  Commissioners  appointed  to  determine  as 
to  the  uselessness  of  a highway  must  be  freeholders  at  the  time  of  their 
appointment.  Matter  of  Trask,  81  App.  Div.  318,  81  N.  Y.  Supp.  53. 

Where  a notice  and  petition  in  proceedings  instituted  to  lay  out  a highway 
state  all  the  facts  required  by  the  statute  the  county  court  may  make  an 
order  appointing  commissioners,  the  effect  of  which  is  an  adjudication  that 
the  persons  appointed  are  eligible.  The  fact  that  it  does  not  appear  in  the 


HIGHWAYS  AND  BRIDGES. 


yi6 


Highway  Law,  § 194. 


appoint  a time  and  place  at  which  they  shall  all  meet  to  hear  the  town 
superintendent  and  supervisor  of  the  town  where  such  highway  is  situated, 
and  others  interested  therein.9  They  shall  personally  examine  the  highway 
described  in  the  application,  hear  any  reasons  that  may  be  offered  for 
or  against  the  laying  out,  altering  or  discontinuing  of  the  highway,  and 
assess  all  damages  by  reason  thereof.10  They  may  adjourn  the  proceedings 


order  that  such  commissioners  were  “ disinterested  freeholders  ” residing  in 
the  county  is  not  a defect  affecting  the  court’s  jurisdiction.  Matter  of  Baker, 
173  N.  Y.  249.  Statement  that  commissioners  were  freeholders  allowed  to 
stand  in  return  to  certiorari  although  not  appearing  in  the  record.  People 
ex  rel.  Lovell  v.  Melville,  7 Misc.  214,  27  N.  Y.  Supp.  1101. 

Order  appointing  commissioners.  If  the  petition  has  been  presented  in  good 
faith,  it  is  the  duty  of  the  county  court  to  appoint  the  commissioners  asked 
for;  the  provisions  of  this  section  are  explicit  in  this  respect.  Matter  of 
McFadden,  96  App.  Div.  58,  89  N.  Y.  Supp.  104. 

Where  a town  superintendent,  served  with  notice  of  an  application  for  the 
appointment  of  commissioners  under  this  section,  fails  to  appear  upon  such 
application  but  afterwards  appears  before  the  commissioners  then  appointed 
and  opposes  the  opening  of  a highway,  he  waives  all  irregularities  in  the 
appointment  of  the  commissioners.  Matter  of  Niel,  55  Misc.  317,  106  N.  Y. 
Supp.  479. 

An  order  appointing  commissioners  in  proceedings  to  lay  out,  alter  and  extend  a 
highway  may  be  filed  nunc  pro  tunc  after  the  commissioners  have  acted.  Matter  of 
Laidlaw  (1914),  162  App.  Div.  755,  148  N.  Y.  Supp.  56. 

9.  The  constitutional  oath  of  office  required  of  commissioners  appointed 
under  this  section  means  the  oath  prescribed  in  art.  13,  § 1,  of  the  Constitution, 
requiring  among  other  things,  an  oath  to  support  the  federal  and  state  Constitu- 
tions ; this  requirement  is  mandatory,  and  where  it  is  not  embodied  in  the  oath  taken 
the  proceeding  is  void  and  objections  may  be  taken  on  the  motion  to  confirm  their 
decision.  Matter  of  David,  44  Misc.  192,  89  N.  Y.  Supp.  812.  The  taking  of  such 
oath  is  necessary  to  give  the  commissioners  jurisdiction,  and  the  parties  to  the 
proceedings  have  no  right  to  waive  an  omission.  • People  v.  Connor,  46  Barb.  333. 
Failure  of  commissioners  to  take  the  constitutional  oath  of  office  renders  their  pro- 
ceedings ineffectual  and  void.  Matter  of  Thompson,  70  Misc.  285,  128  N.  Y.  Supp. 
604. 

Place  of  meeting.  It  is  usual  in  these  proceedings  for  the  commissioners  to 
meet  as  near  to  where  the  highways  proposed  to  be  laid  out  or  discontinued  are 
located,  as  possible,  but  there  is  nothing  in  the  statutes  nor  in  the  decisions  of  the 
courts  which  compel  the  commissioners  to  have  the  hearings  at  any  particular  place 
in  the  town  where  the  highways  are  located.  Matter  of  Coe,  19  Misc.  549,  551 ; 44 
N.  Y.  Supp.  910. 

10.  Hearing  before  commissioners.  Owners  of  land  affected  by  the  discon- 
tinuance of  a highway,  although  not  abutting  thereon,  are  entitled  to  be  heard  in 
opposition  to  the  proceedings  to  discontinue.  Such  owners  cannot  be  required  by 
the  commissioners  to  deposit  a sum  of  money  as  a condition  of  being  heard  in  oppo- 
sition to  the  application.  Matter  of  Coe,  19  Misc.  549;  44  N.  Y.  Supp.  910. 

The  commissioners  appointed  by  the  county  court  are  not  bound  to  follow  the 
route  of  the  petition  for  the  road  with  precision,  and  an  extension  of  one  of  the 
corners  further  than  described  in  the  petition  is  not  erroneous  if  thereby  a better 
road  is  obtained.  People  ex  rel.  Cecil  v.  Carman,  69  Hun,  118,  23  N.  Y.  Supp.  386. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS.  917 

Highway  Law,  §§  195,  196. 

before  them  from  time  to  time,  issue  subpoenas  and  administer  oaths  in 
such  proceedings,  and  they  shall  keep  minutes  of  their  proceedings,  and 
shall  reduce  to  writing  all  oral  evidence  given  before  them  upon  the 
subject  of  the  assessment  of  damages.* 11  They  shall  make  duplicate  certifi- 
cates of  their  decision,  and  shall  file  one  in  the  town  clerk’s  office  of  the 
town,  and  the  other,  with  such  minutes  and  evidence,  in  the  county  clerk  s 
office  of  the  county  in  which  the  highway  or  proposed  highway  is  located. 
[Highway  Law,  § 194;  B.  C.  & G.  Cons.  L.,  p.  2285.] 


§ 6.  NOTICE  OF  MEETING. 

The  applicant  shall  cause,  at  least  eight  days  previous,  written  or  printed 
notice  to  be  posted  up  in  not  less  than  three  public  places  in  the  town 
specifying,  as  near  as  may  be,  the  highway  proposed  to  be  laid  out,  altered 
or  discontinued,  the  tracts  or  parcels  of  land  through  which  it  runs,  and 
the  time  and  place  of  the  meeting  of  the  commissioners  appointed  by  the 
county  court  to  examine  the  highway  as  mentioned  in  the  last  section.12 
Such  notice  shall  also,  in  like  time,  be  personally  served  on  the  owner 
and  occupant  of  the  land,  if  they  reside  in  the  town,  or  by  leaving  the  same 
at  their  residence  with  a person  of  mature  age;  if  they  do  not  reside 
in  the  same  town,  or  service  cannot  be  made,  a copy  of  such  notice  shall 
be  mailed  to  such  owner  and  occupant,  if  their  post-office  address  is  known 
to  the  applicant  or  ascertainable  by  him  upon  reasonable  inquiry.  If 
the  highway  proposed  to  be  laid  out  shall  cross  a railroad  the  applicant 
shall  also  cause  notice  of  the  time  and  place  of  the  meeting  of  the  com- 
missioners to  be  given  to  the  railroad  company  as  required  by  , section 
ninety  of  the  railroad  law.  [Highway  Law,  § 195,  as  amended  by  L. 
1912,  ch.  246 ; B.  C.  & G.  Cons.  L.,  p.  2287.] 

§ 7.  DECISION  OF  CONDEMNATION  COMMISSIONERS  IN  FAVOR  OF  AP- 
PLICATION. 

If  a majority  of  the  commissioners  appointed  by  the  county  court  shall 


Evidence.  Error  in  the  admission  and  exclusion  of  evidence  relating  to  dam- 
ages which  would  be  sustained  by  reason  of  the  construction  of  the  proposed 
road,  will  authorize  the  reversal  of  order  based  upon  the  decision  of  the  com- 
missioners. Matter  of  Pugh,  46  App.  Div.  634,  61  N.  Y.  Supp.  1145,  revg.  22 
Misc.  43,  49  N.  Y.  Supp.  398. 

Adjournment.  A majority  of  the  commissioners  have  power  to  adjourn. 
Matter  of  Newland  Avenue,  15  N.  Y.  Supp.  63;  38  N.  Y.  St.  Rep.  796. 

11.  issue  of  subpoenas  and  administering  oaths.  Such  commissioners  being 
authorized  to  issue  subpoenas  and  take  testimony  have  power  to  compel  the 
attendance  of  witnesses  and  the  giving  of  testimony  by  such  witnesses.  See 
Code  Civ.  Proc.,  secs.  854-862. 

12.  For  form  of  notice  of  the  meeting  of  commissioners,  see  Form  No.  131, 
post-,  for  form  of  affidavit  of  posting  and  serving  of  such  notice,  see  Form  No. 
132,  post. 


918 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 196. 

determine  that  the  highway  or  alteration  applied  for  is  necessary,  or  that 
the  highway  proposed  to  be  discontinued  is  useless,  they  shall  assess  all 
damages  which  may  be  required  to  be  assessed  by  reason  thereof  and  make 
duplicate  certificates  to  that  effect.13  If  the  petition  is  for  the  laying 
out  of  a highway,  the  commissioners  shall  also  include  in  their  certificates 
what  the  probable  cost  would  be  of  laying  out  and  completing  the  pro- 
posed highway,  in  their  opinion,  based  upon  the  evidence  given  before 


13.  For  form  of  certificate  of  commissioners  in  favor  of  laying  out,  altering 
or  discontinuing  a highway,  see  Form  No.  133,  post. 

Determination  as  to  necessity.  To  constitute  a public  necessity,  it  is  not 
required  that  the  entire  community,  or  even  a considerable  portion  of  it, 
should  directly  participate  in  the  benefits  to  be  derived  from  the  property 
taken.  Matter  of  Town  of  Wlhitestown,  24  Misc.  150,  53  N.  Y.  Supp.  397.  The 
statute  contemplates  that  the  question  of  necessity  shall  be  decided  by  the 
commissioners,  not  by  the  court.  Kelsey  v.  King,  32  Barb.  410. 

Where  the  main  object  of  a proceeding  taken  ostensibly  to  lay  out  a public 
highway,  is  to  furnish  access  to  the  lot  of  an  individual,  there  is  no  public 
necessity.  In  such  a case  the  decision  of  the  commissioners  in  favor  of  laying 
out  the  highway  should  be  set  aside,  and  the  individual  remitted  to  her 
right  to  apply  for  a private  road.  Matter  of  Lawton,  22  Misc.  426,  50  N.  Y. 
Supp.  408. 

Assessment  of  damages.  Where  an  owner  of  land  has  previously  offered  to 
release  the  same  for  highway  purposes  it  was  nevertheless  held  that  he  was 
entitled  to  reasonable  compensation  where  proceedings  were  brought  for  the 
determination  of  the  necessity  of  the  highway,  and  that  an  award  giving  nom- 
inal damages  only  was  erroneous.  Matter  of  the  Terrace,  15  N.  Y.  Supp.  775; 
39  N.  Y.  St.  Rep.  270. 

The  names  of  the  property  owners  and  the  amount  of  damages  awarded  to 
each  should  be  contained  in  the  certificate;  but  if  the  property  owners  are 
described  without  being  named  it  is  sufficient.  Granger  v.  Syracuse,  38 
How.  Pr.  308.  If  the  claims  of  title  to  lands  damaged  are  conflicting,  it  is 
proper  to  award  the  damages  to  “ owners  unknown.”  Matter  of  Eleventh 
Ave.,  49  How.  Pr.  208.  And  where  an  award  of  damages  was  made  to  the 
husband  of  the  owner  it  was  held  that  the  proceedings  were  not  thereby 
invalidated.  Mitchell  v.  White  Plains,  16  N.  Y.  Supp.  828;  41  N.  Y.  St. 
Rep.  787. 

Separate  sums  should  be  awarded  as  damages  to  lessor  and  lessee;  but 
if  the  lessor  is  awarded  the  entire  sum,  the  lessee  may  recover  from  him 
his  proportionate  share.  Coutant  v.  Catlin,  2 Sand.  Ch.  485.  And  where 
separate  sums  are  awarded  to  each,  the  decision  is  conclusive  as  between 
them.  Idem.;  Turner  v.  Williams,  10  Wend.  139.  No  arbitrary  rule  can  be 
prescribed  for  determining  the  damages  to  a leasehold  interest  occasioned 
by  the  laying  out  or  discontinuance  of  a highway  The  value  of  such  interest 
and  the  damages  thereto  must  depend  upon  the  location  and  business  facilities 
of  the  property  and  the  state  of  trade  in  the  vicinity  where  it  is  located.  Matter 
of  Commissioners,  54  Hun,  313. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS.  919 

Highway  Law,  §§  197-199. 

them  on  the  hearings.  [Highway  Law,  § 196;  B.  C.  & G.  Cons.  L.,  p. 

2288.] 

§ 8.  DAMAGES  IN  CERTAIN  CASES;  HOW  ESTIMATED. 

The  owner  of  lands  within  the  bounds  of  a highway  discontinued  may 
enclose  the  same  and  have  the  exclusive  use  thereof,  and  the  benefits  re- 
sulting therefrom  may  be  deducted  in  the  assessment  of  damages  caused 
by  the  laying  out  of  a highway  through  his  other  lands  in  place  of  the  dis- 
continued highway.  [Highway  Law,  § 197 ; B.  C.  & G.  Cons.  L.,  p.  2290.] 


§ 9.  DECISION  OF  CONDEMNATION  COMMISSIONERS  DENYING 
APPLICATION. 

If  a majority  of  the  commissioners  appointed  by  the  county  court  shall 
determine  that  the  proposed  highway  or  alteration  is  not  necessary,  or 
that  the  highway  proposed  to  be  discontinued  is  not  useless,  they  shall 
make  duplicate  certificates  to  that  effect.14  The  costs  and  expenses  neces- 
sarily incurred  by  such  commissioners  in  the  proceeding  shall  be  indorsed 
upon  such  duplicate  certificates,  and  upon  a confirmation  of  such  decision 
and  of  the  amount  of  such  costs  and  expenses  by  the  county  court,  such 
costs  and  expenses  not  exceeding  one  hundred  dollars  shall  be  payable 
by  the  applicants.15  [Highway  Law,  § 198;  B.  C.  & G.  Cons.  L.,  p. 
2290. 

§ 10.  MOTION  TO  CONFIRM,  VACATE  OR  MODIFY. 

Within  thirty  days  after  the  decision  of  the  commissioners  shall  have 
been  filed  in  the  town  clerk’s  office,  any  person  interested  in  the  pro- 
ceedings may  apply  to  the  court  appointing  the  commissioners  for  an 
order  confirming,  vacating  or  modifying  their  decision,  and  such  court 
may  confirm,  vacate  or  modify  such  decision.16  If  the  decision  be  vacated, 


14.  For  form,  of  certificate  of  commissioners  denying  the  application,  see  Form 
No.  132,  post. 

15.  Costs  and  expenses.  The  liability  of  an  unsuccessful  applicant  being 
limited  to  $50,  it  was  held  that  where  the  applicant  had  paid  an  amount  equal 
to  such  sum  as  the  costs  of  the  contesting  parties,  under  an  order  of  the  court, 
the  commissioners  appointed  to  determine  the  necessity  of  the  proposed  high- 
way could  not  recover  their  fees  from  him.  Patton  v.  Miller,  28  App. 
Div.  517;  51  N.  Y.  Supp.  202;  see  notes  to  sec.  193  of  the  Highway  Law,  ante, 
p.  912. 

16.  For  form  of  notice  of  motion  to  confirm,  vacate  or  modify  the  de- 


HIGHWAYS  AND  BRIDGES. 


920 


Highway  Law,  § 199. 


the  court  may  order  another  hearing  of  the  matter  before  the  same  or 
other  commissioners.  If  no  such  motion  is  made,  the  decision  of  the  com- 
missioners shall  be  deemed  final.17  Such  motion  shall  be  brought  on 


cision  of  the  commissioners,  see  Form  No.  135,  post.  For  form  of  order  of 
County  Court  confirming  the  decision  of  the  commissioners,  see  Form  No. 
136,  post. 

Limitation  as  to  time.  The  purpose  of  the  above  section  was  to  allow 
interested  parties,  who  apply  to  the  court  for  an  order  vacating  or  modifying  the 
decision  of  the  commissioners  appointed  in  a proceeding  to  determine  upon 
the  necessity  of  a proposed  highway  and  to  assess  damages,  the  period  of 
thirty  days  within  which  to  institute  the  application  or  motion.  It  was 
not  the  purpose  of  the  section  to  require  the  application  or  motion  to  be 
actually  made  or  heard  within  that  time.  Matter  of  Glenside  Woolen  Mills,. 
92  Hun,  188;  36  N.  Y.  Supp.  593.  A service  of  the  notice  of  motion  within 
thirty  days  after  the  filing  of  the  decision  is  sufficient,  under  the  above  section* 
although  the  motion  is  not  returnable  until  after  the  expiration  of  such  thirty 
days.  Matter  of  Thompson,  85  App.  Div.  221,  83  N.  Y.  Supp.  209. 

Who  may  make  motion.  In  the  case  of  Matter  of  Coe,  19  Misc.  549,  550; 
44  N.  Y.  Supp.  910,  it  was  held  that  a resident  taxpayer  liable  to  assess- 
ment in  a town  for  highway  labor  is  a person  interested  within  the  meaning 
of  the  above  section,  and  may  make  the  motion  to  vacate  the  decision  of  the 
commissioners.  See,  also,  under  the  former  law,  People  ex  rel.  Ridgway  v. 
Cortelyou,  36  Barb.  164;  People  ex  rel.  Banner  v.  Temple,  27  Hun,  128. 

It  is  proper  that  the  petitioner,  an  owner  of  land  through  which  the  road 
is  to  pass,  be  made  a party  defendant  as  a person  specially  interested;  the  town 
superintendent  of  the  town  has  no  more  interest  than  any  other  taxpayer  and 
is  not  properly  made  a party;  the  town  may  be  made  a party,  but  it  must 
be  done  by  the  court  before  the  certiorari  is  brought  to  a hearing,  and  not  by  the 
appellate  court.  People  ex  rel.  D.  L.  & W.  R.  R.  Co.  v.  County  Court,  92  Hun 
13,  37  N.  Y.  Supp.  869,  affirmed  152  N.  Y.  214. 

17.  Right  to  modify  decision.  The  Constitution,  sec.  7,  art.  1,  as  amended  in 
1913,  provides  that  “when  private  property  shall  be  taken  for  any  public  use,  the 
compensation  to  be  made  therefor,  when  such  compensation  is  not  made  by  the 
state,  shall  be  ascertained  by  a jury,  or  by  the  supreme  court  with  or  without  a jury* 
but  not  with  a referee,  or  by  not  less  than  three  commissioners  appointed  by  a court 
of  record,  as  shall  be  prescribed  by  law.”  The  power  vested  in  the  County  Court  to 
modify  the  decision  of  the  commissioners  as  prescribed  in  the  above  section  must 
be  deemed  limited  by  this  constitutional  provision.  The  County  Court  cannot 
modify  the  decision  of  the  commissioners  as  to  the  amount  of  damages  to  be  awarded. 
People  ex  rel.  Hanford  v.  Thayer,  88  Hun,  137,  140;  34  N.  Y.  Supp.  592.  Where  a 
County  Court  modifies  the  decision  of  commissioners  in  a manner  not  asked  for  by 
either  party,  and  affirms  the  decision  as  thus  modified,  the  modification  of  the  court 
should  be  stricken  out.  Matter  of  Sly,  177  N.  Y.  465. 

The  county  court  may  appoint  successive  commissions  until  it  is  satisfied 
that  the  statute  has  been  complied  with,  and  thereby  no  provision  of  the 
Constitution  is  violated  if  the  commissioners  are  of  the  right  number  and 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS.  92 1 

Highway  Law,  § 200. 

upon  the  service  of  papers  upon  adverse  parties  in  the  proceeding,  accord- 
ing to  the  usual  practice  of  the  court  in  actions  and  special  proceedings 
pending  therein;  and  the  decision  of  the  county  court  shall  be  final,  ex- 
cepting that  a new  hearing  may  be  ordered  as  herein  provided,  and  except- 
ing that  any  such  decision  may  be  reviewed  on  appeal  upon  questions 
affecting  jurisdiction,  and  rulings  and  exceptions  made  and  taken  upon  the 
hearing  before  the  commissioners.  If  the  final  decision  be  adverse  to  the 
applicant,  no  other  application  for  laying  out,  altering  or  discontinuing 
the  same  highway  shall  be  made  within  two  years. 17a  [Highway  Law, 
§ 199;  B.  O.  & G.  Cons.  L.,  p.  2291.] 

§11.  LIMITATIONS  UPON  LAYING  OUT  HIGHWAYS. 

Ho  highway  shall  be  laid  out  less  than  three  rods  in  width,  nor  through 
an  orchard  of  the  growth  of  four  years  or  more,  or  any  garden  cultivated 
as  such  for  four  years  or  more,  or  grape  vineyards  of  one  or  more  years* 
growth,  and  used  in  good  faith  for  vineyard  purposes,  or  buildings  or  any 
fixtures  or  erections  for  the  purpose  of  trade  or  manufactures,  or  any  yard 
or  enclosure  necessary  to  the  use  and  enjoyment  thereof,  without  the  con- 
sent of  the  owner  or  owners  thereof,  unless' so  ordered  by  the  county  court 
of  the  county  in  which  the  proposed  highway  is  situated ; such  order  shall 

appointed  by  the  proper  authority.  Schneider  v.  City  of  Rochester,  90  Hun  171,  35 
N.  Y.  Supp.  786. 

Modification  of  decision  as  to  compensation.  The  provisions  of  the  Const., 
art.  1,  § 7,  require  that  the  compensation  for  property  taken  for  public  use  shall  be 
ascertained  by  a jury,  or  by  three  commissioners  appointed  by  a court  of  record. 
This  precludes  the  court  from  modifying  the  decision  of  the  commissioners  as  to  the 
amount  of  damages  awarded  for  land  taken.  Matter  of  Village  of  Middletown,  82 
N.  Y.  196  (1880). 

The  County  Court  cannot  arbitrarily  set  aside  an  award  made  by  commissioners, 
unless  some  error  of  law  is  plainly  manifest.  The  commissioners  in  assessing  dam- 
ages are  to  be  guided  by  their  own  judgment,  as  they  view  the  premises,  and  can 
letter  estimate  the  amount  of  damages  sustained  than  can  a court  sitting  in  review 
of  their  action.  For  the  court  to  arbitrarily  set  aside  their  award  would  be  to 
usurp  the  functions  which  the  statute  confers  upon  them  rather  than  a judicial 
exercise  of  its  own  discretionary  power.  Matter  of  Carpenter,  11  Misc.  69;  32  N.  Y. 
Supp.  826;  Matter  of  Feeney,  20  Misc.  272;  45  N.  Y.  Supp.  830. 

The  act  gives  the  landowner  two  opportunities  to  be  heard,  first  before  the  com- 
missioners, and  second  (if  the  decision  be  adverse),  before  the  county  court,  on  an 
application  to  vacate  or  modify  the  proceeding.  The  application  to  the  county  court 
is  in  the  nature  of  a rehearing  upon  which  new  proofs  may  be  presented  bearing  upton 
the  questions  in  controversy.  Matter  of  De  Camp,  151  N.  Y.  557 ; Rector  v.  Clark, 
78  N.  Y.  21. 

17a.  “Final  decision”  precluding  new  application  within  two  years. 

Failure  of  a County  Court  to  appoint  commissioners  within  thirty  days  after  the 
service  of  the  application  on  the  town  superintendent  of  highways  is  not  a “ final 
decision”  adverse  to  the  applicant,  within  the  meaning  of  this  section,  so  as  to 
preclude  another  application  within  two  years.  Matter  of  Laidlaw  (1914),  162 
App.  Div.  755,  148  N.  Y.  Supp.  56. 


HIGHWAYS  AND  BRIDGES. 


922 


Highway  Law,  § 200. 

be  made  on  the  certificate  of  the  town  superintendent  of  the  town  or  towns 
in  which  the  proposed  highway  is  situated,  showing  that  the  public  interest 
will  be  greatly  promoted  by  the  laying  out  and  opening  of  such  highway, 
and  that  commissioners  appointed  by  the  court  have  certified  that  it  is 
necessary;  a copy  of  the  certificate  with  eight  days’  notice  of  the  time 
and  place  of  the  hearing  before  the  county  court  shall  be  served  on  the 
owners  of  the  land,  or  if  they  are  not  residents  of  the  county  upon  the 
occupants;  the  county  court  upon  such  certificates,  and  the  proofs  and 
other  proceedings  therein,  may  order  the  highway  to  be  laid  out  and 
opened,  if  it  deems  it  necessary  and  proper.18  The  town  superintendent 


18.  For  form  of  certificate  of  town  superintendents  to  the  County  Court 
for  the  purpose  of  laying  out  highways  through  an  orchard,  garden  or  vine- 
yard, see  Form  No.  137,  post. 

Highways  through  buildings,  yards  and  inclosures.  The  statute  ex- 
pressly deprives  town  superintendents  of  jurisdiction  to  lay  out  a road  through 
any  building  or  any  fixtures  or  erections  for  the  purpose  of  trade  or  manu- 
facture, or  in  yards  or  inclosures  necessary  for  the  use  and  enjoyment 
thereof,  and  provides,  in  such  cases,  for  a proceeding  before  the  county  judge 
to  be  confirmed  by  the  Appellate  Division  of  the  Supreme  Court.  Beardslee 
v.  Dolge,  143  N.  Y.  160,  164;  38  N.  E.  205;  see,  also,  Matter  of  Oakley  Ave.,  85 
Hun,  446;  32  N.  Y.  Supp.  1146.  But  a yard  cannot  be  extended  to  take  in  a 
portion  of  a highway  after  it  has  been  laid  out  by  a commissioner.  People  ex 
rel.  Miller  v.  Cornes,  1 Hun,  530;  nor  can  buildings  be  erected  so  as  to 
prevent  the  opening  of  a highway  after  it  has  been  laid  out.  People  ex  rel. 
Hubbard  v.  Harris,  63  N.  Y.  391. 

Ground  adjoining  a saw  mill  and  used  for  piling  logs,  but  whose  limits  are 
not  fixed  by  fences  or  other  visible  marks  nor  definite  occupation,  is  not  within 
the  statute.  People  ex  rel.  Williams  v.  Kingman,  24  N.  Y.  559. 

The  provision  of  the  above  section  prohibiting  the  laying  out  of  a high- 
way through  a garden  which  has  been  previously  cultivated  for  four  years, 
does  not  apply  to  all  land  inclosed  within  a garden.  The  protection  of  the 
statute  extends  only  to  land  wrhieh  is  part  of  a cultivated  garden  and  actually 
used  as  such.  People  ex  rel.  Cook  v.  Commissioners  of  Highways,  57  N.  Y. 
549.  See,  also,  People  ex  rel.  Stanton  v.  Horton,  8 Hun,  357.  It  does  not 
follow  that  a whole  field  is  an  orchard  because  there  are  fruit  trees  in  some 
part  of  it.  People  v.  Judges  of  Duchess,  23  Wend.  361.  Whether  land  is  a 
garden  is  a question  of  fact.  People  ex  rel.  Clinch  v.  Moore,  15  N.  Y.  Supp. 
504;  39  N.  Y.  St.  Rep.  881;  affd.  129  N.  Y.  639. 

There  is  no  invasion  of  an  orchard  when  none  of  the  trees  come  within 
the  survey  and  the  owner  is  not  deprived  of  the  beneficial  use  and  enjoyment 
of  any  of  his  trees  by  the  opening  of  the  highway.  Snyder  v.  Plass,  28  N.  Y. 
465;  Snyder  v.  Trumpbour,  38  N.  Y.  355.  It  does  not  follow  that  the  whole 
field  is  an  orchard,  because  there  are  fruit  trees  in  some  part  of  it;  the  trees 
must  be  so  near  as  to  be  harmed  by  the  opening  of  the  road.  People  ex  rel. 
Seward  v.  Judges  of  Duchess,  23  Wend.  360. 

It  is  the  duty  of  the  town  superintendent  to  lay  out  a road  as  described  in 
the  report  of  commissioners,  except  that  by  virtue  of  this  section  he  cannot  lay 
it  out  through  a building  unless  especially  permitted  by  the  court.  Beck  v. 
Gibbard,  140  App.  Div.  745,  126  N.  Y.  Supp.  296. 

Railroad  property.  A highway  cannot  be  laid  out  over  grounds  acquired  by  a 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS.  923 

Highway  Law,  § 200. 

shall  then  present  the  order  of  the  county  court,  with  the  certificate  and 
proofs  upon  which  it  was  granted,  certified  by  such  court,  to  the  appellate 
division  of  the  supreme  court  in  the  judicial  department  in  which  the 
land  is  situated  upon  the  usual  notice  of  motion,  served  upon  the  owner 
or  occupant,  or  the  attorney  who  appeared  for  them  in  the  county  court.19 
If  such  appellate  division  of  the  supreme  court  shall  confirm  the  order 
of  the  county  court,  the  town  superintendent  shall  then  lay  out  and 
open  such  highway  as  in  other  cases.20  The  provisions  of  this  section  shall 
not  apply  to  vineyards  planted  or  to  buildings,  fixtures,  erections,  yards 
or  enclosures,  made  or  placed  on  such  land  after  an  application  for  the 
laying  out  and  opening  the  highway  shall  have  been  made.  In  case  the 
highway  to  be  laid  out  shall  constitute  an  extension  or  continuation  of  a 
public  highway  already  in  use,  and  shall  not,  as  to  such  new  portion,  exceed 
half  a mile  in  length,  the  town  superintendent  may  lay  out  such  extension 
or  continuation  of  a width  of  not  less  than  three  rods,  provided,  however, 
ihat  it  be  not  less  than  the  widest  part  of  the  highway  of  which  it  is 
an  extension  or  continuation.21  In  such  case  the  town  superintendent  shall 


railroad  for  depots  and  engine  houses  and  for  railroad  purposes  generally.  Pros. 
Park  & G.  I.  R.  R.  Co.  v.  Williamson,  91  N.  Y.  552;  Albany  Northern  R.  Co.  v. 
Brownell,  24  N.  Y.  345. 

19.  For  form  of  order  of  County  Court  laying  out  a highway  through  an 
orchard,  etc.,  see  Form  No.  138,  post.  For  form  of  order  of  Appellate  Division 
confirming  the  order  of  the  County  Court,  see  Form  No.  139,  post. 

20.  The  town  superintendent  can  make  no  order  laying  out  a road  until 
after  the  decision  of  the  appellate  division  upon  the  county  court’s  order  affirming 
the  commissioner’s  certificate.  People  ex  rel.  Banner  v.  Temple,  27  Hun  128. 

Taxpayer’s  action  to  enjoin  town  officials  from  proceeding  with  the 
widening  of  a highway.  Where  in  a .taxpayer’s  action  to  enjoin  town  officials 
from  proceeding  with  the  widening  of  a highway  the  claim  is  made  that  the  im- 
provement involved  a taking  of  yards  or  inclosures  in  two  out  of  many  pieces  of 
property  along  the  highway,  and  therefore  confirmation  by  the  court  is  required  by 
section  200  of  the  Highway  Law,  but  only  a small  diminution  of  country  door  yards 
or  lawns  is  ordered  in  the  course  of  the  widening  proceeding  on  due  compensation 
to  the  owners,  defendants  are  entitled  to  judgment  for  a dismissal  of  the  complaint. 
Kubak  v.  Halsey,  86  Misc.  281,  148  N.  Y.  Supp.  384. 

21.  Highways  less  than  three  rods  wide.  Under  this  section  as  amended, 
highways  less  than  three  rods  in  width  cannot  be  laid  out,  without  the  approval  of 
the  County  Court  and  the  Appellate  Division,  except  in  the  case  of  the  extension  of 
a highway  already  in  use,  in  which  case  the  highway  to  be  laid  out  must  come 
within  the  terms  of  the  provisions  of  the  amendment.  Matter  of  Adolph,  102  App. 
Div.  371,  92  N.  Y.  Supp.  841. 

The  failure  of  the  commissioners  to  comply  with  § 200  of  the  statute  by  designat- 
ing the  width  of  the  highway  is  a defect  which  the  county  court  has  no  power  under 
§ 199  to  correct.  Matter  of  Feeney,  20  Misc.  272,  45  N.  Y.  Supp.  830.  Where  the 
order  of  the  commissioners  appointed  by  the  court  omits  to  state  the  width  of  the 
road,  it  is  too  indefinite  to  be  of  any  force,  although  when  the  starting  point,  courses, 
distances  and  terminus  have  been  given  as  a center  line,  perhaps  the  width,  to-wit, 
three  rods,  may  be  inferred.  People  ex  rel.  Waters  v.  Diver,  19  Hun,  263 ; Lawton  v. 
The  Commissioners,  2 Cai.  178;  People  ex  rel.  McFarland  v.  The  Commissioners,  1 
Cow.  23;  Hallock  v.  Woolsey,  23  Wend.  328.  An  order  to  lay  out  a road,  for 
a part  of  the  distance,  three  rods  in  width,  and  the  residue  over  the  bed  of 


924 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  201,  202. 

specify  in  his  certificate  the  precise  width  of  -the  new  portion  of  such 
highway,  and  shall  certify  that  such  width  is  as  great  at  least  as  the 
widest  part  of  the  highway  of  which  it  is  a continuation  or  extension. . 
Ho  highway  shall  be  laid  out  which  shall  be  identical  or  substantially  so 
with  a highway  previously  discontinued  or  abandoned  for  public  pur- 
poses within  seven  years  of  such  discontinuance  or  abandonment,  nor 
where  other  lands  or  property  has  been  conveyed  to  the  town  at  the  time 
of  such  discontinuance  or  abandonment,  in  counties  adjoining  cities  with 
upward  of  one  million  inhabitants.  [Highway  Law,  § 200,  as  amended 
by  L.  1911,  ch.  624;  B.  C.  & G.  Cons.  L.,  p.  2294.] 

§ 12.  LAYING  OUT  HIGHWAYS  THROUGH  BURYING-GROUNDS. 

Ho  private  road  or  highway  shall  be  laid  out  or  constructed  upon  or 
through  any  burying-ground,  unless  the  remains  therein  contained  are 
first  carefully  removed,  and  properly  reinterred  in  some  other  burying- 
ground,  at  the  expense  of  the  persons  desiring  such  road  or  highway,  and 
pursuant  to  an  order  of  the  county  court  of  the  county  in  which  the 
same  is  situated,  obtained  upon  notice  to  such  persons  as  the  court  may 
direct.  [Highway  Law,  § 201 ; B.  C.  & G.  Cons.  L.,  p,  2298.] 

§ 13.  COSTS;  BY  WHOM  PAID. 

In  all  cases  of  assessments  of  damages  by  commissioners  appointed  by 
the  county  court,  the  costs  thereof  shall  be  paid  by  the  town  thereof, 
except  that  when  reassessment  of  damages  shall  be  had  on  the  application 
of  the  party  for  whom  the  damages  were  assessed,  and  such  damages  shall 
not  be  increased  on  such  reassessment,  the  costs  shall  be  paid  by  the  party 
applying  for  the  reassessment ; and  when  application  shall  be  made  by  two 
or  more  persons  for  the  reassessment  of  damages,  all  persons  who  may  be 
liable  for  costs  under  this  section  shall  be  liable  in  proportion  to  the 
amount  of  damages  respectively  assessed  to  the  first  assessment,  and  may 
be  recovered  by  action  in  favor  of  any  person  entitled  to  the  same.22 


an  old  road,  which  is  but  two  rods  wide,  is  valid.  Snyder  v.  Plass,  28  N.  Y. 
465;  Snyder  v.  Trumpbour,  38  N.  Y.  355. 

22.  The  word  “ costs  ” as  used  in  this  section  does  not  apply  to  a personal 
debt  incurred  by  a town  superintendent,  nor  can  it  be  made  to  so  apply  by 
any  fair  construction  of  the  statute,  nor  can  the  word  be  so  construed  as 
to  include  a bill  for  legal  services  rendered  by  an  attorney  employed  by  the 
highway  commissioner.  People  ex  rel.  Bevins  v.  Supervisors,  82  Hun,  298; 
31  N.  Y.  Supp.  248. 

Payment  of  costs.  Where  the  proceeding  is  declared  void,  an  owner  who 
had  obtained  damages  for  land  proposed  to  be  taken,  cannot  recover  from  the 
town  costs  incurred  by  him  in  the  proceeding.  Matter  of  David,  44  Misc.  192, 
89  N.  Y.  Supp.  812. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 


925 


Highway  Law,  §§  203,  204. 

Each  commissioner  appointed  by  the  court,  for  each  day  necessarily  em- 
ployed as  such,  shall  be  entitled  to  four  dollars  and  his  necessary  expenses. 
[Highway  Law,  § 202;  B.  C.  & G.  Cons.  L.,  p.  2298.] 

§ 14.  DAMAGES  ASSESSED,  AND  COSTS  TO  BE  AUDITED. 

All  damages  to  be  agreed  upon,  or  which  may  be  finally  assessed,  and 
costs  against  the  town,  as  herein  provided,  shall  be  laid  before  the  board 
of  town  auditors,  or  in  towns  not  having  a board  of  town  auditors, 
before  the  town  board,  to  be  audited  with  the  charges  of  the  commissioners, 
justices,  surveyors  or  other  persons  or  officers  employed  in  making  the 
assessment,  and  for  whose  services  the  town  shall  be  liable,  and  the  amount 
shall  be  placed  upon  the  town  abstract  and  levied  and  collected  in  the 
town  in  which  the  highway  is  situated,  and  the  money  so  collected  shall 
be  paid  to  the  supervisor  of  such  town,  who  shall  pay  to  the  owner  the 
sum  assessed  to  him,  and  appropriate  the  residue  to  satisfy  the  charges 
aforesaid.23  If  the  whole  amount  of  damages  and  costs  to  be  paid  by  the 
town  be  less  than  five  hundred  dollars,  the  town  board  may  borrow  the 
amount  thereof,  in  anticipation  of  taxes,  levied  or  to  be  levied  therefor, 
at  a rate  of  interest  not  exceeding  the  legal  rate.  [Highway  Law,  § 203, 
as  amended  by  L.  1911,  ch.  498;  B.  C.  & G.  Cons.  L.,  p.  2298.] 


§ 15.  WHEN  OFFJCERS  OF  DIFFERENT  TOWNS  DISAGREE  ABOUT  HIGH- 
WAY. 

When  the  town  superintendent  of  any  town  or  officers  of  any  village  or 


The  town  is  not  responsible  for  the  fees  of  the  commissioners  except  in 
the  case  where  there  is  a valid  assessment  of  damages  and  there  is  no  responsi- 
bility in  a case  where  the  proposed  improvement  fails.  Matter  of  Miller,  9 App. 
Div.  260,  41  N.  Y.  Supp.  581. 

Amount  of  costs.  A proceeding  under  the  Highway  Law  to  lay  out  a highway 
is  a special  proceeding  within  the  meaning  of  sec.  3334  of  the  Code  of  Civil 
Procedure  and  the  costs  and  disbursements  are  to  be  allowed  at  the  rate  pre- 
scribed in  sec.  3240  of  the  Code  which  provides  that  the  costs  in  a special 
proceeding  may  be  awarded  at  rates  allowed  for  similar  services  in  an  action. 
Matter  of  Peterson,  94  App.  Div.  143,  87  N.  Y.  Supp.  1014.  See  Matter  of  School 
Street,  162  App.  Div.  158,  147  N.  Y.  Supp.  195. 

23.  Audit  of  damages.  Where  there  is  in  fact  no  assessment  of  damages  the 
supervisors  have  no  duty  to  perform  in  relation  to  the  alleged  claim  of  the  relator. 
People  ex  rel.  Bevins  v.  Supervisors,  82  Hun,  298,  31  N.  Y.  Supp.  248.  For  audit 
of  damages  upon  reassessment,  see  Clark  v.  Miller,  42  Barb.  255,  266. 

Where  the  supervisors  have  considered  the  bill  and  acted  upon  it  their  action 
was  judicial.  If  they  err  the  proper  way  to  correct  the  error  is  by  certiorari  and 
not  by  mandamus.  People  ex  rel.  Bevins  v.  Supervisors,  82  Hun,  298,  31  N.  Y. 
Supp.  248.  A claim  presented  to  the  board  of  supervisors,  who  permit  their  session 
to  expire  without  taking  any  action  upon  it,  is  to  be  regarded  as  rejected  for  the 
purpose  of  a mandamus  to  compel  its  allowance.  People  ex  rel.  Aspinwall  v.  Super- 
visors of  Richmond  Co.,  20  N.  Y.  252. 


926 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 204. 

city  having  the  powers  of  town  superintendents  shall  differ  with  the  town 
superintendent  or  superintendents  of  any  other  town  or  with  the  officers 
of  such  a village  or  city  having  the  powers  of  town  superintendents  in  the 
same  county,  relating  to  the  laying  out  of  a new  highway  or  altering  an 
old  highway,  extending  into  both  towns,24  or  a town  and  a village  or  city, 
or  upon  the  boundary  line  between  such  towns  or  such  town  and  a village 
or  city,  or  when  a town  superintendent  of  a town  in  one  county  shall 
differ  with  the  town  superintendent  of  a town  or  the  officers  of  a village 
or  city  having  the  powers  of  town  superintendents  in  another  county, 
relating  to  the  laying  out  of  a new  highway,  or  the  altering  of  an  old 
highway,  which  shall  extend  into  both  counties,  or  be  upon  the  boundary 
line  between  such  counties,  the  town  superintendents  of  both  towns  or  the 
officers  of  the  village  or  city  having  such  powers  shall  meet  on  five  days’ 
written  notice,  specifying  the  time  and  place,  within  some  one  of  such 
towns,  villages  or  cities,  given  by  either  of  such  town  superintendents,  or 
officers  having  powers  of  town  superintendents,  to  make  their  determination 
in  writing,  upon  the  subject  of  their  differences.  If  they  cannot  agree, 
they  or  either  of  them  may  certify  the  fact  of  their  disagreement  to  the 
county  court  of  that  county,  if  the  proposed  highway  is  all  in  one  county,, 
or  if  in  different  counties,  or  if  the  county  judge  is  disqualified  or  unable 
to  act,  to  the  supreme  court;  such  court  shall  thereupon  appoint  three 
commissioners,  freeholders  of  the  county,  not  residents  of  the  same  town,, 
village  or  city,  where  the  highway  is  located;  or  if  between  two  counties, 
then  freeholders  of  another  county,  who  shall  take  the  constitutional  oath 
of  office,  and  upon  due  notice  to  all  persons  interested  view  the  proposed 
highway,  or  proposed  alteration  of  a highway,  administer  all  necessary 
oaths,  and  take  such  evidence  as  they  deem  proper,  and  shall  decide  all 
questions  that  shall  arise  on  the  hearing,  as  to  the  laying  out  or  altering 
of  such  highway,  its  location,  width,  grade  and  character  of  roadbed,  or 
any  point  that  may  arise  relating  thereto;  and  if  they  decide  to  open  or 
alter  any  highway,  they  shall  ascertain  and  appraise  the  damages,  if  any, 
to  the  individual  owners  and  occupants  of  the  land  through  which  such 
new  or  altered  highway  is  proposed  to  pass,  and  shall  report  such  evidence 
and  decision  to  such  court,  with  their  assessment  of  damages,  if  any, 
with  all  convenient  speed.25  On  the  coming  in  of  such  report,  the  court 


24.  This  section  applies  where  town  superintendents  fail  to  agree  in  the 
laying  out  of  a road  on  the  town  line  between  two  towns  and  not  extending 
longitudinally  into  either.  People  ex  rel.  Titsworth  v.  Nash,  38  N.  Y.  St.  Rep. 
730,  15  N.  Y.  Supp.  29. 

25.  Appointment  of  commissioners.  Construing  sections  204  and  206  and 
196  of  the  Highway  Law  together,  it  was  the  evident  intention  of  the  statute  to 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS.  997 

Highway  Law,  § 205. 

may,  by  order,  confirm,  modify  or  set  aside  the  report  in  whole  or  in  part 
and  may  order  a new  appraisal  by  the  same  of  by  other  commissioners, 
and  shall  decide  all  questions  that  may  arise  before  it.  And  all  orders 
and  decisions  in  the  matter  shall  be  filed  in  the  county  clerk’s  office 
of  each  county  where  the  highway  is  located,  and  shall  be  duly  recorded 
therein.  This  section  shall  not  be  so  construed  as  to  compel  any  town 
or  towns  to  construct,  repair  or  maintain  a bridge  upon  a boundary  between 
towns,  where  previous  to  May  seventh,  nineteen  hundred  and  three,  an 
application  had  been  made  to  any  court,  to  compel  the  construction,  repair 
and  maintenance  of  a bridge  upon  such  a boundary  line,  and  such  applica- 
tion had  been  denied.  [Highway  Law,  § 204 ; B.  C.  & Gr.  Cons.  L.,  p. 
2299.] 

§ 16.  DIFFERENCE  ABOUT  IMPROVEMENTS. 

When  the  town  superintendent  or  the  officers  of  a village  or  city  having  the 
powers  of  town  superintendents  therein,  shall  desire  to  make  a new  or  altered 
highway  extending  beyond  the  bounds  of  such  town,  village,  or  city,  a better 
highway  than  is  usually  made  for  a common  highway,  with  a special  grade 
or  roadbed,  drainage  or  improved  plan,  and  are  willing  to  bear  the  whole  or 
part  of  the  expense  thereof  beyond  such  bounds,  but  cannot  agree  in  regard 
to  the  same,  upon  written  application  of  either  of  the  superintendents  or 
officers,  and  notice  to  all  parties  interested,  such  court  shall  make  an  equi- 
table adjustment  of  the  matters,  and  may  direct  that  in  consideration  of  the 
payment  of  such  portion  of  the  additional  expense  by  the  town,  village  or  city 
that  desires  the  improved  and  better  highway,  as  shall  be  equitable,  its  offi- 
cers, contractors,  servants  and  agents  may  go  into  such  town,  village  or  city, 
and  make  the  grade  and  roadbed,  and  do  whatever  may  be  necessary  and 
proper  for  the  completion  of  such  better  highway,  advancing  the  money  to 
do  it;  the  amount  of  damages  to  each  owner  or  occupant  shall  be  ascertained 
and  determined  by  commissioners,  who  shall  be  appointed,  and  whose  pro- 
ceedings shall  be  conducted  in  the  manner  provided  by  the  last  preceding 
section;  and  upon  the  coming  in  of  their  report  of  damages,  and  of  the  ex- 
penses paid,  such  court  shall,  on  notice  to  all  parties  interested,  direct  that  the 
amount  of  damages  assessed  each  owner  or  occupant,  if  any,  and  all  such  ex- 
penses be  paid  by  each,  any  or  all  of  such  towns,  villages  or  cities  as  shall  be 


require  a meeting  of  the  highway  commissioners  of  the  towns  in  the  different 
counties,  and  a certificate  of  their  disagreement,  as  a condition  precedent  to 
the  exercise  of  jurisdiction  upon  the  part  of  the  Supreme  Court  in  the  appoint- 
ment of  commissioners.  Matter  of  Barrett,  7 App.  Div.  482;  40  N.  Y.  Supp.  266. 

A petition  for  the  appointment  of  commissioners  in  proceedings  to  lay  out  a 
highway  extending  into  two  towns  in  different  counties,  which  does  not  show 
that  the  town  superintendents  of  both  towns  have  met  on  five  days’  written 
notice  and  have  been  unable  to  agree  and  have  duly  certified  thereto,  confers 
no  jurisdiction  on  the  court  to  appoint  such  commissioners.  Matter  of  Donley, 
69  Misc.  196,  125  N.  Y.  Supp.  274. 


HIGHWAYS  AND  BRIDGES. 


<)28 


Highway  Law,  § 206. 

just  and  equitable,  and  the  damages  and  expenses  assessed  and  allowed, 
as  in  this  and  the  last  preceding  sections,  shall  be  paid  and  collected  as 
if  fixed  by  the  town  superintendents  of  the  towns,  or  the  officers  of  such 
villages  or  cities  having  the  powers  of  such  superintendents.  Every  com- 
missioner appointed  as  herein  provided  shall  be  paid  six  dollars  for  each 
day  actually  and  necessarily  employed  in  such  service  and  necessary 
expenses.  [Highway  Law,  § 205;  B.  C.  & G.  Cons.  L.,  p.  2300.] 


§ 17.  HIGHWAY  IN  TWO  OR  MORE  TOWNS. 

When  application  is  made  to  lay  out,  alter  or  discontinue  a highway 
located  in  two  or  more  towns,  all  notices  or  proceedings  required  to  be 
served  upon  the  town  superintendents  shall  be  served  upon  the  town 
superintendent  of  each  town ; and  the  commissioners  appointed  by  the 
court  shall  determine  the  amount  of  damages  to  be  paid  by  each  town, 
and  when  the  towns  are  in  different  counties,  the  application  for  the 
appointment  of  commissioners  shall  be  made  to  a special  term  of  the 
supreme  court  held  in  the  district  where  the  highway  or  some  part  of  it 
is  located;  and  the  same  proceedings  shall  thereafter  be  had  in  the  supreme 
court  of  such  district  as  are  authorized  by  this  chapter  to  be  had  in  the 
county  court.26  [Highway  Law,  § 206;  B.  C.  & G.  Cons.  L.,  p.  2301.] 


26.  Construction  of  section.  This  section  must  be  construed  in  connection 
with  section  204  of  the  Highway  Law,  ante.  In  the  case  of  Matter  of  Barrett, 
7 App.  Div.  482,  487;  40  N.  Y.  Supp.  266,  the  court  said:  “The  legislature  in 
1890  made  a thorough  revision  of  the  highway  laws  upon  the  subject  of 
laying  out,  altering  and  discontinuing  highways,  and  cast  the  primary  duty  upon 
the  commissioners  of  highways  of  the  towns  through  which  the  proposed 
highway  is  to  pass,  in  case  the  highway  passes  through  different  towns  or 
counties,  of  determining  important  questions  preliminary  to  the  application  to 
the  court  for  the  appointment  of  commissioners.  Section  94  [204]  plainly  re- 
quires the  meeting  of  these  town  commissioners  and  their  certificate  of  disagree- 
ment in  cases  where  the  proposed  highway  passes  through  different  towns  of  the 
same  county,  and  also  in  cases  where  it  passes  through  different  counties.  In 
the  former  case  the  application,  as  we  have  seen,  for  the  appointment  of 
commissioners  must  be  made  to  the  County  Court;  in  the  latter  case,  for 
obvious  reasons  to  the  Supreme  Court.  This  makes  the  action  of  the  local 
commissioners  and  their  certificate  of  disagreement  jurisdictional.  The  County 
Court  in  the  one  instance  and  the  Supreme  Court  in  the  other,  obtains  no 
right  to  appoint  commissioners  unless  such  meeting  occurred  and  the  certificate 
is  presented.  Section  96  [206]  does  not  conflict  with  section  94  [204].  Its 
provisions  are  simply  for  the  purpose  of  carrying  out  in  detail  and  in  sub- 
stantial manner  the  requirements  of  section  94  [204.].” 

Proceedings  may  be  initiated  by  a person  liable  for  highway  labor  in  one 
town  to  lay  out  a highway  partly  in  his  town  and  partly  in  another  town, 
and  when  he  has  complied  with  all  the  statutory  requirements,  and  the  towns 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS.  929 

Highway  Law,  §§  207,  208. 

§ 18.  LAYING  OUT,  DIVIDING  AND  MAINTAINING  HIGHWAY  UPON 
TOWN  LINE. 

An  application  to  lay  out  a highway  upon  the  line  between  two  or  more 
towns  shall  be  made  to  the  town  superintendents  of  each  town,  who  shall 
act  together  in  the  matter;  and,  upon  laying  out  any  such  highway,  the 
expense  of  opening,  working  and  keeping  the  same  in  repair  shall  be  borne 
equally  by  such  towns.  The  town  superintendents  shall  cause  a map  and 
survey  of  the  highway  to  be  recorded  in  the  office  of  the  town  clerk  in 
each  of  the  respective  towns.  If  such  highway  be  upon  a line  between  one 
or  more  towns  and  a city  or  incorporated  village,  such  application  shall 
also  be  made  to  the  officers  of  such  city  or  village  having  the  powers  of 
the  town  superintendents  and  such  officers  may  agree  with  the  town 
superintendents  of  such  towns  as  to  division  of  such  expense.  Whenever 
such  officers  shall  disagree,  the  question  shall  be  submitted  to  the  district  or 
county  superintendent  or  superinendents  representing  the  county  or  coun- 
ties, district  or  districts  in  which  such  highway  is  located  and  their  de- 
cision shall  be  final  when  approved  by  the  state  commission.  All  highways 
heretofore  laid  out  upon  the  line  between  any  two  towns  or  between  a town 
and  a city  or  an  incorporated  village  shall  be  divided  and  allotted  or  re- 
divided and  reallotted,  recorded  and  kept  in  repair  in  the  manner  above 
directed ; and  all  bridges  upon  such  highways  shall  be  built  and  maintained 
jointly  by  the  towns  whether  wholly  located  within  one  of  them  or  other- 
wise. [Highway  Law,  § 207 ; B.  C.  & G.  Cons.  L.,  p.  2301.] 


§19.  FINAL  DETERMINATION,  HOW  CARRIED  OUT. 

The  final  determination  of  commissioners  appointed  by  any  court,  re- 
lating to  laying  out,  altering  or  discontinuing  a highway,  and  all  orders 
and  other  papers  filed  or  entered  in  the  proceedings,  or  certified  copies 
thereof  from  the  court  where  such  determination,  order  and  papers  are 
filed  and  entered,  shall  be  forthwith  filed  and  recorded  in  the  town  clerk’s 
office  of  the  town  where  the  highway  is  located ; and  every  such  decision 
shall  be  carried  out  by  the  town  superintendent  of  the  town,  the  same  as 


are  in  the  same  county,  the  County  Court  is  authorized  to  appoint  commissioners 
in  the  matter.  People  ex  rel.  Knapp  v.  Keck,  90  Hun,  497;  36  N.  Y.  Supp. 
51. 

Proceedings  before  a special  term  of  the  supreme  court  where  the  highways 
lie  in  more  than  one  county  are  to  be  governed  by  § 193,  ante,  and  the 
immediately  following  sections,  as  though  the  highway  were  entirely  within 
one  county  and  the  proceedings  were  had  before  the  county  court.  Matter  of 
Taylor,  8 App.  Div.  395,  40  N.  Y.  Supp.  839. 


930 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  209,  210. 

if  they  had  made  an  order  to  that  effect.27  The  said  town  superin- 
tendent shall  thereupon  proceed  to  construct  the  highway  so  laid  out,, 
and  construct  any  alteration  so  provided  for,  and  put  same  in  good  con- 
dition for  public  travel.  The  expense  of  such  construction  of  such  new 
highway  or  alteration  of  an  existing  highway,  shall  be  a charge  upon 
and  against  the  town  in  which  such  highway  is  constructed  or  any  exist- 
ing highway  is  altered,  and  when  same  is  completed  the  town  board  of 
such  town  may  issue  certificates  of  indebtedness  for  such  expense,  to 
draw  interest  at  the  rate  of  not  to  exceed  five  per  centum  per  annum 
until  paid,  and  shall  at  the  next  annual  meeting  for  auditing  accounts,, 
after  such  work  is  done,  and  after  such  certificates  may  have  been  issued, 
audit  such  claims  against  the  town,  including  interest,  if  any,  and  in- 
clude same  in  the  annual  tax  budget  to  be  collected  from  the  taxpayers 
of  said  town  to  pay  said  indebtedness ; such  money  to  be  paid  over  to 
the  supervisor  of  the  town  and  by  him  paid  and  applied  to  the  purposes 
aforesaid.  This  amendment  is  made  subject  to  the  provisions  of  section 
forty-eight,  relating  to  contracts  for  construction.  [Highway  Law,  § 
208,  as  amended  by  L.  1913,  ch.  318;  B.  C.  & G.  Cons.  L.,  p.  2302.] 

§ 20.  HIGHWAYS  BY  USE. 

All  lands  which  shall  have  been  used  by  the  public  as  a highway  for  the 
period  of  twenty  years  or  more,  shall  be  a highway,  with  the  same  force  and 
effect  as  if  it  had  been  duly  laid  out  md  recorded  as  a highway,  and  the  town 
superintendent  shall  open  all  such  highways  to  the  width  of  at  least  two  rods.28 
[Highway  Law,  § 209;  B.  C.  & G.  Cons.  L.,  p.  2303.1 

§ 21.  FENCES  TO  BE  REMOVED. 

Whenever  a highway  shall  have  been  laid  out  through  any  inclosed, 

27.  The  determination  as  to  laying  out,  altering  or  discontinuing  a highway 
must  be  carried  out  by  the  town  superintendent,  and  it  is  thereafter  made  his  duty 
to  take  general  charge  of  the  proceedings  thereunder.  People  ex  rel.  D.,  L.  & W.  R. 
R.  Co.  v.  County  Court,  92  Hun,  13;  37  N.  Y.  Supp.  869. 

The  duty  of  the  town  superintendent  to  carry  into  effect  the  decision  of  the  com- 
missioners is  a positive  one.  He  can  exercise  no  discretion  in  the  matter.  If  he 
refuses  to  act  mandamus  will  lie  to  compel  him  to  make  an  order  laying  out,  alter- 
ing or  discontinuing  the  highway  as  directed  in  the  decision.  People  v.  Champion, 
16  Johns.  61.  But  where  it  appears  that  the  proceedings  were  void  because  of 
jurisdictional  defects  mandamus  will  not  lie.  People  ex  rel.  Johnson  v.  Whitney’s 
Point,  32  Hun,  508;  Miller  v.  Brown,  56  N.  Y.  383;  People  ex  rel.  Smith  v.  Allen, 
37  App.  Div.  248,  55  N.  Y.  Supp.  1057.  Nor  will  it  lie  where  it  appears  that  the 
public  will  derive  no  benefit  from  the  opening  of  the  highway.  People  ex  rel.  Ashley 
v.  Commissioners  of  Highways,  42  Hun,  463.  And  it  has  been  held  that  the  fact 
that  the  damages  have  not  been  released  or  assessed  was  a good  defense.  People  ex 
rel.  Clark  v.  Comm’rs  of  Highways,  1 Thomp.  & C.  193. 

Construction  of  highway.  A town  superintendent  is  not  authorized  by  this 
section  to  pave  and  macadamize  a newly  opened  highway.  A contract  for  such  a 
purpose  is  void  and  cannot  be  ratified  bv  the  town  board.  Matter  of  Niland,  113 
App.  Div.  661,  99  N.  Y.  Supp.  914,  affd.  193  N.  Y.  180. 

28.  Use  for  twenty  years.  Premises  used  as  highways  by  the  public  for 
twenty  years,  even  without  dedication,  become  public  highways.  Town  of  Corning 
v.  Head,  86  Hun,  12;  33  N.  Y.  Supp.  360;  City  of  Cohoes  v.  Railroad  Co.,  134  N.  Y. 
397;  31  N.  E.  887;  James  v.  Sammis,  132  N.  Y.  239;  30  N.  E.  502;  Snyder  v.  Plass. 
28  N.  Y.  465;  Porter  v.  Village  of  Attica,  33  Hun,  605;  Galatian  v.  Gardner,  7 
Johns.  106;  Devenpeck  v.  Lambert  44  Barb.  596;  Chapman  v.  Swan.  65  Barb.  210; 
Matter  of  Shawangunk  Kill  Bridge.  100  N.  Y.  642:  3 N.  E.  679;  Wiggins  v.  Tall- 
madge,  11  Barb.  457;  Miller  v.  Garlock,  8 Barb.  153;  People  v.  Fowler,  43  N.  Y. 
St.  Rep.  415;  17  N.  Y.  Supp.  744;  Kelsey  v.  Burgess,  35  N.  Y.  St.  Rep.  369;  12 
N.  Y.  Supp.  169;  Post  v.  Ry.  Co.,  34  N.  Y.  St.  Rep.  487. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 


931 


Highway  Law,  § 211. 

cultivated  or  improved  lands,  in  conformity  to  the  provisions  of  this 
chapter,  the  town  superintendent  shall  give  to  the  owner  or  occupant  of 
the  land  through  which  such  highway  shall  have  been  laid,  sixty  days’ 
notice  in  writing  to  remove  his  fences ; if  such  owner  shall  not  remove 
his  fences  within  sixty  days,  the  town  superintendent  shall  cause  them 
to  be  removed,  and  shall  direct  the  highway  to  he  opened  and  worked.29 
[Highway  Law,  § 210;  B.  C.  & G.  Cons.  L.,  p.  2306.] 

§ 22.  PRIVATE  ROAD. 

An  application  for  a private  road  shall  be  made  in  writing  to  the  town 
superintendent  of  the  town  in  which  it  is  to  be  located,  specifying  its 
width  and  location,  courses  and  distances,  and  the  names  of  the  owners 
and  occupants  of  the  land  through  which  it  is  proposed  to  be  laid  out.30 
[Highway  Law,  § 211;  B.  C.  & G.  Cons.  L.,  p.  2306.] 


A road  or  way  laid  out  and  opened  by  a milk  company  from  a public  highway  to 
its  plant,  a distance  of  about  thirty  rods,  for  the  accommodation  of  the  company 
and  its  patrons  and  used  for  over  twenty  years,  does  not  become  a public  highway 
by  prescription.,  without  any  formal  dedication  thereof,  unless  it  has  been  accepted 
and  adopted  by  the  town  authorities,  or  its  repairs  and  maintenance  assumed  by 
such  town.  Rept.  of  Atty.  Genl.  (1915),  p.  136. 

Reduction  of  width;  when  alley  laid  out  on  map  cannot  be  dedicated 
for  highway  purposes.  Chapter  204  of  th$  Laws  of  1897,  amending  the  Highway 
Law  of  1890  by  which  the  width  of  highways  was  reduced  from  three  to  two  rods, 
superseded  and  is  a substitute  for  chapter  198  of  the  Laws  of  1826  under  which  it 
was  lawful  to  lay  out  public  roads  not  less  than  three  rods  in  width,  and  an  alley 
only  eight  feet  wide  as  laid  out  on  a map  and  as  it  existed  prior  to  1905  cannot  be 
laid  out  or  dedicated  for  highway  purposes.  The  public  authorities  having  neither 
adopted  nor  kept  such  strip  in  repair  and  its  use  not  having  been  an  uninterrupted 
one,  it  did  not  become  a highway  by  prescription  under  this  section  which  declares 
all  land  a highway  which  shall  have  been  used  by  the  public  as  such  for  twenty 
years.  Farmers  and  Mechahics’  Savings  Bank  v.  City  of  Lockport  (1915),  89  Misc. 
157,  151  N.  Y.  Supp.  865. 

This  section  should  be  read  in  connection  with  section  2 of  chapter  186  of  the 
Laws  of  1826  and  effect  given  to  both,  and  when  so  read  this  section  should  be  con- 
strued to  mean  that  land  used  as  a highway  by  the  public  for  twenty  years  shall 
become  a highway  provided  it  complies  with  the  law  as  to  width.  McCutcheon  v. 
Terminal  Station  Commission  (1915),  88  Misc.  601,  151  N.  Y.  Supp.  451. 

29.  Necessity  of  notice  to  remove.  It  is  intended  that  notice  to  remove 
fences  be  given  in  all  cases  of  highways  laid  out  through  inclosed  lands,  whether  laid 
out  directly  or  indirectly  by  the  town  superintendent.  Case  v.  Thompson,  6 Wend, 
634.  If  there  is  an  appeal  from  the  order  of  the  town  superintendent,  the  notice 
cannot  be  given  until  it  is  determined;  and  pending  the  appeal  the  fence  does  not 
become  a public  nuisance.  Drake  v.  Rogers,  3 Hill  604;  Case  v.  Thompson,  6 Wend. 
634. 

In  an  action  for  obstruction  of  a highway  the  defendant,  over  whose  land  the  way 
passes,  may  show  failure  to  notify  him  to  remove  his  fences,  to  prove  that  the  alleged 
highway  does  not  legally  exist.  Cooper  v.  Bean,  5 Lans.  318.  If  the  tow  super- 
intendent has  no  right  to  open  a road  without  giving  notice  to  the  party  to  remove 
his  fences,  then  he  is  bound  to  prove  that  such  notice  has  been  given  in  order  to 
entitle  himself  to  the  protection  afforded  by  the  section.  It  is  not  incumbent  on  the 
owner  of  the  land  to  prove  that  such  notice  had  not  been  given.  Case  v.  Thompson, 
6 Wend.  634. 

30.  For  form  of  application  to  the  town  superintendent  of  highways  for  a 
private  road,  see  Form  No.  140,  post. 


932 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  212-215. 

§ 23.  JURY  TO  DETERMINE  NECESSITY  AND  ASSESS  DAMAGES. 

The  town  superintendent  to  whom  the  application  shall  be  made  shall 
appoint  as  early  a day  as  the  convenience  of  the  parties  interested  will 
allow,  when,  at  a place  designated  in  the  town,  a jury  will  be  selected  for 
the  purpose  of  determining  upon  the  necessity  of  such  road,  and  to  assess 
the  damages  by  reason  of  the  opening  thereof.31  [Highway  Law,  § 212  ; 
B.  C.  & G.  Cons.  L.,  p.  2307.] 

§ 24.  COPY  APPLICATION  AND  NOTICE  DELIVERED  TO  APPLI- 
CANT. 

Such  town  superintendent  shall  deliver  to  the  applicant  a copy  of  the 
application,  to  which  shall  be  added  a notice  of  the  time  and  place  ap- 
pointed for  the  selection  of  the  jury,  addressed  to  the  owners  and  occu- 
pants of  the  land.  [Highway  Law,  § 213  ; B.  C.  & G.  Cons.  L.,  p.  2307.] 

§ 25.  COPY  AND  NOTICE  TO  BE  SERVED. 

The  applicant  on  receiving  the  copy  and  notice  shall,  on  the  same  day, 
or  the  next  day  thereafter,  excluding  Sunday  and  holidays,  cause  such 
copy  and  notice  to  be  served  upon  the  persons  to  whom  it  is  addressed,  by 
delivering  to  each  of  them  who  reside  in  the  same  town  a copy  thereof,  or 
in  case  of  his  absence,  by  leaving  the  same  at  his  residence  and  upon  such 
as  reside  elsewhere,  by  depositing  in  the  post-office  a copy  thereof  to  each, 
properly  enclosed  in  an  envelope,  addressed  to  them  respectively  at  their 
postoffice  address,  and  paying  the  postage  thereon,  or,  in  case  of  infant 
owners,  by  like  service  upon  their  parent  or  guardian.  [Highway  Law, 
§ 214;  B.  C.  & G.  Cons.  L.,  p.  2307.] 

§ 26.  LIST  OF  JURORS. 

At  such  time  and  place,  on  due  proof  of  the  service  of  the  notice,  the 


In  proceedings  under  the  statute  to  lay  out  a private  road,  exact  and  tech- 
nical accuracy  is  not  required,  but  simply  a substantial  compliance  with  the  statute. 
A description  in  an  application  by  reference  to  a private  way  used  by  permission  of 
the  owner  of  the  land  for  a great  number  of  years,  so  that  it  has  come  to  be  called 
a road,  is  sufficiently  definite.  The  courses  need  not  be  specified  in  the  application 
by  the  compass  in  degrees  and  minutes ; and  where  the  general  course  is  given  as 
easterly,  etc.,  and  the  exact  course  and  distance  can  be  determined  from  other 
particulars  in  the  application,  or  by  natural  monuments  referred  to  therein,  the 
statute  is  substantially  complied  with.  Satterly  v.  Winne,  101  N.  Y.  218;  4 N.  E. 
185;  see,  also,  People  v.  Taylor,  34  Barb.  481. 

31.  Constitutional  provision.  Section  7,  art.  1,  of  the  Constitution  provides 
that  “ private  roads  may  be  opened  in  the  manner  to  be  prescribed  by  law,  but  in 
every  case  the  necessity  of  the  road  and  the  amount  of  all  damages  to  be  sustained 
by  the  opening  thereof  shall  be  first  determined  by  a jury  of  free  holders,  and  such 
amount,  together  with  the  expenses  of  the  proceeding,  shall  be  paid  by  the  person  to 
be  benefited.”  The  provision  has  been  held  not  to  apply  to  a way  by  necessity  nor 
to  a way  used  by  the  owner  for  his  own  convenience,  and  which  crosses  'land  after- 
wards subdivided  and  sold.  Wheeler  v.  Gilsey,  35  How.  Pr.  139.  A taking  of  land 
for  a private  way  is  the  taking  of  private  property  for  private  use,  and  is  unlawful 
without  express  constitutional  authority.  Taylor  v.  Porter,  4 Hill  140. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 


933- 


Highway  Law,  §§  216-219. 

town  superintendent  shall  present  a list  of  the  names  of  thirty-six  resident 
freeholders  of  the  town,  in  no  wise  of  kin  to  the  applicant,  owner  or 
occupant,  or  either  of  them,  and  not  interested  in  such  lands.  [Highway 
Law,  § 215 ; B.  C.  & G.  Cons.  L.,  p.  2308.] 

§ 27.  NAMES  STRUCK  OFF. 

The  owners  or  occupants  of  the  land  may  strike  from  the  list  not  more 
than  twelve  names,  and  the  applicant  a like  number;  and  of  the  number 
which  remains,  the  twelve  names  standing  first  on  the  list  shall  be  the 
jury.32  [Highway  Law,  § 216;  B.  C.  & G.  Cons.  L.,  p.  2308.] 

§ 28.  PLACE  OF  MEETING. 

The  town  superintendent  shall  then  appoint  some  convenient  time  and 
place  for  the  jury  to  meet,  and  shall  summon  them  accordingly.33  [High- 
way Law,  § 217;  B.  C.  & G.  Cons.  L.,  p.  2308.] 

§ 29.  JURY  TO  DETERMINE  AND  ASSESS  DAMAGES. 

The  town  superintendent  and  all  the  persons  named  and  summoned  on 
such  jury,  shall  meet  at  the  time  and  place  appointed ; but  if  one  or  more 
of  the  twelve  jurors  shall  not  appear,  the  town  superintendent  shall  sum- 
mon so  many  qualified  to  serve  as  such  jurors  as  will  be. sufficient  to  make 
the  number  present  twelve  to  forthwith  appear  and  act  as  such;  and  when 
twelve  shall  have  so  appeared,  they  shall  constitute  the  jury  and  shall  be 
sworn  well  and  truly  to  determine  as  to  the  necessity  of  the  road,  and  to 
assess  the  damages  by  reason  of  the  opening  thereof.  [Highway  Law, 
§ 218;  B.  C.  & G.  Cons.  L.,  p.  2309.] 

§ 30.  THEIR  VERDICT. 

The  jury  shall  view  the  premises,  hear  the  allegations  of  the  parties, 


32.  Constitutionality.  The  amendments  of  1904  to  § 11  of  the  former  High- 
way Law  increased  the  number  of  the  jury  from  six  to  twelve.  Prior  to  this 
amendment  it  had  been  held  that  a jury  of  six  drawn  in  the  manner  prescribed 
by  this  section  did  not  comply  with  the  constitutional  requirement  that  the 
necessity  of  the  road  and  the  damages  should  be  determined  by  a jury  of 
freeholders.  Berridge  v.  Shults,  32  Misc.  444,  66  N.  Y.  Supp.  204. 

33.  Summoning1  juries.  The  commissioners  have  no  right  to  delegate  the 
summoning  of  the  jurors,  but  such  summons  will  not  be  held  invalid  if  the 
owner  of  the  land  proposed  to  be  taken  is  present  at  the  meeting  of  the  jury 
and  does  not  object  to  the  proceeding.  People  v.  Commissioners  of  Green- 
bush,  24  Wend.  367. 


934 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  220-224. 

and  such  witnesses  as  they  may  produce,  and  if  they  shall  determine  that 
the  proposed  road  is  necessary,  they  shall  assess  the  damages  to  the  person 
or  persons  through  whose  land  it  is  to  pass,  and  deliver  their  verdict  in 
writing  to  the  town  superintendent.  [Highway  Law,  § 219 ; B.  C.  & G. 
Cons.  L.,  p.  2309.] 


§31.  VALUE  OF  HIGHWAY  DISCONTINUED. 

If  the  necessity  of  such  private  road  has  been  occasioned  by  the  altera- 
tion or  discontinuance  of  a public  highway  running  through  the  lands 
belonging  to  a person  through  whose  lands  the  private  road  is  proposed 
to  be  opened,  the  jury  shall  take  into  consideration  the  value  of  the  high- 
way so  discontinued,  and  the  benefit  resulting  to  the  person  by  reason  of 
such  discontinuance,  and  shall  deduct  the  same  from  th  damages  assessed 
for  the  opening  and  laying  out  of  such  private  road.  [Highway  Law, 
§ 220;  B.  C.  & G.  Cons.  L.,  p.  2309.] 

§ 32.  PAPERS  TO  BE  RECORDED  IN  THE  TOWN  CLERK’S  OFFICE. 

The  town  superintendent  shall  annex  to  such  verdict  the  application, 
and  their  certificate  that  the  road  is  laid  out,  and  the  same  shall  be  filed  and 
recorded  in  the  town  clerk’s  office.  [Highway  Law,  § 221;  B.  C.  & G. 
Cons  L.,  p.  2309.] 

§ 33.  DAMAGES  TO  BE  PAID  BEFORE  OPENING  THE  ROAD. 

The  damages  assessed  by  the  jury  shall  be  paid  by  the  party  for  whose 
benefit  the  road  is  laid  out,  before  the  road  is  opened  or  used;  but  if  the 
jury  shall  certify  that  the  necessity  of  such  private  road  was  occasioned 
by  the  alteration  or  discontinuance  of  a public  highway,  such  damages 
shall  be  paid  by  the  town  and  refunded  to  the  applicant.  [Highway  Law, 
§ 222;  B.  C.  & G.  Cons.  L.,  p.  2309.] 


§ 34.  FEES  OF  OFFICERS. 

Every  juror,  in  proceedings  for  a private  road,  shall  be  entitled  to 
receive  for  his  service  one  dollar  and  fifty  cents;  and  town  superintendents 
their  per  diem  compensation  to  be  paid  by  the  applicant.  [Highway  Law, 
§ 223 ; B.  C.  & G.  Cons.  L.,  p.  2310.] 

§ 35.  MOTION  TO  CONFIRM,  VACATE  OR  MODIFY. 

Within  thirty  days  after  the  decision  of  the  jury  shall  have  been  filed 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 


935 


Highway  Law,  §§  225,  226. 


in  the  town  clerk’s  office,  the  owner,  occupant  or  applicant  may  appiy  to 
the  county  court  of  the  county  wherein  such  private  road  is  situated,  for 
an  order  confirming,  vacating  or  modifying  their  decision;  and  such 
court  may  confirm,  vacate  or  modify  such  decision  as  it  shall  deem  just 
and  legal.  If  the  decision  is  vacated,  the  court  may  order  another  hearing 
of  the  matter  before  another  jury,  and  remit  the  proceedings  to  the  town 
superintendent  of  the  same  town  for  that  purpose.  If  no  such  motion 
is  made,  the  decision  of  the  jury  shall  be  deemed  final.  The  motion 
shall  be  brought  on,  upon  the  service  of  papers  on  the  adverse  party  in 
the  proceeding,  according  to  the  usual  practice  of  the  court  in  actions 
and  special  proceedings  pending  therein,  and  the  decision  of  the  county 
court  shall  be  final,  except  that  a new  hearing  may  be  had,  as  herein  pro- 
vided. If  the  final  decision  shall  be  adverse  to  the  applicant,  no  other 
application  for  the  same  road  shall  be  made  within  one  year.  [Highway 
Law,  § 224,  as  amended  by  L.  1915,  ch.  192 ; B.  C.  & G.  Cons.  L.,  p. 
2310.] 

§ 36.  COSTS  OF  NEW  HEARING. 

If  upon  a new  hearing,  the  damages  assessed  are  increased,  the  applicant 
shall  pay  the  costs  and  expenses  thereof,  otherwise  the  owner  shall  pay  the 
same.  [Highway  Law,  § 225;  B.  C.  & G.  Cons.  L.,  p.  2311.] 

§ 37.  FORWHAT  PURPOSE  PRIVATE  ROAD  MAY  BE  USED. 

Every  such  private  road,  when  so  laid  out,  shall  be  for  the  use  of  such 
applicant,  bis  heirs  and  assigns;  but  not  to  be  converted  to  any  other  use 
or  purpose  than  that  of  a road ; nor  shall  the  occupant  or  owner  of  the  land 
through  which  said  road  shall  be  laid  out  be  permitted  to  use  the  same 
as  a road,  unless  he  shall  have  signified  such  intention  to  the  jury  who 
assessed  the  damages  for  laying  out  such  road,  and  before  such  damages 
were  assessed.34  [Highway  Law,  § 226;  B.  C.  & G.  Cons.  L.,  p.  2311.] 


34.  Use  of  private  roads.  According  to  the  true  construction  of  the  statute, 
the  person  on  whose  application  a private  road  is  laid  out  has  the  sole 
and  exclusive  right  to  use  it,  unless  the  occupant  of  the  land  at  the  time  when 
it  is  laid  out  signified  his  intention  to  make  use  of  it.  Lambert  v.  Hoke,  14 
Johns.  384. 

The  penalty  provided  by  statute  for  obstructing  the  highway  is  not  appli- 
cable to  a private  road  (Fowler  v.  Lansing,  9 Johns.  349),  and  where  an 
obstruction  is  placed  in  such  a road  by  the  owner  of  the  land  over  which 
it  is  laid  out,  it  cannot  be  lawfully  removed  by  a person  having  no  right  to 
use  the  road.  Drake  v.  Rodgers,  3 Hill,  604. 

The  original  owner  of  the  land  should  so  locate  his  fences  as  not  to 


936 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  227-229. 

§ 38.  HIGHWAYS  OR  ROADS  ALONG  DIVISION  LINES. 

Whenever  a highway  or  private  road  shall  be  laid  along  the  division 
line  between  lands  of  two  or  more  persons,  and  wholly  upon  one  side  of  the 
line,  and  the  land  upon  both  sides  is  cultivated  or  improved,  the  persons 
owning  or  occupying  the  lands  adjoining  such  highway  or  road  shall  be 
paid  for  building  and  maintaining  such  additional  fence  as  they  may  be 
required  to  build  or  maintain,  by  reason  of  the  laying  out  and  opening 
such  highway  or  road;  which  damages  shall  be  ascertained  and  determined 
in  the  same  manner  that  other  damages  are  ascertained  and  determined 
in  the  laying  out  of  highways  or  private  roads.  [Highway  Law,  § 227; 
B.  C.  & G.  Cons.  L.,  p.  2311.] 

§ 39.  ADJOURNMENTS. 

If  any  accident  shall  prevent  any  of  the  proceedings  required  by  this 
chapter  relating  to  the  laying  out,  altering  or  discontinuing  of  a highway, 
or  the  laying  out  of  a private  road,  to  be  done  on  the  day  assigned,  the 
proceedings  may  be  adjourned  to  some  other  day,  and  the  town  superin- 
tendent shall  publicly  announce  such  adjournment.  [Highway  Law,  § 
228;  B.  C.  & G.  Cons.  L.,  p.  2311.] 


§ 40.  WIDENING  ROADS;  PETITION. 

When  any  part  of  a highway  in  any  town  of  this  state,  not  in  an 
incorporated  village  or  city,  running  between  two  or  more  villages  or 
cities;  has,  because  of  the  wearing  away  by  a river  or  stream  or  any  other 
natural  cause,  become  narrower  than  the  width  required  by  statute,  and 
is  dangerous  to  the  users  of  such  highway,  twelve  or  more  resident  tax- 
payers of  such  town  may  present  a petition  to  the  county  court  of  the 
county  within  which  such  town  is  situated.  The  petition  shall  describe 
the  part  of  the  highway  proposed  to  be  widened  and  state  that  such  highway 
has  become  lessened  in  width  by  the  action  of  a river  or  stream  or  other 
cause,  that  it  is  dangerous  to  the  traveling  public,  that  the  widening  and 
improvement  of  such  highway  is  necessary  for  the  public  convenience  and 
welfare,  that  the  highway  is  an  important  leading  road  between  two  or 
more  cities  or  villages,  that  the  cost  of  such  widening  and  improvement 
would  exceed  the  sum  of  two  thousand  five  hundred  dollars  and  would 
be  too  burdensome  on  the  town  or  towns  otherwise  liable  therefor.  Such 


encroach  upon  the  width  of  the  road,  but  the  new  owner  will  he  deemed  to 
have  assented  to  such  encroachment  if  he  allows  such  fences  to  be  so  located 
without  objection.  Herrick  v.  Stover,  5 Wend.  580. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 


937 


Highway  Law,  §§  230,  231. 

petition  shall  be  verified  by  at  least  three  of  the  petitioners.  On  receipt 
of  the  petition  the  county  court  shall  forthwith  appoint  three  commissioners 
who  shall  not  be  named  by  any  person  interested  in  the  proceedings  and 
who  shall  be  taxpayers  of  such  county,  but  who  shall  not  reside  in  the 
town  or  towns  in  which  the  highway,  proposed  to  be  widened  and  im- 
proved, is  situated.  [Highway  Law,  § 229;  B.  C.  & G.  Cons.  L.,  p. 
2311.] 

§ 41.  POWERS  AND  DUTIES  OF  COMMISSIONERS. 

The  commissioners  shall  take  the  constitutional  oath  of  office  and 
appoint  a time  and  place  for  a meeting  to  hear  all  persons  interested  in  the 
proposed  widening  of  the  highway.  They  shall  personally  examine  the 
part  of  the  highway  proposed  to  be  widened,  hear  any  reasons  for  or  against 
such  widening  and  ascertain  the  probable  cost  of  the  work.  They  shall 
have  power  to  issue  subpoenas,  administer  oaths  and  examine  witnesses  ; 
they  shall  keep  the  minutes  of  their  proceedings  and  reduce  to  writing 
all  oral  evidence  given  before  them.  They  shall  make  duplicate  certificates 
of  their  decision,  filing  one  in  the  town  clerk’s  office  of  the  town  in  which 
the  said  highway  is  located,  and  the  other,  with  such  minutes  and  evidence, 
in  the  county  clerk’s  office  of  the  county  where  the  highway  is  located. 
Such  commissioners  shall  have  the  same  power  as  to  the  assessment  of 
damages  caused  by  the  widening  of  such  highway  as  commissioners  ap- 
pointed under  this  article  for  the  discontinuance,  alteration  or  laying 
out  of  a highway,  and  as  to  such  assessment  the  same  proceeding  may  be 
had  for  the  confirmation,  vacating  or  modifying  of  such  decision,  as  pro- 
vided in  and  by  this  article.  The  commissioners  shall  receive  a compensa- 
tion of  five  dollars  for  each  day  necessarily  spent  in  the  performance  of 
their  duties  under  this  section,  and  the  amount  so  paid  to  the  said  com- 
missioners shall  be  a charge  upon  the  town  or  towns  in  which  the  highway, 
proposed  to  be  widened  as  aforesaid,  is  located.  [Highway  Law,  § 230 ; 
B.  C.  & G.  Cons.  L.,  p.  2312.] 


§ 42.  NOTICE  OF  DECISION  TO  SUPERVISORS. 

Tf  a majority  of  the  commissioners  shall  determine  that  the  proposed 
widening  of  the  highway  is  necessary  and  that  the  cost  thereof  would  be 
too  burdensome  for  the  town,  exceeding  in  probable  cost  two  thousand  five 
hundred  dollars,  they  shall  notify  the  board  of  supervisors  of  the  county 
of  such  decision.  The  board  of  supervisors  shall  thereupon  cause  one-half 
of  the  amount  of  the  estimated  cost  to  be  raised  by  the  county  and  paid  to 
the  supervisor  of  the  town  or  towns  in  which  that  part  of  the  highway 
proposed  to  be  widened  as  aforesaid  is  located,  and  said  supervisor  shall 


938 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  232-234. 

apply  the  sum  so  received  by  him  towards  the  payment  of  the  cost  of  such 
widening.  The  balance  -of  the  expense  shall  be  raised  in  the  manner 
provided  by  law,  by  the  town  or  towns  in  which  that  part  of  the  highway 
proposed  to  be  widened  as  aforesaid  is  located.  [Highway  Law,  § 231; 
B.  C.  & G.  Cons.  L.,  p.  2312.] 

§ 43.  WIDENING,  HOW  CONSTRUCTED. 

The  town  superintendent  shall  construct  such  widening  of  the  highway 
according  to  plans  and  specifications  adopted  by  the  district  or  county 
superintendent  and  approved  by  the  town  board  of  his  town.  The  bills 
and  expenses  incurred  in  such  work  shall  be  audited  by  the  town  board 
and  paid  by  the  supervisor  upon  written  order  of  the  town  superintendent, 
after  the  same  shall  have  been  approved  by  the  town  board,  out  of 
moneys  raised  for  such  purpose  as  provided  in  the  preceding  section. 
[Highway  Law,  § 232;  B.  C.  & G.  Cons.  L.,  p.  2313.] 

§ 44.  ACTIONS  TO  COMPEL  WIDENING;  HOW  AFFECTED  BY  PE- 
TITION. 

In  case  an  action  might  lie  in  any  court  of  this  state  against  the  town 
superintendent  of  any  town  or  towns  to  compel  such  superintendent  to 
widen  a part  of  a highway,  the  width  of  which  has  become  less  than  that 
required  by  statute,  or  in  case  an  action  has  been  brought  against  such 
superintendent  to  compel  him  to  widen  a part  of  a highway,  the  width  of 
which  has  become  less  than  that  required  by  statute,  the  presentation  of 
a verified  petition  to  the  county  court  as  provided  for  in  section  two 
hundred  and  twenty-nine  shall  prevent  the  commencing  of  any  such  action 
as  aforesaid  and  cause  such  an  action  already  commenced,  to  cease,  and 
shall  be  a bar  to  a recovery  on  the  part  of  the  plaintiff  of  a judgment 
against  such  superintendent  in  any  such  action  instituted  or  pros- 
ecuted to  judgment  after  the  passage  of  this  chapter.  [Highway  Law, 
§ 233;  B.  C.  & G.  Cons.  L.,  p.  2313.] 

§ 45.  HIGHWAYS  ABANDONED. 

Every  highway  that  shall  not  have  been  opened  and  worked  within  six 
years  from  the  time  it  shall  have  been  dedicated  to  the  use  of  the  public, 
or  laid  out,  shall  cease  to  be  a highway;  but  the  period  during  which  any 
action  or  proceeding  shall  have  been,  or  shall  be  pending  in  regard  to  any 
such  highway,  shall  form  no  part  of  such  six  years ; and  every  highway  that 
shall  not  have  been  traveled  or  used  as  a highway  for  six  years,  shall  cease 
to  be  a highway,  and  every  public  right  of  way  that  shall  not  have  been 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 
Highway  Law,  § 234. 


939 


used  for  said  periods  shall  be  deemed  abandoned  as  a right  of  way .34a  The  town 
superintendents  shall  file,  and  cause  to  be  recorded  in  the  town  clerk’s  office  of  the 
town,  a written  description,  signed  by  them,  of  each  highway  and  public  right  of 
way  so  abandoned,  and  the  same  shall  thereupon  be  discontinued.35  There  may 
also  be  qualified  abandonment  of  a highway  under  the  following  conditions  and  for 
the  following  purposes,  to  wit:  Where  it  appears  to  the  town  superintendents,  at 

any  time,  that  a highway  has  not  become  wholly  disused  as  aforesaid,  but  that  it 
has  not  for  two  years  next  previous  thereto,  been  usually  traveled  along  the  greater 
part  thereof,  by  more  than  two  vehicles  daily,  in  addition  to  pedestrians  and  per- 
sons on  horseback,  they  shall  file  and  cause  to  be  recorded  in  the  town  clerk’s  office 
a certificate  containing  a description  of  that  portion  of  the  highway  partly  disused  as 
aforesaid  and  declaring  a qualified  abandonment  thereof.  The  effect  of  such  qualified 
abandonment,  with  respect  to  the  portion  of  said  highway  described  in  the  certi- 
ficate, shall  be  as  follows:  It  shall  no  longer  be  worked  at  public  expense;  it  shall 

not  cease  to  be  a highway  for  purposes  of  the  public  easement,  by  reason  of  such 
suspension  of  work  thereon;  no  person  shall  impair  its  use  as  a highway  nor  ob- 
struct it,  except  as  hereinafter  provided,  but  no  person  shall  be  required  to  keep 
any  part  of  it  in  repair;  whenever  an  owner  or  lessee  of  adjoining  lands  has  the 
right  to  possession  of  other  lands  wholly  or  partly  on  the  directly  opposite  side  of  the 
highway  therefrom,  he  may  construct  and  maintain  across  said  highway  a fence 
at  each  end  of  the  area  of  highway  which  adjoins  both  of  said  opposite  pieces  of 
land,  provided  that  each  said  cross-fence  must  have  a gate  in  the  middle  thereof 
at  least  ten  feet  in  length,  which  gate  must  at  times  be  kept  unlocked 
and  supplied  with  a sufficient  hasp  and  latch  for  keeping  the  same  closed; 
all  persons  owning  or  using  opposite  lands,  connected  by  such  gates  and 
fences,  may  use  the  portion  of  highway  thus  inclosed  for  pasturage;  any 
traveler  or  other  person  who  intentionally,  or  by  wilful  neglect,  leaves  such 


34a.  Application  of  section.  This  section  and  the  statute  from  which  it  is 
derived,  and  of  which  it  is  a substantial  re-enactment,  is  not  applicable  where  a 
city  obtained  the  fee  of  land  subject  to  the  easement  of  a railroad  company.  New 
York  Cent.  & H.  R.  R.  R.  Co.  v.  City  of  Buffalo,  200  N.  Y.  113,  119.  Applies  to  a 
street  of  a city  where  only  an  easement  has  been  acquired.  Robins  Dry  Dock  & Re- 
pair Co.  v.  City  of  New  York,  155  App.  Div.  258. 

The  period  of  six  years  mentioned  in  the  statute  is  a limitation  upon  the  life 
of  an  unused  easement.  When  an  easement  is  acquired  by  purchase  or  otherwise,  by 
which  a street  can  be  opened  and  worked  across  a piece  of  land,  such  land  does  not 
thereby  become  a street  in  fact  for  public  use  until  it  is  opened,  and  it  is  such  an 
easement,  consisting  of  a right  to  open  and  work  a highway,  which  is  deemed 
abandoned  if  not  exercised  within  six  years.  New  York  Cent.  & H.  R.  R.  R.  Co.  v. 
City  of  Buffalo,  200  N.  Y.  113,  119. 

Reopening  abandoned  highways.  A town  superintendent,  in  conjunction  with 
the  town  board  may  issue  an  order  to  reopen  a highway  which  has  been  qualifiedly 
abandoned.  Rept.  of  Atty.  Genl.,  January  14,  1913. 

Temporary  interruption  by  reason  of  the  weakness  or  the  destruction  of  a 
bridge,  though  covering  a considerable  space  of  time,  do  not  operate  as  an 
abandonment  of  it  as  a public  way,  since  being  once  a highway,  it  does  not 
cease  to  be  such  until  discontinued  by  proper  authority.  Matter  of  Town  of 
Rutland,  70  Misc.  82,  87,  128  N.  Y.  Supp.  94. 

Abandonment  by  nonuser.  Where  land  acquired  for  the  purpose  of  doubling 
the  width  of  a highway  has  never  been  regulated  as  a highway  and  has  not  been 
used  by  the  public,  even  partially,  for  over  forty  years,  but  has  remained  in  private 
possession  and  occupancy,  such  nonuser  of  the  land  acquired  establishes  an  “ aban- 
donment” within  the  meaning  of  this  section.  Matter  of  City  of  New  York  (1914), 
164  App.  Div.  839,  150  N.  Y.  Supp.  256. 

If  a highway  remains  closed  for  six  years  with  the  acquiescence  of  the  public, 
there  is  an  extinguishment  of  the  public  right,  but  obstructions  of  a highway  across 
part  of  its  width  only,  narrowing  but  not  closing  the  line  of  travel,  are  not  suffi- 
cient, however  long  continued,  to  put  an  end  to  its  existence.  To  have  that  effect 
the  obstruction  must  cover  the  entire  width ; it  is  not,  however,  necessary  to  show 
an  abandonment  along  the  entire  length.  These  rules  have  no  application  where  the 
fee  is  vested  in  the  public.  Barnes  v.  Midland  R.  R.  Terminal  Co.  (1916),  218  N.  Y. 
91,  revg.  161  App.  Div.  621. 

35.  For  form  of  description  of  highway  abandoned,  see  Form  No.  141,  post. 

A town  superintendent  of  highways  cannot  file  a certificate  that  a highway 
has  been  abandoned  unless  it  has  not  been  worked  or  used  during  six  years  last  past. 
It  cannot  be  declared  abandoned  merely  because  bars  and  gates  have  been  placed 


940 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  235,  236. 


gate  unlatched,  shall  he  guilty  of  a misdemeanor,  and  the  fact  of  leaving 
it  unlatched  shall  he  prima  facie  evidence  of  such  intent  or  wilful  neglect. 
Exepting  as  herein  abrogated,  all  other  general  laws  relating  to  high- 
ways shall  apply  to  such  partially  abandoned  highway.  This  section 
shall  not  apply  to  highways  less  than  two  rods  in  width  unless  it  shall 
appear  to  the  town  superintendent  at  any  time  that  such  a highway  has 
not,  during  the  months  of  J une  to  September  inclusive  of  the  two  years 
next  previous  thereto,  been  usually  traveled  along  the  greater  part  there- 
of by  more  than  ten  pedestrians  daily.  [Highway  Law,  § 234,  as 
amended  by  L.  1915,  ch.  322;  B.  C.  & G.  Cons.  L.,  p.  2313.] 

§ 46.  HIGHWAYS  IN  LANDS  ACQUIRED  BY  THE  UNITED  STATES 
FOR  FORTIFICATION  PURPOSES  DEEMED  ABANDONED. 

When  land  sought  to  be  acquired  by  the  United  States  of  America  for 
the  purpose  of  fortifications,  includes  a highway  or  portion  thereof,  the 
condemnation  proceedings  may  include  such  highways  or  portion  thereof, 
and  the  people  of  the  state  of  Hew  York,  and  municipality,  county  or 
other  party  claiming  an  interest  therein  may  be  made  a party  defendant 
in  such  proceeding,  and  the  interest  of  the  state,  county,  municipality  or 
other  claimant  be  determined,  and  the  award  made  therefor.  Forthwith 
upon  the  acquistion  by  the  United  States  of  America  of  land  which  in- 
cludes a highway  or  portion  thereof,  there  shall  be  filed  in  the  office  of 
the  town  clerk  of  the  town,  and  also  in  the  office  of  the  county  clerk  of 
the  county,  in  which  such  land  is  located,  certified  copies  of  the  record 
or  transfer  to  the  United  States  of  such  land,  together  with  a map  of 
such  land,  on  which  map  such  highway  or  portion  thereof  shall  be  indi- 
cated by  metes  and  bounds,  and  thereupon  such  highway  or  portion  there- 
of shall  be  deemed  discontinued  and  abandoned  for  highway  purposes, 
and  if  proceedings  have  been  taken,  pursuant  to  article  six  of  this  chap- 
ter for  the  improvement  of  such  highway  by  state  aid,  all  such  pro- 
ceedings, together  with  any  appropriation  made  for  the  improvement  of 
such  highway  or  portion  thereof,  as  indicated  on  such  map,  shall  be 
deemed  revoked,  vacated  and  set  aside.  [Highway  Law,  § 235  ; B.  C.  & 
G.  Cons.  L.,  p.  2316.] 

§ 47.  DISCONTINUANCE  OF  HIGHWAY. 

Whenever  the  town  superintendent  of  any  town,  in  which  during  the 
past  ten  years  there  has  been  expended  the  sum  of  three  hundred 
thousand  dollars,  or  more,  for  the  purpose  of  macadamizing  the  high- 

across  it  for  the  accommodation  of  abutting  owners.  People  ex  rel.  De  Groat  v. 
Marlett,  94  App.  Div.  592,  88  N.  Y.  Supp.  379.  The  act  of  a town  superintendent  in 
filing  and  causing  to  be  recorded  the  description  of  the  highway  abandoned  pursuant 
to  this  section,  is  not  a judicial  act  involving  discretion  which  can  be  reviewed  only 
by  a writ  of  certiorari,  but  may  be  reviewed  upon  an  application  to  compel  him  to 
open  such  highway  for  public  use.  Idem. 

Mandamus  to  compel  working  of  highway.  Where  a petition  alleges  that 
a filing  in  the  town  clerk’s  office  by  the  superintendent  of  highways  of  a certificate 
of  qualified  abandonment  of  a highway  pursuant  to  section  234  of  the  Highway  Law 
is  colorable  only  and  part  of  a wrongful  and  fraudulent  scheme  to  permanently 
abandon  the  road  and  deprive  petitioner  and  the  public  of  its  benefit,  relator  will 
be  granted  an  alternative  writ  of  mandamus  requiring  the  superintendent  of  high- 
ways to  cancel  such  certificate  and  put  the  highway  in  a suitable  condition  for  travel. 
Matter  of  Marvin  (1915),  91  Misc.  287,  155  N.  Y.  Supp.  28. 


LAYING  OUT,  ETC.,  HIGHWAYS;  PRIVATE  ROADS. 


941 


Highway  Law,  §§  237-239. 


ways  of  such  town,  shall  determine  that  any  portion  of  any  highway  or 
street,  not  within  the  limits  of  an  incorporated  village,  which  is  the 
terminus  of  such  street  or  highway,  is  unnecessary  for  highway  purposes, 
and  said  town  superintendent  may,  by  an  order  to  be  duly  entered  in  the 
town  clerk’s  office,  direct  such  highway  to  be  discontinued  and  abandoned 
for  public  purposes.  Provided,  however,  that  no  portion  of  such  high- 
way to  be  discontinued  shall  be  greater  than  one  thousand  feet  of  the 
terminus  thereof  and  that  the  owners  of  the  land  on  both  sides  of  such 
highway  or  street,  for  the  distance  it  is  proposed  to  discontinue  the  same, 
shall,  by  written  petition  to  such  town  superintendent  have  requested 
the  discontinuance  thereof.  [Highway  Law,  § 236 ; B.  C.  & G.  Cons. 
L.,  p.  2317.] 

§ 48.  DESCRIPTION  TO  BE  RECORDED. 

Immediately  upon  making  and  entering  the  order  mentioned  in  sec- 
tion two  hundred  and  thirty-six  of  this  chapter,  the  said  town  superin- 
tendent shall  cause  a written  description  of  that  portion  of  the  street  or 
highway  ordered  to  be  discontinued  to  be  filed  and  recorded  in  the 
office  of  the  town  clerk  of  the  town  in  which  the  said  street  or  highway 
is  located,  and  wThen  the  same  is  duly  recorded  the  said  portion  of  the 
said  street  or  highway  shall  thereupon  be  and  become  duly  abandoned 
and  discontinued  for  highway  purposes.  [Higlrway  Law,  § 237 ; B.  C. 
& G.  Cons.  L.,  p.  2317.] 

§ 49.  DAMAGES  CAUSED  BY  DISCONTINUANCE. 

Any  person  or  corporation  interested  as  owner  or  otherwise  in  any 
lands  and  claiming  any  loss  or  damage,  legal  or  equitable,  by  reason  of 
the  discontinuance,  abandonment  or  closing  of  any  street  or  highway, 
not  within  the  limits  of  an  incorporated  village,  under  or  pursuant  to 
the  provisions  of  the  last  two  sections,  may,  upon  ten  days’  written  no- 
tice to  the  town  superintendent  of  the  town  in  'which  such  lands  are 
situated  apply  to  the  supreme  court  or  to  the  county  court  of  the  county 
within  which  such  lands  are  situated  for  the  appointment  of  commis- 
sioners to  estimate  and  determine  such  loss  and  damage,  whereupon  the 
court  shall  appoint  three  disinterested  commissioners  of  appraisal  to 
estimate  and  determine  such  damage,  and  the  amount  of  compensation 
to  be  paid  by  said  town  therefor,  who  shall  make  their  report  thereupon 
to  such  court,  and  which  report  when  finally  confirmed  shall  be  final  and 
conclusive  in  respect  thereto,  and  the  legality  and  equity  of  any  and  all 
such  claims  shall  be  determined  by  such  commissioners  and  by  the  court 
upon  the  hearing  of  their  report.  Any  loss  or  damage  so  estimated  and 
determined  shall  be  paid  by  said  town  as  in  case  of  judgment.  [High- 
way Law,  § 238 ; B.  C.  & G.  Cons.  L.,  p.  2317.] 

§ 50.  PAPERS,  WHERE  FILED. 

All  applications,  certificates,  appointments  and  other  papers  relating 
to  the  laying  out,  altering  or  discontinuing  of  any  highway  shall  be  filed 
by  the  town  superintendent  as  soon  as  a decision  shall  have  been  made 
thereon  in  the  town  clerk’s  office  of  the  town.  [Highway  Law,  § 239 ; 
B.  C.  & G.  Cons.  L.,  p.  2318.] 


942 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 240. 

§ 51.  COSTS  OF  MOTION. 

Costs  of  a motion  to  confirm,  vacate  or  modify  the  report  of  commis- 
sioners appointed  by  the  court  to  lay  out,  alter  or  discontinue  a highway 
may  be  allowed  in  the  discretion  of  the  court  not  exceeding  fifty  dollars. 
On  an  uncontested  motion  to  confirm  the  report  of  the  commissioners  so 
appointed,  if  said  report  is  favorable  to  the  applicant  and  confirmed  by  the 
court,  costs  may  be  allowed  not  exceeding  fifty  dollars  sufficient  to  com- 
pensate the  applicant’s  attorney  for  his  services  in  the  proceedings.  Costs 
of  any  other  motion  in  a proceeding  in  a court  of  record,  authorized  by 
this  chapter,  may  be  allowed  in  the  discretion  of  the  court  not  exceeding 
ten  dollars.36  [Highway  Law,  § 240;  B.  C.  & G.  Cons.  L.,  p.  2318.] 


36.  Award  of  costs.  The  provisions  of  this  section  only  relate  to  the  costs 
of  motions  made  in  a proceeding  in  respect  to  highways,  as  distinguished  from 
the  costs  of  the  proceeding  itself.  Such  a proceeding  is  a special  proceeding 
and  the  court  may  award  costs  in  its  discretion  pursuant  to  § 3240  of  the  Code 
of  Civil  Procedure.  Matter  of  Peterson,  94  App.  Div.  143,  87  N.  Y.  Supp.  1014. 
The  costs  referred  to  in  sec.  202  of  the  Highway  Law,  are  costs  which  may  be 
allowed  to  one  of  the  parties  under  the  provision  of  this  section.  People  ex 
rel.  Bevins  v.  Supervisors,  82  Hun,  298,  31  N.  Y.  Supp.  248  (1894). 

The  provisions  of  section  3240  of  the  Code  of  Civil  Procedure  are  applicable 
and  authorize  the  court  in  its  discretion  to  award  costs  to  the  prevailing  party 
at  the  rates  allowed  for  similar  services  in  an  action.  Matter  of  Terry,  67  Misc. 
514,  12  N.  Y.  Supp.  258. 

This  section  should  be  construed  with  sections  193  and  198  and  where  the 
commissioners  determine  that  a proposed  highway  or  alteration  is  not  neces- 
sary, or  a highway  proposed  to  be  discontinued  is  not  useless,  the  costs  and 
expenses  allowed  the  applicant  cannot  exceed,  in  all,  the  sum  of  one  hundred 
dollars.  Matter  of  Terry,  67  Misc.  514,  12  N.  Y.  Supp.  258. 


BRIDGES. 


943 


Explanatory  note. 


CHAPTER  LXIIL 

BRIDGES. 

EXPLANATORY  NOTE. 

Bridges  Within  the  Town. 

The  town  is  liable  for  the  cost  of  constructing  and  maintaining  bridges 
within  the  boundaries  of  the  town.  The  town  superintendent  of  high- 
ways is  required  to  keep  such  bridges  in  repair.  The  estimate  made  by 
him  each  year  to  the  town  board,  as  provided  in  § 90  of  the  Highway 
Law,  ante , must  contain  a statement  as  to  the  amount  which  should  be 
expended  for  such  repairs,  and  the  amount  is  raised  and  paid  to  the 
supervisor  and  expended  on  the  order  of  the  town  superintendent  in  the 
same  manner  as  money  is  raised  and  expended  for  town  highways. 

If  a bridge  becomes  unsafe  for  use,  or  is  condemned  by  the  State 
commission,  the  town  superintendent  must  cause  the  same  to  be  repaired 
or  rebuilt,  if  approved  by  the  town  board,  and  may,  subject  to  such 
approval,  expend  not  more  than  $500  (without  a contract.  If  the  ex- 
pense is  to  exceed  that  amount  written  contracts  must  be  made  there- 
for, with  the  approval  of  the  town  board.  No  such  bridge  may  be 
repaired  or  rebuilt,  except  as  directed  by  the  county  or  district  superin- 
tendent, or  in  accordance  with  plans  and  specifications  prepared  by  such 
county  or  district  superintendent.  (See  Highway  Law,  § 93  ante , 
chapter  LIX.) 

If  the  cost  of  repairing  or  rebuilding  such  bridge  exceeds  $1500,  the 
question  must  be  submitted  to  a vote  of  the  electors  of  the  town  at  a 
special  biennial  town  meeting,  before  the  work  is  commenced.  An 
amount  in  excess  of  such  sum  cannot  be  expended  without  favorable 
action  by  such  town  meeting.  (See  Highway  Law,  § 94,  ante).  A 
town  meeting  may  also  vote  to  raise  the  money  by  the  issue  and  sale  of 
town  bonds.  (See  Highway  Law,  § 95,  ante.) 


9U 


HIGHWAYS  AND  BRIDGES. 


Explanatory  note. 

The  county  may  aid  a town  in  paying  the  cost  of  constructing  and 
repairing  its  bridges,  in  an  amount  not  exceeding  $2000  in  any  one 
year,  when  authorized  by  the  board  of  supervisors.  (See  County  Law, 
§ 63,  post.) 

Bridges  over  Boundary  Lines. 

The  cost  of  erecting  and  maintaining  bridges  over  streams  forming 
the  boundary  lines  of  towns,  are  to  be  jointly  borne  by  such  towns, 
whether  in  the  same  or  adjoining  counties.  Such  expense  must  be 
equally  borne  by  such  towns,  without  regard  to  the  portion  of  the  bridge 
which  is  in  each  town,  unless  the  board  of  supervisors  takes  action  under 
§ 97  of  the  Highway  Law.  ante , by  apportioning  such  expense  equitably 
among  the  towns,  as  it  shall  deem  just. 

If  the  bridge  is  over  a boundary  line  between  two  counties,  each 
county  must  bear  not  less  than  one-sixth  the  cost  of  its  erection  and 
maintenance,  and  the  board  of  supervisors  of  each  county  must  cause 
the  amount  required  for  such  purpose  to  be  raised  by  tax  upon  the 
county. 

The  various  sections  in  this  chapter  provide  for  compelling  the  proper 
officers  of  each  town,  liable  to  constitute  to  the  expense  of  erecting  and 
maintaining  a joint  bridge,  to  take  the  necessary  steps  to  rebuild  and 
maintain  such  bridge. 


[Highway  Law,  art.  IX.] 

Section  1.  When  town  or  county  expense. 

2.  Levy  of  tax  upon  county. 

3.  Penalty,  and  notice  on  bridge. 

4.  Offense. 

5.  Joint  liabilities  of  towns  and  their  joint  contracts. 

6.  Refusal  to  repair. 

7.  Proceedings  in  court. 

8.  Supervisor  to  institute  proceedings. 

9.  Duty  of  superintendents. 

10.  Report  of  town  superintendents,  and  levy  of  tax. 

11.  Appeals. 

12.  Power  of  court  on  appeal. 

13.  Refusal  to  repair  bridges. 

13a.  Construction  or  improvement  of  bridge  by  county  and  town  or 
towns. 

14.  Construction  and  maintenance  of  bridges  over  waters  between  towns 

and  cities  of  over  1,500,000  inhabitants. 

15.  Resolution  of  board  of  supervisors  for  abolition  of  toll  bridges. 


BRIDGES. 


945 


Highway  Law,  § 250. 

Section  16.  Investigation  by  the  state  commission  of  highways. 

17.  Acquisition  by  attorney-general. 

18.  Payment  of  expense  of  acquisition. 

19.  Maintenance  of  bridge. 

20.  Use  of  toll  bridge  by  public  service  corporations;  conditions;  powers  of 

town  board. 

21.  Acquisition  of  certain  toll  bridges  at  the  expense  of  the  state. 

22.  Bridges  in  certain  counties. 


§ 1.  WHEN  TOWN  OR  COUNTY  EXPENSE. 

The  towns  of  this  state,  except  as  otherwise  herein  provided,  shall  be  liable 
to  pay  the  expenses  for  the  construction  and  repair  of  its  public  free 
bridges  constructed  over  streams  or  other  waters  within  their  bounds, 
and  their  just  and  equitable  share  of  such  expenses  when  so  constructed 
over  streams  or  other  waters  upon  their  boundaries,  except  between  the 
counties  of  Westchester  and  New  York;  and  when  such  bridges  are  con- 
structed over  streams  or  other  waters  forming  the  boundary  line  of  towns, 
either  in  the  same  or  adjoining  counties,  such  towns  shall  be  jointly  liable 
to  pay  such  expenses.1  When  such  bridges  are  constructed  over  streams 


1.  Construction  of  town  bridges.  County  may  aid  town  in  construction  of 
bridge  destroyed  by  the  elements,  where  the  cost  of  such  bridge  would,  in  the 
opinion  of  the  board  of  supervisors,  be  too  burdensome  for  the  town.  See 
County  Law,  sec.  64,  post , p.  982,  and  sec.  63,  post,  p.  983.  As  to  bridges 
intersected  by  town  or  county  lines,  see  County  Law,  sec.  65,  post,  p.  984;  and 
as  to  bridges  over  county  lines,  see  County  Law,  sec.  68,  post,  p.  985. 

This  section  makes  absolute  the  liability  of  the  town  to  construct  and  main- 
tain bridges  over  streams  within  its  bounds.  Phelps  v.  Hawley,  52  N.  Y.  23. 
Prior  to  act  of  1890,  ch.  568,  the  burden  of  supporting  bridges  was  cast  upon 
the  towns  alone.  Town  of  Wirt  v.  Supervisors,  90  Hun  205,  35  N.  Y.  Supp 
887.  For  common  law  rules  and  history  of  New  York  state  legislation  relating 
to  liability  for  construction  and  maintenance  of  bridges,  see  People  ex  rel. 
Root  v.  Supervisors,  81  Hun  216,  30  N.  Y.  Supp.  729,  affirmed  146  N.  Y.  107; 
Bartlett  v.  Crozier,  17  Johns.  439,  452. 

Powers  of  superintendents.  Town  superintendents  are  charged  with  the 
duty  of  erecting  and  maintaining  town  bridges.  Berlin  Iron  Bridge  Co.  v. 
Wagner,  57  Hun,  346;  10  N.  Y.  Supp.  840.  And  the  power  given  to  a commis- 
sioner to  repair  highways  includes  the  power  to  build  a bridge  to  connect  two 
parts  of  a highway.  Mather  v.  Crawford,  36  Barb.  564;  Huggans  v.  Riley,  125 
N.  Y.  88;  25  N.  E.  993. 

After  a town  board  has  given  its  consent  to  the  erection  or  repair  of  a 
bridge  which  has  been  destroyed  or  damaged  by  the  elements,  its  duties  in 
respect  thereto  are  at  an  end,  and  it  cannot  direct  the  town  superintendent 
as  to  the  manner  of  construction.  People  ex  rel.  Groton,  etc.,  Bridge  Co.  v. 
Town  Board,  92  Hun,  585;  36  N.  Y.  Supp.  1062. 

Streams  upon  boundaries.  Where  a boundary  line  between  towns  is  the 
bank  of  a stream,  such  stream  is  included  within  the  expression,  “ streams 
or  other  waters  upon  their  boundaries,”  as  contained  in  this  section.  Town  of 


916 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 250. 


or  other  waters  forming  the  boundary  line  between  a city  of  the  third 
class  and  a town,  such  city  and  town  shall  be  liable  each  to  pay  its  just 
and  equitable  share  of  the  expenses  for  the  construction,  maintenance 
and  repair  of  such  bridges.  Except  as  otherwise  provided  by  law,  a city 
of  the  third  class  shall  be  deemed  a town,  for  the  purposes  of  this  article. 
Each  of  the  counties  of  this  state  shall  also  be  liable  to  pay  for  the  con- 
structure,  care,  maintenance,  preservation  and  repair  of  public  bridges 
lawfully  constructed  over  streams  or  other  waters  forming  its  boundary 
line,  not  less  than  one-sixth  part  of  the  expense  of  construction, 
care,  maintenance,  preservation  and  repair,2  and,  except  in  a county 
containing  a portion  of  the  Adirondack  park,  the  whole  of  such  expenses 
of  public  bridges  lawfully  constructed  or  to  be  constructed  over  streams, 
or  waterways,  intersecting  county  roads.  [Highway  Law,  § 250,  as 
amended  by  L.  1914,  chs.  78,  199,  and  L.  1915,  ch.  589;  B.  C.  & G. 
Cons.  L.,  p.  2319.] 

East  Fishkill,  v.  Town  of  Wappinger,  97  App.  Div.  7,  89  N.  Y.  Supp.  599. 

Bridges  over  town  boundaries.  The  provisions  of  the  above  section  as  to  the 
construction  of  bridges  over  town  lines  only  refer  to  bridges  connecting  with  the 
town  sought  to  be  charged,  or  ending  therein,  and  are  not  intended  to)  apply  to  a 
bridge  neither  end  of  which  is  in  the  town  sought  to  be  charged  with  the  cost 
thereof,  and  which  is  not  accessible  therefrom,  although  one  of  its  piers,  and  the 
middle  portion  of  it,  are  situated  upon  and  over  land  belonging  to  such  town. 
Town  of  Candor  v.  Town  of  Tioga,  11  App.  Div.  502;  42  N.  Y.  Supp.  911. 

The  general  rule,  however,  is  that  when  a bridge  is  built  over  a stream  forming 
the  boundary  line  of  towns,  the  expense  of  its  construction  and  maintenance  is  to 
be  borne  equally  by  the  towns.  People  ex  rel.  Root  v.  Supervisors,  81  Hun,  216;  30 
N.  Y.  Supp.  729,  affd.  146  N.  Y.  107. 

Boards  of  supervisors  may,  upon  the  proper  application  of  one  of  such  towns, 
enact  a law  authorizing  and  compelling  the  erection  of  a bridge  over  a stream  form- 
ing a boundary  line  between  such  towns,  and  may  impose  a tax  upon  such  towns  to 
pay  the  expense  thereof,  although  a majority  of  the  taxpayers  of  one  of  such  towns 
and  its  officers  are  opposed  to  it,  however  such  objection  may  be  indicated.  Town 
of  Kirkwood  v.  Newbury,  122  N.  Y.  571;  26  N.  E.  10. 

A bridge  may  be  constructed  across  a river  dividing  towns  where  the  highway 
in  each  town  comes  to  the  river  bank,  although  no  such  bridge  has  previously 
existed.  Matter  of  Mohawk  River  Bridge,  128  App.  Div.  54,  112  N.  Y.  Supp.  428. 
In  order  that  towns  may  be  jointly  liable  for  the  construction  of  a bridge  over  a 
stream  forming  their  boundary,  such  bridge  must  connect  a lawful  highway  in  each 
town;  but  the  fact  that  a highway  has  been  laid  out  is  not  sufficient;  there  must 
be  an  existing  thoroughfare  suitable  for  travel.  Beckwith  v.  Whalen,  70  N.  Y.  430; 
People  ex  rel.  Keene  v.  Supervisors,  151  N.  Y.  190.  The  necessary  approaches  are 
part  of  a free  bridge,  and  both  towns  are  equally  and  jointly  liable  for  an  approach 
built  in  either  town.  Edwards  v.  Ford,  22  App.  Div.  277,  4*7  N.  Y.  Supp.  995. 

The  consent  of  the  town  superintendent  of  both  towns  is  necessaiy  where  a 
railroad  seeks  to  cross  a bridge  constructed  and  maintained  jointly  by  such  towns. 
Wheatfield  v.  Tonawanda  St.  R.  R.  Co.,  92  Hun,  460;  36  N.  Y.  Supp.  744. 

Apportionment  of  expense  of  constructing  bridge  between  counties  to 
replace  old  structures.  Wlien  the  bridge  which  formerly  extended'  from  the  city 
of  Glens  Falls,  county  of  Warren,  to  an  island  in  the  Hudson  river  and  the  bridge 
extending  from  said  island  to  the  village  of  South  Glens  Falls  in  the  adjoining 
county  of  Saratoga,  were  replaced  by  a structure  extending  from  said  city  to  said 
village  situated  in  the  said  adjoining  counties,  the  city  of  Glens  Falls  and  the  town 
of  Moreau  are  jointly  liable  for  the  expense  of  constructing  the  new  bridge,  and  of  a 
bridge  temporarily  used,  while  the  county  of  Warren  is  liable  for  not  less  than  one- 
sixth  part  of  the  expense  of  construction,  care,  maintenance  and  repair  of  the  new 
bridge  The  county  of  Warren  is  not  exempt  from  sharing  in  the  cost  of  the 
southerly  portion  of  said'  bridge  extending  from  the  island  in  the  Hudson  river  to 
said  village  in  the  adjoining  county.  People  ex  rel.  City  of  Glens  Falls  v.  County  of 
Warren  (1915),  170  App.  Div.  144,  155  N.  Y.  Supp.  642. 

2.  Liability  of  counties.  Effect  of  the  act  of  1895  amending  this  section 


BRIDGES. 


947 


Highway  Law,  §§  251-253. 

§ 2.  LEVY  OF  TAX  UPON  COUNTY. 

Each  supervisor  shall  present  to  the  board  of  supervisors  of  his  county 
at  its  annual  session  a statement  specifying  the  amount  paid  during  the 
preceding  year  ending  on  the  thirty-first  of  October  for  the  construction, 
care,  maintenance,  preservation  and  repair  of  public  bridges  over  streams  or 
other  waters  forming  the  boundary  of  such  county.* 2 3  The  board  of  super- 
visors shall  levy  upon  the  taxable  property  of  the  county  a sum  sufficient 
to  pay  its  proportion  of  such  expense,  and  the  same  when  collected  shall 
be  paid  to  the  supervisor  of  such  town  to  be  applied  by  him  on  the  order 
of  the  town  superintendent  after  audit  as  provided  in  this  chapter,  toward 
the  payment  of  such  expense.  [Highway  Law,  § 251;  B.  C.  & G.  Cons. 
L.,  p.  2322.] 

§ 3.  PENALTY,  AND  NOTICE  ON  BRIDGE. 

The  town  superintendent  may  fix  and  prescribe  a penalty,  not  less  than 
one  or  more  than  five  dollars,  for  riding  or  driving  faster  than  a walk  on 
any  bridge  in  his  town  whose  chord  is  not  less  than  twenty-five  feet  in 
length  and  put  up  and  maintain  in  a conspicuous  place,  at  each  end  of 
the  bridge,  a notice  in  large  characters,  stating  each  penalty  incurred. 
[Highway  Law,  § 252 ; B.  C.  & G.  Cons.  L.,  p.  2322.] 

§ 4.  OFFENSE. 

Whoever  shall  ride  or  drive  faster  than  a walk  over  any  bridge,  upon 

one-sixth  part  of  the  expense  of  construction,  care,  maintenance  and  repair  of  the 
new  bridge.  The  county  of  Warren  is  not  exempt  from  sharing  in  the  cost  of  the 
southerly  portion  of  said  bridge  extending  from  the  island  in  the  Hudson  river  to 
said  village  in  the  adjoining  county.  People  ex  rel.  City  of  Glens  Falls  v.  County 
of  Warren  (1915),  170  App.  Div.  144,  155  N.  Y.  Supp.  642. 

2.  Liability  of  counties.  Effect  of  the  act  of  1895  amending  this  section  was 
to  repeal  the  provisions  of  the  former  act  requiring  contribution  from  the  county 
when  the  expense  of  all  the  free  bridges  of  a town  exceeded  a certain  amount.  Town 
of  Wirt  v.  Supervisors,  90  Hun,  205;  35  N.  Y.  Supp.  887.  The  amendment  of  1895 
abrogated  the  effect  of  the  decision  in  the  case  of  People  ex  rel.  Root  v.  Supervisors 
of  Steuben,  146  N.  Y.  107.  The  act  of  1895  was  held  not  to  apply  to  bridges  com- 
pleted prior  to  its  taking  effect.  Stone  v.  Supervisors,  166  N.  Y.  85.  Duties  of 
counties  under  this  section  may  be  enforced  by  mandamus.  People  v.  Supervisors, 
142  N.  Y.  271. 

County  aid  to  towns  for  construction  and  repair  of  bridges.  If  the  board 
of  supervisors  of  any  county  shall  deem  any  town  in  the  county  to  be  unreasonably 
burdened  by  its  expenses  for  the  construction  and  repair  of  its  bridges,  the  board 
may  cause  a sum  of  money,  not  exceeding  two  thousand  dollars  in  any  one  year,  to 
be  raised  by  the  county  and  paid  to  such  town  to  aid  in  defraying  such  expenses. 
[County  Law,  § 63;  B.  C.  & G.  Cons.  L.,  p.  754.] 

3.  For  form  of  statement  of  the  supervisor  of  the  expense  incurred  in  the 
construction  and  repair  of  a town  bridge,  see  Form  No.  142,  post. 

A statement  that  is  verified  and  contains  a description  of  the  bridge  and  the 
whole  expense  in  items  incurred  by  the  town  during  the  year  preceding  for  con- 
structing and  repairing  the  same  is  sufficient.  People  ex  rel.  Root  v.  Co.,  81  Hun, 
216,  30  N.  Y.  Supp.  790. 


943 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 254. 

which  notice  shall  have  been  placed,  and  shall  then  be,  shall  forfeit  for 
every  offense,  the  amount  fixed  by  such  town  superintendent  and  specified 
in  the  notice.  [Highway  Law,  § 253;  B.  C.  & G.  Cons.  L.,  p.  2322.] 


§ 5.  JOINT  LIABILITIES  OF  TOWNS  AND  THEIR  JOINT  CON- 
TRACTS. 

Whenever  any  two  or  more  towns  shall  be  liable  to  make  or  maintain 
any  bridge  or  bridges,  the  same  shall  be  built  and  maintained  at  the  joint 
expense  of  such  towns,  without  reference  to  town  lines,  except  where  the 
board  of  supervisors  has  otherwise  apportioned  such  expense  as  provided  in 
section  ninety-seven.  The  town  superintendents  of  all  the  towns,  or  of  one 
or  more  of  such  towns,  the  others  refusing  to  act,  may,  when  directed  by 
their  respective  town  boards,  enter  into  a joint  contract  for  making  and 
repairing  such  bridges.4  [Highway  Law,  § 254;  B.  C.  & G.  Cons.  L.,  p. 
2322.] 


4.  Joint  liabilities  of  towns.  This  section  applies  to  towns  jointly  liable  to 
maintain  bridges,  but  does  not  prescribe  under  what  circumstances  the  liability 
exists.  No  such  joint  liability  exists,  unless  there  is  at  the  time  a lawful 
highway  in  each  town,  which  would  be  connected  by,  and  of  which  the  bridge 
would  form  a part.  Beckwith  v.  Whalen,  70  N.  Y.  430;  People  ex  rel.  Keene 
v.  Supervisors,  151  N.  Y.  190.  The  mere  fact  that  a highway  has  been  laid 
out  is  not  sufficient;  there  must  be  an  existing  thoroughfare,  suitable  for 
travel.  Idem.  Proceedings  to  compel  the  repair  of  a bridge  can  only  be  insti- 
tuted under  this  section  where  the  bridge  crosses  a stream  .dividing  the  towns. 
Matter  of  Freeholders  of  Cattaraugus  Co.,  59  N.  Y.  316;  Tifft  v.  Alley,  3 T. 
& C.  784. 

The  words  “ at  the  joint  expense  of  such  towns  ” means  the  equal  expense 
thereof.  The  expense  is  to  be  equally  imposed  upon  the  towns  without  regard 
to  the  portion  of  the  bridge  located  in  each  town  or  the  proportion  of  the  total 
cost  expended  in  each  such  town.  Lapham  v.  Rice,  55  N.  Y.  472;  Bryan  v. 
Landon,  3 Hun,  500;  Day  v.  Day,  94  N.  Y.  153;  Matter  of  Spier,  3 N.  Y.  Supp. 
438;  20  N.  Y.  St.  Rep.  389;  affd.,  115  N.  Y.  665.  The  approaches  to  the  bridge 
are  a part  thereof  and  are  both  to  be  maintained  at  the  joint  expense  of  the 
two  towns.  Edwards  v.  Ford,  22  App.  Div.  277;  47  N.  Y.  Supp.  995;  Hawxhurst 
v.  Mayor,  43  Hun,  588.  In  the  case  of  Marshall  v.  Hayward,  74  App.  Div.  28, 
Woodward,  J.,  in  writing  for  the  court,  said: 

“ The  spirit  of  the  act  appears  to  be  that  the  commissioners  of  highways 
for  the  several  towns  interested  shall  act  for  their  towns,  and  that  they  shall, 
on  behalf  of  their  respective  towns,  enter  into  a joint  contract  for  the  con- 
struction of  such  bridges,  each  town  providing  for  the  payment  of  its  equal 
portion  of  the  cost  of,  such  bridges,  without  any  reference  to  the  question  of 
what  portion  of  any  such  bridge  may  be  within  the  jurisdiction  of  any  par- 
ticular town.” 


BRIDGES. 


949 


Highway  Law,  § 255. 

§ 6.  REFUSAL  TO  REPAIR. 

If  the  town  board  of  either  of  such  towns,  after  notice  in  writing  from 
the  town  board  of  any  other  of  such  towns,  given  by  the  town  clerk 
thereof,  shall  not  within  twenty  days  give  their  consent  in  writing  to 
build  or  repair  any  such  bridge,* * * * 5  and  shall  not  within  a reasonable  time 
thereafter  direct,  by  resolution,  the  same  to  be  done,  the  town  board  giving 
such  notice  may  direct  the  town  superintendent  to  make  or  repair  such 
bridge,  and  then  maintain  an  action  in  the  name  of  the  town,  against  the 
town  which  neglects  or  refuses  to  join  in  such  making  or  repairing,  and  in 
such  action,  the  plaintiffs  shall  be  entitled  to  recover  so  much  from  the 
defendant,  as  the  town  would  be  liable  to  contribute  to  the  same,  together 
with  costs  and  interest.6  [Highway  Law,  § 255 ; B.  C.  & G.  Cons.  L., 
p.  2324.] 


Powers  of  town  superintendents.  The  town  must  act  through  the  town 
superintendents,  and  there  is  no  authority  for  employing  anybody  else,  except 

in  the  construction  of  the  bridge  under  contract,  not  even  counsel  or  represent- 

atives of  the  different  towns.  The  town  superintendents  do  not  constitute  a 
single  body,  but  each,  by  mutual  agreement,  becomes  a party  to  the  contract. 
This  section  must  be  construed  to  authorize  the  town  superintendents  to 

acquire  real  estate  for  the  approaches.  Marshall  v.  Hayward,  74  App.  Div. 

27,  77  N.  Y.  Supp.  57. 

6.  For  form  of  notice  to  town  boards  of  adjoining  towns  to  rebuild  or 
repair  bridge,  see  Form  No.  143,  post.  For  form  of  consent  to  rebuild  or 
repair  bridge,  see  Form  No.  144,  post. 

Necessity  of  notice.  It  is  apparent  from  the  above  section  that  if  a town 
board  directs  a superintendent  to  repair  a bridge  without  giving  notice  to  the 
town  boards  of  the  towns  jointly  liable,  it  cannot  recover  their  proportion  of 
the  expense  because  of  their  failure  to  comply  with  the  requirements  of  the 
statute.  Flynn  v.  Hurd,  118  N.  Y.  19,  29  N.  E.  1109.  The  town  board  of  one 
of  the  towns  liable  may  waive  the  notice;  and  where,  upon  application  of 
the  town  board  of  the  other  town,  it  absolutely  refuses  to  help  rebuild  the 
bridge  when  it  becomes  necessary,  the  notice  is  thereby  waived,  and  the  latter 
may  rebuild  and  then  maintain  an  action  against  the  former  to  recover  half 
the  expense.  Day  v.  Day,  94  N.  Y.  153;  Clapp  v.  Town  of  Ellington,  87  Hun, 
542;  34  N.  Y.  Supp.  283. 

Notice  to  repair  given  by  the  supervisor,  instead  of  by  the  town  clerk,  as 
required  by  this  section,  having  been  received  and  answered  without  objection, 
is  valid.  Matter  of  Town  of  Rutland,  70  Misc.  82,  128  N.  Y.  Supp.  94. 

Action  to  recover  contribution.  An  action  is  not  maintainable  under  this 
section  to  recover  the  amount  which  the  town  is  liable  to  contribute  toward  the 
construction  of  a joint  bridge  unless  all  the  precedent  conditions  imposed  by 
statute  have  been  complied  with.  Flynn  v.  Hurd,  11.8  N.  Y.  19.  Such  an  action 
may  be  maintained  only  where  the  town  sued  is  liable  for  a portion  of  the 
expense  of  constructing  or  maintaining  the  bridge.  Town  of  Candor  v.  Town 
of  Tioga,  11  App.  Div.  502,  42  N.  Y.  Supp.  911. 

An  action  will  lie  under  the  above  section  where  the  town  board  of  one  of 
the  towns,  having  met  with  the  town  boards  of  the  other  towns  and  agreed  to 
join  in  the  repair,  yet  have  neglected  to  pay  their  share  of  the  expense.  Surdani 


950 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 256. 

§ 7.  PROCEEDINGS  IN  COURT. 

Whenever  any  adjoining  towns  shall  be  liable  to  make  or  maintain  any 
bridge  over  any  streams  dividing  such  towns,  whether  in  the  same  or 
different  counties,  three  freeholders  in  either  of  such  towns  may,  by  petition 
signed  by  them,  apply  to  the  town  board  in  each  of  such  towns,  to  build, 
rebuild  or  repair  such  bridge,  and  if  such  town  boards  refuse  to  build, 
rebuild  or  repair  such  bridge  within  a reasonable  time,  either  for  want  of 
funds  or  any  other  cause,  such  freeholders,  upon  affidavit  and  notice  of 
motion,  a copy  of  which  shall  be  served  on  each  supervisor  at  least  eight 
days  before  the  hearing,  may  apply  to  the  supreme  court  at  a special  term 
thereof,  to  be  held  in  the  judicial  district  in  which  such  bridge  or  any  part 
thereof  shall  be  located,  for  an  order  requiring  such  town  boards  to  direct 
the  town  superintendents  to  build,  rebuild  or  repair  such  bridge,  and  the 
court  upon  such  motion  may,  in  doubtful  cases,  refer  the  case  to  some  dis- 
interested person  to  ascertain  the  requisite  facts  in  relation  thereto,  and  to 
report  the  evidence  thereof  to  the  court.* * * * * * 7  Upon  the  coming  in  of  the 


v.  Fuller,  31  Hun,  500.  It  need  not  be  alleged  in  the  complaint  that  the 
defendant  towns  had  money  with  which  to  pay  their  share  of  the  joint  expense. 

Oakley  v.  Town  of  Mamaroneck,  39  Hun,  448. 

If  two  or  three  towns  have  paid  the  entire  expense  of  the  construction  or 

repair  of  a bridge  for  which  all  three  towns  are  jointly  liable,  the  town  super- 

intendents of  each  of  the  two  towns  should  sue  separately  to  recover  the  portion 

paid  by  each.  Corey  v.  Rice,  4 Lans.  141. 

7.  For  form  of  petition  of  freeholders  to  town  boards  of  adjoining  towns 
to  rebuild  or  repair  a bridge,  see  Form  No.  145,  post.  For  form  of  notice  of 
motion  for  an  order  of  the  Supreme  Court  compelling  town  superintendents 
to  rebuild  or  repair  bridge,  see  Form  No.  146,  post.  For  form  of  affidavit  to  be 
used  on  such  motion,  see  Form  No.  147,  post. 

These  proceedings  are  limited  in  their  operation  and  effect  to  bridges  over 
boundary  lines  between  towns;  although  by  other  statutes  bridges  not  so  sit- 
uated are  maintainable  at  the  joint  expense  of  two  or  more  towns,  the  pro- 
ceedings above  authorized  do  not  apply  thereto.  Matter  of  Petition  of  Free- 
holders of  Cattaraugus  Co.,  59  N.  Y.  316. 

The  inability  of  superintendents  of  the  adjoining  towns  to  agree  on  the  kind  of 
material  to  be  used  in  the  construction  of  the  bridge  is  equivalent  to  a refusal 
and  justifies  the  application  by  freeholders.  Matter  of  Towns  of  Mt.  Morris 
and  Castile,  41  Hun,  29. 

This  section  has  no  application  to  a bridge  upon  a stream  intersecting  the 
town  line  at  right  angles,  and  intermediate  between  the  exterior  lines  of  a 
road  district.  Tifft  v.  Alley,  3 T.  & C.  784.  Liability  to  contribute  cannot  be 
enforced  under  this  section  where  the  proposed  bridge  will  not  connect  a lawful 
highway  in  each  town.  Matter  of  Freeholders  of  Montezuma,  38  N.  Y.  St.  Rep. 
970,  14  N.  Y.  Supp.  845,  80  Hun  581. 

It  seems  that  where  a highway  in  each  town  comes  to  the  bank  of  a river 
dividing  the  towns,  a bridge  may  be  constructed  across  the  river  connecting 


BRIDGES. 


951 


Highway  Law,  §§  257,  258. 

report,  in  case  of  such  reference,  or  upon  or  after  the  hearing  of  the  motion, 
in  case  no  reference  shall  be  ordered,  the  court  shall  make  an  order  thereon 
as  the  justice  of  the  case  shall  require.* * * 8  If  the  motion  be  granted  in  whole 
or  in  part,  whereby  funds  shall  be  needed  to  carry  the  order  into  effect, 
such  court  shall  specify  the  amount  of  money  required  for  that  purpose, 
and  how  much  thereof  shall  be  raised  in  each  town.  [Highway  Law, 
§ 256;  B.  C.  & G.  Cons.  L.,  p.  2325.] 

§ 8.  SUPERVISOR  TO  INSTITUTE  PROCEEDINGS. 

The  supervisor  of  any  such  town  shall,  when  directed  by  the  town  board, 
institute  and  prosecute  proceedings  under  this  chapter,  in  the  name  of 
the  town,  to  compel  the  town  board  of  such  adjoining  town  or  towns  to 
cause  the  town  superintendents  thereof  to  join  in  the  building,  rebuilding 
or  repair  of  any  such  bridge,  in  like  manner  as  freeholders  are  thereby 
authorized.  [Highway  Law,  § 257;  B.  C.  & G.  Cons.  L.,  p.  2326.] 

§ 9.  DUTY  OF  SUPERINTENDENTS. 

The  order  for  building,  rebuilding  or  repairing  a bridge  being  made, 
and  a copy  thereof  being  served  on  the  town  superintendent  of  such 
adjoining  towns  respectively  the  town  superintendents  of  such  towns  shall 
forthwith  meet  and  cause  such  bridge  to  be  built,  rebuilt  or  repaired  in 
accordance  with  the  plans  and  specifications  prepared  or  approved  by  the 
district  or  county  superintendent,  out  of  any  funds  in  the  hands  of  the 
supervisors  of  such  towns  applicable  thereto;  if  an  inadequate  amount  of 
such  funds  are  on  hand,  the  town  boards  of  such  towns  shall  direct  the  town 
superintendents  thereof  to  build,  rebuild  or  repair  such  bridge,  and  the 
same  shall  be  done  upon  credit,  or  in  part  for  cash  or  in  part  upon  credit 
according  to  the  exigency  of  the  case ; and  such  town  boards  shall  direct  the 
superintendents  to  enter  into  a contract,  to  be  approved  by  such  town 
boards,  for  building,  rebuilding  or  repairing  such  bridge  pledging  the 
credit  of  each  town  for  the  payment  of  its  appropriate  share  so  far  as  the 
same  shall  be  upon  credit.9  [Highway  Law,  § 258;  B.  C.  & G.  Cons. 
L.,  p.  2326.] 


such  highways  by  proceedings  pursuant  to  this  section,  although  no  bridge  has 

existed  there  before.  Matter  of  Mohawk  River  Bridge,  128  App.  Div.  54,  112 

N.  Y.  Supp.  428. 

8.  For  form  of  order  of  court  to  rebuild  bridge,  see  Form  No.  148,  post. 

9.  Application  of  section.  This  section  has  been  held  inapplicable  to  the 
city  of  Auburn  in  an  action  brought  by  a town  adjoining  the  city  on  the  ground 
thf>*  r\0  such  power  for  raising  funds  is  conferred  upon  that  city.  Matter  of 


952 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  259-262. 

§ 10.  REPORT  OF  TOWN  SUPERINTENDENTS,  AND  LEVY  OF  TAX. 

The  town  superintendent  of  each  town  shall  make  a full  and  verified 
report  of  their  proceedings  in  the  premises  including  an  accurate  account 
of  what  has  been  done  in  respect  to  such  bridge,  and  shall  attach  thereto 
a copy  of  the  order  granted  by  the  supreme  court.  Such  report,  account 
and  order  shall  be  certified  by  the  town  board  and  delivered  to  the 
supervisor  and  be  presented  by  him  to  the  board  of  supervisors  of  his 
county.  The  board  of  supervisors  at  their  annual  meeting  shall  levy  a 
tax  upon  each  of  such  towns,  when  in  the  same  county,  and  upon  the  appro- 
priate towns  when  in  different  counties,  for  its  share  of  the  costs  of  build- 
ing, rebuilding  and  repairing  such  bridge,  after  deducting  all  payments 
actually  made  by  the  supervisor  upon  the  written  order  of  the  town  super- 
intendent. Such  tax,  including  all  payments,  shall  in  no  case  exceed  the 
amount  specified  in  the  order  of  the  supreme  court.  [Highway  Law, 
§ 259;  B.  C.  & G.  Cons.  L.,  p.  2327.] 

§11.  APPEALS. 

Either  party  aggrieved  by  the  granting  or  refusing  to  grant  such  order 
by  the  court  at  special  term,  may  appeal  from  such  decision  to  the  appel- 
late division  of  the  supreme  court  for  the  review  of  the  decision.  The 
appellate  division  may  alter,  modify  or  reverse  the  order,  with  or  without 
costs.  [Highway  Law,  § 260;  B.  C.  & G.  Cons.  L.,  p.  2327.] 

§ 12.  POWER  OF  COURT  ON  APPEAL. 

The  special  term  may  grant  or  refuse  costs  as  upon  a motion,  including 
also  witnesses’  fees,  referees’  fees  and  disbursements.  The  appeal  provided 
for  in  the  last  preceding  section  shall  conform  to  the  practice  of  the 
supreme  court,  in  case  of  appeal  from  an  order  of  a special  term  to  the 
appellate  division.  [Highway  Law,  § 261 ; B.  C.  & G.  Cons  L.,  p.  2327.] 


§ 13.  REFUSAL  TO  REPAIR  BRIDGES. 

Whenever  any  such  bridge  shall  have  been  or  shall  be  so  out  of  repair  as 
to  render  it  unsafe  for  travelers  to  pass  over  the  same,  or  whenever  any  such 
bridge  shall  have  fallen  down,  or  been  swept  away  by  a freshet  or  otherwise, 


Certain  Freeholders,  46  Hun  620.  But  § 250  of  the  present  Highway  Law 
provides  for  the  joint  liability  of  a town  and  a city  of  the  third  class  to 
construct  and  maintain  bridges  over  boundary  lines,  and  provides  that  “ Except 
as  otherwise  provided  by  law,  a city  of  the  third  class  shall  be  deemed  a town 
for  the  purposes  of  this  article.” 


BRIDGES. 


953 


Highway  Law,  § 262a. 

if  the  town  superintendent  of  the  adjoining  town  or  towns,  after  reason- 
able notice  of  such  condition  of  the  bridge,  have  neglected  or  refused,  or 
shall  neglect  or  refuse  to  repair  or  rebuild  it,  then  whatever  funds  have  been 
or  shall  be  necessarily  or  reasonably  laid  out  or  expended  in  repairing  such 
bridge  or  in  rebuilding  the  same,  by  any  person  or  corporation,  shall  be  a 
charge  on  such  adjoining  town  or  towns,  each  being  liable  for  its  just  pro- 
portion; and  the  person  or  corporation  who  has  made  such  expenditure,  or 
shall  make  such  expenditures,  may  apply  to  the  supreme  court,  at  a special 
term,  for  an  order  requiring  such  towns  severally  to  reimburse  such  expend- 
itures, which  application  shall  be  made  upon  papers  to  be  served  upon  the 
town  superintendents  of  such  towns  at  least  eight  days  prior  thereto ; and  the 
court  may  grant  an  order  requiring  each  adjoining  town  or  towns  to  pay 
its  just  proportion  of  the  expenditure,  specifying  the  same;  and  the  town 
superintendent  of  each  of  such  towns  shall  forthwith  serve  a copy  of 
such  order  upon  the  supervisor  of  each  of  their  towns,  who  shall  present 
the  same  to  the  board  of  supervisors,  at  their  next  annual  meeting.  The 
board  of  supervisors  shall  raise  the  amount  charged  upon  each  town  by 
the  order,  and  cause  the  same  to  be  collected  and  paid  to  such  persons  or 
corporation  as  incurred  the  expenditure.  The  order  shall  be  appealable. 
[Highway  Law,  § 262 ; B.  C.  & G.  Cons.  L.,  p.  2328.] 


§ 13a.  CONSTRUCTION  OR  IMPROVEMENT  OF  BRIDGE  BY  COUNTY 
AND  TOWN  OR  TOWNS. 

The  board  of  supervisors  of  a county  may  provide  for  the  construction 
or  improvement  of  a bridge  in  one  or  more  towns  of  a county  and  at  the 
joint  expense  of  the  county  and  town  or  towns  as  provided  in  this  section. 
The  board  may  by  resolution  direct  the  district  or  county  superintendent 
to  examine  such  bridge  and  report  thereon,  and  if  the  board  considers  such 
bridge  to  be  of  sufficient  importance  to  be  constructed  or  improved  as 
provided  herein,  it  shall  direct  such  district  or  county  superintendent  to 
prepare  or  cause  to  be  prepared  maps,  plans,  specifications  and  estimate 
thereon,  and  such  district  or  county  superintendent  shall,  subject  to  the 
direction  and  control  of  the  board  of  supervisors,  have  the  same  powers  and 
duties  in  respect  to  such  bridge  as  are  given  to  him  with  respect  to  state- 
county  highways  in  section  one  hundred  and  twenty-five  of  this  chapter. 
Upon  the  completion  of  such  maps,  plans,  specifications  and  estimate,  they 
are  to  be  submitted  to  the  board  of  supervisors  for  approval,  and  such 
board  shall  thereupon  adopt  a resolution  providing  for  the  construction  or 
improvement  of  such  bridge  in  accordance  with  such  plans,  maps,  specif!  - 


9 o3a 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 362a. 

cations  and  estimate,  or  in  accordance  with  such  maps,  plans,  specifications 
and  estimate  as  may  be  approved  by  it.  The  board  of  supervisors  shall 
award  contracts  for  the  construction  or  improvement  of  such  bridge  and 
the  provisions  of  section  one  hundred  and  thirty  of  this  chapter  shall  apply 
so  far  as  may  be  to  such  contracts  and  the  award,  execution  and  fulfillment 
thereof.  Such  contract  may  be  awarded  to  the  town  board  of  any  town  in 
which  such  bridge  is  located  and  the  provisions  of  section  one  hundred  and 
thirty-one  of  this  chapter  shall  apply  thereto.  The  board  of  supervisors 
shall  determine  the  apportionment  of  the  cost  of  the  construction  or  improve- 
ment of  such  bridge  to  be  borne  by  the  county  and  the  portion  to  be  borne 
by  the  town  or  towns  in  which  such  bridge  is  located,  or  by  the  town  or 
towns  in  which  such  bridge  is  not  located  but  which  are  particularly  bene- 
fited thereby.  The  amount  to  be  borne  by  the  county  shall  be  levied  and 
collected  as  a county  charge  and  paid  into  the  county  treasury.  The 
amount  to  be  borne  by  a town  shall  be  levied  and  collected  as  a town  charge, 
and  when  collected  shall  be  paid  into  the  county  treasury.  If  such  bridge 
shall  be  located  in  a different  position  from  an  existing  bridge,  the  board  of 
supervisors  shall  acquire  land  for  the  requisite  construction,  and  such  board 
may  also  acquire  land  for  the  purpose  of  obtaining  gravel,  stone  or  other 
material  when  required  for  the  construction  or  improvement  of  such  bridge, 
together  with  a right  of  way  to  the  bed,  pit  or  quarry  or  other  place  where 
such  gravel,  stone  or  other  material  may  be  located;  and  the  provisions 
of  sections  one  hundred  and  forty-eight  to  one  hundred  and  fifty-five  both 
inclusive  shall  apply  to  the  acquisition  of  such  land  as  far  as  may  be,  except 
that  the  cost  of  such  land  and  the  expense  incident  to  acquiring  the  same 
shall  be  deemed  a part  of  the  cost  of  the  construction  and  improvement  of 
such  bridge  under  the  provisions  of  this  section.  The  board  of  supervisors 
may  by  resolution  authorize  the  county  treasurer  of  the  county  or  the  super- 
visors of  the  respective  towns  to  borrow  money  on  the  faith  and  credit  of  the 
county  and  of  such  towns  by  temporary  loans  in  anticipation  of  the  next 
succeeding  tax  levy  or  an  issue  of  bonds  for  such  levy  or  by  the  issue  and 
sale  of  bonds  to  pay  the  portion  of  the  cost  of  the  construction  or  improve- 
ment to  be  borne  respectively  by  the  county  or  such  town  or  towns.  Such 
resolution  may  also  provide  for  the  issue  and  sale  of  bonds  and  shall  con- 


BRIDGES. 


953b 


L.  1897,  ch.  269,  §§  1-3. 

form  as  nearly  as  may  be  to  the  provisions  of  the  chapter  relating  to  a 
resolution  authorizing  a town  to  borrow  money  to  pay  its  share  of  the  cost  of 
construtcion  or  improvement  of  a county  highway.  The  construction  or 
improvement  authorized  by  such  resolution  shall  be  done  under  the  super- 
vision and  direction  of  the  district  or  county  superintendent.  Payments 
therefor  shall  be  made  from  time  to  time  by  the  county  treasurer  upon  the 
certificate  of  the  district  or  county  superintendent  indorsed  by  the  chair- 
man of  the  board  of  supervisors.  Such  bridge  when  completed  and  accepted 
by  the  board  of  supervisors  shall  be  thereafter  repaired  and  maintained  at 
the  sole  expense  of  the  town  or  towns  in  which  it  is  located  unless  the  board 
of  supervisors  shall  apportion  a share  of  the  expense  of  the  repair  and 
maintenance  thereof  upon  the  county,  or  upon  the  town  or  towns  particularly 
benefited.  [Highway  Law,  § 262a,  as  added  by  L.  1918,  ch.  327.] 

§ 14.  CONSTRUCTION  AND  MAINTENANCE  OF  BRIDGES  OVER 
WATERS  BETWEEN  TOWNS  AND  CITIES  OF  OVER  1,500,000 
INHABITANTS. 

Construction  of  bridges. — Whenever  the  highway  commissioners  having 
power  in  the  premises  under  this  act  shall  decide  that  the  public  con- 
venience requires  a bridge  to  be  constructed  over  the  stream  or  waters 
dividing  a city  from  a town  or  any  incorporated  village  in  said  town,  the 
same  shall  be  constructed  under  and  according  to  the  provisions  of  the 
Highway  Law  for  the  construction  of  bridges  between  towns,  being  article 
five  of  chapter  nineteen  of  the  general  laws,  the  common  council  of  the 
city  being  the  highway  commissioners  of  said  city,  and  the  board  of  village 
trustees  of  any  incorporated  village  in  the  town  being  the  highway  commis- 
sioners of  said  village.  [L.  1897,  ch.  269,  § 1.] 

Purchase  of  land  for  approaches. — Any  land  required  for  the  approaches 
to  said  bridges  for  a distance  not  exceeding  three  hundred  feet  from  the 
bridge,  may  be  bought  by  the  commissioners  of  highway  constructing  the 
bridge,  the  approaches  constructed  and  the  cost  thereof  including  the  cost 
of  the  bridge.  [Idem,  § 2.] 

Condemnation  of  land. — When  an  agreement  cannot  be  made  as  to  the 
price  to  be  paid  for  the  land  for  such  approaches,  the  said  land  shall  be 
condemned  in  the  manner  as  provided  by  chapter  ninety-five,  laws  of 


954 


HIGHWAYS  AND  BRIDGES. 


L.  1897,  cli.  269,  §§  4,  5 ; Highway  Law’,  § 263. 

eighteen  hundred  and  ninety,  with  the  acts  amendatory  thereof.  The 
expenses  of  said  condemnation  proceedings  shall  be  included  in  and  be 
a part  of  the  cost  of  the  bridge.  [Idem,  § 3.] 

Issue  and  sale  of  bridge  bonds. — In  order  to  pay  for  the  said  bridges, 
the  city  and  town  shall  each  have  the  power  to  issue  bonds,  to  be  known  as 
bridge  bonds  of  the  said  city  and  town,  respectively,  by  the  officers  thereof, 
and  in  the  manner  provided  by  lawr  for  the  issue  of  other  bonds  of  said 
cit}r  and  of  said  town,  to  an  amount  necessary  to  pay  their  respective  pro- 
portions of  the  said  bridges,  which  shall  be  borne  by  said  city  and  town  in 
the  proportion  of  their  equalized  assessed  valuation  of  taxable  property,  at 
the  time  of  the  final  resolution  of  said  city  and  town,  authorizing  the  con- 
- struction  of  the  said  bridges.  The  total  amount  of  such  bonds  to  be  issued 
by  the  city  shall  not  exceed  seventy-five  thousand  dollars,  or  by  a town, 
twenty  thousand  dollars.  Said  bonds  shall  not  be  sold  for  less  than  the  par 
value  thereof,  and  accrued  interest,  if  any  shall  mature  and  be  payable  at 
a time  not  over  thirty  years  from  date ; be  of  such  denomination  and  bear 
such  interest,  not  to  exceed  five  per  centum  per  annum,  as  the  common 
council  of  the  city,  in  case  of  a city ; or  the  town  board,  in  case  of  a town, 
shall  determine.  The  proceeds  of  the  said  bonds  shall  be  paid  to  the 
proper  officer  for  receiving  funds  of  each  municipality,  and  credited  to  a 
fund  which  shall  be  known  as  the  bridge  fund,  and  shall  only  be  paid  out 
by  warrants  as  other  funds  of  said  city  or  town  are  paid  out.  [Idem,  § 4, 
as  amended  by  L.  1898,  ch.  591 ; L.  1899,  ch.  232,  and  L 1902,  ch.  301.] 
Application  of  act. — This  act  shall  apply  only  to  towns  from  which  at 
least  one-quarter  of  the  territory  thereof  has  heretofore  been  taken  for 
park  purposes,  and  which  also  adjoin  a city  containing  at  the  time  of  the 
taking  of  the  last  federal  census  a population  of  one  and  one-half  million. 
[Idem,  § 5.] 


§ 15.  RESOLUTION  OF  BOARD  OF  SUPERVISORS  FOR  ABOLITION 
OF  TOLL  BRIDGES. 

The  board  of  supervisors  of  any  county  may,  and  upon  the  presentation 
of  a petition  signed  by  fifty  per  centum  of  the  owners  of  real  property 
and  representing  a majority  of  the  assessed  valuation  of  the  town  or  city 
in  which  a toll  bridge  is  wholly  or  partly  situated  must,  except  where  such 
bridge  extends  between  the  state  of  New  York  and  a foreign  country,  pass 
a resolution  that  public  interest  demands  the  abolition  of  such  toll  bridge 
situated  wholly  or  partly  within  said  county.  In  case  of  a toll  bridge  situ- 
ated in  two  counties  such  resolution  shall  be  a concurrent  resolution  passed 
by  the  boards  of  supervisors  of  the  counties  wherein  said  bridge  is  situated. 
Within  ten  days  after  the  passage  of  such  resolution  the  clerk  or  clerks  of 
the  board  or  boards  of  supervisors  shall  transmit  certified  copies  thereof  to 


BRIDGES. 


955 


Highway  Law,  §§  264,  265. 

the  state  commission  of  highways.  Before  transmitting  such  cei  titled  copy 
or  copies  to  the  state  commission  of  highways,  the  board  or  boards  of  super- 
visors shall  investigate  as  to  the  value  of  such  toll  bridge  and  shall  prepare 
an  estimate  of  the  probable  cost  of  acquiring  the  same,  and  the  clerk 
or  clerks  shall  transmit  such  estimate,  together  with  any  data  in  relation 
to  the  value  of  such  toll  bridge  which  the  board  or  boards  of  supervisors 
may  secure,  to  the  state  commission  of  highways  with  the  certified  copy 
or  copies  of  such  resolution.  [Highway  Law,  § 263,  as  added  by  L.  1909, 
ch.  146,  and  amended  by  L.  1910,  ch.  569,  in  effect  June  21,  1910.] 

§ 16.  INVESTIGATION  BY  THE  STATE  COMMISSION  OF  HIGH- 
WAYS. 

The  state  commission  of  highways  shall  upon  the  receipt  of  such  resolu- 
tion or  concurrent  resolution,  investigate  and  determine  whether  the  bridge 
so  sought  to  be  abolished  is  of  sufficient  public  importance  to  come  within 
the  provisions  of  this  article,  taking  into  account  the  use,  location  and 
value  of  such  toll  bridge  for  the  purpose  of  common  traffic  and  travel  and 
shall  also  investigate  as  to  the  value  of  such  'toll  bridge  and  from  the 
estimate  and  data  transmitted  by  the  board  or  boards  of  supervisors,  or  from 
such  other  information  as  the  commission  may  secure,  prepare  an  estimate 
of  the  probable  cost  of  acquiring  such  toll  bridge.  After  such  investigation 
such  commission  shall  certify  its  approval  or  disapproval  of  such  resolution. 
If  it  shall  disapprove  such  resolution,  it  shall  certify  its  reasons  therefor 
to  such  board  or  boards  of  supervisors.  If  it  shall  approve  such  resolu- 
tion it  shall  certify  its  approval  thereof  to  the  attorney-general,  and  shall 
transmit  to  him  the  estimate  made  by  the  commission  of  the  probable  cost 
of  acquiring  such  toll  bridge,  together  with  any  data  the  commission  may 
have  in  its  possession  in  relation  to  the  value  thereof.  [Highway  Law,  § 
264,  as  added  by  L.  1909,  ch.  146,  and  amended  by  L.  1910,  ch.  569,  in 
effect  June  21,  1910.] 

§ 17.  ACQUISITION  BY  ATTORNEY-GENERAL. 

Upon  the  receipt  of  such  certification  of  approval  the  attorney-general 
shall  apply  to  the  court,  in  the  name  of  the  people  of  the  state,  for  the  ap- 
pointment of  a commission  to  appraise  the  value  of  said  toll  bridge  and  the 
franchise  thereof  and  proceed  to  acquire  title  to  said  toll  bridge  and  its 
franchise  rights  in  accordance  with  the  provisions  of  the  code  of  civil  pro- 
cedure for  the  condemnation  of  property  for  public  purposes.  When  said 
commission  shall  have  determined  the  value  of  such  toll  bridge,  the  attor- 
ney-general shall  certify  such  determination  to  the  comptroller  and  to  the 
board  or  boards  of  supervisors  of  the  county  or  counties  wherein  such  toll 


956 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  266-267. 

bridge  is  situated.  After  the  receipt  thereof,  upon  a majority  vote10  of 
the  board  or  boards  of  supervisors,  they  shall  adopt  a resolution  approv- 
ing the  purchase  of  said  toll  bridge  under  the  provisions  of  this  article 
and  providing  for  the  payment  of  the  county’s  share  thereof  and  there- 
upon shall  transmit  a certified  copy  of  such  resolution  to  the  state  comp- 
troller. The  condemnation  and  purchase  of  toll  bridges  under  the  pro- 
visions of  this  article  shall  be  taken  up  and  carried  forward  in  the  order 
in  which  they  are  finally  designated  as  determined  by  the  date  of  the 
receipt  in  each  case  of  the  certified  copy  of  the  approval  by  the  state 
commission  of  highways.  [Highway  Law,  § 265,  added  by  L.  1909, 
ch.  146;  B.  C.  & G.  Cons.  L.,  p.  2329.] 

§ 18.  PAYMENT  OF  EXPENSE  OF  ACQUISITION. 

One-half  of  the  expense  incurred  in  the  condemnation  and  acquire- 
ment of  said  toll  bridge  shall  be  paid  by  the  state  treasurer  upon  the 
warrant  of  the  comptroller  out  of  any  specific  appropriation  made  to 
carry  on  the  provisions  of  this  article,  but  no  such  payment  shall  be 
made  until  the  county  or  counties  in  which  said  toll  bridge  is  situate 
shall  have  complied  with  all  the  provisions  hereof.  One-half  of  the 
expenses  thereof  shall  be  a charge,  in  the  first  instance,  upon  the  county 
or  counties  in  which  said  toll  bridge  is  situate,  and  the  same  shall  be 
paid  by  the  county  treasurer  upon  the  requisition  of  the  comptroller, 
but  the  amount  so  paid  shall  be  apportioned  by  the  board  of  supervisors 
so  that  thirty-five  per  centum  of  such  cost  shall  be  a general  county 
charge  and  fifteen  per  centum  shall  be  a charge  upon  the  town  or  towns 
or  city  or  cities  in  which  said  toll  bridge  is  wholly  or  partly  located. 
In  case  a toll  bridge  is  located  in  two  counties  the  fifty  per  centum  of 
the  expense  to  be  borne  by  the  counties  shall  be  apportioned  between 
them  on  the  basis  of  their  assessed  valuation  and  the  fifteen  per  centum 
shall  be  apportioned  by  the  board  of  supervisors  upon  the  town  or  towns 
or  city  or  cities  in  the  same  manner,  the  board  of  supervisors  of  a 
county,  the  town  board  of  a town  or  the  common  council  of  a city  may 
determine  that  the  portion  of  the  expense  chargeable  to  such  county, 
town,  or  city,  as  the  case  may  be,  shall  be  raised  by  taxation  and  levied 
and  collected  as  other  municipal  taxes,  or  that  the  money  therefor  be 
raised  by  the  issue  and  sale  of  municipal  bonds.  In  the  case  of  a town 
such  bonds  shall  be  issued  and  sold  in  the  manner  provided  by  law  for 
the  issue  and  sale  of  town  bonds,  under  the  town  law,  to  pay  judgments. 
[Highway  Law,  § 266,  added  by  L.  1909,  ch.  146,  and  amended  by 
L.  1914,  ch.  81 ; B.  C.  & G.  Cons.  L.,  p.  2330.] 

10.  “Upon  a majority  vote,”  as  used  in  this  statute,  means  the  same  as 
though  it  provided  that  the  resolution  of  approval  may  be  adopted  “ if  a majority 
bo  vote.”  The  provision  for  approval  is  not  a mandatory  direction.  Matter  of 
State  of  New  York,  207  N.  Y.  582. 


BRIDGES. 


957 


Highway  Law,  § 268. 

§ 19.  MAINTENANCE  OF  BRIDGE. 

When  a toll  bridge  shall  have  been  acquired  by  the  state  under  the 
provisions  of  this  article  it  shall  be  maintained  as  a free  bridge  and 
the  expense  thereof  shall  be  a charge  upon  the  town  or  towns  or  city 
or  cities  within  which  it  is  situated.  Upon  the  acquisition  of  any  toll 
bridge  as  provided  in  this  article,  the  board  or  boards  of  supervisors 
of  the  county  or  counties  in  which  said  toll  bridge  is  located  shall  upon 
notice  of  such  acquisition  from  the  comptroller,  accept  and  maintain 
the  same  as  a part  of  the  highway  system  of  said  county  or  counties 
and  such  acceptance  shall  be  deemed  to  have  been  formally  taken  at 
the  expiration  of  twenty  days  from  the  notice  of  said  acquisition  by  the 
state  comptroller.11  [Highway  Law,  § 267,  added  by  L.  1909,  ch.  146  ; 
B.  C.  & G.  Cons.  L.,  p.  2330.] 

§ 20.  USE  OF  TOLL  BRIDGE  BY  PUBLIC  SERVICE  CORPORATIONS;  CON- 
DITIONS;  POWERS  OF  TOWN  BOARD. 

After  a bridge  shall  be  acquired  by  the  state  under  the  provisions  of 
this  article,  the  same  shall  not  be  used  by  any  railroad,  telephone,  gas, 
electric  light,  heat  or  power  company  or  any  other  public  service  cor- 
poration, for  any  purpose  except  upon  such  terms  and  the  payment  of 
such  rental  as  shall  be  determined  by  the  town  board  of  the  town  or 
towns  and  the  common  council  of  the  city  or  cities  within  which  it  is 
situated.  The  money  received  therefor  shall  be  divided  equally  between 
the  localities.  The  provisions  of  this  section,  however,  shall  not  affect 
any  existing  contract  for  the  use  of  such  bridge  by  any  other  corpora- 
tion, except  that  the  compensation  provided  for  such  use  in  such  existing 
contract  shall  be  paid  to  the  localities  as  herein  provided.  [Highway 
Law,  § 268,  as  added  by  L.  1910}  ch.  569,  in  effect  June  21,  1910.] 
§21.  ACQUISITION  OF  CERTAIN  TOLL  BRIDGES  AT  THE  EXPENSE 
OF  THE  STATE. 

If  a toll  bridge  for  the  traffic  of  vehicles  and  foot  passengers  constitutes 
a connecting  link  between  two  state  routes  as  described  in  section  one 
hundred  and  twenty  of  this  chapter,  or  constitutes  a part  of  a state  route 
and  is  included  in  the  description  thereof,  the  board  of  supervisors  of  the 
county  in  which  such  bridge  is  situated,  or  if  situated  in  two  counties  the 
boards  of  supervisors  of  such  counties  concurrently,  may,  by  resolution, 

11.  Acquisition  of  toll  bridge;  payment. — Full  payment  must  be  made  to  com- 
plete the  acquisition  of  a toll  bridge  under  this  section.  Rept.  of  Atty.  Genl.,  March 
28,  1911. 

Requisition  on  the  county  treasurer  for  the  county’s  share  should  not  be  made  by 
the  comptroller,  where  no  funds  are  available  to  pay  the  state’s  share.  Rept.  of 
Atty.  Genl.,  March  28,  1911. 

As  to  procedure  for  acquisition,  see  Matter  of  State  of  New  York,  152  App.  Div. 
633,  afTd.  207  N.  Y.  582. 


957a 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 269. 

petition  the  state  commission  of  highways  for  the  acquisition  of  such 
bridge  by  the  state  pursuant  to  this  section.  Within  ten  days  after  the 
passage  of  such  resolution  the  clerk  or  clerks  of  the  board  or  boards  of 
supervisors  shall  transmit  certified  copies  thereof  to  the  state  commission 
of  highways  together  with  an  estimate  of  the  probable  cost  of  acquiring  the 
same  and  any  data  in  relation  to  the  value  thereof  which  the  board  or  boards 
of  supervisors  may  secure. 

The  state  commissioner  of  highways  shall  upon  receipt  of  such  resolution 
or  concurrent  resolution,  and  within  three  months  thereafter,  investigate 
and  determine  whether  the  public  interest  demands  the  acquisition  of  such 
bridge  by  the  state  and  shall  also  within  said  three  months  approve  or  disap- 
prove of  such  resolution  and  if  such  resolution  be  approved  shall  prepare  an 
estimate  of  the  probable  cost  of  acquiring  such  bridge.  If  such  resolution 
be  disapproved  the  commission  shall  certify  its  reason  therefor  to  such 
board  or  boards  of  supervisors. 

If  it  be  approved  the  commission  of  highways  is  hereby  authorized  and 
empowered  to  agree  with  the  corporation  owning  the  said  bridge  upon  the 
compensation  which  shall  be  made  to  it  for  the  said  bridge  and  its  appurte- 
nances, its  franchises,  its  rights  for  the  maintenance  and  use  of  said  bridge, 
and  any  and  all  damage  which  shall  result  to  said  corporation  so  owning 
the  said  bridge  by  reason  of  the  taking  of  such  structure,  and  such  agree- 
ment shall  be  reduced  to  writing  and  executed  by  the  commission  of  high- 
ways in  the  name  of  the  people  of  the  state  of  New  York  and  by  the  cor- 
poration owning  the  said  bridge,  and  filed  in  the  office  of  the  comptroller  of 
the  state  of  New  York. 

In  the  event  that  no  agreement  is  reached  between  said  the  commission  of 
highways  and  the  corporation  owning  the  said  bridge  for  such  purchase  as 
aforesaid,  the  commission  shall  certify  its  approval  to  the  attorney-general 
and  transmit  to  him  the  estimate  made  by  the  commission  of  the  probable 
cost  of  acquiring  such  toll  bridge,  franchises  and  rights,  and  the  amount  of 
any  and  all  damage  incurred  by  such  acquisition,  together  with  all  data 
the  commission  may  have  in  its  possession  in  relation  thereto. 

Upon  the  receipt  of  such  certificate  of  approval,  if  and  when  sufficient 
money  shall  have  been  appropriated  by  the  state  therefor,  the  attorney- 
general  shall  apply  to  the  court  in  the  name  of  the  people  of  the  state  for  the 
appointment  of  a commission,  in  accordance  with  the  provisions  of  the  code 
of  civil  procedure  for  the  condemnation  of  property  for  public  purposes, 
to  appraise  the  value  of  such  bridge,  its  franchises,  rights  and  any  and  all 
damage  which  shall  result  to  such  corporation  so  owning  the  said  bridge 
by  reason  of  the  taking  of  the  structure  and  its  rights  and  franchises  in 
connection  therewith. 

The  amount  agreed  upon  between  the  said  commission  of  highways  and 


BRIDGES. 


957b 


Highway  Law,  § 269. 

the  said  corporation,  pursuant  to  such  agreement  so  filed  as  aforesaid,  or 
if  no  agreement  be  reached,  the  amount  so  appraised  and  determined  by  such 
condemnation  commissioners,  with  the  expenses  of  such  condemnation, 
shall  be  paid  by  the  state  treasurer  upon  the  warrant  of  the  comptroller 
out  of  the  moneys  appropriated  for  such  purpose.  Until  payment  to  such 
corporation  be  made  after  such  agreement  of  the  amount  therein  agreed  to 
be  paid  or  upon  condemnation  the  amount  so  appraised  and  determined  in 
such  condemnation  proceedings,  the  corporation  owning  the  said  bridge  shall 
be  entitled  to  continue  in  possession  and  use  thereof  and  of  all  the  rights, 
privileges  and  franchises  enjoyed  by  it  in  connection  therewith,  but  upon 
such  payment  being  made  such  bridge  and  all  rights  and  franchises  in  con- 
nection therewith  shall  become  the  property  of  the  state  of  New  York  and 
shall  be  maintained  by  the  state  as  a free  bridge  and  as  a part  of  the  state 
system  of  highways. 

If  such  bridge  be  acquired  by  the  state  pursuant  to  this  section  the  same 
shall  not  be  used  except  as  hereinafter  provided  by  any  railroad,  telephone, 
gas,  electric  light,  heat  or  power  company  or  any  other  public  service  corpora- 
tion for  any  purpose  except  upon  such  reasonable  terms  and  the  payment  of 
such  reasonable  rental  to  the  state  as  shall  be  determined  by  the  commission 
of  highways  The  money  received  therefor  shall  be  paid  into  the  state  treas- 
ury and  so  much  thereof  as  may  be  needed  appropriated  for  the  maintenance 
of  such  bridge.  The  provisions  of  this  section,  however,  shall  not  affect 
any  existing  contract  for  the  use  of  such  bridge  by  any  corporation  except 
that  the  compensation  provided  for  such  use  in  such  existing  contract  shall 
be  paid  to  the  state. 

Notwithstanding  the  provisions  of  this  section,  if  any  such  bridge  be 
owned  by  a domestic  corporation  carrying  on  the  business  of  operating  a 
railroad  and  which  operates  cars  thereover,  the  commission  of  highways  in 
entering  into  such  agreement  or  the  commissioners  in  condemnation 
in  making  such  appraisal  and  fixing  such  damages  as  aforesaid  may  take 
into  consideration  any  bonds  outstanding  of  such  corporation  which  may 
have  been  authorized  by  any  public  service  commission  of  this  state  to  be 
issued  by  such  corporation  for  the  purchase  of  said  bridge  and  its  franchises 
or  the  stock  of  any  corporation  formerly  owning  the  said  bridge,  and  shall 
fix  and  determine  in  making  such  appraisal  the  amount  of  any  and  all 
damage  which  will  result  to  such  corporation  so  owning  such  bridge  by 
reason  of  the  taking  of  the  said  bridge  and  its  rights  and  franchises  in 
connection  therewith,  and  such  corporation  when  said  bridge  shall  have 
been  acquired  and  such  compensation  paid,  and  its  successors,  shall  be  per- 
mitted to  continue  to  use  said  structure  upon  payment  of  such  reasonable 
rental  to  the  state  for  such  use  as  shall  be  determined  by  the  commission  of 
highways,  and  further  provided  that  if  such  corporation,  or  any  successor 


957c 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  269a,  269b. 

thereof,  should  desire  to  use  other  parts  or  decks  of  such  bridge  or  make 
such  use  thereof  as  would  require  the  strengthening,  reconstruction  or 
change  of  the  said  bridge  or  its  approaches,  or  the  building  of  new  ap- 
proaches to  the  said  bridge,  such  corporation  or  its  successors  may  make 
such  use  thereof  and  strengthen,  reconstruct  or  make  such  changes  in  the 
said  bridge  or  its  approaches  or  build  new  approaches  to  the  said  bridge 
and  use  the  same  in  such  manner  upon  filing  with  the  commission  of  high- 
ways detailed  plans  for  the  proposed  new  use  thereof,  or  for  the  strengthen- 
ing, reconstruction  of  or  changes  in  the  said  bridge  or  its  approaches  or  for 
the  building  of  new  approaches  to  the  said  bridge,  and  upon  obtaining  the 
approval  of  such  use  and  plans  by  the  commission  of  highways  and  upon 
payment  of  such  further  reasonable  rental  to  the  state  for  any  such  addi- 
tional use  of  said  structure  or  such  approaches  as  shall  be  determined  by  the 
commission  of  highways;  provided  further  that  the  entire  cost  of  any  such 
strengthening,  reconstruction,  additions  or  changes  of  the  said  bridge  or  its 
approaches  shall  be  paid  exclusively  by  the  corporation  making  such  use 
of  said  bridge  and  shall  be  deemed  to  be  an  expenditure  for  capital  purposes 
of  such  corporation  paying  the  same  for  all  purposes  whatsoever.  Any 
such  corporation  using  such  bridge  at  the  time  of  the  acquisition  thereof 
by  the  state  shall  not  be  debarred  from  continuing  such  use  by  reason  of 
such  acquisition;  but  the  failure  or  refusal  to  comply  with  such  terms  or 
to  pay  such  rental  shall  forfeit  the  right  of  such  corporation  to  use  such 
bridge,  and  the  state  commission  of  highways  is  hereby  authorized  and 
empowered  to  close  such  bridge  to  the  use  of  such  offending  corporation. 

Any  act  or  failure  to  act  on  the  part  of  the  commission  of  highways  as 
in  this  section  provided  shall  be  reviewable  by  the  supreme  court  of  this  state 
by  mandamus  or  certiorari  or  such  other  appropriate  remedy  as  the  case 
may  require.  rHighway  Law,  § 269,  as  added  by  L.  1917,  ch.  598.] 

§ 22.  BRIDGES  IN  CERTAIN  COUNTIES. 

Application  of  article. — So  far  as  this  article  relates  to  a bridge  wholly 
within  a county  its  application  is  limited  to  a county  having  a population 
of  less  than  two  hundred  thousand,  adjacent  to  a city  of  the  first  class 
having  a population  of  over  three  millions.  So  far  as  it  relates  to  a bridge 
crossing  the  boundary  line  of  two  counties,  its  application  is  limited  to 
such  county  and  an  adjoining  county.  A bridge,  within  the  meaning  of 
this  article,  shall  be  deemed  to  mean  a bridge  having  a span  of  more  than 
five  feet.  The  provisions  of  sections  two  hundred  and  fifty-one  to  two 
hundred  and  sixty-two,  inclusive,  of  this  chapter,  shall  not  apply  to  a bridge 
described  in  this  or  the  next  section.  [Highway  Law,  § 269a,  as  added 
by  L.  1917,  ch.  589.] 

Construction,  maintenance  and  control  of  bridges. — Bridges  in  any  such 


BRIDGES. 


957(1 


Highway  Law,  §§  269c,  269d. 

county  over  streams  or  waterways  intersecting  or  at  the  terminus  of  state 
highways,  county  highways  or  county  roads  shall  be  constructed,  repaired 
and  maintained  by  the  county.  Bridges  connecting  any  such  state  or  county 
highway  or  county  road,  over  a stream  or  waterway,  with  a street,  avenue, 
bridge  or  part  of  a bridge  of  an  adjoining  city  of  the  first  class  or  of  a 
village  or  within  an  adjoining  county,  shall  be  constructed,  repaired  and 
maintained  at  the  joint  expense  of  such  county  and  city  or  of  such  county 
and  village  or  of  such  adjoining  counties,  as  the  case  may  be.  The  con- 
struction, repair  and  maintenance  of  a bridge  wholly  within  the  county 
shall  be  under  the  supervision  of  the  county  engineer.  The  construction, 
repair  and  maintenance  of  a bridge  between  a county  described  in  section 
two  hundred  and  sixty-nine-a  and  an  adjoining  county  shall  be  under  the. 
supervision  of  the  county  engineers  of  the  respective  counties,  unless  they 
fail  to  agree  in  any  matter  and  the  state  commissioner  of  highways  may 
assume  jurisdiction,  in  which  case  such  commissioner  shall  have  the  super- 
vision of  such  construction,  repair  or  maintenance  during  such  time  as  he 
shall  consider  advisable.  The  construtcion,  repair  and  maintenance  of  a 
bridge  connecting  a state  or  county  highway  or  county  road,  in  any  such 
county,  with  a street,  avenue  or  bridge  of  an  adjoining  city  of  the  first 
class  shall  be  under  the  supervision  of  the  county  engineer  of  such  county 
and  the  authorities  of  such  city  having  control  by  law  of  its  bridges,  unless 
such  authorities  and  county  officer  shall  be  unable  to  agree  in  any  matter  and 
the  state  commissioner  of  highways  may  assume  jurisdiction,  in  which  case 
such  construction,  repair  or  maintenance  shall  be  under  his  supervision. 
The  construction,  repair  and  maintenance  of  a bridge  connecting  a state  or 
county  highway  or  county  road  in  any  such  county,  with  a street,  avenue  or 
bridge  of  an  adjoining  village  shall  be  under  the  supervision  of  the  county 
engineer  of  such  county,  and  the  authorities  of  such  village  having  control 
by  law  of  its  bridges.  [Highway  Law,  § 269b,  as  added  by  L.  1917,  ch. 
589.] 

Plans  and  specifications  to  be  prepared. — Plans,  specifications  and  esti- 
mates for  the  repair  or  construction  of  any  such  bridge  shall  be  prepared  by 
the  authorities  having,  in  the  first  instance,  supervision  of  such  repair  or 
construction.  All  such  plans,  specifications  and  estimates  shall  be  submitted 
to  the  state  commissioner  of  highways  for  approval,  and  the  same  shall  not 
be  used  until  approved  by  him.  [Highway  Law,  § 269c,  as  added  by  L. 
1917,  ch.  589.] 

Condemnation  of  bridges. — The  board  of  supervisors  of  such  county 
shall  cause  an  inspection  to  be  made  of  any  bridge  which  is  reported  to  be 
unsafe  for  public  use  and  travel  by  the  county  engineer  or  five  residents  of 
the  county.  Tf  such  bridge  is  found  to  be  unsafe  for  public  use  and  travel, 
said  board  of  supervisors  shall  condemn  such  bridge  and  notify  the  county 


957e 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  269e  — 26 9g. 

engineer  of  that  fact.  Such  board  of  supervisors  may  direct  the  county 
engineer  to  prepare  or  cause  to  be  prepared  plans  and  specifications  for  the 
construction  or  reconstruction  or  repair  of  such  bridge  without  delay. 
Upon  receipt  of  such  plans  and  specifications,  such  board  of  supervisors 
shall,  after  approving  the  same,  procure  estimates  for  the  reconstruction 
or  repair  of  such  bridges  as  herein  provided.  [Highway  Law,  § 269d,  as 
added  by  L.  1917,  ch.  589.] 

Liability  of  county  for  damages. — The  county  shall  be  liable  for  damages 
suffered  by  any  person  from  defects  in  any  such  bridge,  located  wholly  within 
the  county.  Where  such  bridge  is  located  in  two  counties,  such  coun- 
ties shall  be  jointly  and  severally  liable  for  such  damages.  [Highway  Law, 
§ 269e,  as  added  by  L.  1917,  ch.  589.] 

Annual  estimate  of  amount  to  be  raised  for  bridge  purposes. — The  county 
engineer  of  such  county  shall,  on  or  before  December  first  in  each  year, 
prepare  and  submit  to  the  board  of  supervisors  of  such  county  a statement 
of  the  amount  necessary  for  the  construction,  improvement  and  maintenance 
of  such  bridges  or  parts  of  such  bridges  within  the  county.  The  county 
engineer  of  an  adjoining  county  shall  also,  on  or  before  such  day  in  each 
year,  prepare  and  submit  to  the  board  of  supervisors  of  his  county  a state- 
ment of  the  amount  necessary  to  be  provided  by  the  county  for  the  construc- 
tion, improvement  and  maintenance  of  bridges  crossing  the  boundary  be- 
tween the  latter  county  and  the  county  first  mentioned.  Each  statement 
provided  for  in  this  section  shall  show  the  total  amount  required  and  the 
location  of  the  bridges  for  the  repair,  construction  and  maintenance  of 
which  such  amount  is  necessary.  [Highway  Law,  § 269f,  as  added  by  L. 
1917,  ch.  589.] 

Manner  of  providing  money  for  bridges. — The  board  of  supervisors  of 
any  such  county  shall,  upon  receipt  of  the  county  engineer’s  annual  state- 
ment, consider  the  estimate  made  therein  of  moneys  required  for  the  con- 
struction, repair  or  maintenance  of  bridges.  The  board  may  by  resolution 
adopted  by  a majority  vote  approve,  increase  or  reduce  the  amount  of  any 
such  estimate.  All  such  estimates  as  finally  adopted  shall  be  signed  in 
duplicate  by  the  chairman  and  clerk  of  the  board,  and  one  copy  thereof  shall 
be  filed  with  the  county  clerk  and  the  other  with  the  county  treasurer.  The 
board  of  supervisors  shall  thereupon  cause  the  amounts  of  such  estimates 
to  be  assessed,  levied  and  collected  in  the  same  manner  as  other  county 
charges;  or  the  board  may  borrow  on  the  credit  of  the. county  the  amount  of 
any  estimate  or  estimates  for  construction  or  the  permanent  betterment  of 
and  such  bridge  or  bridges.  For  that  purpose  it  may  direct  the  issue 
of  bonds  of  the  county  by  the  county  treasurer.  Such  bonds  shall  not  bear 
interest  at  a greater  rate  than  five  per  centum  per  annum,  and  no  such 
bonds  shall  be  for  a longer  term  than  twenty  years.  Such  bonds  shall 


BRIDGES. 


957f 


Highway  Law,  §§  269h,  269i. 

not  be  sold  for  less  than  par.  Moneys  derived  from  such  taxation  or  real- 
ized from  the  sale  of  such  bonds  shall  be  used  exclusively  for  the  objects 
and  purposes  of  the  tax  or  debt  as  provided  in  this  article.  Nothing  herein 
contained  shall  prevent  the  board  of  supervisors  from  adding  to  the  esti- 
mates of  the  county  engineer,  as  contained  in  his  annual  statement,  an 
item  or  items  for  the  construction,  repair  or  maintenance  of  a bridge  or 
bridges  not  provided  for  in  such  report,  or  a gross  sum  of  not  exceeding 
two  thousand  dollars  for  emergency  construction  of  or  repairs  to  such 
bridges  for  the  ensuing  year.  [Highway  Law,  § 26 9g,  as  added  by  L.  1917, 
ch.  589.] 

Construction  of  bridges  to  be  by  contract. — Whenever  a bridge  is  to  be 
constructed  or  any  improvement  or  repairs  made  thereto  by  a county,  un- 
der the  provisions  of  this  article,  except  ordinary  repairs,  such  work  shall 
be  done  by  contract  where  the  estimated  cost  exceeds  five  hundred  dollars. 
Contracts  shall  be  awarded  for  the  performance  of  the  work  in  accordance 
with  the  plans  and  specifications  thereof  prepared  as  provided  in  this 
article.  The  board  of  supervisors  shall  have  charge  of  the  letting  of  the 
contract.  Any  such  contract  shall  be  allowed  to  the  lowest  bidder,  after 
advertisement  once  a week,  for  three  successive  weeks,  in  a newspaper  pub- 
lished in  the  county.  The  bids  for  such  work  shall  be  opened  in  public 
and  shall  be  filed  in  the  office  of  the  clerk  of  the  board  of  supervisors.  No- 
such  contract  shall  be  awarded  until  the  form  and  sufficiency  of  execution 
thereof  shall  have  been  approved  by  the  board  of  supervisors.  The  per- 
son to  whom  such  contract  is  awarded  shall  execute  a bond  to  the  county,  in 
a sum  equal  to  fifty  per  centum  of  the  amount  of  the  contract,  with  two  or 
more  sureties  to  be  approved  by  the  board  of  supervisors,  conditioned  for 
the  faithful  compliance  with  the  terms  of  the  contract  and  the  plans  and 
specifications  and  for  the  payment  of  all  damages  which  may  accrue  to  the 
county  because  of  a violation  thereof.  Not  more  than  ninety  per  centum 
of  the  contract  price  shall  be  paid  before  the  completion  of  the  work  and 
its  acceptance  by  the  board  of  supervisors.  The  amounts  due  from  time 
to  time  on  the  contract  shall  be  paid  out  of  moneys  available  therefor  under 
the  provisions  of  the  preceding  section.  Payments  upon  such  contracts, 
or  for  any  other  item  of  construction,  maintenance  or  repair  of  such  bridges, 
shall  be  made  by  the  county  treasurer  upon  certificates  or  warrants  issued 
by  the  county  superintendent,  approved  by  the  board  of  supervisors  and 
the  county  comptroller.  [Highway  Law,  § 269h,  as  added  by  L.  1917,  ch. 
589.] 

Reconstruction  and  repairs  after  condemnation. — Upon  receiving  notice 
of  the  condemnation  of  a bridge  wholly  within  the  county,  the  chairman 
of  the  board  of  supervisors  shall  call  a meeting  of  the  board,  and  such  board 
shall  appropriate  and  make  immediately  available  the  necessary  moneys  for 


957s- 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 269j. 

the  immediate  rebuilding  of  such  bridge.  If  the  expense  thereof  shall  not 
have  been  included  in  an  estimate  furnished  by  the  county  engineer  in  his 
annual  statement,  or  as  adopted  by  the  board,  or  if  there  be  no  moneys 
in  the  county  treasury  available  therefor,  the  board  may  cause  the  county 
treasurer  to  borrow  on  the  credit  of  the  county  the  moneys  necessary  to 
repair  or  rebuild  the  part  so  condemned,  in  the  manner  provided  in  section 
two  hundred  and  sixty-nine-g.  As  soon  as  moneys  are  available  therefor, 
the  county  engineer  under  the  direction  of  the  board  of  supervisors  shall 
proceed  with  the  repairing  or  rebuilding  of  such  condemned  bridge.  [High- 
way Law,  § 269i,  as  added  by  L.  1917,  ch.  589.] 

Bridges  upon  county  boundaries . — If  the  board  oi  supervisors  of  a 
county  described  in  section  two  hundred  and  sixty-nine-a  and  of  an  adjoin- 
ing county,  across  whose  boundaries  any  such  bridge  is  located,  shall  by 
resolution  concur  in  determining  upon  the  construction  or  repair  of  such 
bridge,  the  respective  board  of  supervisors  of  such  counties  may  unite  in  a 
contract  with  a person,  firm  or  corporation  therefor.  If  any  such  bridge 
shall  have  been  condemned  under  the  provisions  of  this  article  and  if  such 
boards  of  supervisors  shall  fail  to  concur  in  ordering  the  necessary  repairs 
to  or  rebuilding  of  such  bridge  within  three  months  after  the  condemna- 
tion, or  if  within  the  same  time  after  a demand  therefor  by  the  state  com- 
missioner of  highways  the  board  of  supervisors  of  either  county  shall  fail 
to  make  available  the  necessary  moneys  therefor,  or  if  the  board  of  super- 
visors of  either  county  shall  determine  that  such  improvements  or  repairs 
are  necessary,  and  if  both  counties  fail  to  concur  therein,  the  board  of 
supervisors  of  the  county  making  such  determination  may  submit  the  same 
to  the  state  commissioner  of  highways.  If  such  determination  be  approved 
by  such  commissioner,  the  board  of  supervisors  making  such  determination 
may  cause  notice  in  writing  to  be  served  upon  the  chairman  of  the  board 
of  supervisors  of  the  other  county  demanding  that  such  county  concur 
therein.  If  such  concurrence  be  withheld  or  if  necessary  moneys  be  not 
made  available  for  such  work  by  the  board  of  supervisors  of  the  county 
upon  which  such  demand  is  served,  the  board  of  supervisors  giving  such 
notice  may  provide  the  necessary  moneys  for  the  entire  work  of  such  im- 
provement or  repairs.  Where  one  county  has  provided  all  of  the  money 
for  the  construction  or  improvement  of  such  joint  bridge,  it  may  maintain 
an  action  against  the  county  in  default  and  recover  from  the  defendant 
one-half  of  the  cost  or  expense  of  such  work,  with  costs  of  the  action  and 
interest.  It  shall  be  necessary  to  a recovery  for  the  plaintiff  to  prove  that 
the  repairs  or  improvements  were  reasonably  necessary;  but  the  approval 
of  the  state  commissioner  of  highways  of  plaintiff’s  determination  for  such 
improvement  or  repairs  shall  be  prima  facie  evidence  of  the  reasonable 
necessity  therefor.  No  such  action  for  the  expense  of  the  construction  of  a 


BRIDGES. 


95  7h 


Highway  Law,  § 269 j. 

new  bridge  at  a new  site  between  counties  shall  be  maintained  unless  the 
boards  of  supervisors  of  both  counties  shall  have  determined,  by  concurrent 
resolution,  upon  the  construction  thereof. 

The  board  of  supervisors  and  the  lawful  authorities  of  an  adjoining 
city  of  the  first  class  or  of  an  adjoining  village  may  likewise  concur  in  de- 
termining upon  the  construction,  improvement  or  repair  of  a bridge  be- 
tween such  county  and  city  and  may  unite  in  a contract  with  a person, 
firm  or  corporation  therefor.  [Highway  Law,  § 269 j,  as  added  by  L.  1917, 
ch.  589.] 


HIGHWAYS  AND  BRIDGES 


,958 


Highway  Law,  § 270. 


CHAPTER  LXIV. 

FERRIES. 


[Highway  Law,  art.  XI.] 


Section  1.  Licenses. 

2.  Undertaking. 

3.  Appendages  for  rope  ferries. 

4.  Superintendent  of  public  works  may  lease  right  of  passage. 

5.  When  schedules  to  be  posted. 


§ 1.  LICENSES. 

The  county  court  in  each  of  the  counties  of  this  state  or  the  city  court 
of  a city,  may  grant  licenses  for  keeping  ferries  in  their  respective  counties 
and  cities,  to  such  persons  as  the  court  may  deem  proper,  for  a term  not 
exceeding  five  years.1  No  licenses  shall  be  granted  to  a person,  other  than 
the  owner  of  the  land  through  which  that  part  of  the  highway  adjoining 
to  the  ferry  shall  run,  unless  the  owner  is  not  a suitable  person  or  shall 
neglect  to  apply  after  being  served  with  eight  days’  written  notice  2 from 
such  person  of  the  time  and  place  at  which  he  will  apply  for  such  license, 
or  having  obtained  such  license,  shall  neglect  to  comply  with  the  conditions 
of  the  license  or  maintain  the  ferry.  Every  license  shall  be  entered  in 
the  book  of  minutes  of  the  court  by  the  clerk;  and  a certified  copy  thereof 


1.  Power  to  regulate.  The  state  and  not  the  federal  government  has  power 
to  regulate  ferries.  People  v.  Babcock,  11  Wend.  586  (1834).  The  county  of 
Niagara  may  grant  licenses  to  maintain  ferries  to  the  middle  of  the  Niagara 
river,  as  far  as  the  Canadian  line;  hence  one  operating  a ferry  across  that 
river  without  a license,  may  be  prosecuted.  People  v.  Babcock,  11  Wend.  586 
(1834). 

2.  Written  notice  need  be  given  to  the  owners  of  the  land  only,  and  not  to  all 
who  claim  a right  to  the  ferry  nor  to  those  who  have  obtained  a license  from 
another  court  for  a ferry  at  the  same  place.  Wiswall  v.  Wandell,  3 Barb.  ch. 
312.  The  application  cannot  be  granted  without  proof  that  notice  has  been 
given  by  the  applicant  to  the  owner  of  the  land,  at  least  eight  days  before,  of  his 
intention  to  make  such  application.  Matter  of  Talcott,  3i  Hun  464. 


FERRIES. 


959 


Highway  Law,  §§  271-274. 

shall  be  delivered  to  the  person  licensed.  When  the  waters  over  which  any 
ferry  may  be  used  shall  divide  two  counties  or  cities,  or  a county  and  city,  a 
license  obtained  in  either  of  the  counties  or  cities  shall  be  sufficient  to 
authorize  transportation  of  persons,  goods,  wares  and  merchandise,  to  and 
from  either  side  of  such  waters.  [Highway  Law,  § 270;  B.  C.  & G.  Cons. 
L.,  p.  2330.] 

§ 2.  UNDERTAKING. 

Every  person  applying  for  such  license  shall,  before  the  same  is  granted, 
execute  and  tile  with  the  clerk  of  the  court  his  undertaking  with  one  or 
more  sureties,  approved  by  the  court,  to  the  effect  that  he  will  attend  such 
ferry  with  sufficient  and  safe  boats  and  other  implements,  and  so  many 
men  to  work  the  same  as  shall  be  necessary  during  the  several  hours  in 
each  day,  and  at  such  rates  as  the  court  shall  direct.  [Highway  Law,  § 
271;  B.  C.  & G.  Cons.  L.,  p.  2331.] 

§ 3.  APPENDAGES  FOR  ROPE  FERRIES. 

Any  person  licensed  to  keep  a ferry  may,  with  the  written  consent  of 
the  town  superintendent  of  the  town  where  such  ferry  may  be,  erect  and 
maintain  within  the  limits  of  the  highway,  at  such  point  as  shall  be  desig- 
nated in  such  consent,  a post  or  posts,  with  all  necessary  braces  and  appen- 
dages for  a rope  ferry.  [Highway  Law,  § 272;  B.  C.  & G.  Cons.  L.,  p. 
2331.] 


§ 4.  SUPERINTENDENT  OF  PUBLIC  WORKS  MAY  LEASE  RIGHT  OF 
PASSAGE. 

The  superintendent  of  public  works,  may,  where  ferries  are  now  main- 
tained at  tide-water,  lease  the  right  of  passage  for  foot  passengers  across 
state  lands  adjoining  tide-water  for  a period  not  exceeding  ten  years,  on 
such  conditions  as  he  may  deem  advantageous  to  the  state.  [Highway  Law, 
§ 273;  B.  C.  & G.  Cons.  L.,  p.  2331.] 

§ 5.  WHEN  SCHEDULES  TO  BE  POSTED. 

Every  person  licensed  to  operate  or  control  any  ferry  in  this  state,  or 
between  this  state  and  any  other  state,  operating  from  or  to  a city  of 
fifty  thousand  inhabitants  or  over,  shall  post  in  a conspicuous  and  accessible 
position  outside  and  adjacent  to  each  entrance  to  such  ferry,  and  in  at 
least  four  accessible  places,  in  plain  view  of  the  passengers  upon  each  of  the 
boats  on  such  ferry,  a schedule  plainly  printed  in  the  English  language 


960 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 274. 

of  the  rates  of  ferriage  charges  thereon,  and  authorized  by  law  to  be  charged 
for  ferriage  over  such  ferry.  If  any  such  person  shall  fail  to  comply  with 
the  provisions  of  this  section,  or  shall  post  a false  schedule,  he  shall  forfeit 
the  sum  of  fifty  dollars  for  each  day’s  neglect  or  refusal  to  post  such 
schedule  or  any  of  them,  to  be  recovered  by  any  person  who  shall  sue  there- 
for in  any  court  of  competent  jurisdiction.2  [Highway  Law,  §*274;  B. 
C.  & G.  Cons.  L.,  p.  2331.1 


Penalty  for  neglect  to  post  schedule  of  ferry  rates.  A person,  corpora- 
tion or  association  operating  any  ferry  in  this  State,  or  between  this  State  and 
any  other  State,  operating  from  or  to  a city  of  five  hundred  thousand  inhabi- 
tants or  over,  posting  a false  schedule  of  ferry  rates,  or  neglecting  to  post  in  a 
conspicuous  and  accessible  place  in  each  of  its  ferry-houses,  in  plain  view  of  the 
passengers,  a schedule,  plainly  printed  in  the  English  language,  of  the  rates 
of  ferriage  charged  thereon  and  authorized  by  law  to  be  charged  for  ferriage 
over  such  ferry,  is  guilty  of  a misdemeanor.  Penal  Law,  § 871. 


MISCELLANEOUS  PROVISIONS. 


961 


Highway  Law,  § 320. 


CHAPTER  LXV. 

MISCELLANEOUS  PROVISIONS. 


[Highway  Law,  art.  XII.] 


Section  1.  Construction  or  improvement  of  highways  by  county  and  towu. 

1-a.  County  system  of  roads. 

2.  When  commissioners  do  not  act. 

3.  Intemperate  drivers  not  to  be  engaged. 

4.  Drivers,  when  to  be  discharged. 

5.  Leaving  horses  without  being  tied. 

6.  Owners  of  certain  carriages  liable  for  acts  of  drivers. 

7.  Term  “ carriage  ” defined. 

8.  Entitled  to  free  use  of  highways. 

9.  Depositing  ashes,  stones,  sticks,  etc.,  upon  the  highway. 

10.  Steam  traction  engines  on  highways. 

11.  Injuries  to  highways. 

12.  When  town  not  liable  for  damages. 

12-a.  Excessive  loads  on  unsafe  bridges. 

13.  Law  of  the  road. 

14.  Trees,  to  whom  they  belong. 

15.  Injuring  fruit  or  shade  trees. 

16.  Penalty  for  falling  trees. 

17.  Fallen  trees  to  be  removed. 

18.  Penalties,  how  recovered. 

191.  Acquisition  of  plank  roads. 

20.  Borrowing  money;  bonds. 

21.  Raising  money  to  pay  bonds  and  interest. 

22.  Roads  so  acquired  to  be  part  of  highway  system. 

23.  When  road  is  in  two  or  more  counties. 

24.  Albany  post  road;  railroad  tracks  thereon. 

25.  Lighting  roads,  highways  and  bridges. 

§ 1.  CONSTRUCTION  OR  IMPROVEMENT  OF  HIGHWAY  BY 
COUNTY  AND  TOWN. 

The  board  of  supervisors  of  a county  may  provide  for  the  construction 
or  improvement  of  a highway  or  section  thereof  in  one  or  more  towns 
of  the  county  or  of  a highway  laid  out  along  the  boundary  line  between 
a city  or  village  and  a town  or  towns,  at  the  joint  expense  of  the  county 
and  town,  as  provided  in  this  section.  The  board  may,  by  resolution, 
direct  the  district  or  county  superintendent  to  examine  such  highway 
or  sections  thereof,  and  report  thereon,  and  if  the  board  considers  such 
highway  or  section  thereof,  to  be  of  sufficient  importance  to  be  con- 


962 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 320. 

structed  or  improved  as  provided  herein,  it  shall  direct  such  district  or 
county  superintendent  to  prepare  or  cause  to  be  prepared  maps,  plans, 
specifications  and  estimates  therefor  and  such  district  or  county  super- 
intendent shall,  subject  to  the  direction  and  control  of  the  board  of 
supervisors,  have  the  same  powers  and  duties  with  respect  to  such  high- 
way or  section  thereof  as  are  given  the  division  engineer  with  respect 
to  state  and  county  highways  in  section  one  hundred  and  twenty-five 
of  this  chapter.  Such  maps,  plans  and  specifications  may  provide  for 
the  change  in  grade  of  a highway  already  existing  if  thereby  a lessened 
gradient  may  be  obtained  without  decreasing  the  usefulness  of  the  high- 
way. Upon  the  completion  of  such  preliminary  maps,  plans,  specifi- 
cations and  estimates  they  shall  be  submitted  to  the  board  of  supervisors 
for  approval,  and  such  board  may  thereupon  adopt  a resolution  provid- 
ing for  the  construction  or  improvement  of  such  highway  in  accordance 
with  such  maps,  plans,  specifications  and  estimates  or  in  accordance 
with  such  maps,  plans,  specifications  and  estimates  as  may  be  approved 
by  it.  The  board  of  supervisors  shall  award  contracts  for  the  construc- 
tion or  improvement  of  such  highway  and  the  provisions  of  section  one 
hundred  and  thirty  of  this  chapter  shall  apply  so  far  as  may  be  to  such 
contracts  and  the  award,  execution  and  fulfillment  thereof.  Such 
contract  may  be  awarded  to  the  town  board  of  any  town  in  which  such 
highway  or  section  thereof  is  located  and  the  provisions  of  section  one 
hundred  and  thirty-one  of  this  chapter  shall  apply  thereto  so  far  as 
may  be.  The  board  of  supervisors  shall  determine  the  portion  of  the 
cost  of  the  construction  or  improvement  of  such  highway  to  be  borne 
by  the  county  and  the  portion  to  be  borne  by  the  town  or  towns  in  which 
such  highway  is  located.  The  cost  of  the  portion  constructed  or  improved 
within  the  boundaries  of  a city  shall  be  borne  by  the  county.  The  amount 
to  be  borne  by  the  county  shall  be  levied  and  collected  as  a county  charge 
and  paid  into  the  county  treasury.  The  amount  to  be  borne  by  the  town 
or  towns  in  which  the  highway  is  located  shall  be  levied  and  collected  as 
a town  charge  and  when  collected  shall  be  paid  into  the  county  treasury. 
If  such  highway  or  section  thereof  deviate  from  the  line  of  a highway 
already  existing,  the  board  of  supervisors  shall  acquire  land  for  the  requisite 
right  of  way,  and  such  board  may  also  acquire  lands  for  the  purpose  of 
obtaining  gravel,  stone  or  other  material,  when  required  for  the  construc- 
tion or  improvement  of  such  highway  or  section  thereof,  or  for  spoil  banks, 
together  with  a right  of  way  to  such  spoil  banks  and  to  any  bed,  pit,  quarry 
or  other  place  where  such  gravel,  stone  or  other  material  may  be  located, 
and  the  provisions  of  sections  one  hundred  and  forty-eight  to  one  hundred 
and  fifty-five,  both  inclusive,  shall  apply  to  the  acquisition  of  such  lands 
as  far  as  may  be,  except  that  the  cost  of  such  lands  and  the  expenses  inci- 


MISCELLANEOUS  PROVISIONS. 


963 


Highway  Law,  § 320. 

dent  to  acquiring  the  same  shall  be  deemed  a part  of  the  cost  of  the  con- 
struction or  improvement  of  such  highway  under  the  provisions  of  this 
section.  If  the  construction  or  improvement  of  such  highway  involve  the 
elimination  of  a grade  crossing  the  portion  of  the  cost  of  such  elimination 
and  the  construction  of  a new  crossing  chargeable  to  the  town  in  pursuance 
of  law  shall  be  deemed  a part  of  the  cost  of  the  construction  or  improve- 
ment of  such  highway  under  the  provisions  of  this  section.  The  amount 
so  paid  by  the  town  shall  not  be  considered  in  determining  the  minimum 
amount  to  be  levied  and  collected  in  each  year  for  the  repair  and  improve- 
ment of  highways  as  provided  in  section  ninety-four  of  this  chapter  nor 
shall  such  amount  be  considered  in  determining  the  amount  to  be  paid  by 
the  state  to  the  town  for  the  repair  and  improvement  of  highways  therein. 
The  board  of  supervisors  may  by  resolution  authorize  the  county  treas- 
urer of  the  county  or  the  supervisors  of  the  respective  towns  to  borrow  money 
on  the  faith  and  credit  of  the  county  or  of  such  towns  by  temporary  loan 
in  anticipation  of  the  next  succeeding  tax  levy  or  of  an  issue  of  bonds 
before  such  levy,  or  by  the  issue  and  sale  of  bonds,  to  pay  the  portion  of 
the  cost  of  such  construction  or  improvement  to  be  borne  respectively  by 
the  county  or  such  town  or  towns.  Such  resolution  may  also  provide  for 
the  issue  and  sale  of  such  bonds  and  shall  conform  so  far  as  may  be  with 
the  provisions  of  this  chapter  relating  to  a resolution  authorizing  a town 
to  borrow  money  to  pay  its  share  of  the  cost  of  the  construction  or  im- 
provement of  a county  highway.  The  construction  or  improvement  author- 
ized by  such  resolution  shall  be  done  under  the  supervision  and  direction 
of  the  district  or  county  superintendent.  Payments  therefor  shall  be  made 
from  time  to  time  by  the  county  treasurer  upon  the  certificate  of  the  dis- 
trict or  county  superintendent  indorsed  by  the  chairman  of  the  board  of 
supervisors.  Such  highways,  when  completed  and  accepted  by  the  board 
of  supervisors,  shall  be  thereafter  repaired  and  maintained  by  the  towns 
wherein  such  highways  are  located  in  the  same  manner  as  all  other  town 
highways ; except  there  shall  be  raised  annually  by  the  county  and  by  the 
town  a tax  of  not  less  than  one  hundred  dollars  per  mile  for  each  mile 
of  highways  improved  in  a town  under  the  provisions  of  this  section.  The 
amount  thereof  to  be  borne  by  the  county  or  by  the  town  shall  be  appor- 
tioned by  the  board  of  supervisors.  The  portion  to  be  borne  by  the  county 
shall  be  levied  and  collected  in  the  same  manner  as  other  county  taxes 
and  shall  be  paid  into  the  county  treasury.  The  resolution  providing  for 
the  collection  of  such  taxes  shall  also  indicate  the  amount  which  shall 
be  paid  to  each  town  and  a certified  copy  thereof  shall  be  filed  with  the 
county  treasurer.  The  amount  thereof  to  be  borne  by  the  town  shall,  by 


963a 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 320a. 

resolution  of  the  town  board,  be  paid  from  any  funds  in  sueb  town  that 
may  be  legally  used  for  highway  purposes.1  [Highway  Law,  § 320,  as 
amended  by  L.  1912,  ch.  534,  L.  1914,  ch.  198,  and  L.  1917,  ch.  558;  B.  C. 
& G.  Cons.  L.,  p.  2344.] 

§ la.  COUNTY  SYSTEM  OF  ROADS. 

The  board  of  supervisors  of  a county  may  aid  a town  or  towns  in  the 
construction  or  improvement  of  a highway  or  highways  therein,  and  shall 
designate  the  highway  or  highways  which  the  town  or  towns  are  to  con- 
struct or  improve  by  the  aid  of  the  county.  Such  county  may  prepare  a 
map  of  the  system  of  highways  thus  to  be  improved  in  that  county. 

The  board  may  by  resolution  direct  the  county  superintendent  to  super- 
vise the  preparation  of  grade  and  culvert  work  of  a road  so  designated  by 
said  map  for  improvement,  by  the  town  superintendent  of  the  town  in 
which  such  improvement  shall  be  made,  and  upon  the  completion  thereof 
by  the  town,  and  the  county  superintendent’s  certification  that  the  road 
is  so  prepared  and  the  town  is  equipped  with  sufficient  machinery  to  prop- 
erly perform  the  work,  such  machinery  to  be  furnished  by  the  town  and 
used  during  the  road’s  construction,  the  board  may,  by  resolution  order  the 
construction  of  an  improved  road  under  the  direction  of  a committee  known 
as  the  highway  officials  of  the  county  as  hereinafter  provided.  The  con- 
struction work  shall  be  under  the  charge  and  supervision  of  the  town 
superintendent  of  the  town  in  which  the  work  is  being  done.  If  for  any 
cause  the  town  superintendent  is  incapacitated  or  in  the  opinion  of  the 
county  superintendent  is  incompetent  to  properly  take  charge  of  the  work, 
some  competent  person  shall  be  designated  by  the  county  superintendent 
by  and  with  the  advice  and  consent  of  the  town  board  and  the  compensa- 
tion of  the  town  superintendent  or  person  in  charge  shall  be  a town  charge. 

The  employment  of  convict  labor  on  roads  so  constructed  shall  be  author- 
ized and  permitted,  in  the  discretion  of  the  superintendent  of  state  prisons, 
upon  the  requisition  of  the  county  superintendent  of  highways.  The 
board  of  supervisors  of  Erie  county  shall  have  power,  if  they  deem  it  proper, 
to  employ  convicts,  sentenced  to  be  confined  in  a penitentiary  situate 
within  the  territorial  limits  of  such  county  and  liable  to  be  employed  at 
hard  labor,  upon  any  highway  or  work  connected  therewith  within  such 
county,  and  such  board  of  supervisors  shall  have  power  to  make  all  neces- 
sary appointments,  rules  and  regulations  for  such  employment  within  such 

1.  This  section  is  new  in  the  Highway  Law  of  1908.  It  was  inserted  so  as  to 
permit  a county  to  join  with  the  towns  therein,  in  constructing  a system  of  highways 
at  the  joint  expense  of  county  and  towns. 


MISCELLANEOUS  PROVISIONS. 


963b 


Highway  Law,  § 320a. 

•count)',  including  the  right  to  fix  a per  diem  compensation  for  such  em- 
ployment at  a rate  not  to  exceed  ten  cents. 

The  highway  officials  of  the  county  under  this  section  shall  consist  of 
the  county  superintendent,  three  members  of  the  board,  appointed  by  the 
chairman.  The  supervisor  of  the  town  in  which  a road  is  being  improved 
shall  be  a member  of  the  said  committee  on  all  questions  involving  the 
work  in  the  town  of  which  he  is  the  supervisor. 

Unless  the  advice  and  direction  of  the  highway  officials  shall  be  fol- 
lowed in  the  prosecution  of  the  work,  no  liability  therefor  shall  accrue  to 
the  county  for  its  share  of  the  cost  of  work. 

Upon  ordering  the  construction  of  an  improved  road  under  this  section, 
the  board  of  supervisors  shall,  by  resolution,  determine  the  proportions 
thereof  to  be  borne  by  the  county  and  town  or  towns  respectively.  The 
part,  if  any,  to  be  borne  by  a town,  as  shown  by  such  determination,  may 
be  a town  charge,  and  the  residue  shall  be  a county  charge.  The  amounts 
to  be  borne  by  the  county  shall  be  provided  for  by  a tax,  to  be  levied  upon 
the  taxable  property  of  the  county  and  collected  in  the  same  manner  as  for 
other  county  charges  and  shall  be  paid  into  the  county  treasury.  The 
amount  thereof  to  be  borne  by  the  town,  by  resolution  of  the  town  board, 
be  paid  from  any  funds  in  such  town  that  may  be  legally  used  for  highway 
purposes.  The  board  of  supervisors  may,  in  its  discretion,  appropriate 
and  make  immediately  available  from  county  funds  either  the  whole  of  the 
moneys  to  complete  the  construction  of  such  road  or  the  part  thereof  to 
be  provided  by  the  county.  If  it  shall  determine  that  sufficient  moneys  are 
not  available  to  pay  the  amount  appropriated,  or  a specified  part  thereof, 
after  defraying  other  county  expenses,  it  may  direct  the  county  treasurer 
to  borrow  the  same,  in  anticipation  of  taxes  or  of  the  proceeds  of  bonds  to 
be  issued  as  hereinafter  provided,  and  to  pledge  the  faith  and  credit  of  the 
county  for  the  payment  of  the  amount  when  due,  with  interest,  and  issue 
temporary  certificates  of  indebtedness  therefor.  The  board  may,  by  reso- 
lution, authorize  the  issuance  and  sale  of  bonds  of  the  county  for  the 
amount  appropriated  or  for  any  part  thereof,  which  may  be  the  whole  of 
such  additional  amount  needed  for  the  completion  of  such  improvement 
or  the  county’s  share  thereof  or  a part  of  such  share.  The  proceeds  of 
such  bonds  shall  be  paid  into  the  county  treasury  and  applied  to  the  cost 
of  such  improvement  or  to  the  payment  and  redemption  of  certificates  of 
indebtedness,  if  any,  issued  as  above  provided.  The  board  of  supervisors 
on  petition  of  the  town  board  of  a town  in  which  any  part  of  the  improved 
road  is  located,  may  by  resolution  authorize  such  town  to  borrow  money  on 
the  faith  and  credit  of  the  town  by  temporary  loan  in  anticipation  of  tho 


963c 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 320a. 

next  succeeding  tax  ievy  to  pay  its  share  of  the  cost  of  the  improvement 
which  has  been  ordered  by  the  board  of  supervisors.  Town  bonds  may  be 
issued  and  sold  by  the  supervisors,  in  the  name  of  the  town,  for  the  amount 
so  authorized.  The  proceeds  thereof  shall  be  paid  into  the  county  treasury 
and  be  a part  of  a fund  to  be  applied  to  the  cost  of  such  improvement  within 
the  town  or  to  the  payment  and  redemption  of  county  bonds,  if  any,  issued 
to  pay  the  share  of  such  town.  County  or  town  bonds  issued  under  the 
foregoing  provisions  shall  be  payable  not  more  than  thirty  years  from 
their  date  and  shall  be  sold  for  not  less  than  par.  The  board  of  super- 
visors shall,  from  time  to  time,  impose  upon  the  taxable  property  of  the 
county  a tax  sufficient  to  pay  at  maturity  any  such  county  bonds,  and  in- 
terest, and  upon  the  taxable  property  of  any  town  a tax  sufficient  to  pay  at 
maturity  any  such  bonds  of  the  town,  and  interest.  Payments  from  time 
to  time  by  the  county  treasurer  of  moneys  provided  for  under  this  section 
shall  be  made  for  the  prosecution  of  such  work  upon  the  certificate  of  the 
district  or  county  superintendent  countersigned  by  the  chairman  of  the 
highway  officials  committee.  Said  orders  shall  be  drawn  to  the  order  of 
the  supervisors  of  the  respective  towns  where  roads  are  being  constructed 
to  be  disbursed  by  them,  upon  the  orders  of  the  town  superintendent  or 
person  designated  in  his  stead,  in  accordance  with  the  agreement  as  pro- 
vided by  section  one  hundred  and  five  of  this  chapter  and  accounted  for  in 
the  supervisor’s  annual  report  as  provided  by  section  one  hundred  and 
seven  of  this  chapter. 

Such  highways,  when  completed  and  accepted  by  the  board  of  super- 
yisors,  shall  be  thereafter  repaired  and  maintained  by  the  towns  wherein 
such  highways  are  located  in  the  same  manner  as  all  other  town  highways ; 
except  there  shall  be  raised  annually  by  the  county  and  by  the  town  a tax 
of  not  less  than  one  hundred  dollars  per  mile  for  each  mile  of  highways 
improved  in  a town  under  the  provisions  of  this  section.  The  amount 
thereof  to  be  borne  by  the  county  or  by  the  town  or  towns  shall  be  appor- 
tioned by  the  board  of  supervisors.  The  part,  if  any,  to  be  borne  by  a 
town  or  towns,  as  shown  by  such  apportionment,  shall  be  a charge  against 
the  town  or  towns  and  the  residue  shall  be  a county  charge.  The  amount 
to  be  borne  by  the  county  shall  be  provided  for  by  a tax  to  be  levied  upon 
the  taxable  property  of  the  county  and  collected  in  the  same  manner  as 
for  other  county  charges  and  shall  be  paid  into  the  county  treasury.  The 
amount  thereof  to  be  borne  by  the  town  shall,  by  resolution  of  the  town 
board,  be  paid  from  any  funds  in  such  town  that  may  be  legally  used  for 
highway  purposes.  The  resolution  providing  for  such  apportionment  shall 
also  indicate  the  amount  which  shall  be  paid  to  each  such  town,  and 


MISCELLANEOUS  PROVISIONS. 


963d 


Highway  Law,  §§  321-324. 

a certified  copy  thereof  shall  be  filed  with  the  county  treasurer.  On  receipt 
of  such  money  the  supervisor  shall  credit  the  amount  to  the  town  highway 
fund  to  be  paid  out  on  the  written  order  of  the  town  superintendent  in 
accordance  with  agreement  which  is  provided  by  section  one  hundred  and 
five  of  this  chapter  and  shall  be  accounted  for  in  the  supervisor’s  annual 
report  as  provided  by  section  one  hundred  and  seven  of  this  chapter.  [High- 
way Law,  § 320a,  as  added  by  L.  1914,  ch.  61,  amended  by  L.  1915,  ch.  556, 
L.  1916,  ch.  458,  L.  1917,  ch.  231,  and  L.  1918,  ch.  321.] 

§ 2.  WHEN  COMMISSIONERS  DO  NOT  ACT. 

When  a commissioner  or  other  officer  appointed  by  a court  under  this 
chapter  shall  neglect  or  be  prevented  from  serving,  the  court  which  ap- 
pointed him  shall  appoint  another  in  his  place.  [Highway  Law,  § 321; 
B.  C.  & G.  Cons.  L.,  p.  2345.] 

§ 3.  INTEMPERATE  DRIVERS  NOT  TO  BE  ENGAGED. 

Ho  person  owning  any  carriage  for  the  conveyance  of  passengers,  run- 
ning or  traveling  upon  any  highway  or  road,  shall  employ,  or  continue  in 
employment,  any  person  to  drive  such  carriage  who  is  addicted  to  drunk- 
enness, or  to  the  excessive  use  of  spirituous  liquors;  and  if  any  such  owner 
shall  violate  the  provisions  of  this  section,  he  shall,  forfeit  at  the  rate  of  five 
dollars  per  day,  for  all  the  time  during  which  he  shall  have  kept  any  such 
driver  in  his  employment.  [Highway  Law,  § 322;  B.  C.  & G.  Cons.  L., 
p.  2345.] 

§ 4.  DRIVERS,  WHEN  TO  BE  DISCHARGED. 

If  any  driver,  while  actually  employed  in  driving  any  such  carriage, 
shall  be  guilty  of  intoxication,  to  such  a degree  as  to  endanger  the  safety 
of  the  passengers  in  the  carriage,  the  owner  of  such  carriage  shall,  on 
receiving  written  notice  of  the  fact,  signed  by  any  one  of  said  passen- 
gers, and  certified  by  him  on  oath,  forthwith  discharge  such  driver  from 
his  employment;  and  every  such  owner,  who  shall  retain,  or  have  in  his 
service  within  six  months  after  the  receipt  of  such  notice,  any  driver  who 
shall  have  been  so  intoxicated,  shall  forfeit  at  the  rate  of  five  dollars  per 
day,  for  all  the  time  during  which  he  shall  keep  any  such  driver  in  his 
employment  after  receiving  such  notice.  [Highway  Law,  § 323 : B.  C.  & 
G.  Cons.  L.,  p.  2345.] 

§ 5.  LEAVING  HORSES  WITHOUT  BEING  TIED. 

No  driver  of  any  carriage  used  for  the  purpose  of  conveying  passengers 
for  hire  shall  leave  the  horses  attached  thereto,  while  passengers  remain  in 


HIGHWAYS  AND  ERIDGE3. 


964 


Highway  Law,  §§  325-327. 


the  same,  without  first  making  such  horses  fast  with  a sufficient  halter,  rope, 
or  chain,  or  by  placing  the  lines  in  the  hands  of  some  other  person  so  as  to 
prevent  their  running;  and  if  any  such  driver  shall  offend  against  the 
provisions  of  this  section,  he  shall  forfeit  the  sum  of  twenty  dollars.  [High- 
way Law,  § 324;  B.  C.  & G.  Cons.  L.,  p.  2346.] 


§ 6.  OWNERS  OF  CERTAIN  CARRIAGES  LIABLE  FOR  ACTS  OF 
DRIVERS. 

The  owners  of  every  carriage  running  or  traveling  upon  any  turnpike, 
road  or  highway,  for  the  conveyance  of  passengers,  shall  be  liable  jointly 
and  severally,  to  the  party  injured,  for  all  injuries  and  damages  done  by 
any  person  in  the  employment  of  such  owners,  as  a driver,  while  driving 
such  carriage,  whether  the  act  occasioning  such  injury  or  damage  be  wilful 
or  negligent,  or  otherwise,  in  the  same  manner  as  such  driver  would  be 
liable.2  [Highway  Law,  § 325;  B.  C.  & G.  Cons.  L.,  p.  2346.] 

§ 7.  TERM  “ CARRIAGE  ” DEFINED. 

The  term  “ carriage  99  as  used  in  this  article  shall  be  construed  to  include 
stage  coaches,  wagons,  carts,  sleighs,  sleds,  automobiles  or  motor  vehicles, 
and  every  other  carriage  or  vehicle  used  for  the  transportation  of  persons 
and  goods,  or  either  of  them,  and  bicycles,  tricycles  and  all  other  vehicles 
propelled  by  manumotive  or  pedomotive  power,  or  by  electricity,  steam, 
gasoline  or  other  source  of  energy.3  [Highway  Law,  § 326;  B.  C.  & G. 
Cons.  L.,  p.  2346.] 

§ 8.  ENTITLED  TO  FREE  USE  OF  HIGHWAYS. 

The  commissioners,  trustees  or  other  authorities  having  charge  or  control 
of  any  highway,  public  street,  park,  parkway,  driveway,  or  place,  shall  have 
no  power  or  authority  to  pass,  enforce  or  maintain  any  ordinance,  rule 


2.  Application  of  section.  This  section  does  not  apply  to  the  employes  of  a 
street  railway  operating  its  cars  in  the  public  streets  and  highways.  Whitaker 
v.  8th  Ave.  Ry.  Co.,  51  N.  Y.  295;  Isaacs  v.  3d  Ave.  Ry.  Co.,  47  N.  Y.  122. 

At  common  law  the  owner  was  liable  for  the  negligent  but  not  wilful  acts  of 
his  driver;  the  statute  making  the  owner  liable  for  wilful  acts  applies  to 
owners  of  carriages  for  conveyance  of  passengers  only.  Wright  v.  Wilcox,  19 
Wend.  343;  Mali  v.  Lord,  39  N.  Y.  381. 

3.  Section  applied  to  a bicycle.  Rooks  v.  Houston,  West  St.  R.  R.  Co.,  10  App. 
Div.  98,  41  N.  Y.  Supp.  824;  Rogers  v.  City  of  Binghampton,  101  App.  Div.  352. 
92  N Y.  Suop.  170;  Lechner  v.  Village  of  Newark,  19  Misc.  452,  44  N.  Y.  Supp. 
556. 


MISCELLANEOUS  PROVISIONS. 


965 


Highway  Law,  §§  328,  329. 

or  regulation  by  which  any  person  using  a bicycle  or  tricycle  shall  be  ex- 
cluded or  prohibited  from  the  free  use  of  any  highway,  public  street, 
avenue,  roadwa}^  driveway,  parkway,  park,  or  place,  at  any  time  when  the 
same  is  open  to  the  free  use  of  persons  having  and  using  other  pleasure 
carriages,  except  upon  such  driveway,  speedway,  or  road  as  has  been  or 
may  be  expressly  set  apart  by  law  for  the  exclusive  use  of  horses  and  light 
carriages.  But  nothing  herein  shall  prevent  the  passage,  enforcement  or 
maintenance  of  any  regulation,  ordinance  or  rule,  regulating  the  use  of 
bicycles  or  tricycles  in  highways,  public  streets,  driveways,  parks,  parkways, 
and  places,  or  the  regulation  of  the  speed  of  carriages,  vehicles  or  engines, 
in  public  parks  and  upon  parkways  and  driveways  in  the  city  of  New 
York,  under  the  exclusive  jurisdiction  and  control  of  the  department  of 
parks  of  said  city,  nor  prevent  any  such  commissioners,  trustees  or  other 
authorities  in  any  other  city  from  regulating  the  speed  of  any  vehicles 
herein  described  in  such  manner  as  to  limit  and  determine  the  proper  rate 
of  speed  with  which  such  vehicle  may  be  propelled  nor  in  such  manner  as 
to  require,  direct  or  prohibit  the  use  of  bells,  lamps  and  other  appurten- 
ances nor  to  prohibit  the  use  of  any  vehicles  upon  that  part  of  the  highway, 
street,  park,  or  parkway,  commonly  known  as  the  footpath  or  sidewalk. 
[Highway  Law,  § 327  ; B.  C.  & G.  Cons.  L.,  p.  2346.] 

§ 9.  DEPOSITING  ASHES,  STONES,  STICKS,  ETC.,  UPON  THE  HIGHWAY. 

Any  person  who  shall  deposit  or  throw  loose  stones  in  the  gutter  or 
grass  adjoining  a highway,  or  shall  deposit  or  throw  upon  a highway, 
ashes,  papers,  stones,  sticks,  or  other  rubbish,  shall  be  liable  to  a penalty 
of  ten  dollars  to  be  sued  for  and  recovered  by  the  town  superintendent. 
No  stone  or  other  rubbish  shall  be  drawn  to  and  deposited  within  the 
limits  of  any  highway,  except  for  the  purpose  of  filling  in  a depression 
or  otherwise  improving  the  highway,  without  the  consent  and  under  the 
direction  of  the  town  superintendent.  [Highway  Law,  § 328;  B.  C.  & 
G.  Con3.  L.,  p.  2347.] 

§ 10.  TRACTION  ENGINES  ON  HIGHWAYS. 

The  owner  of  a steam  roller,  steam  traction  engine,  any  other  ma- 
chinery propelled  or  driven  by  steam,  or  of  any  gasoline  driven  traction 
engine,  his  servant  or  agent  shall  not  allow,  permit  or  use  the  same, 
pass  over,  through  or  upon  any  public  highway  or  street  except  upon 
railroad  tracks,  unless  such  owner  or  his  agents  or  servants  shall  send 
before  the  same  a person  of  mature  age,  at  least  one-eighth  of  a mile  in 
advance,  who  shall  notify  and  warn  persons  traveling  and  using  such 
highway  or  street  with  horses  or  other  domestic  animals,  of  the  approach 
thereof,  and  at  night  such  person  shall  carry  a red  light,  except  in  in- 
corporated villages  and  cities.4  [Highway  Law,  § 329,  as  amended  by 
L.  1914,  ch.  64:  B.  C.  & G.  Cons.  L..  o.  2348.] 

4.  Penal  provision.  Section  1425  of  the  Penal  Law  contains  the  following 
subdivision.  “A  person  who  wilfully,  ......... 

“11.  Drives  or  leads  along  a public  highway  a wild  and  dangerous  animal,  or  a 
vehicle  or  engine  propelled  by  steam,  except  upon  a railroad,  along  a public  high- 


966 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 329a. 

§ 10a.  LIGHTS  ON  VEHICLES. 

Every  vehicle  on  wheels  whether  stationary  or  in  motion,  while  upon 
any  public  street,  avenue,  highway,  or  bridge,  shall  have  attached  thereto 
a light  or  lights  so  placed  as  to  be  clearly  visible  from  the  front  and  from 
the  rear  from  one-half  hour  after  sunset  to  one-half  hour  before  sunrise; 
provided,  however,  that  this  section  shall  not  apply  to  a vehicle  designed 
to  be  propelled  by  hand  or  to  a vehicle  designed  principally  for  the  trans- 


way, or  causes  or  directs  such  animal,  vehicle  or  engine  to  be  so  driven,  led,  or  to 
be  made  to  pass,  unless  a person  of  mature  age  shall  precede  such  animal,  vehicle 
or  engine  by  at  least  one-eighth  of  a mile,  carrying  a red  light,  if  in  the  night  time, 
and  giving  warning  to  all  persons  whom  he  meets  traveling  such  highways,  of  the  ap- 
proach of  such  animal,  vehicle  or  engine; 

Shall  be  deemed  guilty  of  a misdemeanor.” 

Purpose  and  effect  of  section.  Section  is  directed  against  traction  engines,  and 
does  not  include  automobiles.  Nason  v.  West,  31  Misc.  583,  65  N.  Y.  Supp.  651. 

The  mere  presence  and  use,  by  a municipal  corporation,  on  one  of  its  public  streets, 
of  a steam  roller  does  not  render  the  street  defective  within  the  meaning  of  the 
statute  (vide  section  74  of  the  Highway  Law).  Mullen  v.  Village  of  Glens  Falls, 
11  App.  Div.  275,  42  N.  Y.  Supp.  113. 

Necessity  of  warning.  Where  a steam  roller  was  being  used  on  the  streets 
and  no  notice  or  warning  of  its  approach  was  given  and  the  horses  which  the  plain- 
tiff was  driving  became  frightened,  it  was  held,  in  an  action  brought  against  the 
village  to  recover  damages  for  personal  injuries  resulting  from  the  negligence  of  the 
village,  that  it  was  proper  to  submit  to  the  jury  the  question  whether  reasonable 
care  required  warning  to  be  given  of  the  approach  of  the  steam  roller.  It  was  also 
held  that  upon  the  question  whether  a warning  was  necessary,  it  was  proper  to  con- 
sider the  fact  that  the  above  section  of  the  Highway  Law  and  of  the  Penal  Law 
recognized  the  necessity  of  such  a warning  and  that  the  failure  to  give  it  was  made 
a misdemeanor,  as  indicating  the  view  which  the  people  of  the  state  have  taken  as 
to  the  necessity  of  such  warning.  Mullen  v.  Village  of  Glens  Falls,  11  App.  Div. 
275;  42  N.  Y.  Supp.  113;  see,  also,  Rice  v.  Buffalo  Steel  House  Co.,  17  App.  Div.  462; 
45  N.  Y.  Supp.  277. 

Damages  for  failure  to  comply.  Where  a steam  roller  is  used  upon  the  high- 
way without  sending  a person  ahead  to  warn  travelers  of  its  approach,  and  the 
plaintiff’s  horse  is  frightened  thereby,  a verdict  for  the  plaintiff  is  warranted  if 
there  be  no  contributory  negligence  on  his  part.  Buchanan’s  Sons  v.  Cranford  Co., 
112  App.  Div.  278,  98  App.  Div.  378.  In  case  of  failure  to  give  warning  and  a per- 
son operating  the  steam  roller  is  injured  in  a collision  with  a trolley  car,  the  cir- 


MISCELLANEOUS  PROVISIONS. 


967 


Highway  Law,  § 330. 

portation  of  hay  or  straw  while  loaded  with  such  commodities.4*1  Upon  the 
written  application  and  presentation  of  reasons  therefor  by  the  owner  of 
the  vehicle,  the  state  commission  of  highways  may  in  writing,  and  subject 
to  such  requirements  as  it  may  elect  to  impose,  but  without  expense  to  the 
applicant,  except  said  vehicle  from  the  provisions  of  this  section  for  such 
period  of  time  as  the  commission  may  determine.  The  provisions  of  this 
section  shall  apply  to  all  cities,  towns,  and  yillages  of  the  state  except  the 
city  of  New  York.  Nothing  in  this  section  shall  be  construed  to  affect 
the  provisions  of  any  existing  statute,  rule,  or  regulations  requiring  lights 
on  motor  vehicles  or  affecting  the  obligations  of  operators  or  occupants 
thereof.  A person  violating  the  provisions  of  this  section  shall  be  guilty  of 
a misdemeanor  punishable  by  a fine  not  to  exceed  ten  dollars.  [Highway 
Law,  § 329a,  as  added  by  L.  1914,  ch.  32,  amended  by  L.  1915,  ch.  367,  and 
L.  1918,  ch.  258.] 

§11.  INJURIES  TO  HIGHWAYS. 

Whoever  shall  injure  any  highway  or  bridge  maintained  at  the  public 
expense,  by  obstructing  or  diverting  any  creek,  watercourse  or  sluce,  or  by 
dragging  logs  or  timber  on  its  surface,  or 'by  drawing  or  propelling  over  the 
same  a load  of  such  weight  as  to  injure  or  destroy  the  culverts  or  bridges 
along  the  same,  or  of  such  weight  that  will  destroy,  break  or  injure  the 


cumstance  may  be  considered  in  determining  the  amount  of  damages  and  the  lia- 
bility therefor.  Kelly  v.  New  York  State  Railways,  207  N.  Y.  342. 

4a.  Collision  between  automobile  and  unlighted  wagon  while  passing  at  a turn  in 
the  road;  contributory  negligence;  failure  to  have  light  on  wagon.  Where,  in  an 
action  for  negligence,  it  appears  that  the  defendant’s  automobile,  properly  lighted, 
collided  with  decedent’s  horse-drawn  wagon  which  carried  no  light,  as  required  by 
statute,  as  they  were  passing  at  a turn  in  the  road,  due  to  the  defendant’s  being  too 
far  toward  the  left  side,  it  was  error  for  the  court  to  refuse  to  charge  “ that  the 
failure  to  have  a light  on  the  plaintiff’s  vehicle  is  prima  facie  evidence  of  contribu- 
tory negligence  on  the  part  of  the  plaintiff.”  The  absence  of  the  light  on  the  wagon 


967a 


HIGHWAYS  AXD  BRIDGES. 


Highway  Law,  §§  331,  331a. 

surface  of  any  improved  state,  county  or  town  highway,  or  by  any  other 
act,  or  shall  injure,  deface  or  destroy  any  mile-stone  or  guide-post  erected 
on  any  highway,  shall  for  every  such  offense  forfeit  treble  damages.  [High- 
way Law,  § 330,  as  amended  by  L.  1910,  ch.  568;  B.  C.  & G.  Cons.  L.,  p. 
2348.] 

§ 12.  WHEN  TOWN  NOT  LIABLE  FOR  DAMAGES. 

No  town  shall  be  liable  for  any  damages  resulting  to  person  or  property 
by  the  reason  of  the  breaking  of  any  bridge,  sluice  or  culvert,  by  transporta- 
tion on  the  same  of  any  traction  engine,  portable  piece  of  machinery,  or 
of  any  vehicle  or  load,  together  weighing  eight  tons  or  over,  but  any  owner 
thereof  or  other  person  engaged  in  transporting  or  directing  the  same 
shall  be  liable  for  all  damages  resulting  therefrom.* * * * 5  [Highway  Law,  § 331 ; 
B.  C.  & G.  Cons.  L.,  p.  2349.] 

§ 12a.  EXCESSIVE  LOADS  ON  UNSAFE  BRIDGES. 

% Whenever  by  order  of  the  town  board  of  any  town  in  which  a bridge, 
sluice  or  culvert  is  located  or,  if  a bridge,  sluice  or  culvert  connects  two 
towns,  by  order  of  the  town  boards  of  such  towns,  a notice  shall  be  erected 
upon  each  end  of  such  bridge,  sluice  or  culvert  prohibiting  the  use  of  such 
bridge,  sluice  or  culvert  for  loads  in  excess  of  ten  tons,  any  person,  firm 
or  corporation  transporting  or  causing  to  be  transported  over  any  such 
bridge,  sluice  or  culvert  any  traction  engine,  tractor,  portable  piece  of 
machinery  or  an}*-  vehicle  or  load  weighing  ten  tons  or  over  shall  be  guilty 


was  under  the  circumstances  a contributory  cause,  for  the  statute  intended  that 

such  a light  should  be  a signal  to  aid  a person  operating  a motor  vehicle  to  “ turn 

the  same  to  the  right  of  the  center  of  such  highway  so  as  to  pass  without  interfer- 

ence.” Martin  v.  Herzog  (1917),  176  App.  Div.  614,  163  N.  Y.  Supp.  1891. 

5.  Bridge  maintained  by  railroad.  The  provisions  of  the  above  section  ex- 
empting a town  from  damages  resulting  from  the  breaking  of  a bridge  by  a 
load  weighing  more  than  four  tons  does  not  apply  to  bridges  constructed  by  a 
railroad  as  required  by  section  22  of  the  Railroad  Law,  but  only  to  bridges  of  a 
town  maintained  at  public  expense.  Bush  v.  D.  L.  & W.  R.  R.  Go.,  166  N.  Y. 
210;  Lee  v.  D.,  L.  & W.  R.  Co.,  71  N.  Y.  Supp.  120.  Section  cited  to  show  that 
a railroad  company  is  required  to  construct  bridges  of  such  strength  only  as  will 
support  vehicles  that  ordinarily  pass  over  highways.  People  ex  rel.  W.  N.  Y.  & P. 
R.  R.  Co.  v.  Adams,  88  Hun,  122,  34  N.  Y.  Supp.  579. 


MISCELLANEOUS  PROVISIONS. 


967b 


Highway  Law,  § 332. 

of  a misdemeanor,  and  upon  conviction  of  a first  offense  shall  be  liable  to 
a fine  of  not  to  exceed  twenty-five  dollars.  A second  offense  shall  be  a mis- 
demeanor punishable  by  a fine  or  imprisonment  or  both.  [Highway  Law, 
§ 331a,  as  added  by  L.  1917,  ch.  568.] 

§ 13.  LAW  OF  THE  ROAD. 

1.  Whenever  any  person  traveling  with  any  carriages,  or  riding  horses 
or  other  animals,  shall  meet  on  any  turnpike  road  or  highway,  the  persons 
so  meeting  shall  seasonably  turn  their  carriages,  horses,  or  other  animals  to 
the  right  of  the  center  of  the  road,  so  as  to  permit  such  carriages,  horses, 
or  other  animals  to  pass  without  interference  or  interruption. 

2.  Any  carriage  or  the  rider  of  a horse  or  other  animal,  overtaking 
another  shall  pass  on  the  left  side  of  the  overtaken  carriage,  horse  or  other 
animal.  When  requested  to  do  so,  the  driver  or  person  having  charge  of 
any  carriage,  horse  or  other  animal,  traveling,  shall,  as  soon  as  practicable, 
turn  to  the  right,  so  as  to  allow  any  overtaking  carriage,  horse  or  other 
animal  free  passage  on  his  left. 


Excessive  load.  A verdict  against  a town  for  the  death  of  a driver  caused  by 
the  breaking  of  a bridge,  will  be  reversed  when  it  appears  that  the  weight  of  the 
wagon  and  load  was  over  four  tons.  Kelly  v.  Town  of  Saugerties,  110  App.  Div. 
561,  97  N.  Y.  Supp.  177. 

In  an  action  against  a town,  for  injury  received  by  the  collapse  of  a bridge,  it 

appeared  that  a traction  engine  weighing  three  and  one-half  tons  was  upon  the 

bridge,  that  it  was  hauling  a thresher  weighing  about  one  and  one-half  tons, 
and  that  at  the  time  the  accident  occurred  the  engine  alone  was  on  the  bridge; 
it  was  held  that  evidence  may  be  introduced  to  show  how  much  was  added  to 
the  weight  of  the  engine  by  reason  of  the  effort  of  the  engine  to  haul  the  weight 

of  the  thresher.  Heib  v.  Town  of  Big  Flats,  66  App.  Div.  88,  73  N.  Y.  Supp.  86. 

See,  also,  Vandewrater  v.  Town  of  Wappinger,  69  App.  Div.  325,  74  N.  Y.  Supp.  6991 
(1902). 

Application  to  bridges  maintained  by  State,  see  O’Brien  v.  State  of  New  York 
(1911),  148  App.  Div.  542.  Section  is  limited  to  town  bridges  and  does  not  apply 
to  state  bridges  over  the  Erie  Canal.  Murray  v.  State  of  New  York  (Court  of 
Claims,  1916),  10  State  Dept.  Repts.,  120. 

Liability  of  the  State  for  death  of  a person  while  driving  a traction  engine 
over  a state  bridge,  see  O’  Bryan  v.  State  of  New  York,  68  Misc.  618,  125  N.  Y. 
Supp.  489. 


968 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 332. 

3.  In  turning  corners  to  the  right,  carriages,  horses  or  other  animals 
shall  keep  to  the  right  of  the  center  of  the  road.  In  turning  corners  to 
the  left,  they  shall  pass  to  the  right  of  the  center  of  intersection  of  the 
two  roads. 

4.  Any  person  neglecting  to  comply  with,  or  violating  any  provision 
of  this  section  shall  be  liable  to  a penalty  of  five  dollars  to  be  recovered 
by  the  party  injured,  in  addition  to  all  damages  caused  by  such  neglect  or 
violation.6  [Highway  Law,  § 3,32 ; B.  C.  & G.  Cons.  L.,  p.  2349.] 


6.  The  amendment  of  1902  to  the  former  Highway  Law  materially  changed 
the  former  law,  which  merely  provided  that  persons  meeting  should  seasonably 
turn  their  carriages  to  the  right  of  the  center  of  the  road  so  as  to  permit  such 
carriages  to  pass  without  interference  or  interruption.  Under  that  law  it  was 
held  that  it  was  extremely  doubtful  whether  the  law  in  regard  to  keeping  to  the 
right  on  a public  highway  applies  to  any  one  except  the  drivers  of  vehicles 
of  some  kind.  Mooney  v.  Trow,  etc.,  Co.,  2 Misc.  238;  21  N.  Y.  Supp.  957;  New- 
man v.  Ernst,  10  N.  Y.  Supp.  310;  31  N.  Y.  St.  Rep.  1;  Smith  v.  Dygart,  12  Barb. 
613.  But  the  present  law  applies  to  any  person  traveling  with  a carriage  or 
riding  horses  or  other  animals. 

For  rule  as  to  passing  when  going  in  the  same  direction,  before  the  amend- 
ment of  1902,  see  Adolph  v.  Cen.  Park,  N.  Y.  & E.  River  R.  R.  Co.,  76  N.  Y.  530; 
Dudley  v.  Bolles,  24  Wend.  465;  Savage  v.  Gerstner,  36  App.  Div.  220,  55  N.  Y. 
Supp.  306. 

Right  of  the  center  of  the  highway.  The  rule  requiring  persons  meeting  to 
keep  their  vehicles  to  the  right  of  the  center  of  the  road,  does  not  apply  in 
winter  when  the  depth  of  the  snow  renders  it  impossible  or  difficult  to  ascer- 
tain the  center  thereof.  It  is  a reasonable  construction  of  the  statute  to  define 
the  center  of  the  road  in  such  a case,  as  the  center  of  the  traveled  track  regard- 
less of  the  worked  part  of  the  road.  Smith  v.  Dygert,  12  Barb.  613.  The  right 
of  the  center  of  the  road,  as  used  in  this  section,  means  the  right  of  the  worked 
part  of  the  road  and  not  the  right  of  the  most  traveled  part,  although  the  whole 
of  the  traveled  part  may  be  on  one  side  of  the  center.  Earing  v.  Lansingh,  It,. 
Wend.  185. 

The  rule  with  regard  to  keeping  to  the  right  does  not  apply  when  there  are 
obstructions  on  that  side  of  the  highway.  Mooney  v.  Trow  Directory,  Printing 
and  Bookbinding  Co.,  2 Misc.  238,  21  N.  Y.  Supp.  957.  The  section  applies  to 
the  case  of  vehicles  passing  each  other  on  the  same  side  of  roads  and  streets 
so  wide  that  there  is  no  necessity  for  them  to  turn  to  the  right  of  the  center 
line  of  the  highway  in  order  to  pass  safely.  Wright  v.  Fleischman,  41  Misc. 
533,  85  N.  Y.  Supp.  62. 

In  approaching  the  intersection  of  roads  a driver  should  keep  to  the  right;  if 
he  turns  to  the  left,  and  an  automobile  coming  from  behind,  in  attempting  to 
pass  to  the  left,  as  required  in  this  section,  strikes  and  injures  the  horse  and 
wagon,  the  question  as  to  the  liability  of  thp  defendant  is  a question  of  fact  for 
the  jury.  Mendleson  v.  Ran  Rensselaer,  118  App.  Div.  516,  103  N.  Y.  Supp.  577. 

“ Seasonably  turn,”  as  used  in  this  section,  means  that  travelers  shall  turn 
to  the  right  in  such  season  that  neither  shall  be  retarded  in  his  progress  by  the 


MISCELLANEOUS  PROVISIONS. 


009 


Highway  Law,  § 333. 

§ 14.  TREES;  TO  WHOM  THEY  BELONG. 

All  trees  standing  or  lying  on  land  within  the  hounds  of  any  high- 
way, shall  he  for  the  proper  use  of  the  owner  or  occupant  of  such  land, 
except  that  they  may  be  required  to  repair  the  highway  or  bridges  of  the 
town.7  Where  a right  of  way  has  been  or  shall  be  acquired,  under  the 
provisions  of  this  chapter,  for  a state  or  county  highway,  the  owner  of 
the  fee  shall  have  and  may  harvest  for  his  own  use  the  fruit  upon  all 
fruit-bearing  trees  left  standing  from  time  to  time  within  the  right  of 
way  so  acquired,  until  forbidden  in  writing  by  the  governing  board  of 
the  political  subdivisions  in  which  the  title  to  such  right  of  way  vests. 
[Highway  Law,  § 333,  as  amended  by  L.  1916,  ch.  147 ; B.  C.  & G. 
Cons.  L.,  p.  2352.] 

other  occupying  his  half  of  the  way,  when  he  may  have  occasion  to  use  it  in  passing. 
Spooner  v.  Brooklyn,  etc.,  R.  R.  Co.,  54  N.  Y.  230. 

Runaway  horses  should  be  guided  to  the  right  side  of  the  road  to  avoid  a col- 
lision. But  if  the  horses  are  beyond  the  control  of  the  driver  and  he  uses  due 
diligence  and  the  best  of  his  ability  as  a skillful  driver  to  control  them  the  law  of 
the  road  does  not  apply.  Cadwell  v.  Armheim,  81  Hun,  39 ; 30  N.  Y.  Supp.  573. 

Rights  of  pedestrians.  The  law  of  the  road  does  not  apply  to  persons  passing 
each  other  on  foot  on  the  sidewalk.  Grant  v.  City  of  Brooklyn,  41  Barb.  381  ; nor 
does  it  apply  to  a carriage  meeting  a person  on  foot  in  the  highway.  Savage  v. 
Gernster,  36  App.  Div.  220,  55  N.  Y.  Supp.  306;  although  there  can  be  no  question 
as  to  the  right  of  a person  to  pass  along  a highway  on  foot,  and  he  is  entitled  to  the 
exercise  of  reasonable  care  on  the  part  of  persons  driving  along  the  highway.  Vehi- 
cles and  pedestrians  have  equal  rights  in  the  highway,  and  both  should  exercise  the 
care  and  caution  that  the  circumstances  demand. 

A person  on  foot  has  a right  to  cross  the  street,  not  only  at  the  crosswalk,  but 
wherever  he  pleases;  and  one  driving  horses  is  bound  to  be  watchful  at  all  points 
so  as  not  to  injure  persons  crossing.  Moebus  v.  Herrmann,  108  N.  Y.  349.  Footmen 
or  vehicles  have  no  superior  right  of  way,  the  one  over  the  other.  Each  has  a right 
of  passage  in  common,  and  in  its  use  is  bound  to  exercise  reasonable  care  for  his 
own  safety,  and  to  avoid  injury  to  the  other.  For  a person  crossing  a street  on 
foot,  where  vehicles  are  numerous,  to  fail  to  look  in  both  directions  and  ascertain 
if  any  vehicles  are  approaching,  their  rate  of  speed  and  distance  from  the  crossing, 
is  negligence.  Barker  v.  Savage,  45  N.  Y.  191.  A person  driving  horses  along  the 
streets  of  a city  is  bound  to  look  out  for  travelers  on  foot  and  must  take  reasonable 
care  to  avoid  them.  Murphy  v.  Orr,  96  N.  Y.  14;  Hyland  v.  Yonkers  R.  R.  Co.,  15 
N.  Y.  St.  Rep.  824,  1 N.  Y.  Supp.  363. 

Abatement  of  tax  for  shade  trees  transplanted  by  the  side  of  a highway  by 
the  owner  of  the  adjoining  premises.  See  Highway  Law,  sec.  63,  ante , p.  835. 
The  town  superintendents  of  highways  may  authorize  the  owners  of  property 
adjoining  highways  to  locate  and  plant  trees.  See  Highway  Law,  sec.  61,  ante, 
p.  834. 

Shade  trees.  A right  having  once  been  given  to  the  owner  of  lands  adjoining 
a highway  to  plant  and  have  shade  trees  along  the  highway,  he  is  entitled  to  a 
continuance  of  the  growth  of  such  trees  and  is  protected  against  their  destruc- 
tion by  any  person,  including  a highway  officer.  See  Edsall  v.  Howell,  86  Hun, 
424;  33  N.  Y.  Supp.  892.  Although  an  owner  does  not  own  the  fee  of  the  high- 
way in  front  of  his  lot,  if  he  sets  out  shade  trees  along  the  highway  in  front  of 
his  premises,  at  his  own  expense  and  with  the  sanction  of  the  municipal 
authorities,  he  is  entitled  to  have  such  trees  protected  against  negligent  or  wil- 
ful destruction  at  the  hands  of  third  parties  and  has  a right  in  the  nature  of  an 


970 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  334-336. 

§ 15.  INJURING  FRUIT  OR  SHADE  TREES. 

It  shall  be  unlawful  for  any  person  or  persons  whatsoever  in  this  state 
to  hitch  any  horse  or  other  animal  or  to  leave  the  same  standing  near 
enough  to  injure  any  fruit  or  forest  tree  growing  within  the  bounds  of  the 
public  highway,  or  used  as  a shade  or  ornamental  tree  around  any  school - 
house,  church  or  public  building,  or  to  cut  down  or  mutilate  in  any  way  any 
such  ornamental  or  shade  tree ; but  the  right  of  property  owners  along  the 
highway  to  cultivate,  train  and  use  such  shade  trees  shall  not  be  impaired 
or  abridged  hereby.  Any  person  or  persons  guilty  of  violating  the  pro- 
visions of  this  section  shall  be  deemed  guilty  of  misdemeanor,  and  shall  be 
punishable  by  a fine  of  not  less  than  five  dollars,  nor  more  than  twenty- 
five  dollars  for  each  such  offense,  and  in  case  of  failure  to  pay  any  fine 
imposed,  may  be  committed  to  jail,  not  exceeding  one  day  for  each  dollar 
of  such  fine.  Courts  of  special  sessions  having  jurisdiction  to  try  misde- 
meanors, as  provided  by  section  fiftv-six  of  the  code  of  criminal  procedure, 
shall  have  exclusive  jurisdiction  to  try  offenders  in  all  cases  occurring  in 
the  same  manner  as  in  other  cases,  where  they  now  have  jurisdiction,  and 
subject  to  the  same  power  of  removal,  and  to  render  and  enforce  judgments, 
to  the  extent  herein  provided.  All  fines  collected  under  the  provisions  of 
this  act  shall  be  paid  when  the  offense  is  committed  in  a town  outside  of 
incorporated  villages,  to  the  supervisor  of  the  town,  to  be  used  as  the  town 
board  and  town  superintendent  may  direct.  When  the  offense  is  committed 
in  any  village  of  the  county,  which  by  law  is  constituted  a separate  road 
district,  the  fine  shall  be  paid  to  the  treasurer  of  said  village,  to  be  used 
as  the  board  of  trustees  may  direct.  [Highway  Law,  § 334;  B.  C.  & 
G.  Cons.  L.,  p.  2352.] 

§16.  PENALTY  FOR  FALLING  TREES. 

If  any  person  shall  cut  down  any  tree  on  land  not  occupied  by  him,  so 
that  it  shall  fall  into  any  highway,  river  or  stream,  unless  by  the  order 
and  consent  of  the  occupant,  the  person  so  offending  shall  forfeit  to  such 
occupant  the  sum  of  one  dollar  for  every  tree  so  fallen,  and  the  like  sum 
for  every  day  the  same  shall  remain  in  the  highway,  river  or  stream. 
[Highway  Law,  § 335;  B.  C.  & G.  Cons.  L.,  p.  2353.] 


§17.  FALLEN  TREES  TO  BE  REMOVED. 

If  any  tree  shall  fall,  or  be  fallen  by  any  person  from  any  inclosed  land 


easement  for  which  he  may  recover  compensation  if  it  is  taken  away  from  him. 
The  unlawful  cutting  down  of  shade  trees  in  a highway  is  deemed  in  equity  irre- 
parable injury.  Lane  v.  Lamke,  53  App.  Div.  395  ; 65  N.  Y.  Supp.  1090. 

6a.  Treble  damages  in  action  for  trespass  because  of  injury  to  shade  trees,  see 
Code  Civil  Procedure,  §§  1667,  1668.  Actual  damages  may  only  be  recovered  where 
trees  are  within  limits  of  highway,  see  Pfohl  v.  Rupp,  166  App.*  Div.  630,  152  N.  Y. 
Supp.  47. 


MISCELLANEOUS  PROVISIONS. 


971 


Highway  Law,  §§  337-340. 

into  any  highway,  any  person  may  give  notice  to  the  occupant  of  the  land 
from  which  the  tree  shall  have  fallen,  to  remove  the  same  within  two 
days ; if  such  tree  shall  not  be  removed  within  that  time,  but  shall  continue 
in  the  highway,  the  occupant  of  the  land  shall  forfeit  the  sum  of  fifty 
cents  for  every  day  thereafter,  until  the  tree  shall  be  removed.  [Highway 
Law,  § 336;  B.  C.  & G.  Cons.  L.,  p.  2353.] 


§18.  PENALTIES,  HOW  RECOVERED. 

All  penalties  or  forfeitures  given  in  this  chapter,  and  not  otherwise 
specially  provided  for,  shall  be  recovered  by  the  town  superintendent,  in 
the  name  of  the  town  in  which  the  offense  shall  be  committed;  and  when 
recovered,  shall  be  applied  by  them  in  improving  the  highways  and  bridges 
in  such  town.  [Highway  Law,  § 337;  B.  C.  & G.  Cons.  L.,  p.  2353.] 


§ 19.  ACQUISITION  OF  PLANK  ROADS. 

The  board  of  supervisors  of  any  county,  except  a county  wholly  within 
the  city  of  New  York,  and  except  the  county  of  Erie,  may  by  a vote  of 
a majority  of  the  members  thereof,  by  resolution,  determine  to  acquire 
the  rights  and  franchises  of  any  individual  or  corporation,  lawfully 
entitled  to  exact  toll  or  charge  for  walking,  riding  or  driving  over  any 
plank  road  or  turnpike,  or  a bridge  within  such  county,  erected  over 
any  unnavigable  stream,  or  over  the  Hudson  river  above  Waterford. 
Upon  the  adoption  of  such  resolution,  the  board  of  supervisors  shall 
acquire  such  rights,  franchises  and  property  by  purchase,  if  able  to 
agree  with  the  owners  thereof,  and  otherwise  by  condemnation  in  the 
name  of  the  county.7  [Highway  Law,  § 338,  as  amended  by  L.  1914,. 
ch.  200;  B.  C.  & G.  Cons.  L.,  p.  2354.] 

§ 20.  BORROWING  MONEY;  BONDS. 

The  board  of  supervisors  of  such  county  may  borrow  money  for  the 
acquisition  of  such  rights,  franchises,  and  property,  and  may  issue  the 
bonds  or  other  evidences  of  indebtedness  of  the  county  therefor,  but  such 
bonds  or  other  evidences  of  indebtedness  shall  not  bear  a rate  of  interest 
exceeding  five  per  centum  per  annum  and  shall  not  run  for  a longer 
period  than  twenty  years  and  shall  not  be  sold  for  less  than  par.  [High- 
way Law,  § 339  ; B.  C.  & G.  Cons.  L.,  p.  2354.] 

§ 21.  RAISING  MONEY  TO  PAY  BONDS  AND  INTEREST. 

Except  in  the  counties  of  Rensselaer,  Onondaga,  Albany  and  Columbia, 
the  amount  of  such  bonds  in  whole  or  in  part  together  with  the  interest 

7.  See  Matter  of  Saratoga  Lake  Bridge  Co.  v.  Walbridge,  140  App.  Div.  718, 
821,  126  N.  Y.  Supp.  468. 


972 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  341-342. 

thereon  may  be  apportioned  by  the  board  of  supervisors  upon  the  towns, 
cities  and  villages  constituting  separate  highway  districts,  in  which  such 
plankroad,  turnpike  or  bridge  is  located,  in  such  proportions  as  the  boards 
may  deem  just  and  the  amount  so  apportioned  to  each  municipality  for  the 
payment  of  the  principal  and  interest  of  such  bonds  shall  be  annually 
levied  and  collected  at  the  same  time  and  in  the  same  manner  as  money 
for  other  county  charges.  In  the  counties  of  Rensselaer  and  Columbia,  the 
boards  of  supervisors,  in  making  up  the  annual  tax  budget  of  the  counties, 
shall  each  year  levy  and  assess  upon  and  against  the  taxable  property  in 
said  counties,  in  addition  to  the  amounts  levied  and  assessed  for  other 
county  charges,  an  amount  sufficient  to  pay  the  interest  falling  due  and 
payable  on  the  said  bonds  during  such  year,  and  also  an  amount  sufficient 
to  pay  the  proportion  of  the  years  fixed  at  the  time  during  which  said 
bonds  shall  run  from  their  issue  to  maturity.  The  amount  raised  by  tax  in 
each  year  for  the  payment  of  the  principal  of  said  bonds  shall  be  preserved 
intact  by  the  county  treasurers  of  said  counties  until  said  bonds  mature 
and  are  payable,  and  upon  the  maturity  of  said  bonds,  said  county  treas- 
urer shall  pay  the  same  in  full  out  of  the  moneys  so  raised  by  annual 
tax  therefor  and  shall  thereupon  take  back  said  bonds  with  receipts  for 
the  payment  thereof  and  deliver  them  to  the  boards  of  supervisors  of  said 
counties  for  cancellation.  Said  county  treasurer  shall  deposit  at  interest 
the  said  moneys  yearly  raised  by  tax  for  payment  of  the  principal  of  said 
bonds  in  such  bank  or  depository  as  shall  be  designated  by  the  boards  of 
supervisors  of  said  counties,  and  the  amount  realized  from  the  interest 
thereon  shall  be  used  for  the  purposes  of  the  said  counties  under  the 
direction  of  the  said  boards  of  supervisors.  [Highway  Law,  § 340;  B.  C. 
& G.  Cons.  L.,  p.  2354.] 

§ 22.  ROADS  SO  ACQUIRED  TO  BE  PART  OF  HIGHWAY  SYSTEM. 

A plankroad,  turnpike  or  bridge  acquired  pursuant  to  this  article  shall 
become  a part  of  a highway  system  of  such  county  and  of  the  towns,  cities 
and  villages  in  which  the  same  is  located,  and  shall  thereafter  be  repaired 
and  maintained  in  the  same  manner  as  the  other  highways  or  bridges 
therein.  [Highway  Law,  § 341;  B.  C.  & G.  Cons.  L.,  p.  2355.] 


§ 23.  WHEN  ROAD  IS  IN  TWO  OR  MORE  COUNTIES. 

When  a plankroad,  turnpike,  toll  road  or  bridge  is  partly  in  one  county 
and  partly  in  another,  the  boards  of  supervisors  of  the  said  counties  shall 
act  together  in  the  manner  prescribed  above,  and  determine  the  amount 
to  be  paid  to  said  plankroad,  turnpike,  toll  road  or  bridge  company,  by 
each  county,  and  such  amount  against  each  county,  after  such  determina- 


MISCELLANEOUS  PROVISIONS. 


973 


Highway  Law,  §§  343,  344. 

lion,  shall  be  paid  by  each  county.  [Highway  Law,  § 342;  B.  C.  & G. 
Cons.  L.,  p.  2355.] 

§ 24.  ALBANY  POST  ROAD;  RAILROAD  TRACKS  THEREON. 

The  old  established  road  along  the  valley  of  the  Hudson  river  from  the 
city  of  Hew  York  to  the  city  of  Albany,  known  as  the  Albany  post  road, 
shall  be  a public  highway  for  the  use  of  the  traveling  public  forever.  The 
said  highway  shall  be  kept  open  and  free  to  all  travelers,  and  shall  not  be 
obstructed  in  any  way  by  any  obstacle  to  free  travel.  Ho  trustees  of  any 
village  or  corporation  of  any  city  upon  its  route,  or  town  superintendents 
of  highways  of  towns,  or  any  other  person  or  board  whatever,  shall  have 
any  power  or  authority  to  authorize  or  license  the  laying  of  any  railroad 
track  upon  said  highway,  except  to  cross  the  same,  and  any  such  action 
shall  be  void  and  of  no  effect.  This  section  shall  not  apply  to  any  portion 
of  said  road  within  the  city  of  Hew  York  or  the  city  of  Yonkers,  south 
of  Main  street,  nor  shall  it  apply  to  the  road  of  the  president,  directors 
and  company  of  the  Rensselaer  and  Columbia  turnpike  nor  to  the  town 
of  Cortland  or  the  village  of  Sing  Sing,  in  Westchester  county.  [High- 
way Law,  § 343,  as  amended  by  L.  1910,  ch.  658;  B.  C.  & G.  Cons.  L.,  p. 
2355.] 

§ 25.  LIGHTING  ROADS,  HIGHWAYS  AND  BRIDGES. 

The  town  board  of  any  town,  subject  to  the  approval  of  the  commissioner 
of  highways,  may  from  time  to  time  provide  for  lighting  dangerous  por- 
tions of  any  road  or  highway  defined  by  section  three  of  this  chapter  or 
constructed  or  improved  under  the  provisions  of  section  three  hundred  and 
twenty  of  this  chapter,  and  of  bridges  located  thereon.  The  initial  action 
of  the  board  shall  be  in  the  form  of  a proposal  for  submission  to  the  com- 
missioner. The  roads  and  portions  thereof  to  be  lighted,  and  the  manner 
of  lighting,  shall  be  set  forth  in  such  proposal.  Such  proposal  shall  be 
embodied  in  a resolution.  The  lighting  of  one  or  more  such  roads,  high- 
ways or  bridges,  or  either,  may  be  proposed  in  a single  resolution.  The 
board  may  provide  for  such  lighting,  if  its  proposal  is  so  approved,  or,  if 
modifications  are  suggested  by  the  commissioner,  may  adopt  such  modifica- 
tions and  provide  for  such  lighting  in  conformity  therewith.  The  expense 
of  installing,  maintaining  and  caring  for  such  lights  shall  be  a town  charge, 
and  the  moneys  therefor  shall  be  provided  and  appropriated  in  the  same 
manner  as  for  other  town  expenses.  The  furnishing  of  light  under  this 
section  may  be  provided  for  by  contract  or  otherwise;  but  nothing  herein 
contained  shall  be  deemed  to  authorize  the  town  board  to  acquire,  construct 
or  establish  a gas  or  electric  lighting  plant  for  the  above  purposes.  The 
installation  of  lights,  fixtures  and  connection  shall  be  done  under  the  super- 
vision of  the  county  superintendent  of  highways.  The  town  board  may 
provide  for  the  care  of  such  lights  in  such  manner  as  it  may  deem  proper. 
The  board  may,  in  its  discretion,  at  any  time  discontinue  the  lighting  of 
any  road,  highway  or  bridge,  or  portion  thereof,  provided  for  under  this 
section.  [Highway  Law,  § 344,  as  added  by  L.  1917,  ch.  367.] 


974 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  §§  350.  351 


CHAPTER  LXVI. 

SAVING  CLAUSES;  LAWS  REPEALED;  WHEN  TO  TAKE  EFFECT. 


[Highway  Law,  art  XIII.] 

Section  1.  Transfer  of  powers  and  duties  of  State  engineer. 

2.  Transfer  of  records;  eligibility  of  present  employees. 

3.  County  engineers  and  superintendents  of  highways  to  be  continued 

in  office. 

4.  Pending  actions  or  proceedings. 

5.  Saving  clause. 

6.  County  highway  maps  preserved. 

7.  Construction. 

8.  When  to  take  effect. 

9.  Laws  repealed. 


§ 1.  TRANSFER  OF  POWERS  AND  DUTIES  OF  STATE  ENGINGEER. 

On  and  after  the  taking  effect  of  this  chapter,  and  the  appointment  and 
qualification  of  the  state  commission  as  herein  authorized,  all  the  powers 
and  duties  of  the  state  engineer  in  respect  to  highways  and  bridges,  con- 
ferred and  imposed  by  any  statute  of  this  state,  shall  be  transferred  to  the- 
department  of  highways  to  be  exercised  and  performed  by  the  state  com- 
mission of  highways  as  provided  herein.  [Highway  Law,  § 350;  B.  C. 
& G.  Cons.  L.,  p.  2356.] 

§ 2.  TRANSFER  OF  RECORDS;  ELIGIBILITY  OF  PRESENT  EM- 
PLOYEES. 

The  state  engineer  shall  transfer  and  deliver  to  the  state  commission 
of  highways  all  contracts,  books,  maps,  plans,  papers  and  records  of  what- 
ever description,  in  his  possession  when  such  commission  is  appointed  and 
have  qualified,  pertaining  to  the  construction,  improvement,  maintenance 
and  supervision  of  highways  and  bridges  and  such  commission  is  authorized 
at  such  time  to  take  possession  of  all  such  contracts,  books,  maps,  plans,, 
papers  and  records.  The  commission  may  also  retain  in  its  employment 
resident  and  other  engineers,  levelers,  rodmen,  clerks  and  employees  en- 
gaged or  connected  with  the  department  of  highways  in  the  office  of  the 


LAWS  REPEALED;  WHEN  TO  TAKE  EFFECT.  975 

Highway  Law,  §§  352-354. 

state  engineer,  or  employed  by  him  in  connection  with  the  powers  and 
duties  exercised  and  performed  by  him  in  respect  to  highways  and  bridges, 
and  all  such  engineers,  clerks  and  employees  shall  be  eligible  to  transfer 
and  appointment  to  positions  under  the  commission.  [Highway  Law,  § 
351 ; B.  C.  & G.  Cons.  L.,  p.  2356.] 

§ 3.  COUNTY  ENGINEERS  AND  SUPERINTENDENTS  OF  HIGHWAYS 
TO  BE  CONTINUED  IN  OFFICE. 

County  engineers  and  superintendents  of  highways  in  office  when  this 
chapter  takes  effect  shall  be  continued  in  office  during  their  present  term 
of  office  and  until  the  district  or  county  superintendents  shall  have  been 
appointed  and  have  qualified  as  provided  in  this  chapter.  Such  county 
engineers  and  superintendents  of  highways  shall  exercise  the  powers  and 
perform  the  duties  hereby  conferred  and  imposed  upon  district  or  county 
superintendents  until  the  appointment  and  qualification  of  a district  or 
county  superintendent  as  above  provided.  Upon  the  appointment  and 
qualification  of  a district  or  county  superintendent  for  the  county  for  which 
such  county  engineer  or  superintendent  of  highways  is  appointed  all  con- 
tracts, books,  maps,  plans,  papers,  and  records  pertaining  to  the  construc- 
tion, improvement,  maintenance  and  supervision  of  highways  in  such 
county  shall  be  transferred  to  such  district  or  county  superintendent. 
[Highway  Law,  § 352;  B.  C.  & G.  Cons.  L.,  p.  2357.] 

§ 4.  PENDING  ACTIONS  OR  PROCEEDINGS. 

This  chapter  shall  not  affect  pending  actions  or  proceedings,  civil  or 
criminal,  pertaining  to  the  construction,  improvement,  maintenance,  super- 
vision or  control  of  highways  and  bridges,  brought  by  or  against  the  state 
engineer,  or  county  engineer  or  a county  superintendent  of  highways,  or 
a commissioner  of  highways,  under  the  provisions  of  any  statute  hereby 
repealed,  but  the  same  may  be  prosecuted  or  defended  in  the  same  manner 
by  the  commission  or  by  the  officer  having  jurisdiction  in  respect  there- 
to. Any  investigation,  examination  or  proceeding  undertaken,  com- 
menced or  instituted  by  the  state  engineer,  county  engineer  or  highway 
commissioner  or  either  of  them  relating  to  highways  or  bridges  may  be 
conducted  or  continued  to  a final  determination  by  the  proper  officer 
hereunder,  in  the  same  manner,  and  under  the  same  terms  and  conditions, 
and  with  the  same  effect  as  though  this  chapter  had  not  been  passed. 
[Highway  Law,  § 353;  B.  C.  & G.  Cons.  L.,  p.  2357.] 


§ 5.  SAVING  CLAUSE. 

The  repeal  of  a law,  or  any  part  of  it  specified  in  the  annexed  schedule 


•97  6 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 355. 

shall  not  affect  or  impair  any  contract,  or  any  act  done,  or  right  accruing, 
accrued  or  acquired  or  any  penalty,  forfeiture  or  punishment  incurred  prior 
to  the  time  when  this  chapter  or  any  section  thereof  takes  effect,  under  or 
by  virtue  of  the  laws  so  repealed,  but  the  same  may  be  asserted,  enforced, 
prosecuted,  or  inflicted,  as  fully  and  to  the  same  extent,  as  if  such  laws  had 
not  been  repealed.  The  provisions  of  this  chapter  shall  not  affect  or  im- 
pair any  act  done  or  right  accruing  accrued  or  acquired  under  or  in  pursu- 
ance of  any  resolution  adopted  by  the  board  of  supervisors  of  a county,  on  or 
before  the  thirty-first  day  of  December,  nineteen  hundred  and  eight,  re- 
questing the  construction  or  improvement  of  a highway  therein,  as  pro- 
vided in  chapter  one  hundred  and  fifteen  of  the  laws  of  eighteen  hundred 
and  ninety-eight,  and  the  acts  amendatory  thereof,  or  under  or  in  pursu- 
ance of  any  resolution  adopted  on  or  before  such  date  by  a board  of  super- 
visors, under  such  act  and  the  acts  amendatory  thereof,  providing  for  the 
construction  or  improvement  of  a highway  in  a county  in  accordance  with 
maps,  plans  and  specifications  submitted  to  such  board  by  the  state  en- 
gineer, or  under  or  in  pursuance  of  any  contract  for  the  construction  or 
improvement  of  a highway,  awarded  as  provided  in  such  chapter  one 
hundred  and  fifteen  of  the  laws  of  eighteen  hundred  and  ninety-eight  and 
the  acts  amendatory  thereof.  All  further  proceedings  in  respect  to , such 
highway  shall  be  taken  in  accordance  with  the  provisions  of  this  chapter. 
[Highway  Law,  § 354;  B.  C.  & G.  Cons.  L.,  p.  2357.] 


| 6.  COUNTY  HIGHWAY  MAPS  PRESERYED. 

The  county  highways  to  be  selected  by  the  commission  for  construction 
or  improvement,  as  provided  in  this  chapter,  shall  be  the  highways  in  the 
respective  counties  designated  upon  the  map  of  the  highways  of  the  state, 
prepared  by  the  state  engineer  as  provided  by  law,  and  approved  by  the 
legislature  by  chapter  seven  hundred  and  fifteen  of  the  laws  of  nineteen 
hundred  and  seven ; except  the  highways  on  such  map  which  have  been 
designated  and  described  as  state  highways  by  section  one  hundred  and 
twenty  of  this  chapter.  Such  map  shall  remain  in  full  force  and  effect 
notwithstanding  the  repeal  of  such  chapter  seven  hundred  and  fifteen  of 
the  laws  of  nineteen  hundred  and  seven  by  this  chapter;  except  that  the 
hoard  of  supervisors  of  any  county  is  hereby  authorized  to  modify  the 
designation  of  county  highways  on  such  map  by  resolution  duly  adopted 
by  a majority  vote  of  the  members  of  such  hoard  provided  the  total 
mileage  as  originally  designated  upon  the  county  map  in  such  county 
is  not  thereby  materially  increased.1  A certified  copy  of  such  resolution 
shall  be  transmitted  to  the  commission  or  to  the  state  engineer  if  the 
same  be  adopted  prior  to  the  appointment  and  qualifications  of  the 
commission.  [Highway  Law,  § 355;  B.  C.  & G.  Cons.  L.,  p.  2358.] 

1.  Section  does  not  apply  to  state  highways  specified  in  § 120  of  the  Highway 
Law.  The  map  only  relates  to  highways  not  designated  and  described  as  state  high- 
ways. People  ex  rel.  Wailful  v.  Reel.  157  App.  Div.  128. 


LAWS  REPEALED;  WHEN  TO  TAKE  EFFECT. 


977 


Highway  Law,  §§  356,  357. 

§ 7.  CONSTRUCTION. 

Wherever  the  term  “ state  engineer  ” shall  occur  in  any  law,  contract  or 
document  such  term  shall  be  deemed  to  refer  to  the  state  commission  of 
highways  as  established  by  this  chapter  so  far  as  such  law,  contract  or  docu- 
ment pertains  to  matters  which  are  within  the  jurisdiction  of  such  com- 
mission of  highways.  Wherever  the  term  “ county  engineer  99  or  “ county 
superintendent  of  highways  99  is  used  in  any  such  law,  contract  or  document 
such  term  shall  be  deemed  to  refer  to  and  include  the  county  or  district 
superintendent  having  jurisdiction  of  the  matter  contained  in  such  law, 
contract  or  document. 

The  provisions  of  this  chapter  so  far  as  they  are  substantially  the  same 
as  those  existing  at  the  time  they  shall  take  effect,  shall  be  construed  as  a 
continuation  of  such  laws,  modified  or  amended,  according  to  the  language 
employed  in  this  chapter,  and  not  as  new  enactments.  References  in  laws 
not  repealed  to  provisions  of  law  incorporated  in  this  chapter  and  repealed, 
shall  be  construed  as  applying  to  the  provisions  so  incorporated.  [Highway 
Law,  § 356 ; B.  C.  & G.  Cons.  L.,  p.  2358.] 


§ 8.  WHEN  TO  TAKE  EFFECT. 

This  chapter  shall  take  effect  the  first  day  of  January,  nineteen  hundred 
and  nine,  except  as  to  the  provisions  specified  as  follows: 

1.  The  provisions  of  section  forty-three,  ninety,  ninety -one,  ninety-four, 
ninety-five,  ninety-nine,  and  one  hundred,  relating  to  highway  commis- 
sioners, estimates  of  expenditures,  duties  of  town  board  in  respect  thereto, 
levy  of  taxes,  the  limitation  of  amounts  to  be  raised,  submission  of  prop- 
ositions at  town  meetings,  assessments  of  village  property  and  statements 
by  the  clerk  of  the  board  of  supervisors  to  the  comptroller,  shall  take  effect 
immediately. 

2.  The  provisions  of  sections  one  hundred  and  thirty  and  one  hundred 
and  thirty-one  of  this  chapter,  pertaining  to  the  award  of  contracts  for  the 
construction  of  county  highways  shall  take  effect  immediately  and  shall 
apply  to  contracts  to  be  awarded  under  chapter  one  hundred  and  fifteen 
of  the  laws  of  eighteen  hundred  and  ninety-eight  and  the  acts  amendatory 
thereof,  prior  to  January  first,  nineteen  hundred  and  nine;  and  until  the 
commission  shall  have  been  appointed  and  have  duly  qualified,  the  state 
engineer  and  surveyor  shall  exercise  the  powers  and  perform  the  duties 
conferred  upon  the  said  commission  by  the  foregoing  sections. 

3.  The  provisions  of  section  one  hundred  and  seventy-nine,  relating  to 
the  sprinkling  of  state  and  county  highways  and  the  removal  of  refuse 
therefrom  ; the  provisions  of  section  three  hundred  and  twenty,  relating  to 
the  construction  or  improvement  of  highways  at  the  joint  expense  of  a 
county  and  town,  and  the  provisions  of  section  three  hundred  and  fifty-five 


S78 


HIGHWAYS  AND  BRIDGES. 


Highway  Law,  § 357. 

relating  to  the  modification  of  maps  by  boards  of  supervisors  and  the  pro- 
visions of  this  section  shall  take  effect  immediately.  [Highway  Law,  § 357; 
B.  C.  & G.  Cons.  L.,  p.  2359.] 

§ 9.  LAWS  REPEALED. 

Of  the  laws  enumerated  by  the  schedule  hereto  annexed  that  portion 
specified  in  the  last  column  is  hereby  repealed.  Such  repeal  shall  not 
revive  a law  repealed  by  any  law  hereby  repealed,  but  shall  include  all 
laws  amendatory  of  the  laws  hereby  repealed.  [The  schedule  of  laws  re- 
pealed is  omitted.] 


DUTIES  OF  SUPERVISORS  AS  TO  HIGHWAYS  AND  BRIDGES. 


979 


County  Law,  § 61. 


CHAPTER  LXVII. 


DUTIES  OF  BOARDS  OF  SUPERVISORS  AS  TO  HIGHWAYS  AND 

BRIDGES. 


Section  1.  When  board  of  supervisors  may  lay  out,  open,  alter  or  discontinue 
county  highways  or  construct  bridges. 

2.  Boards  of  supervisors  may  authorize  the  change  of  location  or  con- 

struction of  bridges. 

3.  Board  of  supervisors  may  provide  for  construction  of  bridges  de- 

stroyed by  the  elements,  in  certain  cases. 

4.  Board  of  supervisors  may  aid  towns  in  the  construction  and  repair 

of  bridges. 

5.  Apportionment  of  expenses  when  a bridge  is  intersected  by  town  or 

county  lines. 

6.  County’s  share  of  expenses  to  be  raised  and  paid  to  the  commis- 
sioners of  highways  of  the  towns. 

7.  Board  of  supervisors  may  authorize  a town  to  construct  a bridge  out- 

side of  a boundary  line. 

8.  Maintenance  of  bridges  over  county  lines. 

9.  Boards  of  supervisors  may  map  out  streets  and  avenues  in  towns 

outside  of  city  limits. 

10.  Board  of  supervisors  may  authorize  commissioners  of  highways  to 

cause  survey  of  highways  to  be  made. 

11.  JBoard  of  supervisors  may  regulate  toll  rates. 

12.  Powers  of  boards  of  supervisors  as  to  highways  in  counties  of 

more  than  300,000  acres  of  unimproved  land. 

13.  Appropriation  of  certain  nonresident  highway  taxes. 

14.  Balance  of  state  appropriations. 

15.  Alteration  of  state  roads. 

16.  Further  powers  of  board  of  supervisors  as  to  highways. 

17.  Board  of  supervisors  may  pass  laws  as  to  use  of  wide  tire  on 

highways. 

18.  Use  of  abandoned  turnpike,  plank  or  macadamized  roads. 

19.  Definition  of  “ upon  its  borders.” 


§ 1.  WHEN  BOARD  OF  SUPERVISORS  MAY  LAY  OUT,  OPEN,  ALTER 
OR  DISCONTINUE  COUNTY  HIGHWAYS  OR  CONSTRUCT 
BRIDGES. 

A board  of  supervisors  shall,  on  the  application  of  twenty-five  resident 


980 


HIGHWAYS  AND  BRIDGES. 


County  Law,  § 61. 

taxpayers  when  satisfied  that  it  is  for  the  interest  of  the  county,  lay  out, 
open,  alter  or  discontinue  a county  highway  therein,  or  cause  the  same  to 
be  done,  and  construct,  repair  or  abandon  a county  bridge  therein,  or 
cause  the  same  to  he  done,  when  the  hoard  shall  deem  the  authority  con- 
ferred on  commissioners  of  highways  insufficient  for  that  purpose,  or 
that  the  interests  of  the  county  will  be  promoted  thereby.1 * Ill,  All  expenses 
so  incurred  shall  be  a county  charge.  Such  powers  shall  not  be  exer- 
cised unless  the  applicants  therefor  shall  prove  to  the  board  the  service 
of  a written  notice,  personally  or  by  mail,  on  a commissioner  of  high- 
ways of  each  town  in  the  county,  at  least  twelve  days  prior  to  the 
presentation  of  such  application,  specifying  therein  the  object  thereof; 

1.  County  road  system.  Boards  of  supervisors  are  authorized  to  adopt  by 
a resolution  the  county  road  system,  and  may  thereupon  designate  certain  lead- 
ing market  roads  in  the  county  to  be  constructed  and  maintained  at  a county 
expense.  Highway  Law,  sec.  320,  ante , p.  961.  Where  a county  road  has  been 
constructed  by  a county,  without  the  aid  of  the  state,  the  state  is  liable  to  pay 
a part  of  the  cost  of  maintenance.  Highway  Law,  § 178,  ante , p.  904.  Where 
a road  in  a county  has  been  designated  and  constructed  by  the  county,  it  may 
be  altered,  or  discontinued  in  the  manner  provided  in  the  above  section.  Such 
section  would  also  seem  to  authorize  a board  of  supervisors  to  lay  out  and  open 
a new  highway. 

Power  and  liability  of  county  as  to  highways  and  bridges.  At  common 
law  the  duty  of  repairing  and  constructing  bridges  rested  upon  the  county, 
because  of  the  fact  that  bridges  were  regarded  as  for  the  common  good  of  the 
whole  county.  But  the  rule  of  the  common  law  has  never  been  in  force  in  this 
state.  As  early  as  1784  the  care  and  reparation  of  highways,  including  bridges, 
were  committed  to  town  officers.  Hill  v.  Board  of  Supervisors,  12  N.  Y.  52. 
In  this  case  Johnson,  J.,  said:  “It  must,  I think,  be  considered  as  settled, 

that  the  common  law  responsibilities  of  counties  for  the  repair  of  bridges 
never  prevailed  in  this  state.  Our  statutory  system  introduced  the  primary 
responsibility  of  the  towns  in  respect  to  the  maintenance  of  highways  and 
bridges;  and  in  many  cases  where  the  burden  was  greater  than  could  con- 
veniently be  borne  by  the  towns,  particular  acts  of  the  legislature  have  pro- 
vided for  the  means  and  method  of  erecting  and  keeping  in  repair  the  public 
bridges.” 

County  is  not  liable  for  failure  of  supervisors  to  maintain  bridges  in  a safe 
condition.  Ahern  v.  County  of  Kings,  89  Hun  148,  34  N.  Y.  Supp.  1023; 
Godfrey  v.  County  of  Queens,  89  Hun  18,  34  N.  Y.  Supp.  1052. 

Streets  and  highways.  Board  cannot  rescind  a resolution  to  close  a high- 
way except  on  petition  of  property  owners  or  certificate  of  the  town  officers 
as  to  its  necessity.  Schafhaus  v.  City  of  N.  Y.,  28  App.  Div.  475,  51  N.  Y.  Supp. 

Ill,  affd.  159  N.  Y.  557. 

The  legislature  may  delegate  to  the  board  of  supervisors  power  to  lay  out 
streets  and  to  levy  and  collect  assessments  therefor;  and  the  board  may  by 
resolution  appoint  grading  commissioners;  nor  is  such  resolution  within  the 
inhibition  of  the  Constitution,  Article  3,  § 16,  which  applies  only  to  acts  of  the 
legislature.  Robert  v.  Supervisors  of  Kings,  3 App.  Div.  366,  38  N.  Y.  Supp.  521, 
affd.  158  N.  Y.  673. 

The  board  may  authorize  improvement  of  highways  in  a town  even  though 
it  contain  a village,  the  highways  in  the  village  being  under  their  control; 


DUTIES  OF  SUPERVISORS  AS'  TO  HIGHWAYS  AND  BRIDGES.  981 


County  Law,  § 62. 

and  when  the  application  is  to  lay  out  a highway,  or  construct  a bridge,  the 
route  or  location  thereof;  and  in  all  other  cases,  a designation  of  the  highway 
or  bridge  to  be  affected  thereby.  Whenever  the  board  of  supervisors  of  a county 
shall  determine  to  construct  a bridge  in  accordance  with  the  foregoing  pro- 
visions of  this  section,  such  board,  on  behalf  of  the  county,  and  the  town  board 
of  a town  or  in  case  of  a city  the  board  of  aldermen  or  any  similar  board  exer- 
cising the  functions  of  aldermen,  on  behalf  of  such  town  or  city,  may  enter  into 
an  agreement  with  the  county,  to  the  effect  that  such  town  or  city  will  operate 
and  maintain  such  bridge,  in  case  the  bridge  is  located  wholly  in  a town  or 
city.  In  case  the  bridge  is  constructed  over  a stream  forming  the  boundary 
line  between  two  towns  or  two  cities  or  between  a town  and  city,  then  they 
may  agree  with  the  county  to  operate  and  maintain  such  bridge  jointly,  in 
proportion  to  the  assessed  valuation  of  such  town  or  city.  The  sum  which  the 
town  or  towns,  city  or  cities  are  obliged  to  pay  under  such  an  agreement  is  a 
charge  upon  such  towns  or  cities  end  shall  be  paid  as  other  town  or  city 
charges  are  paid.  [County  Law,  § 61,  as  amended  by  L.  1909,  ch.  240,  and  L. 
1914,  ch.  233;  B.  C.  & G.  Cons.  L.,  p.  752.] 

§ 2.  BOARDS  OF  SUPERVISORS  MAT  AUTHORIZE  THE  CHANGE  OF 
LOCATION  OR  CONSTRUCTION  OF  BRIDGES. 

The  board  may  authorize  the  location,  change  of  location  and  construc- 
tion of  any  bridge,  applied  for  by  any  town,  or  towns,  jointly,  or  by  other 
than  a municipal  corporation,  created  under  a general  law,  or  by  any  cor- 
poration or  individual  for  private  purposes;* 2 3  and  if  a public  bridge,  erected 


certiorari  is  the  proper  writ  to  pass  on  such  an  action  of  the  board.  Trustees  of 
Jamaica  v.  Supervisors,  42  St.  Rep.  22,  16  N.  Y.  Supp.  705. 

Bridges.  In  the  absence  of  action  by  the  supervisors  the  highway  commis- 
sioner of  a town  is  empowered  to  erect  a bridge  and  make  valid  contracts 
therefor.  Berlin  Iron  Bridge  Co.  v.  Wagner,  32  N.  Y.  St.  Rep.  407,  10  N.  Y. 
Supp.  840.  But  see  Birge  v.  Berlin  Iron  Bridge  Co.,  133  N.  Y.  477,  s.  c.  45. 
N.  Y.  St.  Rep.  874. 

2.  For  form  of  application  of  taxpayers  to  board  of  supervisors,  see  Form 
No.  149,  post;  for  form  of  notice  to  highway  commissioners,  see  Form  No. 
150,  post ; for  form  of  proof  of  service  of  notice,  see  Form  No.  151,  post;  and 
for  form  of  order  and  resolution  adopted  by  board  of  supervisors,  see  Form 
No.  152,  post. 

3.  Location  of  bridge;  powers  of  board.  The  power  to  locate  a bridge  over 

a stream,  where  a highway  on  both  sides  thereof  has  been  laid  out  and  the 
town  has  voted  to  construct  such  bridge,  is  not  exclusively  vested  in  the  board 
of  supervisors.  Huggans  v.  Riley,  125  N.  Y.  88;  25  N.  E.  993.  In  this  case 
it  was  held  in  effect  that  the  provisions  of  the  act  of  1875,  ch.  482,  sec.  1, 
sub.  3,  from  which  the  above  section  was  derived,  did  not  take  away  the 
power  vested  in  the  commissioners  of  highways  as  to  the  care  and  superin- 
tendence of  the  highways;  and  that  under  the  power  given  to  those  officers 
to  repair  highways,  the  highway  commissioner  of  a town  may  build  a new  bridge 
when  necessary  to  connect  the  two  portions  of  a highway  interrupted  by 
an  intersecting  stream.  Boards  of  supervisors  have  been  granted  power  to 
authorize  the  construction  or  location  of  a bridge,  or  to  permit  a change  of 
location  thereof  by  any  town  or  towns  in  the  county,  or  by  an  individual  or 
corporation  residing  therein.  But,  as  was  said  by  Gray,  J.,  in  the  case  last 
cited:  “The  town  has  voted  for  a bridge  in  a certain  locality  and  has  assumed 

and  provided  for  the  expense  of  its  location.  For  the  court  to  hold  that  because 
the  precise  location  had  not  been  made  and  would  not  be  made  by  the  county 


982 


HIGHWAYS  AND  BRIDGES. 


County  Law,  § 64. 

other  than  by  a municipal  corporation,  establish  the  rates  of  toll  for  cross- 
ing such  bridge;4  but  if  such  bridge  is  to  cross  a navigable  stream,  provi- 
sion shall  be  made  in  the  resolution  or  permission  authorizing  the  same, 
for  the  erection  and  maintenance  of  a suitable  draw,  to  prevent  any  obstruc- 
tion of  the  navigation  of  such  stream;  and  if  a private  bridge,  provision 
shall  be  made  that  the  draw  shall  be  kept  open  as  may  be  required  to  per- 
mit all  vessels  to  pass  without  loss  of  headway.  When  such  bridge  shall 
be  intersected  by  the  line  of  counties,  the  action  of  the  board  of  supervisors 
of  each  county  shall  be  necessary  to  give  the  jurisdiction  herein  permitted. 
If  such  bridge  is  to  cross  a stream  which  is  navigable  in  fact,  it,  including 
its  abutements,  and  piers,  if  any,  shall  be  located  and  constructed  in  accord- 
ance with  maps,  plans  and  specifications  to  be  approved  by  the  state  en- 
gineer and  surveyor  and  by  the  superintendent  of  public  works,  and  not 
otherwise,  and  copies  of  such  maps,  plans  and  specifications  showing  the 
location,  character,  design  and  dimensions  of  such  bridge,  and  the  fact 
of  such  approval,  shall  be  filed  in  the  offices  of  the  state  engineer  and  sur- 
veyor and  of  the  superintendent  of  public  works.  [County  Law,  § 62,  as 
amended  by  L.  1918,  ch.  283;  B.  C.  & G.  Cons.  L.,  p.  753.] 

§ 3.  BOARD  OF  SUPERVISORS  MAY  PROVIDE  FOR  CONSTRUCTION 
OF  BRIDGES  DESTROYED  BY  THE  ELEMENTS,  IN  CERTAIN 
CASES. 

If  any  bridge  within  a county,  or  intersected  by  any  boundary  line 
of  a county,  shall  be  destroyed  by  the  elements,  and  the  board  of  supervisors 
of  the  county  shall  deem  that  the  expenses  of  the  construction  of  a new 


supervisors,  no  bridge  can  be  constructed  at  all,  would,  in  my  opinion,  be 
a view  of  the  statutory  regulations  on  that  subject,  which  is  quite  unwarrantable. 
I do  not  think  the  legislature  meant  any  such  thing,  and  its  acts  are  not 
susceptible  of  a construction  which  lodges  such  exclusive  power  in  the  county 
board  of  supervisors.” 

Construction  by  private  individual.  Any  person  owning  lands  on  both 
sides  of  a stream  may,  without  legislative  authority  and  even  in  defiance  of 
legislative  prohibition,  maintain  a ferry  or  bridge  for  his  own  use,  pro- 
viding he  does  not  interfere  with  the  public  easement.  Such  owner  cannot, 
however,  without  legislative  authority  maintain  a bridge  or  ferry  for  public 
use.  Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  178.  And  in  the  case  of  People 
ex  rel.  Howell  v.  Jessup,  160  N.  Y.  249;  54  N.  E.  682,  it  was  held  that  the 
town  of  Southampton  had,  in  the  month  of  June,  1888,  sovereign  power  as 
to  lands  under  water  in  Great  South  Bay,  and  could  give  authority  to  an 
owner  on  the  main  land  to  construct  a bridge  to  the  sand  bar  on  the  opposite 
side  of  the  bay,  also  owned  by  him,  where  such  bridge  was  not  an  unreasonable 
obstruction  to  navigation. 

4.  Rates  of  toll.  Boards  of  supervisors  may  regulate  rates  of  toll.  See 
County  Law,  sec.  72,  post,  p.  988;  Transportation  Corporations  Law,  sec.  136. 


DUTIES  OF  SUPERVISORS  AS  TO  HIGHWAYS  AND  BRIDGES.  983 
County  Law,  § 63. 

bridge  at  or  near  the  site  of  the  bridge  so  destroyed  would  be  too  burden- 
some upon  the  town  or  towns  within  such  county,  which  would  otherwise 
be  liable  therefor,  the  board  of  supervisors  of  any  such  county  may  provide 
for  the  construction  and  completion  of  a bridge  and  all  necessary  approaches 
thereto,  at  or  near  the  site  of  the  bridge  so  destroyed.  If  the  bridge  so 
destroyed  shall  have  been  constructed  by  a corporation  created  under  a 
general  law,  and  the  site  thereof,  and  the  approaches  thereto,  or  either, 
shall  be  the  property  of  such  corporation,  such  board  of  supervisors  may 
purchase  the  interest  of  such  corporation,  or  any  other  person,  in  such  site 
or  approaches,  if  such  purchase  can  be  accomplished  upon  reasonable 
terms;  but  if  such  site  or  approaches  cannot  be  lawfully  acquired  by  such 
purchase,  or  otherwise,  upon  reasonable  terms,  such  board  may  acquire  title 
to  premises  on  either  side  of  such  site,  and  provide  for  the  construction  of 
a bridge  and  approaches  thereto,  at  such  place,  at  the  expense  of  the  county, 
or  of  the  two  counties  jointly,  as  the  case  may  be,  provided  such  bridge 
shall  be  so  located  as  not  to  increase  the  distance  to  be  traveled  upon  the 
highway  to  reach  each  end  of  such  bridge  more  than  five  rods.  Any  board 
of  supervisors  providing  for  the  construction  of  any  such  bridge  may 
determine  by  resolution  whether  the  expenses  of  the  maintenance  and 
repair  thereof  shall  thereafter  be  a county  charge,  or  a charge  upon  such 
town  or  towns.  [County  Law,  § 64;  B.  C.  & G.  Cons.  L.,  p.  755.] 

§ 4.  BOARD  OF  SUPERVISORS  MAY  AID  TOWNS  IN  THE  CON- 
STRUCTION AND  REPAIR  OF  BRIDGES. 

If  the  board  of  supervisors  of  any  county  shall  deem  any  town  in  the 
county  to  be  unreasonably  burdened  by  its  expenses  for  the  construction 
and  repair  of  its  bridges,  the  board  may  cause  a sum  of  money,  not  exceed- 
ing two  thousand  dollars  in  any  one  year,  to  be  raised  by  the  county  and 
paid  to  such  town  to  aid  in  defraying  such  expenses.5  [County  Law,  § 63, 
B.  C.  & G.  Cons.  L.,  p.  754.] 


5.  Unreasonable  burden.  Since  1801  statutes  have  existed  relieving  towns 
from  unreasonable  burdens  in  the  construction  of  bridges.  People  ex  rel.  Root 
v.  Supervisors  of  Steuben  Co.,  81  Hun  216,  30  N.  Y.  Supp.  729,  affd.  in  146 
N.  Y.  107;  as  to  liability  of  county  to  contribute.  See  Hill  v.  Supervisors  of 
Livingston,  12  N.  Y.  52;  People  v.  Supervisors  of  Dutchess,  1 Hill  50;  Phelps 
v.  Hawley,  52  N.  Y.  27. 

Aid  of  county.  The  board  of  supervisors  may  appropriate  county  moneys 
for  the  aid  of  a town  which  is  unreasonably  burdened  by  the  construction  of 
bridges,  although  the  town  has  already  bonded  itself  for  such  purpose.  The 
money  so  appropriated  may  be  expended  for  the  payment  of  bonds.  Knowles 
v.  Board  of  Supervisors  of  Chemung  Co.,  112  App.  Div.  138,  97  N.  Y.  Supp. 
1111. 


984 


HIGHWAYS  AND  BRIDGES. 


County  Law,  §§  65-67. 

§ 5.  APPORTIONMENT  OF  EXPENSES  WHEN  A BRIDGE  IS  INTER- 
SECTED BY  TOWN  OR  COUNTY  LINES. 

If  any  public  free  bridge,  intersected  by  the  boundary  line  of  a county 
shall  also  be  intersected  by  the  boundary  line  of  two  or  more  towns 
in  such  county,  the  board  of  supervisors  of  such  county  shall  apportion  as  it 
shall  deem  equitable,  between  such  towns,  their  respective  shares  of  the 
expenses  of  the  construction,  maintenance  and  repair  of  such  bridge,  and  the 
amount  to  be  received  by  each  town  of  the  money  raised  by  the  county  to 
be  paid  toward  defraying  the  expenses  of  constructing  and  repairing  such 
bridge.6 

The  provisions  of  chapter  four  hundred  and  thirty-nine  of  the  laws  of 
eighteen  hundred  and  eighty-one  shall  apply  and  continue  in  force  so  far  as 
relates  to  or  affects  any  bridges  constructed  thereunder  before  the  sixth 
day  of  May,  eighteen  hundred  and  ninety.  [County  Law,  § 65;  B.  C.  & 
G.  Cons.  L.,  p.  755.] 

§ 6.  COUNTY’S  SHARE  OF  EXPENSES  TO  BE  RAISED  AND  PAID  TO 
THE  COMMISSIONERS  OF  HIGHWAYS  OF  THE  TOWNS. 

The  board  of  supervisors  shall  cause  to  be  raised  and  collected  the  amount 
to  be  paid  by  the  county  to  any  town  toward  the  expenses  of  a bridge  and 
when  collected  the  same  shall  be  paid  to  the  commissioners  of  highways 
of  the  town,  to  be  applied  by  them  toward  the  payment  of  such  expenses. 
[County  Law,  § 66;  B.  C.  & G.  Cons.  L.,  p.  756.] 

§ 7.  BOARD  OF  SUPERVISORS  MAY  AUTHORIZE  A TOWN  TO  CON- 
STRUCT A BRIDGE  OUTSIDE  OF  A BOUNDARY  LINE. 

The  board  of  supervisors  of  any  county  may  authorize  any  town,  on  a 


6.  Bridges  over  county  boundaries  are  to  be  erected,  maintained,  and 
repaired  by  the  towns,  and  the  county  is  liable  to  pay  not  less  than  one-sixth 
of  the  expense  of  such  erection,  maintenance  and  repair.  See  Highway  Law, 
sec.  130,  ante,  p.  945. 

Apportionment  of  expense.  Supervisors  may  apportion  expense  on  their  own 
motion.  People  ex  rel.  Morrill  v.  Supervisors  of  Queens,  112  N.  Y.  585.  The 
power  of  apportioning  vested  in  the  supervisors  is  permissive  only.  Surdam 
v.  Fuller,  31  Hun  500.  But  see  People  ex  rel.  Root  v.  Supervisors  of  Steuben 
Co.,  81  Hun  216,  30  S.  Y.  Supp.  729;  People  ex  rel.  Otsego  Co.  Bank  v.  Super- 
visors, 51  N.  Y.  401. 

Board  of  supervisors  may  compel  erection  of  a bridge  between  towns  and 
impose  tax  on  such  towns  to  pay  cost  thereof,  notwithstanding  one  of  the  towns 
be  opposed  thereto.  Town  of  Kirkwood  v.  Newbury,  122  N.  Y.  571,  affg.  45 
Hun  323. 


DUTIES  OF  SUPERVISORS  AS  TO  HIGHWAYS  AND  BRIDGES.  985 


County  Law,  § 68. 

vote  of  a majority  of  the  electors  thereof  voting  at  a regular  town  meeting, 
to  appropriate  a sum,  or  pledge  its  credit,  partly  or  wholly  construct  and 
maintain  a bridge  outside  the  boundaries  of  the  town  or  county,  or  from 
or  within  the  boundary  line  of  any  town  into  another  town  or  county,  but 
forming  a continuation  of  highways  leading  from  such  town  or  county,  and 
deemed  necessary  for  the  public  convenience.  [County  Law,  § 67;  B. 
C.  & G.  Cons.  L.,  p 756.] 


§ 8.  MAINTENANCE  OF  BRIDGES  OVER  COUNTY  LINES. 

The  board  shall  provide  for  the  care,  maintenance,  preservation  and 
repair  of  any  draw  or  other  bridge  intersecting  the  boundary  line  of 
counties  or  towns,  which  bridge  is  by  law  a joint  charge  on  such  counties 
or  towns,  or  on  the  towns  in  which  it  is  situated;  and  to  severally  appor- 
tion, as  it  may  deem  equitable,  the  expenses  thereof  on  the  towns  respec- 
tively liable  therefor,  or  on  the  respective  counties  when  liable;  but  when 
such  bridge  shall  span  any  portion  of  the  navigable  tide-waters  of  this  state, 
forming,  at  the  point  of  crossing,  the  boundary  line  between  two  counties, 
such  expense  shall  be  a joint  and  equal  charge  upon  the  two  counties 
in  which  the  bridge  is  situated,  and  the  board  of  supervisors  in  each  of  such 
counties  shall  apportion  such  expense  among  the  several  towns  and  cities 
in  their  respective  counties,  or  upon  any  or  either  of  such  towns  and 
cities,  as  in  their  judgment  may  seem  proper;  and  if  there  be  in  either  of 
said  counties,  a city,  the  boundaries  of  which  are  the  same  as  the  bound- 
aries of  the  county,  then  it  shall  be  the  duty  of  the  common  council  of 
such  city,  to  perform  the  duty  hereby  imposed  upon  the  boards  of  super- 
visors; but  no  town  or  city  not  immediately  adjacent  to  such  waters,  at 
the  points  spanned  by  said  bridge  shall  be  liable  for  a larger  proportion  of 
such  expense  than  the  taxable  property  of  such  town  or  city  bears  to  the 
whole  amount  of  taxable  property  of  such  county.* * 7  The  board  of  super- 


As  to  power  of  legislature  to  impose  tax,  see  People  ex  rel.  Kilmer  v. 

McDonald,  69  N.  Y.  362;  People  ex  rel.  McLean  v.  Flagg,  46  N.  Y.  401. 

7.  Liability  of  counties;  defective  bridge.  Whether  the  maintenance  of 
highways  and  bridges  is  devolved  as  a duty  upon  the  towns  or  upon  the 
counties  of  the  state,  it  must  be  regarded  as  a duty,  in  its  nature,  public  and 
governmental;  and  this  is  especially  so  in  respect  to  the  duty  imposed  by  the 
above  section  upon  counties  of  maintaining  a bridge  which  spans  navigable 
waters  of  the  state,  forming  a boundary  line  between  two  counties.  Markey 
v.  County  of  Queens,  154  N.  Y.  675;  49  N.  E.  71.  In  this  case  Gray,  J.,  said: 
“ The  conclusion  I have  reached,  after  a careful  consideration  of  the  subject, 
is  that,  in  the  work  of  constructing  the  bridge  in  question,  the  board  of  super- 
visors were  executing  a certain  public  duty,  imposed  upon  them  as  the  proper 


986 


HIGHWAYS  AND  BRIDGES. 


County  Law,  § 70. 

visors  of  such  counties  or  in  any  city  embracing  the  entire  county,  and 
having  no  board  of  supervisors,  the  common  council  shall  have  full  con- 
trol of  such  bridges.  No  such  bridge  shall  be  constructed  unless  the  board 
of  supervisors  in  each  of  such  counties,  and  the  common  council  of  the  city 
whose  boundaries  are  the  same  as  the  boundary  of  the  other  county  adjacent 
to  such  waters,  shall  first  by  resolution  determine  that  such  bridge  is 
necessary  for  public  convenience,  in  which  case  such  common  council,  with 
the  consent  of  the  mayor,  may  authorize  the  issue  of  bonds  for  the  purpose 
of  constructing  such  bridge,  to  be  issued  as  other  bonds  are  issued  in  said 
city.  Whenever  any  bridge  now  spanning  any  such  navigable  tide-waters 
or  hereafter  erected  across  any  such  navigable  tide-waters,  shall  be  con- 
demned by  the  United  States  authorities  as  an  obstruction  to  navigation, 
and  shall  be  ordered  removed,  the  county  and  city  authorities  having  charge 
of  such  bridge,  if  they  shall  determine  that  such  bridge  shall  be  rebuilt,  shall, 
as  soon  as  practicable  after  such  determination,  cause  plans  to  be  prepared 
for  the  erection  of  the  new  bridge  and  the  removal  of  any  bridge  so  con- 
demned as  foresaid,  and  within  a reasonable  time  after  the  approval  of  any 
such  plans  by  the  United  States  authorities,  the  proper  officers  shall  proceed 
with  the  construction  of  said  new  bridge.  In  case  of  any  unreasonable  delay 
on  the  part  of  the  officer  or  officers  charged  with  the  duty  of  construction 
of  such  new  bridge,  such  duty  may  be  enforced  by  mandamus  upon  the 
application  of  any  citizen  interested  in  its  performance.  [County  Law, 
§ 68;  B.  C.  & G.  Cons.  L.,  p.  756.] 


§ 9.  BOARDS  OF  SUPERVISORS  MAY  MAP  OUT  STREETS  AND 
AVENUES  IN  TOWNS  OUTSIDE  OF  CITY  LIMITS. 

When  any  territory  in  a county  containing  an  incorporated  city  of  one 
hundred  thousand  inhabitants  or  upward,  lying  outside  the  limits  of  such 


public  agents  in  that  particular  civil  division  of  the  state,  and  that  the  county 
could  not  be  subjected  to  a private  action  for  injuries  occurring  in,  or  by  reason 
of,  the  performance  of  the  work.” 

The  liability  only  exists  where  there  is  a lawful  highway  which  would  be 
connected  by  a bridge  over  navigable  waters  dividing  the  counties.  Beckwith 
v.  Whalen,  70  N.  Y.  430;  People  ex  rel.  Keene  v.  Supervisors,  151  N.  Y.  190; 
45  N.  E.  453.  In  this  case  it  appeared  that  a turnpike  had  been  abandoned,  and 
that  its  road  had  been  carried  over  a navigable  tidal  stream  forming  the  bound- 
ary between  two  counties  by  a bridge  which  had  existed  from  1836  to  1878;  it 
was  held  that  the  turnpike  upon  its  abandonment  became  a public  highway, 
and  that  the  statutory  duty  of  rebuilding  the  bridge  rests  upon  .the  boards  of 
supervisors  of  the  two  counties. 


DUTIES  OF  SUPERVISORS  AS  TO  HIGHWAYS  AND  BRIDGES.  987 


County  Law,  § 70. 

city,  has  been  mapped  into  streets  and  avenues  pursuant  to  law,  the  board 
of  supervisors  may  authorize  the  establishment  of  a plan  for  the  grade  of 
such  streets  and  avenues;  the  alteration  of  such  plan  of  grades,  or  of  any 
plan  thereof  that  shall  have  been  established  by  law;  the  laying  out, 
opening,  grading,  constructing,  closing  and  change  of  line  or  width,  of  any 
one  or  more  of  them,8  and  provide  for  the  assessment  on  property  intended 
to  be  benefited  thereby,  and  fixing  assessment  districts  therefor,  and  for 
the  levy,  collection  and  payment  of  the  amount  of  damages  sustained  and 
the  charges  and  expenses  incurred,  or  which  may  be  necessary  to  incur  in 
carrying  out  such  provisions;  the  laying  out  of  new  or  additional  streets 
and  avenues  upon  the  established  map  or  plan  thereof,  the  acceptance  by 
town  officers  of  conveyances  of  lands,  for  public  highways,  the  naming  and 
changing  of  names  of  streets  and  avenues  laid  down  on  said  map  or  plan, 
and  the  numbering  or  renumbering  of  houses  and  building  lots  fronting 
on  such  streets  and  avenues.  But  such  last  named  power  in  regard  to  the 
alteration  of  said  map  or  plan,  laying  out,  opening,  grading,  constructing, 
closing  and  change  of  line,  of  such  streets  or  avenues,  or  the  numbering  or 
naming  thereof,  or  defraying  the  expenses  thereof,  shall  only  be  exercised 
on  the  petition  of  the  property  owners,  who  own  more  than  one-half  of  the 
frontage  on  any  such  street  or  avenue,  or  on  a certificate  of  the  town  board 
and  commissioners  of  highways  of  the  town,  that  the  same  is,  in  their 
judgment,  proper  and  necessary  for  the  public  interest.  If  the  streets  and 
avenues,  in  respect  to  which  such  action  is  proposed  to  be  taken,  shall  lie 
in  two  or  more  towns,  a like  certificate  shall  be  required  of  the  town  board 
and  commissioners  of  highways,  of  each  town.  Before  making  such 
certificate,  such  town  board,  or  boards  and  commissioners  of  highways,  shall 
give  ten  days’  notice  by  publication  in  one  of  the  daily  papers  of  the  county, 
and  by  conspicuously  posting  in  six  public  places  in  each  of  such  towns,  of 
the  time  and  place  at  which  they  will  meet  to  consider  the  same,  at  which 
meeting  the  public,  and  all  persons  interested,  may  appear  and  be  heard  in 
relation  thereto.  No  such  street  or  avenue  shall  be  laid  out,  opened  or  con- 
structed, upon  or  across  any  lands  acquired  by  the  right  of  eminent  domain, 
and  held  in  fee  for  depot  purposes  by  any  railroad  corporation,  or  upon  or 
across  any  lands  now  held  by  a corporation  formed  for  the  purpose  of  im- 
proving the  breed  of  horses,  without  the  consent  of  such  corporations. 
No  town  officer  shall  charge  anything  for  his  services  under  this  section, 


8.  Under  the  Constitution,  Article  3,  § 27,  the  legislature  is  empowered  to 
grant  the  powers  herein  provided.  A resolution  is  not  objectionable  which 
embraces  more  than  one  street,  under  Article  3,  § 16,  of  the  Constitution,  the 
Constitutional  inhibition  applying  only  to  acts  of  the  legislature.  Robert  v. 
Supervisors  of  Kings,  3 App.  Div.  366,  38  N.  Y.  Supp.  521. 


988 


HIGHWAYS  AND  BRIDGES. 


County  Law,  §§  71,  72. 

nor  shall  any  charge  be  made  against  any  such  town  or  the  property  therein, 
for  the  expense  of  the  publication  of  the  notice  herein  required.  [County 
Law,  § 70 ; B.  C.  & G.  Cons.  L.,  p.  758.] 


§ 10.  BOARD  OF  SUPERVISORS  MAY  AUTHORIZE  COMMISIONERS 
OF  HIGHWAYS  TO  CAUSE  SURVEY  OF  HIGHWAYS  TO  BE 
MADE. 

The  board  may  authorize  and  direct  the  commissioners  of  highways  of 
any  town  to  cause  a survey  to  be  made,  at  the  expense  of  the  town,  of  any 
or  all  of  the  highways  therein,  and  to  make  or  complete  a systematic  record 
thereof,  or  to  revise,  collate  and  rearrange  existing  records  of  highways, 
and  to  correct  and  verify  the  same  by  new  surveys  and  to  establish  the 
location  of  highways  by  suitable  monuments.  Such  records  so  made,  or 
revised,  corrected  and  verified,  shall  be  deposited  with  the  town  clerk  of  the 
town,  and  shall  thereafter  be  the  lawful  records  of  the  highways  which  they 
describe ; but  shall  not  affect  rights  pending  in  any  judicial  proceeding  com- 
menced before  the  deposit  of  such  revised  records  with  the  town  clerk. 
[County  Law,  § 71 ; B.  C.  & G.  Cons.  L.,  p.  760.] 


§11.  BOARD  OF  SUPERVISORS  MAY  REGULATE  TOLL  RATES. 

Such  boards  shall  have  power,  by  a vote  of  two-thirds  of  all  the  members 
elected  to  authorize  an  alteration,  reduction  or  change  of  the  rates  of 
toll  charged  or  received  by  any  turnpike,  plank  or  gravel  road,  or  other 
toll  road  within  such  county,  or  by  any  bridge  company  or  ferry  within 
such  county,  or,  if  within  more  than  one  county,  then  by  joint  action  with 
the  supervisors  of  such  counties,  provided  such  alteration  shall  be  asked 
for  by  the  directors,  trustees  or  owners  of  such  road,  bridge  or  ferry; 9 but 
that  no  increase  of  toll  shall  be  so  authorized  unless  notice  of  intention  to 
apply  for  such  increase  shall  have  been  published  in  each  of  the  news- 
papers published  in  such  county,  once  in  each  week  for  six  successive 
weeks  next  before  the  annual  election  of  supervisors  in  such  county;  and 
any  alteration  in  rates  of  toll  authorized  by  any  hoard  of  supervisors  may 
be  changed  or  modified  by  any  subsequent  board,  on  their  own  motion,  by 
a like  vote  of  two-thirds  of  all  of  the  members  elected  to  such  board;  but 
nothing  herein  contained  shall  affect  or  abridge  the  powers  of  any  city. 
[County  Law,  § 72 ; B.  C.  & G.  Cons.  L.,  p.  760.] 


9.  Tolls  of  plank  road,  turnpike  and  bridge  corporations  are  also  to  be  regu- 
lated and  controlled  under  Transportation  Corporations  Law,  sec.  136.  Rates 
of  ferriage  to  be  posted.  Highway  Law,  sec.  274,  ante,  p.  959. 


DUTIES  OF  SUPERVISORS  AS  TO  HIGHWAYS  AND  BRIDGES.  939 


County  Law,  §§  73-76. 

§ 12.  POWERS  OF  BOARDS  OF  SUPERVISORS  AS  TO  HIGHWAYS 
IN  COUNTIES  OF  MORE  THAN  300,000  ACRES  OF  UNIM- 
PROVED LAND. 

The  board  may  establish  separate  highway  districts  in  counties  con- 
taining more  than  three  hundred  thousand  acres  of  unimproved  unoc- 
cupied forest  lands,  for  the  purpose  of  constructing  highways  through  such 
lands;  such  highway  districts  to  be  established  upon  the  application  of  the 
owners  of  more  than  one-half  of  the  non-resident  lands  therein.  Any 
such  highway  district  shall  consist  of  contiguous  tracts  or  parcels  of  land, 
and  may  include  parts  of  one  or  more  towns;  and  they  may  be  changed, 
altered  or  abolished  at  any  time  by  the  board.  Such  board  may  appoint 
one  or  more  commisioners  to  lay  out  and  construct  such  highways  in  any 
such  district,  and  prescribe  the  powers  and  duties,  and  direct  the  manner 
in  which  highway  taxes  shall  be  assessed,  levied  and  collected  upon  the 
lands  within  the  district,  and  the  manner  of  expenditure  thereof. 

They  may  also  authorize  such  commissioners  to  borrow  money  on  such 
terms  as  they  may  deem  just,  but  not  exceeding  the  amount  of  ten  years’ 
highway  taxes  upon  such  lands ; and  may,  for  the  purpose  of  repaying  such 
loan,  set  apart  and  appropriate  the  highway  taxes  upon  such  lands,  for  a 
period  not  exceeding  ten  years  from  the  time  of  making  such  loan.  [County 
Law,  § 73 ; B.  C.  & G.  Cons.  L.,  p.  760.] 


§ 13.  APPROPRIATION  OF  CERTAIN  NONRESIDENT  HIGHWAY 
TAXES. 

The  board  may,  upon  the  application  of  the  owners  representing  a ma- 
jority in  value,  as  shall  be  ascertained  from  the  last  annual  assessment-roll 
of  the  real  estate  lying  along  the  line  of  any  highway,  laid  out  through 
unimproved  lands,  in  cases  not  provided  for  in  the  last  preceding  section 
authorize  the  appropriation  of  the  non-resident  highway  tax  on  the  lands 
lying  along  such  line,  for  the  improvement  of  such  highways.  [County 
Laws,  § 74;  B.  C.  & G.  Cons.  L.,  p.  761.] 

§ 14.  BALANCE  OF  STATE  APPROPRIATIONS. 

The  board  may  direct  the  expenditure  of  any  non-resident  highway  or 
bridge  tax,  set  apart  by  an  act  of  the  legislature,  in  counties  wherein  such 
nonresident  lands  are  situated,  when  the  official  life  of  commissioners 
appointed  to  receive  and  expend  such  taxes  has  expired.  [County  Law, 
§ 75;  B.  C.  & G.  Cons.  L.,  p.  761.] 

§ 15.  ALTERATION  OF  STATE  ROADS. 

The  board  may  authorize  the  commissioners  of  highways  of  any  town  in 


HIGHWAYS  AND  BRIDGES. 


990 


County  Law,  §§  77-80. 

their  county  to  alter  or  discontinue  any  road  or  highway  therein,  which 
shall  have  been  laid  out  by  the  state  under  the  same  conditions  that  would 
govern  their  actions  in  relation  to  highways  that  have  been  laid  out  by 
local  authorities.  [County  Law,  § 76;  B.  C.  & G.  Cons.  L.,  p.  761.] 

§ 16.  FURTHER  POWERS  OF  BOARD  OF  SUPERVISORS  AS  TO 
HIGHWAYS. 

The  board  may  make  such  other  local  and  private  laws  and  regulations 
concerning  highways,  alleys,  bridges  and  ferries  within  the  county,  and  the 
assessment  and  apportionment  of  highway  labor  or  taxes  therefor,  not  in- 
consistent with  law,  as  it  may  deem  necessary  and  proper,  when  the  pur- 
poses of  such  laws  and  regulations  cannot  be  accomplished  under  the  fore- 
going provisions  or  the  general  laws  of  the  state.  [County  Law,  § 77 ; B.  C. 
& G.  Cons.  L.,  p.  761.] 

§ 17.  BOARD  OF  SUPERVISORS  MAY  PASS  LAWS  AS  TO  USE  OF 
WIDE  TIRE  ON  HIGHWAYS. 

The  board  of  supervisors  may  enact  local  and  private  laws  regulating  the 
width  of  tires  used  on  vehicles  built  to  carry  a weight  of  fifteen  hundred 
pounds  or  upwards,  and  may  provide  penalties  for  the  violation  thereof. 
[County  Law,  § 78;  B.  C.  & G.  Cons.  L.,  p.  762.] 

§ 18.  USE  OF  ABANDONED  TURNPIKE,  PLANK  OR  MACADAMIZED 
ROADS. 

Boards  of  supervisors  shall  have  power  to  provide  for  the  use  of  aban- 
doned turnpike,  plank  or  macadamized  roads  within  any  town  as  public 
highways ; but  jurisdiction  in  such  a case  shall  not  be  exercised  without  the 
assent  of  two-thirds  of  all  the  members  elected  to  such  board,  to  be 
determined  by  yeas  and  nays,  which  shall  be  entered  on  its  minutes. 
[County  Law,  § 79 ; B.  C.  & G.  Cons.  L.,  p.  762.] 

§ 19.  DEFINITION  OF  “ UPON  ITS  BORDERS.” 

Whenever  the  words  “ upon  its  borders  ” are  used  in  this  article  in 
reference  to  the  boundary  line  between  two  towns,  the  same  are  and  were 
intended  and  shall  be  construed  to  mean  “ upon,”  “ along,”  and  “ across 
its  borders.”  [County  Law,  § 80;  B.  C.  & G.  Cons.  L.,  p.  762.] 


RAILROADS  CROSSING  HIGHWAYS. 


991 


Railroad  Law,  § 89. 


CHAPTER  LXVIII. 

RAILROADS  CROSSING  HIGHWAYS. 


Section  1.  Steam  surface  railroads  not  to  cross  highways  at  grade;  public 
service  commission  to  determine  manner  of  crossing. 

2.  Laying  out  new  streets  or  highways  over  railroads;  notice  to 

railroad  company;  manner  of  crossing. 

3.  Changes  in  existing  crossings;  application  to  public  service  com- 

mission; notice;  decision;  appeal. 

4.  Acquisition  of  land  right,  or  easement  in  crossing. 

5.  Repair  of  bridges  and  subways  at  crossing. 

6.  Payment  of  cost  of  construction. 

7.  Proceedings  of  public  service  commission  for  alteration  of  grade 

crossings. 

8.  Proceedings  to  compel  compliance  with  recommendations  of  board 

of  public  service  commission. 

9.  Town,  village  or  city  may  borrow  money  and  issue  bonds. 


§ 1.  STEAM  SURFACE  RAILROADS  NOT  TO  CROSS  HIGHWAYS  AT 
GRADE;  PUBLIC  SERVICE  COMMISSION  TO  DETERMINE 
MANNER  OF  CROSSING. 

All  steam  surface  railroads  built  after  the  first  day  of  July,  eighteen 
hundred  and  ninety-seven,  except  additional  switches  and  sidings,  must 
be  so  constructed  as  to  avoid  all  public  crossings  at  grade,  whenever 
practicable  so  to  do.  Whenever  application  is  made  to  the  public  service 
commission  under  section  nine  of  this  chapter  there  shall  be  filed  with 
the  commission  a map  showing  the  streets,  avenues,  highways  and  roads 
proposed  to  be  crossed  by  the  new  construction,  and  the  commission 
shall  determine  whether  such  crossings  shall  be  under  or  over  the  pro- 
posed railroad,  except  where  the  commission  shall  determine  such 
method  of  crossing  to  be  impracticable.  Whenever  an  application  is 
made  under  this  section  to  determine  the  manner  of  crossing,  the  com- 
mission shall  designate  a time  and  place  when  and  where  a hearing  will 
be  given  to  such  railroad  company,  and  shall  notify  the  municipal  cor- 
poration having  jurisdiction  over  the  streets,  avenues,  highways  or  roads 
proposed  to  be  crossed  by  the  new  railroad.  The  commission  shall  also 
give  public  notice  of  such  hearing  in  at  least  two  newspapers,  published 


992 


HIGHWAYS  AND  BRIDGES. 


Railroad  Law,  § 90. 

in  the  locality  affected  by  the  application,  and  all  persons  owning  land 
in  the  vicinity  of  the  proposed  crossing  shall  have  the  right  to  be  heard. 
Upon  such  a notice  and  after  a hearing,  the  public  service  commission 
may  determine  that  alterations  or  changes  may  be  made  in  any  existing 
highway,  at  or  in  the  vicinity  of  a proposed  crossing  for  the  purpose 
of  avoiding  a crossing  at  grade. 

The  decision  of  the  commission  rendered  in  any  proceedings  under 
this  section  shall  be  communicated,  within  twenty  days  after  final  hear- 
ing, to  all  parties  to  whom  notice  of  the  hearing  in  said  proceedings 
was  given,  or  who  appeared  at  said  hearing  by  counsel  or  in  person. 

| Railroad  Law,  (L.  1910,  ch.  481),  § 89,  as  amended  by  L.  1913,  chs. 
425,  744,  and  L.  1914,  ch.  378.] 

§ 2.  LAYING  OUT  NEW  STREETS  OR  HIGHWAYS  OYER  RAILROADS? 

NOTICE  TO  RAILROAD  COMPANY;  MANNER  OF  CROSSING. 

When  a new  street,  avenue,  highway  or  road  or  new  portion  or  ad- 
ditional width  of  a street,  avenue,  highway  or  road,  or  a state  or  county 
highway  or  county  road  deviating  from  the  line  of  an  existing  highway 
or  road,  shall  hereafter  be  constructed  across  a steam  surface  railroad, 
other  than  pursuant  to  the  provisions  of  section  ninety-one  of  this 
chapter,  such  street,  avenue,  highway  or  road  or  portion  of  such  street, 
avenue,  highway  or  road,  shall  pass  over  or  under  such  railroad  or  at 
grade,  as  the  public  service  commission  shall  direct.  Notice  of  intention 
to  lay  out  such  street,  avenue,  highway,  or  road,  or  new  portion  of  a 
street,  avenue,  highway  or  road,  across  a steam  surface  railroad  shall 
be  given  to  such  railroad  company  by  the  municipal  corporation  at  least 
fifteen  days  prior  to  the  making  of  the  order  laying  out  such  street,, 
avenue,  highway  or  road  by  service  personally  on  the  president  or  vice- 
president  of  the  railroad  corporation,  or  any  general  officer  thereof. 
In  case  of  the  construction  of  a state  or  county  highway  Avhich  deviates- 
from  the  line  of  an  existing  highway  across  a steam  surface  railroad,, 
a like  notice  shall  he  given  to  such  railroad  company  by  the  state  com- 
mission of  highways  at  least  fifteen  days  prior  to  the  adoption  of  the 
maps,  plans  and  specifications  for  such  state  or  county  highway  by  such 
commission.  Such  notice  shall  designate  the  time  when  and  place  where 
a hearing  will  be  given  to  such  railroad  company,  and  such  railroad 
company  shall  have  the  right  to  be  heard  before  the  authorities  of  such 
municipal  corporation  upon  the  question  of  the  necessity  of  such  street, 

1.  Necessity  of  notice.  Notice  must  be  given  to  the  railroad  company  over 
whose  tracks  it  is  proposed  to  lay  out  a highway,  although  proceedings  to  lay  out 
such  highway  were  instituted  prior  to  the  Grade  Crossing  Act  of  1897,  which  added 
the  above  section  to  the  Railroad  Law.  Matter  of  Ludlow  Street,  59  App.  Div.  180; 
GS  N.  Y.  Supp.  1046;  see,  also,  Matter  of  Village  of  Waverly,  35  App.  Div.  38;  54 
N.  Y.  Supp.  368. 


RAILROADS  CROSSING  HIGHWAYS. 


99S 


Railroad  Law,  § 90. 

avenue,  highway  or  road  or  new  portion  or  additional  width  of  such 
street,  avenue,  highway  or  road,  or  before  the  state  commission  of  high- 
ways in  case  of  a state  or  county  highway,  on  the  question  of  the  location 
of  such  highway.  If  the  municipal  corporation  determines  such  street, 
avenue,  highway  or  road  or  new  portion  or  additional  width  of  such 
street,  avenue,  highway  or  road  to  be  necessary,  or  if  the  state  commis- 
sion of  highways  determines  that  such  state  or  county  highway  which 
deviates  from  the  line  of  an  existing  highway  shall  be  constructed  across 
such  railroad  at  the  place  indicated  in  the  maps,  plans  and  specifications 
therefor,  such  municipal  corporation  or  commission  of  highways  shall 
then  apply  to  the  public  service  commission  before  any  further  proceed- 
ings are  taken,  to  determine  whether  such  street,  avenue,  highway  or 
road  or  new  portion  or  additional  width  of  such  street,  avenue,  highway 
or  road  shall  pass  over  or  under  such  railroad  or  at  grade.  The  public 
service  commission  shall  thereupon  appoint  a time  and  place  for  hearing 
such  application,  and  shall  give  such  notice  thereof  as  it  shall  judge 
reasonable,  not  however  less  than  ten  days,  to  the  railroad  company 
whose  railroad  is  to  be  crossed  by  such  new  street,  avenue,  highway  or 
road,  or  new  portion  or  additional  width  of  a street,  avenue,  highway 
or  road,  to  the  state  commissioner  of  highways,  or  in  the  case  of  a state 
or  county  highway  which  deviates  from  the  line  of  an  existing  highway, 
to  the  municipal  corporation  and  to  the  owners  of  land  adjoining  the 
railroad  and  that  part  of  the  street,  avenue,  highway  or  road  to  be 
opened,  extended  or  constructed.  The  public  service  commission  shall 
determine  whether  such  street,  avenue,  highway  or  road,  or  new  portion 
or  additional  width  of  a street,  avenue,  highway  or  road,  or  state  or 
county  highway  shall  be  constructed  over  or  under  such  railroad  or  at 
grade.  If  said  commission  shall  determine  that  such  street,  avenue, 
highway  or  road  or  new  portion  or  additional  width  of  such  street, 
avenue,  highway  or  road  shall  be  carried  across  such  railroad  above 
grade,  then  said  commission  shall  determine  the  height,  the  length  and 
the  material  of  the  bridge  or  structure  by  means  of  which  such  street, 
avenue,  highway  or  road  or  new  portion  or  additional  width  of  such 
street,  avenue,  highway  or  road  shall  be  carried  across  such  railroad, 
and  the  length,  character  and  grades  of  the  approaches  thereto.  If 
said  commission  shall  determine  that  such  street,  avenue,  highway  or 
read  shall  be  constructed  or  extended  below  the  grade,  said  commission 
shall  determine  the  manner  and  method  in  which  the  same  shall  be  so 
carried  under,  and  the  grade  or  grades  thereof,  and  if  said  commission 
shall  determine  that  said  street,  avenue,  highway  or  road  or  new  portion 
or  additional  width  of  such  street,  avenue,  highway  or  road  shall  be 


994 


HIGHWAYS  AND  BRIDGES. 


Railroad  Law,  § 91. 

constructed  or  extended  at  grade,  said  commission  shall  determine  the 
manner  and  method  in  which  the  same  shall  be  carried  over  said  rail- 
road at  grade  and  what  safeguards  shall  be  maintained.  The  decision 
of  the  commission  as  to  the  manner  and  method  of  carrying  such  new 
street,  avenue,  highway  or  road,  or  new  portion  or  additional  width  of 
a street,  avenue,  highway  or  road,  or  state  or  county  highway  which 
deviates  from  the  line  of  an  existing  highway,  across  such  railroad  shall 
be  final,  subject  however  to  the  right  of  appeal  hereinafter  given.  The 
decision  of  said  commission  rendered  in  any  proceeding  under  this 
section  shall  be  communicated  within  twenty  days  after  final  hearing 
to  all  parties  to  whom  notice  of  the  hearing  of  such  proceedings  was 
given,  or  who  appeared  at  such  hearing  by  counsel  or  in  person.l3i  [Rail- 
road Law  (L.  1910,  ch.  481),  § 90,  as  amended  by  L.  1913,  ch.  744,  and 
L.  1914,  ch.  378.] 

§ 8.  CHANGES  IN  EXISTING  CROSSINGS;  APPLICATION  TO  PUBLIC 
SERVICE  COMMISSION;  NOTICE;  DECISION;  APPEAL. 

The  mayor  and  common  council  of  any  city,  the  president  and  trus- 
tees of  any  village,  the  town  board  of  any  town,  the  board  of  supervisors 
of  any  county  within  which  a street,  avenue,  highway  or  road  or  new 
portion  or  additional  width  of  a street,  avenue,  highway  or  road  crosses 
or  is  crossed  by  a steam  surface  railroad  at  grade,  below  or  above  grade 
by  structures  heretofore  constructed,  or  any  steam  surface  railroad 
company,  whose  road  crosses  or  is  crossed  by  a street,  avenue,  highway 
or  road  or  new  portion  or  additional  width  of  such  street,  avenue,  high- 

la.  Application  must  be  made  to  public  service  commission  to  determine 
whether  street  crossing  shall  be  under  or  over  railroad  tracks,  or  at  grade, 

before  proceeding  to  acquire  railroad  lands  by  condemnation.  Matter  of  City 
of  New  York,  204  N.  Y.  465,  revg.  143  App.  Div.  258,  128  N.  Y.  Supp.  589. 

Matters  of  public  convenience  always  yield  to  matters  of  public  safety.  Even 
though  a proposed  highway  duly  laid  out  by  a town  board  must  cross  railroad 
tracks  at  grade  in  order  to  serve  the  convenience  of  the  public  desiring  access 
to  a neighboring  cold  storage  plant  which  is  the  chief  purpose  of  the  highway, 
the  Public  Service  Commission  may,  nevertheless,  require  that  the  highway  be 
taken  across  the  railroad  tracks  on  a viaduct  if  a crossing  at  grade  will  be 
dangerous.  Matter  of  Town  Board  of  Royalton,  138  App.  Div.  412,  122  N.  Y. 
Supp.  844. 

Lands  may  be  used  for  railroad  purposes  and  for  a highway  crossing  at  the 
same  time.  When  lands  in  use  as  a railroad  right  of  way  are  taken  by  con- 
demnation for  the  purpose  of  opening  a street  across  such  right  of  way,  the 
municipality  ordinarily  obtains  a common  right  with  the  railroad  company 
for  the  use  of  the  land  condemned  and  the  railroad  company  continues  to  use 
its  right  of  way  for  its  corporate  purposes  not  inconsistent  with  its  use  as  a 
street  crossing.  After  the  fee  of  land  over  which  a highway  is  to  be  opened 
is  obtained,  if  the  municipality  decides  that  the  public  interest  does  not  re- 
quire that  the  lands  be  immediately  opened  as  a public  highway,  and  it  conse- 
quently delays  opening  the  same,  it  does  not  thereby  either  lose  the  title  to 


RAILROADS  CROSSING  HIGHWAYS. 


905 


Railroad  Law,  § 91. 

way  or  road  at  grade,  below  or  above  grade,  may  bring  their  petition  in 
writing  to  the  public  service  commission,  therein  alleging  that  public 
safety  requires  an  alteration  in  the  manner  of  such  crossing,  its  ap- 
proaches, the  method  of  crossing,  the  location  of  the  crossing,  a change 
in  the  existing  structure  by  which  such  crossing  is  made,  the  closing  and 
discontinuance  of  a crossing  and  the  diversion  of  the  travel  thereon  to 
another  street,  avenue,  highway,  road  or  crossing,  or  if  not  practicable 
to  change  such  crossing  from  grade,  below  or  above  grade  or  to  close 
or  discontinue  the  same,  the  opening  of  an  additional  crossing  for  the 
partial  diversion  of  travel  from  the  grade  below  or  above  grade  crossing, 
and  praying  that  the  same  may  be  ordered.  Where  a street,  avenue, 
highway  or  road  or  new  portion  or  additional  width  of  a street,  avenue, 
highway  or  road  in  a city,  village,  town  or  county,  which  crosses  or  is 
crossed  by  a steam  surface  railroad  at  grade,  below  or  above  grade,  is  a 
part  of  a highway  which  the  state  commission  of  highways  shall  have 
determined  to  construct  or  improve  as  a state  or  county  highway,  as 
provided  in  article  six  of  the  highway  law,  such  commission  of  high- 
ways may  bring  a petition  containing  any  of  the  allegations  above  speci- 
fied and  praying  for  a like  order.  Upon  any  such  petition  being  brought 
the  public  service  commission  shall  appoint  a time  and  place  for  hearing 
the  petition,  and  shall  give  such  personal  notice  thereof  as  it  shall  judge 
reasonable,  of  not  less  than  ten  days,  however,  to  such  petitioner,  the 
railroad  company,  the  municipality  in  which  such  crossing  is  situated, 
and  if  such  crossing  is  in  whole  or  part  in  an  incorporated  village  having 
not  to  exceed  twelve  hundred  inhabitants,  also  to  the  supervisor  or 
supervisors  of  the  town  or  towns  in  which  such  crossing  is  situated ; 
and  in  all  cases  to  the  owners  of  the  lands  adjoining  such  crossing  and 
adjoining  that  part  of  the  street,  avenue,  highway  or  road  or  new  por- 
tion or  additional  width  of  such  street,  avenue,  highway  or  road  to  be 
changed  in  grade  or  location,  or  the  land  to  be  opened  for  a new  crossing, 
and  to  the  state  commission  of  highways  in  case  of  a state  or  county 
highway.  The  public  service  commission  shall  cause  notice  of  said 
hearing  to  be  advertised  in  at  least  two  newspapers  published  in  the 
locality  affected  by  the  applicaction.  Upon  such  notice  and  after  a 
hearing  the  public  service  commission  shall  determine  what  alterations 

the  land  or  its  right  to  open  the  same  to  public  use.  New  York  Cent.  & H.  R.  R.  R. 
Co.  v.  City  of  Buffalo,  200  N.  Y.  113. 

An  appeal  from  an  order  of  the  Public  Service  Commission  providing 
that  a proposed  highway  shall  cross  railroad  tracks  on  an  elevated  viaduct  of  certain 
clearance,  does  not  lie  if  the  commission  reserved  its  decision  as  to  the  length,  char- 
acter and  grades  of  the  approaches  to  the  viaduct — matters  which  the  statute  re- 
quires it  to  determine.  Matter  of  Town  Board  of  Royalton,  138  App.  Div.  412,  122 
N.  Y.  Supp.  844. 


HIGHWAYS  AND  BRIDGES. 


996 


Railroad  Law,  § 91. 

or  changes,  if  any,  shall  be  made.2  If  the  application  be  made  by  the 
state  commission  of  highways  in  respect  to  a street,  avenue,  highway 
or  road  or  new  portion  or  additional  width  of  a street,  avenue,  highway 
or  road  proposed  to  be  constructed  or  improved  as  a part  of  a state  high- 
way, the  decision  shall  state  whether  such  highway  shall  cross  such  rail- 
road above  or  below  the  grade  of  the  highway ; in  case  of  a county  high- 
way, such  decision  shall  state  whether  such  highway  shall  cross  such 
railroad  at  grade,  or  above  or  below  the  grade  of  the  highway.  The 
decision  of  said  public  service  commission  rendered  in  any  proceeding 
under  this  section  shall  be  communicated  within  twenty  days  after  final 
hearing  to  all  parties  to  whom  notice  of  the  hearing  in  said  proceeding 
was  given,  or  who  appeared*  at  said  hearing  by  counsel  or  in  person. 
Any  person  aggrieved  by  such  decision,  or  by  a decision  made  pursuant 
to  sections  eighty-nine  and  ninety  hereof,  and  who  was  a party  to  said 
proceeding,  may  within  sixty  days  appeal  therefrom  to  the  appellate 
division  of  the  supreme  court  in  the  department  in  which  such  grade 
crossing  is  situated,  and  to  the  court  of  appeals,  in  the  same  manner 
and  with  like  effect  as  is  provided  in  the  case  of  appeals  from  an  order 
of  the  supreme  court.  [Railroad  Law  (L.  1910,  ch.  481),  § 91,  as 
amended  by  L.  1911,  ch.  141,  L.  1913,  chs.  354,  744,  and  L.  1914,  ch. 
378.] 

Extension  of  street  across  a railroad  "by  an  overhead  bridge;  easements 
of  abutting  landowner;  injunction  requiring  elimination  of  crossing 
in  event  of  non-payment  of  damages.  Where  a street,  which  did  not  thereto- 
fore cross  a railroad,  was  extended  and  carried  over  the  railroad  tracks  by  an  over- 
head bridge,  the  opening  of  the  street  across  the  railroad  was  the  opening  of  a new 
street,  or  new  portion  of  a street,  within  the  statute,  and  the  erection  of  the  bridge 
and  its  approaches  without  the  consent  of  the  public  service  commission  was  an 
unlawful  obstruction  of  the  highway,  and  an  owner  of  abutting  land,  whose  ease- 
ments of  light,  air  and  access  to  the  street  were  injuriously  affected  by  such  bridge 
and  approaches,  has  a right  of  action  on  account  of  the  resulting  injury.  He  is  not 
entitled,  however,  to  an  absolute  judgment  requiring  the  elimination  of  the  over- 
head crossing  in  the  event  of  the  non-payment  of  his  damages,  but  only  for  its 
elimination  if  it  is  not  now  or  hereafter  made  satisfactory  to  the  public  service 
commission.  The  judgment  should  be  modified  so  as  to  enjoin  the  railroad  company 
from  maintaining  the  bridge  across  its  railroad  unless  and  until  the  said  bridge 
and  its  approaches  shall  receive  the  sanction  of  the  public  service  commission  under 
section  90  of  the  Railroad  Law.  Brush  v.  New  York,  New  Haven  & Hartford  R.  R. 
Co.  (1916),  218  N.  Y.  264,  modfg.  162  App.  Div.  731. 

2.  The  words  “ street,  avenue  or  highway  ” import  w’ays  of  a public  char- 
acter and  no  other  ways  whatsoever.  This  section  has  no  application  to  private 
rights  of  way  and  does  not  authorize  the  elimination  of  such  rights.  Hence,  no  party 


RAILROAD  CROSSING  HIGHWAYS. 


996a 


Railroad  Law,  § 92. 

$ 4.  ACQUISITION  OF  LAND,  RIGHT  OR  EASEMENT  IN  CROSSING. 

The  municipal  corporation  having  jurisdiction  over  the  street,  avenue, 
highway  or  road  and  in  which  the  highway  crossing  is  located,  or  the 
state  commission  of  highways  in  case  of  a street,  avenue  or  highway  or 
road  to  be  constructed  or  improved  as  a part  of  a state  or  county  high- 
way, may  with  the  approval  of  the  railroad  company  acquire  by  purchase 
any  lands,  rights  or  easements  necessary  or  required  for  the  purpose  of 
carrying  out  the  provisions  of  sections  eighty-nine,  ninety  and  ninety-one 
of  this  chapter,  but  if  unable  to  do  so  shall  acquire  such  lands,  rights  or 
easements  by  condemnation  either  under  the  condemnation  law  or  under 
the  provisions  of  the  charter  of  such  municipal  corporation.  The  rail- 
road company  shall  have  notice  of  any  such  proceedings  and  the  right  to 
be  heard  therein.23  [Railroad  Law  (L.  1910,  ch.  481),  § 92,  as 
amended  by  L.  1918,  ch.  744.] 

can  be  chargeable  thereunder  with  any  portion  of  the  expense  of  closing  ways  which 
are  wholly  private.  Matter  of  New  York  Cent.  & H.  R.  R.  R.  Co.,  200  N.  Y.  121. 

Power  of  Public  Service  Commision.  The  Public  Service  Commission,  under 
this  section,  has  power  to  make  an  order  directing  a railroad  company  to  close  a 
highway  or  divert  travel  to  another  highway  in  order  to  eliminate  a railroad  cross- 
ing, by  removing  a bridge  in  a street  and  building  an  embankment  across  the  street; 
and  the  work  done  by  the  railroad  company  in  obedience  to  such  an  order  cannot  be 
regarded  either  as  an  unlawful  obstruction  of  the  street  or  an  actionable  nuisance. 
Danner  v.  N.  Y.  & Harlem  R.  Co.,  73  Misc.  113,  aff’d.  213  N.  Y.  117.  The  Railroad 
Law  prescribes  the  method  of  defraying  the  expense  of  altering  old  crossings  and 
contsructing  new  ones,  and  the  Public  Service  Commission  cannot  go  beyond  its 
provisions.  Matter  of  New  York  Cent.  & H.  R.  R.  R.  Co.,  200  N.  Y.  121.  The  State 
Highway  Commission,  with  the  consent  of  a railroad  company,  has  power  to  enter 
into  negotiations  for  the  purchase  of  such  lands  and  easements  as  may  be  necessary 
to  eliminate  a grade  crossing,  and  by  and  with  the  consent  of  the  railroad,  may 
agree  upon  the  value  thereof,  and  if  said  values  cannot  be  agreed  upon,  as  above 
stated,  then  it  becomes  necessary  to  institute  condemnation  proceedings  through  the 
attorney-geneal’s  office.  Rept.  of  Atty.-Genl.,  March  23,  1911. 

Objections  first  raised  on  appeal.  The  objection  that  a petition  filed  by  the 
town  board  of  the  town  of  Schaghticoke,  for  the  abolition  of  a railroad  crossing  at 
Melrose,  N.  Y.,  is  insufficient  in  that  it  does  not  allege  that  Melrose  is  in  the  town 
of  Schaghticoke,  and  the  further  objection,  interposed  by  a party  represented  at  the 
hearing,  that  proper  notice  was  not  given  of  the  hearing  before  the  railroad  commis- 
sioners, cannot  be  raised  for  the  first  time  on  an  appeal  from  the  order  granting  the 
prayer  of  the  petition.  Matter  of  Town  Board  v.  Fitchburg  R.  R.  Co.,  53  App  Div. 
16,  65  N.  Y.  Supp.  498. 

2a.  The  words  “ municipal  corporation  in  which  the  highway  crossing  is  located  ” 
are  broad  enough  to  include  a county,  and  the  board  of  supervisors  may  apply  for 
the  appointment  of  commisioners  to  condemn  lands  necessary  to  change  a grade 
crossing.  County  of  Nassau  v.  Luessen,  69  Misc.  184,  125  N.  Y.  Supp.  206. 

Damages  for  closing  highway.  While  this  section  covers  the  right  of  access,  an 
owner  of  lands  adjacent  to  a street  is  not  entitled  to  damages  for  closing  the  street 
where  he  is  given  an  improved  street  in  its  place,  and  his  street  facilities  are  better 
and  safer,  although  he  is  further  removed  from  the  street.  City  of  Corning  v. 
O’Neill  (1917)  180  App.  Div.  454. 

Mandamus  should  not  be  issued  to  compel  institution  of  condemnation  proceed- 
ings until  every  reasonable  effort  has  been  made  to  acquire  the  lands  by  purchase. 
People  ex  rel.  Mott  Wheel  Works  v.  Hayes  (1917),  178  App.  Div.  301. 


996b 


HIGHWAYS  AND  BRIDGES. 


Railroad  Law,  §§  93,  94. 

§ 5.  REPAIR  OF  BRIDGES  AND  SUBWAYS  AT  CROSSINGS, 

When  a highway  crosses  a railroad  by  an  overhead  bridge,  the  frame- 
work of  the  bridge  and  its  abutments  shall  be  maintained  and  kept  in  re- 
pair by  the  railroad  company,  and  the  roadway  thereover  and  the  ap- 
proaches thereto  shall  be  maintained  and  kept  in  repair  by  the  munici- 
pality having  jurisdiction  over  and  in  which  the  same  are  situated;  ex-* 
cept  that  in  the  case  of  any  overhead  bridge  constructed  prior  to  the  first 
day  of  July,  eighteen  hundred  and  ninety-seven,  the  roadway  over  and 
the  approaches  to  which  the  railroad  company  was  under  obligation  to 
maintain  and  repair,  such  obligation  shall  continue,  provided  the  rail- 
road company  shall  have  at  least  ten  days’  notice  of  any  defect  in  the 
roadway  thereover  and  the  approaches  thereto,  which  notice  must  be 
given  in  writing  by  the  town  superintendent  of  highways  or  other  duly 
constituted  authority,  and  the  railroad  company  shall  not  be  liable  by 
reason  of  any  such  defect  unless  it  shall  have  failed  to  make  repairs 
within  ten  days  after  the  service  of  such  notice  upon  it.  When  a high- 
way passes  under  a railroad,  the  bridge  and  its  abutments  shall  be  main- 
tained and  kept  in  repair  by  the  railroad  company,  and  the  subway  and 
its  approaches  shall  be  maintained  and  kept  in  repair  by  the  municipal- 
ity having  jurisdiction  over  and  in  which  the  same  are  situated.  In  case 
such  highway  is  a part  of  a state  or  county  highway  constructed  or  im- 
proved as  provided  in  article  six  of  the  highway  law,  the  roadway  over 
such  railroad  or  the  subway  underneath  the  same,  and  the  approaches 
thereto,  shall  be  maintained  and  kept  in  repair  under  the  supervision 
and  control  of  the  state  commission  of  highways  in  the  manner  provided 
by  the  highway  law  for  the  maintenance  and  repair  of  state  and  county 
highways  where  such  roadway,  subway  or  approaches,  or  any  of  them, 
have  been  constructed  or  improved  as  a part  of  a state  or  a county  high- 
way.3 [Railroad  Law  (L.  1910,  eh.  481),  § 93,  as  amended  by  L. 
1913,  ch.  744,  and  L.  1916,  ch.  484.] 

§ 6.  EXPENSE  OF  CONSTRUCTING  NEW  CROSSINGS. 

1.  Whenever  under  the  provisions  of  section  eighty-nine  of  this  chap- 
ter, a new  railroad  is  constructed  across  an  existing  highway,  the  ex- 

3.  Application.  This  section  is  not  limited  in  its  application  to  railroads  con- 
structed subsequent  to  its  enactment  or  to  bridges  over  crossings  thereafter  con- 
structed, but  applies  to  all  bridges  constituting  the  highway  at  railroad  crossings, 
whether  constructed  before  or  after  the  law  went  into  effect.  City  of  Yonkers  v. 
N.  Y.  C.  & H.  R.  R.  R.  Co.,  165  N.  Y.  142. 

Maintenance  and  repair  of  bridge  and  abutments  is  at  the  expense  of  the  railroad 
company,  but  the  approaches  must  be  maintained  at  the  expense  of  the  state,  where 


RAILROAD  CROSSING  HIGHWAYS. 


997 


Railroad  Law,  § 94. 

pense  of  crossing  above  or  below  the  grade  of  the  highway  including  any 
expense  incurred  in  altering  or  changing  the  highway  under  a determina- 
tion of  the  public  service  commission  shall  be  paid  entirely  by  the  railroad 
corporation. 

2.  Whenever  under  the  provisions  of  section  ninety  of  this  chapter  a new 
street,  avenue,  highway  or  road  or  new  portion  or  additional  width  of  such 
street,  avenue,  highway  or  road  is  constructed  across  an  existing  railroad, 
the  railroad  corporation  shall  pay  one-half  and  the  municipal  corporation 
having  jurisdiction  over  such  street,  avenue,  highway  or  road  or  new  por- 
tion or  additional  width  of  such  street,  avenue,  highway  or  road  shall  pay 
the  remaining  one-half  of  the  expense  of  making  such  crossing  above  or 
below  the  grade  of  the  railroad. 

3.  Whenever  a change  is  made  as  to  an  existing  crossing  or  structure 
in  accordance  with  the  provisions  of  section  ninety-one  of  this  chapter, 
fifty  per  centum  of  the  expense  thereof  shall  be  borne  by  the  railroad  cor- 
poration, twenty-five  per  centum  by  the  municipal  corporation  and  twenty- 
five  per  centum  by  the  state ; except  that  whenever  an  existing  crossing,  in 
which  a change  is  made  under  the  provisions  of  section  ninety-one,  is 
located  wholly  or  partly  within  an  incorporated  village  having  not  to  exceed 
twelve  hundred  inhabitants,  the  portion  of  expense  herein  required  to  be 
borne  by  the  municipal  corporation  shall  be  borne  by  the  town  or  towns  in 
which  such  crossing  is  situated.* * * 4 

4.  Whenever  under  the  provisions  of  sections  ninety  and  ninety-one  of 
this  chapter  a highway  is  constructed  across  an  existing  railroad  and  is  a 
part  of  a state  or  county  highway  constructed  or  improved  as  provided  in 
the  highway  law,  one-half  of  the  expense  of  making  such  crossing  above  or 
below  grade  or  changing  or  rebuilding  the  existing  structure  by  which  such 
crossing  is  made,  shall  be  paid  by  the  railroad  corporation,  and  the  remain- 
ing one-half  of  such  expense  shall  be  paid  by  the  state  in  the  case  of  a state 
highway,  and  jointly  by  the  state,  county  and  town  in  the  case  of  a county 
highway,  in  the  same  proportion  and  in  the  same  manner  as  the  cost  of 
construction  or  improvement  of  such  state  or  county  highway  is  paid. 

5.  Whenever  in  carrying  out  the  provisions  of  sections  ninety  or  ninety- 
one  of  this  chapter  two  or  more  lines  of  steam  surface  railroad,  owned  and 
operated  by  different  corporations,  cross  a highway  at  a point  where  a 
change  in  grade  is  made,  each  corporation  shall  pay  such  proportion  of  fifty 

a state  highway,  and  the  state,  county  and  town,  where  a county  highway.  Opinion 

Pub.  Serv.  Con.  (1916)  6 State  Dept.  Repts,  468. 

Mandamus  will  lie  to  compel  a railroad  company  to  repair  or  replace  a bridge. 
Opinion  of  Pub.  Serv.  Com.  (1917)  13  State  Dept.  Repts.,  116. 

4.  Where  grade  crossing  is  eliminated  on  petition  of  a town,  the  expense  thereof 
so  far  as  chargeable  to  the  locality  must  be  borne  by  the  town  in  which  the  grade 
crossing  is  situated  all  hough  the  approach  to  the  bridge  is  partly  in  another  town. 
People  ex  rel.  Town  of  Searsdale  v.  Public  Service  Commision  (1917)  220  N.  Y.  1, 
rev’g.  173  App.  Div.  164. 


998 


HIGHWAYS  AND  BRIDGES. 


Railroad  Law,  § 94. 

per  centum  of  the  expense  thereof  as  shall  be  determined  by  the  public 
service  commission. 

6.  In  carrying  out  the  provisions  of  sections  eighty-nine,  ninety  and 
ninety-one  of  this  chapter  the  work  shall  be  done  by  the  railroad  corpora- 
tion or  corporations  affected  thereby,  subject  to  the  supervision  and  ap- 
proval of  the  public  service  commission;  and  in  all  cases,  except  where 
the  entire  expense  is  paid  by  the  railroad  corporation,  the  expense  of  con- 
struction shall  be  paid  primarily  by  the  railroad  company,  and  the  expense 
of  acquiring  additional  lands,  rights  or  easements  shall  be  paid  primarily 
by  the  municipal  corporation  having  jurisdiction  over  the  street,  avenue, 
highway  or  road  or  new  portion  or  additional  width  of  such  street,  avenue, 
highway  or  road  or,  in  case  of  a state  or  county  highway,  upon  the  order 
of  the  state  commission  of  highways  out  of  moneys  available  therefor. 
Plans  and  specifications  of  all  changes  proposed  under  sections  ninety  and 
ninety-one  of  this  chapter  and  an  estimate  of  the  expense  thereof  shall  be 
submitted  to  the  public  service  commission  for  its  approval  before  the  letting 
of  any  contract.  If  such  changes  are  proposed  in  a highway  which  is  to 
be  constructed  or  improved  as  a state  or  county  highway,  guch  plans  and 
specifications  shall  also  be  submitted  to  the  state  commission  of  highways 
for  its  approval  before  the  letting  of  any  contract.  In  case  the  work  is  done 
by  contract  the  proposals  of  contractors  shall  be  submitted  to  the  public 
service  commission,  and  if  the  commission  shall  determine  that  the  bids  are 
excessive  it  shall  have  the  power  to  require  the  submission  of  new  proposals. 
The  commission  may  employ  temporarily  such  experts  and  engineers  as 
may  be  necessary  properly  to  supervise  any  work  that  may  be  undertaken 
under  sections  eighty-nine,  ninety  and  ninety-one  of  this  chapter,  the  ex- 
pense thereof  to  be  paid  by  the  comptroller  upon  the  requisition  and  cer- 
tificate of  the  commission  and  included  in  the  cost  of  the  particular  change 
in  grade  or  in  the  structure  above  or  below  grade  on  account  of  which  it  is 
incurred  and  finally  apportioned  in  the  manner  provided  in  this  section. 

7.  Upon  the  completion  of  the  work  and  its  approval  by  the  public  serv- 
ice commission  an  accounting5  shall  be  had  between  the  railroad  corpora- 
tion and  the  municipal  corporation  or  the  state  commission  of  highways 
of  the  amounts  expended  by  each  with  interest,  and  if  it  shall  appear  that 
the  railroad  corporation  or  the  municipal  corporation  or  the  state  com- 
mission of  highways  has  expended  more  than  its  proportion  of 
the  expense  of  the  crossing  as  herein  provided  a settlement  shall 
be  forthwith  made  in  accordance  with  the  provisions  of  this  section.  At 

5.  Interest  on  claim  against  state.  Although  the  statute  makes  no  provision  for 
interest  where  the  state  fails  to  pay  its  proportion  of  the  cost  of  construction,  it 
contemplates  the  payment  of  interest  up  to  the  time  when  the  accounting  is  made, 
where  the  railroad  company  has  acted  in  good  faith.  The  interest  is  a part  of  the 
cost  or  expense  of  the  work  and  where  the  accounting  is  delayed  by  reason  of  a 
mutual  mistake,  there  is  no  reason  why  it  should  not  be  allowed.  Matter  of  State 
Commission  of  Highways  (1918)  182  App.  Div.  108. 


RAILROAD  CROSSING  HIGHWAYS. 


999 


Railroad  Law,  § 94. 

any  time  after  the  work  of  elimination  of  a crossing  has  been  commenced 
the  public  service  commission  may,  upon  its  own  motion  or  upon  the 
petition  of  the  railroad  company  or  of  any  municipality  interested  or 
of  the  state  commission  of  highways,  make  an  order  for  an  intermediate 
settlement  and  direct  payments  to  be  made  in  connection  therewith  as 
in  this  section  provided  for  a final  accounting.  All  items  of  expendi- 
ture shall  be  verified  under  oath,  and  in  case  of  a dispute  between  the 
railroad  corporation  and  the  municipal  corporation  or  the  state  commis- 
sion of  highways  as  to  the  amount  expended,  any  judge  of  the  supreme 
court  in  the  judicial  district  in  which  the  municipality  or  the  state  or 
county  highway  is  situated  may  appoint  a referee  to  take  testimony  as 
to  the  amount  expended,  and  the  confirmation  of  the  report  of  the 
referee  shall  be  final.  In  the  event  of  the  failure  or  refusal  of  the  rail- 
road corporation  to  pay  its  proportion  of  the  expense,  the  same  with 
interest  from  the  date  of  such  accounting  may  be  levied  and  assessed 
upon  the  railroad  corporation  and  collected  in  the  same  manner  that 
taxes  and  assessments  are  now  collected  by  the  municipal  corporation 
within  which  the  work  is  done ; and  in  the  event  of  the  failure  or  refusal 
of  the  municipal  corporation  to  pay  its  proportion  of  the  expense  an 
action  may  be  maintained  by  the  railroad  corporation  for  the  collection 
of  the  same  with  interest  from  the  date  of  such  accounting,  or  the  rail- 
road corporation  may  offset  such  amount  with  interest  against  any 
taxes  levied  or  assessed  against  it  or  its  property  by  such  municipal 
corporation. 

8.  In  the  event  of  the  appropriation  made  by  the  state  in  any  one 
year  being  insufficient  to  pay  the  state’s  proportion  of  the  expense  of 
any  change  that  may  be  ordered  the  first  payment  from  the  appropria- 
tion of  the  succeeding  year  shall  be  on  account  of  said  change,  and  no 
payment  shall  be  made  on  account  of  any  subsequent  change  that  may 
be  ordered,  nor  shall  any  subsequent  change  be  ordered,  until  the  obli- 
gation of  the  state  on  account  of  the  first  named  change  in  grade  has 
been  fully  discharged,  unless  the  same  shall  be  provided  for  by  an  addi- 
tional appropriation  to  be  made  by  the  legislature.  The  state’s  pro- 


1000 


HIGHWAYS  AND  BRIDGES. 


Railroad  Law,  §§  94,  95. 

portion  of  the  expense  of  changing  any  existing  grade  crossing  or  the 
structure  of  any  existing  crossing  above  or  below  grade  shall  be  paid  by 
the  state  treasurer  on  the  warrant  of  the  comptroller,  to  which  shall  be 
appended  the  certificate  of  the  public  service  commission  to  the  effect 
that  the  work  has  been  properly  performed  and  a statement  showing  the 
situation  of  the  crossing  or  structure  that  has  been  changed,  the  total 
cost  and  the  proportionate  expense  thereof ; and  the  money  shall  be  paid 
in  whole  or  in  part  to  the  railroad  corporation  or  to  the  municipal  cor- 
poration as  the  public  service  commission  may  direct,  subject,  however, 
to  the  rights  of  the  respective  parties  as  they  appear  from  the  accounting 
or  intermediate  accounting  to  be  had  as  hereinbefore  provided  for. 

9.  No  claim  for  damages  to  property  on  account  of  the  change  or 
elimination  of  any  crossing  or  change  in  structure  under  the  provisions 
of  this  article  shall  be  allowed  unless  notice  of  such  claim  is  filed  with 
the  public  service  commission  within  six  months  after  completion  of 
the  work  necessary  for  such  change  or  elimination.  [Railroad  Law 
(L.  1910,  eh.  481),  § 94,  as  amended  by  L.  1911,  ch.  141,  L.  1913,  chs. 
354,  425,  744,  L.  1914,  ch.  378,  and  L.  1915,  ch.  240.] 

§ 7.  PROCEEDINGS  BY  PUBLIC  SERVICE  COMMISSION  FOR  ALTER- 
ATION OF  GRADE  CROSSINGS. 

The  public  service  commission  may,  in  the  absence  of  any  application 
therefor,  when  in  its  opinion  public  safety  requires  an  alteration  in  an 
existing  grade  crossing  or  a change  in  any  existing  structure  above  or 
below  grade,  institute  proceedings  on  its  own  motion  for  an  alteration  in 
such  grade  crossing,  or  structure,  upon  such  notice  as  it  shall  deem  rea- 
sonable, of  not  less  than  ten  days  however,  to  the  railroad  company,  the 
municipal  corporation  and  the  person  or  persons  interested,  and  pro- 
ceedings shall  be  conducted  as  provided  in  section  ninety-one  of  this 
chapter.  The  changes  in  existing  grade  crossings  or  structures  author- 
ized or  required  by  the  commission  in  any  one  year  shall  be  so  distributed 
and  apportioned  over  and  among  the  railroads  and  the  municipalities  of 
the  state  as  to  produce  such  equality  of  burden  upon  them  for  their  pro- 
portionate part  of  the  expenses  as  herein  provided  for  as  the  nature  and 


RAILROAD  CROSSING  HIGHWAYS. 


1000a 


Railroad  Law,  §§  96,  97. 

circumstances  of  the  cases  before  it  will  permit.  [Railroad  Law 
(L.  1910,  ch.  481),  § 95,  as  amended  by  L.  1913,  ch.  354.] 

§ 8.  PROCEEDINGS  TO  COMPEL  COMPLIANCE  WITH  RECOMMEN- 
DATIONS OF  PUBLIC  SERVICE  COMMISSION. 

It  shall  be  the  duty  of  the  corporation,  municipality  or  person  or  per- 
sons to  whom  the  decisions  or  orders  of  the  public  service  commission  are 
directed,  as  provided  in  sections  eighty-nine,  ninety,  ninety-one  and 
ninety-five  of  this  chapter,  to  comply  with  such  decisions  and  orders,  and 
in  case  of  their  failure  so  to  do  the  commission  shall  thereupon  take  pro- 
ceedings to  compel  obedience  to  the  decisions  and  orders  of  the  commis- 
sion. The  supreme  court  at  a special  term  shall  have  the  power  in  all 
cases  of  such  decisions  and  orders  by  the  public  service  commission  to 
compel  compliance  therewith  by  mandamus,  or  under  the  provisions  of 
the  public  service  commissions  law,  subject  to  appeal  to  the  appellate  di- 
vision of  the  supreme  court  and  the  court  of  appeals  in  the  same  manner 
with  like  effect  as  is  provided  in  case  of  appeals  from  an  order  of  the 
supreme  court.  [Railroad  Law  (L.  1910,  ch.  481),  § 96.] 

§ 9.  TOWN,  VILLAGE  OR  CITY  MAY  BORROW  MONEY  AND  ISSUE 
BONDS. 

Whenever  in  carrying  out  any  of  the  provisions  of  sections  eighty-nine 
to  ninety-six  inclusive  of  this  chapter  any  municipality  shall  incur  any 
expense  or  become  liable  for  the  payment  of  any  moneys,  it  shall  be  law- 
ful for  such  municipality  temporarily  to  borrow  such  money  on  the  notes 
or  certificates  of  such  municipality,  and  to  include  the  amount  of  out- 
standing notes  or  certificates,  or  any  part  thereof,  in  its  next  annual  tax 
levy  for  municipal  purposes,  or  in  the  discretion  of  the  common  council 
in  case  of  a city,  the  board  of  trustees  in  case  of  a village,  the  town 
board  in  case  of  a town,  or  the  board  of  supervisors  in  the  case  of  a 
county,  to  borrow  the  same,  or  any  part  thereof,  on  the  credit  of  the 
municipality,  and  to  issue  bonds  therefor,  which  bonds  shall  be  signed 
by  the  mayor  and  clerk  in  case  of  a city,  the  president  and  clerk  in  case 
of  a village,  the  town  board  in  case  of  a town  and  the  board  of  supervisors 
in  the  case  of  a county,  and  shall  be  in  such  form  and  for  such  sums  and 
be  payable  at  such  times  and  places  with  interest  not  exceeding  five  per 


1000b 


HIGHWAYS  AND  BRIDGES. 


Railroad  Law,  § 97. 

centum  per  annum,  as  the  common  council  in  case  of  a city,  the  board  of 
trustees  in  case  of  a village,  the  town  board  in  case  of  a town  and  the 
board  of  supervisors  in  the  case  of  a county,  shall  direct.  [Railroad 
Law  (L.  1910,  ch.  481),  § 97,  as  amended  by  L.  1913,  ch.  744,  and  L. 
1914,  ch.  498.] 


PART  IX 


SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

CHAPTER  LXIX. 

SCHOOLS  AND  SCHOOL  MONEYS,  DUTIES  OF  TOWN  AND  COUNTY 
OFFICERS  IN  RESPECT  THERETO. 


SEcriON  1.  State  school  moneys,  when  and  how  apportioned. 

2.  Apportionment  of  moneys  appropriated  for  the  support  of  the 

common  schools. 

3.  Conditions  under  which  cities  and  districts  are  entitled  to  an  ap- 

portionment from  the  appropriation  for  the  support  of  common 
schools. 

4.  Apportionment  of  moneys  appropriated  to  cities,  academies,  aca- 

demic departments  and  school  libraries. 

5.  Manner  of  certifying  and  paying  apportionment  provided  for  in 

preceding  section. 

6.  County  treasurers  to  render  annual  report. 

7.  Certificate  of  apportionment  by  commissioner  of  education. 

8.  Moneys  apportioned,  when  payable. 

9.  Apportionment  of  school  moneys  by  school  commissioners. 

10.  Duty  of  and  payment  to  supervisor. 

11.  Power  of  comptroller  to  withhold  payment  of  school  moneys. 

12.  Union  free  school  district  and  city,  a school  district. 

13.  Supervisor  to  give  bond  before  receiving  school  moneys;  refusal 

to  give  bond  a misdemeanor. 

14.  Report  by  supervisors  to  county  treasurer. 

15.  Grant,  bequest  or  devise  of  property  to  towns  for  beneft  of 

schools. 

16.  Supervisor  to  report  to  superintendent  amount  of  gospel  school 

funds  in  his  hands. 

17.  Disposition  of  fines  and  penalties  for  the  benefit  of  the  common 

schools;  district  attorney  to  report  to  board  of  supervisors  fines 
collected;  fines  to  be  paid  to  county  treasurer. 

18.  Supervisor  to  annually  return  to  county  treasurer  amount  of  school 

moneys  remaining  in  his  hands. 

19.  Disbursement  of  school  moneys;  payment  of  moneys  to  district 

collector  or  treasurer ; library  moneys;  accounts  of  school  moneys; 
payment  of  moneys  by  predecessor. 

1001 


1002  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


Education  Law,  §§  490,  491. 


Section  20.  Alterations  of  school  districts;  refusal  of  trustees  to  consent; 

supervisors  of  towns  to  be  associated  with  commissioner  to  hear 
objections  and,  determine. 

21.  Duties  of  supervisor  as  to  the  property  and  effects  of  dissolved 

school  districts. 

22.  Districts  in  two  or  more  towns;  equalization  of  assessment  by 

supervisors. 

23.  District  superintendent  of  schools;  powers  and  duties  of  boards 

of  supervisors  as  to  supervisory  districts. 

24.  School  directors;  election  of  district  superintendents;  vacancies. 

25.  Salary  and  expenses  of  district  superintendent. 

26.  Duties  of  town  clerks  in  respect  to  the  common  schools;  compen- 

sation and  expenses  a town  charge. 

27.  Unpaid  school  taxes,  collector  to  return  account  of  to  trustees; 

trustees  to  transmit  account,  with  certificate  to  county  treasurer. 

28.  County  treasurer  to  pay  to  collector  of  school  district  amount  of 

unpaid  taxes  returned. 

29.  County  treasurer  to  lay  account  of  unpaid  school  taxes  before 

board  of  supervisors;  action  of  board  thereon;  collection  of  such 
taxes. 

30.  Special  provisions  of  the  consolidated  school  law  applicable  to  town 

officers. 


§ 1.  STATE  SCHOOL  MONEYS,  WHEN  APPORTIONED  AND  HOW 
APPLIED. 

The  amount  annually  appropriated  by  the  legislature  for  the  support 
of  common  schools  shall  be  apportioned  by  the  commissioner  of  education 
on  or  before  the  twentieth  day  of  January  in  each  year  as  hereinafter  pro- 
vided; and  all  moneys  so  apportioned  shall  be  applied  exclusively  to  the 
payment  of  teachers’  salaries.  [Education  Law  (L.  1910,  ch.  140)  § 
490.] 

§ 2.  APPORTIONMENT  OF  MONEYS  APPROPRIATED  FOR  THE 
SUPPORT  OF  COMMON  SCHOOLS. 

After  setting  apart  therefrom  for  a contingent  fund  not  more  than 
ten  thousand  dollars,  the  commissioner  of  education  shall  apportion  the 
money  appropriated  for  the  support  of  common  schools : 

1.  To  each  city  and  to  each  union  school  district  which  has  a population 
of  five  thousand  and  which  employs  a superintendent  of  schools,  eight 
hundred  dollars.  This  shall  be  known  as  a supervision  quota. 

2.  To  each  district  having  an  assessed  valuation  of  twenty  thousand 
dollars  or  less,  two  hundred  dollars. 

3.  To  each  district  having  an  assessed  valuation  of  forty  thousand  dol- 
lars or  less,  but  exceeding  twenty  thousand  dollars,  one  hundred  and 
seventy -five  dollars. 

4.  To  each  district  having  an  assessed  valuation  of  sixty  thousand  dol- 


SCHOOLS  AND  SCHOOL  MONEYS, 


1003 


Education  Law,  § 492. 

lars  or  less,  but  exceeding  forty  thousand  dollars,  and  to  each  Indian  reser- 
vation for  each  teacher  employed  therein  for  a period  of  one  hundred  and 
eighty  days  or  more,  one  hundred  fifty  dollars.  [Subd.  amended  by  L. 
1917,  ch.  74.] 

5.  To  each  of  the  orphan  asylums  which  meet  the  conditions  mentioned 
in  article  thirty-five  of  this  chapter,  one  hundred  and  twenty-five  dollars. 

6.  To  each  of  the  remaining  districts  and  to  each  of  the  cities  in  the 
state  one  hundred  twenty-five  dollars.  The  apportionment  provided  for  by 
subdivisions  two,  three,  four,  five  and  six  shall  be  known  as  district  quotas. 

7.  To  each  such  districts,  city  and  orphan  asylum  for  each  additional 
qualified  teacher  and  his  successors  by  whom  the  common  schools  have  been 
taught  during  the  period  of  time  required  by  law,  one  hundred  dollars. 
The  apportionment  provided  for  by  this  subdivision  shall  be  known  as  the 
teachers*  quota. 

8.  To  a school  district  or  a city  which  has  failed  to  maintain  school  for 
one  hundred  eighty  days  or  which  has  employed  an  extra  teacher  for  a 
shorter  period  than  one  hundred  eighty  days  such  part  of  a district  or 
teacher’s  quota  as  seems  to  him  equitable  when  the  reason  for  such  failure 
is  in  his  judgment  sufficient  to  warrant  such  action ; but  in  case  such 
failure  to  maintain  a school  in  such  district  or  city  for  a period  of  one 
hundred  eighty  days  was  caused  by  the  prevalence  of  an  infectious  or  con- 
tagious disease  in  the  community,  the  commissioner  may  in  his  discretion 
apportion  to  such  district  or  city  full  district  and  teachers*  quotas.  [Subd. 
amended  by  L.  1917,  ch.  74.] 

9.  To  each  separate  neighbourhood  such  sum  as  in  his  opinion  it  is 
equitably  entitled  to  receive  upon  the  basis  of  distribution  established  by 
this  article. 

10.  All  errors  or  omissions  in  the  apportionment  whether  made  by  the 
commissioner  of  education  or  by  the  school  commissioner  shall  be  cor- 
rected by  the  commissioner  of  education.  Whenever  a school  district  has 
been  apportioned  less  money  than  that  to  which  it  is  entitled  the  commis- 
sioner of  education  may  allot  to  such  district  the  balance  to  which  it  is  in 
his  judgment  entitled  and  the  same  shall  be  paid  from  the  contingent  fund. 
Whenever  a school  district  has  been  apportioned  more  money  than  that  to 
which  it  is  entitled  the  commissioner  of  education  may,  by  an  order  under 
his  hand,  direct  such  moneys  to  be  paid  back  into  the  hands  of  the  county 
treasurer  by  him  to  be  credited  to  the  school  fund,  or  he  may  deduct  such 
amount  from  the  next  apportionment  to  be  made  to  said  district. 

11.  The  commissioner  of  education  may  also  in  his  discretion  excuse  the 
default  of  a trustee  or  a board  of  education  in  employing  a teacher  not 
legally  qualified,  legalize  the  time  so  taught  and  authorize  the  payment  of 
the  salary  of  such  teacher.  [Education  Law  (L.  1910,  ch.  140)  § 491.] 


§ 3.  CONDITIONS  UNDER  WHICH  CITIES  AND  DISTRICTS  ARE  EN- 
TITLED TO  AN  APPORTIONMENT  FROM  THE  APPROPRIA- 
TION FOR  THE  SUPPORT  OF  COMMON  SCHOOLS. 

1.  The  commissioner  of  education  shall  make  no  allotment  of  a super- 


1004  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


Education  Law,  § 493. 

vision  quota  to  any  city  or  district  unless  satisfied  that  such  city  or  dis- 
trict employs  a competent  superintendent  whose  time  is  exclusively  de- 
voted to  the  supervision  of  the  public  schools  of  such  city  or  district;  nor 
shall  he  make  any  allotment  to  any  district  in  the  first  instance  without 
first  causing  an  enumeration  of  the  inhabitants  to  be  made  which  shall  show 
the  population  thereof  to  be  at  least  five  thousand,  the  expense  of  such 
enumeration,  as  certified  by  said  commissioner,  shall  be  paid  by  the  district 
in  whose  interest  it  is  made.  The  population  shown  by  the  last  state  or 
federal  census  or  village  enumeration  may  be  accepted  by  said  commissioner 
whenever  the  village  and  school  district  boundaries  coincide. 

2.  No  district  shall  be  entitled  to  any  portion  of  such  school  moneys 
on  such  apportionment  unless  the  report  of  the  trustee  for  the  pre- 
ceding school  year  shall  show  that  a common  school  was  supported  in  the 
district  and  taught  by  a qualified  teacher  or  by  successive  qualified  teachers 
for  at  least  one  hundred  and  eighty  days,  inclusive  of  legal  holidays  that 
may  have  occurred  during  the  term  of  said  school  and  exclusive  of  Satur- 
days. [Subd.  amended  by  L.  1913,  ch.  511.] 

3.  No  Saturday  shall  be  counted  as  part  of  said  one  hundred  and 
eighty  days  of  school  and  no  school  shall  be  in  session  on  a legal  holiday, 
•except  general  election  day,  Washington’s  birthday  and  Lincoln’s  birth- 
day. A deficiency  not  exceeding  six  days  during  any  school  year  caused 
by  a teacher’s  attendance  upon  teachers’  conferences  held  by  district  su- 
perintendents of  schools  within  a county,  shall  be  excused  by  the  com- 
missioner of  education.  In  common  school  districts  the  term  of  school 
shall  begin  each  year  on  the  first  Tuesday  of  September.  [Subd. 
amended  by  L.  1913,  ch.  511,  Education  Law  (L.  1910,  ch.  140),  § 492.] 


§ 4.  APPORTIONMENT  OF  MONEYS  APPROPRIATED  TO  CITIES,  ACAD- 
EMIES, ACADEMIC  DEPARTMENTS  AND  SCHOOL  LIBRARIES. 

The  commissioner  of  education  shall  apportion  the  money  annually 
appropriated  for  the  support  of  cities,  academies,  academic  departments 
and  school  libraries  in  accordance  with  regulations  established  or  to  be 
established  by  him  as  follows : 

1.  To  each  city,  union  school  district  and  nonsectarian  academy  main- 
taining an  academic  department,  a quota  of  one  hundred  dollars  for  each 
such  academic  department  maintained  therein.  This  apportionment  shall 
be  known  as  the  academic  quota. 

2.  To  each  nonsectarian  private  academy  an  allowance  equal  to  the 
amount  raised  from  local  sources  but  not  to  exceed  two  hundred  fifty  dol- 
lars annually  for  approved  books,  reproductions  of  standard  works  of  art 
and  apparatus.  [Subd.  amended  by  L.  1914,  ch.  216.] 

3.  To  each  city  an  allowance  equal  to  the  amount  raised  from  local 
sources  but  not  to  exceed  eighteen  dollars  and  two  dollars  additional  for 
each  duly  licensed  teacher  employed  therein  for  the  legal  term,  and  two 
hundred  fifty  dollars  for  each  academic  department  maintaine'd  by  it  for 


SCHOOLS  AND  SCHOOL  MONEYS. 


1005 


Education  Law,  § 493. 

approved  books,  reproductions  of  standard  works  of  art  and  apparatus. 
[Subd.  amended  by  L.  1914,  ch.  216.] 

4.  To  each  union  free  school  district  maintaining  an  academic  depart- 
ment an  allowance  equal  to  the  amount  raised  from  local  sources,  but  not 
to  exceed  two  hundred  sixty-eight  dollars  annually  and  two  dollars  addi- 
tional for  each  teacher  employed  in  said  district  for  the  legal  term  for  ap- 
proved books,  reproductions  of  standard  works  of  art  and  apparatus. 
[Subd.  amended  by  L.  1914,  ch.  216.] 

5.  To  all  other  school  districts  an  allowance  equal  to  the  amount  raised 
from  local  sources  but  not  to  exceed  eighteen  dollars  annually  and  two 
dollars  additional  for  each  duly  licensed  teacher  employed  in  said  dis- 
trict for  the  legal  term  for  approved  books,  reproductions  of  standard 
works  of  art,  geographical  maps,  a globe  and  school  apparatus.  [Subd. 
amended  by  L.  1914,  ch.  216.] 

6.  To  each  city  and  union  school  district  maintaining  an  academic  de- 
partment, twenty  dollars  per  year  for  at  least  thirty-two  weeks’  instruc- 
tion or  a proportionate  amount  if  for  eight  weeks  or  more  for  each  non- 
resident pupil  attending  the  academic  department  of  such  school  from 
districts  not  maintaining  such  academic  departments  and  who  shall  be 
admitted  to  such  academic  department  without  other  expense  for  tuition 
than  that  provided  herein.  But  pupils  residing  in  districts  not  maintain- 
ing a four-year  curriculum  may  be  included  in  this  apportionment  after 
having  completed  the  course  of  study  prescribed  for  the  school  in  the  dis- 
trict in  which  they  reside.  In  the  apportionment  to  cities  and  union 
school  districts,  whose  customary  charge  for  nonresident  pupils  is  greater 
than  the  sum  provided  by  this  subdivision,  the  commissioner  of  educa- 
tion may  permit  the  sum  so  apportioned  to  be  applied  upon  such  custo- 
mary charge  for  such  non-resident  pupils,  provided  the  balance  of  such 
customary  charge  shall  be  assumed  by  the  school  district  in  which  such 
non-resident  pupil  is  resident,  and  the  payment  thereof  shall  have  been 
provided  for  at  a school  district  meeting  held  in  such  district  or  the 

said  balance  shall  have  been  paid  by  the  parents  or  guardians  of  such 
pupils  to  the  proper  officer  of  the  city  or  district  maintaining  the  high 
school  or  academic  department  attended  by  such  pupils.  [Subd. 
amended  by  L.  1912,  ch.  276,  L.  1913,  ch.  399,  and  L.  1915,  ch.  214.] 

7.  After  the  payment  of  the  allowances  herein  provided  for  the  bal- 
ance shall  be  divided  among  the  several  cities,  school  districts  and  acade- 
mies maintaining  academic  departments  on  the  basis  of  aggregate  days* 
attendance  of  academic  pupils  therein. 

8.  The  commissioner  shall  set  aside  at  the  beginning  of  the  fiscal  year 
a sum  which  in  his  opinion  will  be  sufficient  to  pay  the  allowances  for 
books  and  apparatus  herein  provided  before  making  the  other  apportion- 
ments as  directed  by  this  article.  The  allowance  for  books  and  appa- 
ratus shall  be  apportioned  and  paid  as  often  during  each  year  as  the 
commissioner  may  determine.  All  other  apportionments  above  provided 
for  shall  be  made  so  far  as  possible  during  the  month  of  October  each 
year  on  the  basis  of  the  reports  of  the  previous  year. 


1006  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


Education  Law,  §§  494.  495. 


9.  To  entitle  a city,  academy,  academic  department  or  school  library 
to  an  apportionment  from  this  fund  the  school  authorities  having  control 
must  render  a satisfactory  report  for  the  -preceding  year  to  the  commis- 
sioner of  education  before  the  twentieth  day  of  September  in  each  year 
unless  such  neglect  is  excused  by  the  commissioner  for  sufficient  reason. 
They  must  also  have  complied  with  all  regents’  laws  and  ordinances  dur- 
ing the  preceding  academic  year.  [Education  Law  (L.  1910,  ch.  140), 
§ 493.] 

§ 5.  MANNER  OF  CERTIFYING  AND  PAYING  APPORTIONMENT 
PROVIDED  FOR  IN  PRECEDING  SECTION. 

Payment  from  this  fund  shall  be  made  to  the  county  treasurer  of  each 
county  for  all  schools  located  in  such  county,  by  the  state  treasurer  on  the 
warrant  of  the  comptroller  or  the  certificate  of  the  commissioner  of 
education. 

The  commissioner  of  education  immediately  after  making  an  apportion- 
ment shall  certify  or  cause  to  be  certified  to  the  county  treasurer  of  every 
county  included  in  such  apportionment,  excepting  those  counties  in- 
cluded, within  the  territory  of  the  city  of  New  York,  with  respect  to  his 
county,,  the  name  of  each  academy,  the  number  of  each  school  district 
and  the  town  in  which  it  is  situated  and  the  name  of  each  city  to  which 
money  has  been  allotted  and  the  amount  allotted  to  each.  The  county 
treasurer  shall,  upon  the  receipt  of  such  certificate  and  payment  from 
the  state  treasurer,  pay  to  the  treasurer,  if  there  be  one,  otherwise  to  the 
disbursing  officer  or  collector  of  each  school  district,  academy  and  city 
named  in  the  certificate  of  the  commissioner  of  education,  the  amount  to 
which  said  district,  academy  or  city  is  entitled  as  shown  by  such  certifi- 
cate. 

Any  apportionment  which  shall  be  made  to  the  city  of  New  York  shall 
be  certified  and  paid  to  the  chamberlain  of  the  city  of  New  York,  and 
any  apportionment  which  shall  be  made  to  any  private  academy  situated 
within  the  territory  of  the  city  of  New  York,  shall  be  certified  and  paid 
directly  to  the  disbursing  officer  of  the  academy  to  which  the  apportion- 
ment is  made.  [Education  Law  (L.  1910,  ch.  140),  § 494,  as  amended 
by  L.  1912,  ch.  77.] 


§ 6.  COUNTY  TREASURERS  TO  RENDER  ANNUAL  REPORT. 

The  county  treasurers  of  the  state  shall,  upon  the  first  day  of  October  of 
each  year  and  at  such  other  times  as  the  commissioner  of  education  may  re- 
quire, make  a report  for  the  preceding  year  to  the  commissioner  of  educa- 
tion, showing  the  amount  of  money  received  by  them  from  this  fund  and 
the  school  districts,  cities  or  academies  to  which  such  money  has  been  paid 
and  the  amount  paid  to  each,  and  the  amount,  if  any,  remaining  in  their 
hands  unclaimed  by  any  school  district,  city  or  academy  together  with  any 
other  fact  relative  to  the  disbursement  of  this  fund  which  said  commis- 
sioner may  require.  [Education  Law  (L.  1910,  ch.  140)  § 495.] 


SCHOOLS  AND  SCHOOL  MONEYS. 


1007 


Education  Law,  §§  496-498. 

§ 7.  CERTIFICATE  OF  APPORTIONMENT  BY  COMMISSIONER  OF  EDUCA- 
TION. 

As  soon  as  possible  after  the  making  of  any  annual  or  general  appor- 
tionment, the  commissioner  of  education  shall  certify  it,  or  cause  it  to  be 
certified,  to  the  county  clerk,  county  treasurer,  district  superintendents, 
and  city  treasurer  or  chamberlain,  in  every  county  in  the  state ; and  if  it 
be  a supplemental  apportionment,  then  to  the  county  clerk,  county  treas- 
urer and  district  superinten4ents  of  the  county  in  which  the  school-house 
of  the  district  concerned  is  situated.  [Education  Law  (L.  1910,  ch. 
140),  § 496,  as  amended  by  L.  1912,  ch.  77.] 

§ 8.  MONEYS  APPROPRIATED,  WHEN  AND  HOW  PAYABLE. 

At  least  one-hali  of  the  moneys  ,so  annually  apportioned  by  the  com- 
missioner of  education  shall  be  payable  on  or  before  the  first  day  of 
March  and  the  remaining  part  of  such  moneys  on  or  before  the  fifteenth 
day  of  May,  in  each  year,  next  after  such  apportionment,  to  the  treasur- 
ers of  the  several  counties  and  the  chamberlain  of  the  city  of  New  York, 
respectively ; and  the  said  treasurers  and  the  chamberlain  shall  apply  for 
and  receive  the  same  as  soon  as  payable.  The  county  treasurer  shall  pay 
to  the  city  treasurer  of  each  city  and  the  treasurer  of  each  union  free 
school  district  having  a population  of  five  thousand  or  more  inhabitants 
and  in  which  a superintendent  of  schools  has  been  appointed,  situated 
within  his  county,  all  school  moneys  apportioned  to  such  city  or  district 
as  provided  by  sections  four  hundred  and  ninety-one,  four  hundred  and 
ninety-two  and  six  hundred  and  four  of  this  chapter.  [Education  Law 
(L.  1910,  ch.  140),  § 497,  as  amended  by  L.  1914,  ch.  52.] 

§ 9.  APPORTIONMENT  OF  SCHOOL  MONEYS  BY  DISTRICT  SUPERIN- 
TENDENTS. 

The  district  superintendent  of  schools  shall,  on  or  before  the  fifteenth 
day  of  February  in  each  year,  apportion  the  supervision,  district  and 
teachers’  quotas  to  the  several  districts  entitled  thereto,  within  his  super- 
visory district,  as  shown  by  the  certificate  of  the  commissioner  of  educa- 
tion to  the  said  district  superintendent.  He  shall  procure  from  the  su- 
pervisors of  the  towns  in  his  district  a transcript  showing  the  unexpended 
moneys  in  their  hands  applicable  to  the  payment  of  teachers’  salaries. 
The  amounts  in  each  supervisor’s  hands  shall  be  charged  as  a partial 
payment  of  the  sums  apportioned  to  the  town  teachers’  salaries. 

He  shall  procure  from  the  county  treasurer  a full  list  and  statement 
of  all  payments  to  him  of  moneys  for  or  on  account  of  fines  and  penal- 
ties, or  accruing  from  any  other  source,  for  the  benefit  of  schools  and  of 
the  towns  or  districts  for  whose  benefit  the  same  were  received.  Such 
of  said  moneys  as  belong  to  a particular  district,  he  shall  set  apart  and 
credit  to  it ; and  such  as  belong  to  the  schools  of  a town  he  shall  set  apart 
and  credit  to  the  schools  in  that  town,  and  shall  apportion  them  together 
with  such  as  belong  to  the  schools  of  the  county  as  hereinafter  provided 
for  the  payment  of  teachers’  salaries. 


1008  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  §§  499-501,  363. 

He  shall  sign,  in  duplicate,  a certificate,  showing  the  amounts  appor- 
tioned and  set  apart  to  each  school  district  and  part  of  a district,  and  the 
towns  in  which  they  were  situated,  and  shall  forthwith  deliver  one  of 
said  duplicates  to  the  treasurer  of  the  county  and  transmit  the  other  to 
the  commissioner  of  education. 

He  shall  certify  to  the  supervisor  of  each  town,  in  his  supervisory  dis- 
trict the  amount  of  school  moneys  apportioned  to  each  district  or  part  of 
a district  of  his  town  for  teachers’  wages.  [Education  Law  (L.  1910, 
ch.  140),  § 498,  as  amended  by  L.  1913,  ch.  130.] 

§ 10.  DUTY  OF  AND  PAYMENT  TO  SUPERVISOR. 

On  receiving  the  certificate  of  the  school  commissioners,  each  super- 
visor shall  forthwith  make  a copy  thereof  for  his  own  use,  and  deposit  the 
original  in  the  office  of  the  clerk  of  his  town ; and  the  moneys  so  apportioned 
to  his  town  shall  be  paid  to  him  immediately  on  his  compliance  with  the  re- 
quirements of  section  three  hundred  and  sixty-three  of  this  chapter.  [Edu- 
cation Law,  (L.  1910,  ch.  140),  § 499.] 

§ 11.  POWER  OF  COMPTROLLER  TO  WITHHOLD  PAYMENT  OF 
SCHOOL  MONEYS. 

The  comptroller  may  withhold  the  payment  of  any  moneys  to  which  any 
county  may  be  entitled  from  the  appropriation  of  the  incomes  of  the  school 
fund  and  the  United  States  deposit  fund  for  the  support  of  common  schools, 
until  satisfactory  evidence  shall  be  furnished  to  him  that  all  moneys 
required  by  law  to  be  raised  by  taxation  upon  such  county,  for  the  support 
of  schools  throughout  the  state,  have  been  collected  and  paid  or  accounted 
for  to  the  state  treasurer.  [Education  Law,  (L.  1910,  ch.  140),  § 500.] 

§ 12.  UNION  FREE  SCHOOL  DISTRICT  AND  CITY,  A SCHOOL  DIS- 
TRICT. 

Every  union  free  school  district  and  every  city  having  an  organized 
city  system  of  schools  shall,  for  all  the  purposes  of  the  apportionment, 
distribution,  payment  and  withholding  of  school  moneys,  be  regarded  and 
recognized  as  a school  district.  [Education  Law,  (L.  1910,  ch.  140)  501.] 
501.] 

§ 13.  SUPERVISOR  TO  GIVE  BOND  BEFORE  RECEIVING  SCHOOL 
MONEYS;  REFUSAL  TO  GIVE  BOND  A MISDEMEANOR. 

1.  Immediately  on  receiving  the  school  commissioners’  certificates  of 
apportionment,  the  county  treasurer  shall  require  of  each  supervisor,  and 
each  supervisor  shall  give  to  the  treasurer,  in  behalf  of  the  town,  his  bond, 
with  two  or  more  ' sufficient  sureties,  approved  by  the  treasurer,  in  the 


SCHOOLS  AND  SCHOOL  MONEYS. 


1009 


Education  Law,  § 364. 

penalty  of  at  least  double  the  amount  of  the  school  moneys  set  apart  or 
apportioned  to  the  town,  and  of  any  such  moneys  unaccounted  for  by  his 
predecessors,  conditioned  for  the  faithful  disbursement,  safe-keeping  and 
accounting  for  such  moneys,  and  of  all  other  school  moneys  that  may  come 
into  his  hands  from  any  other  source.1 

2.  If  the  condition  shall  be  broken  the  county  treasurer  shall  sue  the 
bond  in  his  own  name,  in  behalf  of  the  town,  and  the  money  recovered  shall 
be  paid  over  to  the  successor  of  the  supervisor  in  default,  such  successor 
having  first  given  security  as  aforesaid.2 

3.  Whenever  the  office  of  a supervisor  shall  become  vacant,  the  county 
treasurer  shall  require  the  person  elected  or  appointed  to  fill  such  vacancy 
to  execute  a bond,  with  two  or  more  sureties,  to  be  approved  by  the  treas- 
urer, in  the  penalty  of  at  least  double  the  sum  of  the  school  moneys  re- 
maining in  the  hands  of  the  old  supervisor,  when  the  office  became  vacant, 
conditioned  for  the  faithful  disbursement  and  safe-keeping  of  and  account- 
ing for  such  moneys.  But  the  execution  of  this  bond  shall  not  relieve  the 
supervisor  from  the  duty  of  executing  the  bond  first  above  mentioned. 
[Education  Law  (L.  1910,  ch.  140)  § 363.] 

The  refusal  of  a supervisor  to  give  such  security  shall  be  a misdemeanor. 
and  any  fine  imposed  on  his  conviction  thereof  shall  be  for  the  benefit  of 
the  common  schools  of  the  town.  Upon  such  refusal,  the  moneys  so  set 
apart  and  apportioned  to  the  town  shall  be  paid  to  and  disbursed  by  some 
other  officer  or  person  to  be  designated  by  the  county  judge,  under  such 


1.  For  form  of  bond  of  supervisor  on  account  of  school  moneys  and  the 
approval  of  the  county  treasurer,  see  Form  No.  153,  post. 

Undertaking  of  supervisor.  Each  supervisor  is  required  to  make  and 
deliver  to  the  town  clerk  of  the  town  his  undertaking,  with  such  sureties  as 
the  town  board  shall  prescribe,  conditioned  for  the  faithful  keeping  and  ac- 
counting for  all  moneys  and  property,  including  the  local  school  fund,  be- 
longing to  his  town  and  coming  into  his  hands  as  such  supervisor.  See  Town 
Law,  sec.  100,  ante,  p.  304.  The  undertaking  required  by  the  above  section 
is  in  addition  to  his  regular  official  undertaking  and  runs  to  the  county 
treasurer  rather  than  to  the  town.  The  form  of  an  official  undertaking  of  a 
town  officer,  and  the  liability  of  sureties  thereon  are  prescribed  by  section 
13  of  the  Town  Law,  ante,  p.  311.  As  to  general  provisions  respecting  official 
undertakings,  see  Public  Officers  Law,  secs.  10-13,  ante,  p.  312. 

2.  Liability  on  bond.  The  fact  that  the  supervisor  of  a town  in  good 
faith  deposited  as  a general  deposit  the  school  moneys  received  by  him  with 
a reputable  firm  of  individual  bankers,  believed  to  be  solvent,  and  that  there- 
after such  firm  failed  and  such  moneys  were  lost,  is  not  a defense  to  an  action 
brought  upon  the  bond  of  such  supervisor  given  pursuant  to  the  provisions 
of  the  above  section.  Tillinghast  v.  Merrill,  77  Hun,  481;  28  N.  Y.  Supp. 
1089. 


1010  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  §§  365,  520. 

regulations  and  with  such  safeguards  as  he  may  prescribe,  and  the  rea- 
sonable compensation  of  such  officer  or  person,  to  be  adjusted  by  the  board 
of  supervisors,  shall  be  a town  charge.3 * 5  [Education  Law  (L.  1910,  ch. 
140),  § 364.] 

§ 14.  REPORT  BY  SUPERVISORS  TO  DISTRICT  SUPERINTENDENTS. 

On  the  first  Tuesday  of  February  in  each  year,  each  supervisor  shall 
mahe  a return  in  writing  to  the  district  superintendent  of  schools  of  the 
supervisory  district  in  which  the  town  is  situated,  showing  the  amounts 
of  school  moneys  in  his  hands  not  paid  on  the  orders  of  trustees  for 
teachers’  salaries,  and  the  districts  to  which  they  stand  accredited,  and  if 
such  moneys  remain  in  his  hands,  he  shall  report  that  fact;  and  there- 
after he  shall  not  pay  out  any  of  said  moneys  until  he  shall  have  received 
the  certificate  of  the  next  apportionment;  and  the  moneys  so  returned 
by  him  shall  be  reapportioned  as  directed  in  article  eighteen  of  this  chap- 
ter. [Education  Law  (L.  1910,  ch.  140),  § 365,  as  amended  by  L.  1913, 
ch.  130.] 


§ 15.  GRANT,  BEQUEST  OR  DEVISE  OF  PROPERTY  TO  TOWNS  FOR 
BENEFIT  OF  SCHOOLS. 

Real  and  personal  estate  may  be  granted,  conveyed,  devised,  bequeathed 
and  given  in  trust  and  in  perpetuity  or  otherwise,  to  the  state,  or  to  the  re- 
gents or  to  the  commissioner  of  education  for  the  support  or  benefit  of  the 
common  schools,  within  the  state,  or  within  any  part  or  portion  of  it,  or  of 
any  particular  common  schools  within  it;  and  to  any  county,  or  the  school 
comissioners  of  any  county,  or  to  any  city  or  any  board  of  officers  thereof,  or 
to  any  school  commissioner  district  or  its  commissioner,  or  to  any  town,  or 
supervisor  of  a town,  or  to  any  school  district  or  its  trustees,  for  the 
support  and  benefit  of  common  schools  within  such  county,  city,  school 
commissioner  district,  town  or  school  district,  or  within  any  part  or  por- 
tion thereof  respectively,  or  for  the  support  and  benefit  of  any  particular 
common  schools  therein.  No  such  grant,  conveyance,  devise  or  bequest 
shall  be  held  void  for  the  want  of  a named  or  competent  trustee  or  donee, 
but  where  no  trustee  or  donee,  or  an  incompetent  one  is  named,  the  title 
and  trust  shall  vest  in  the  people  of  the  state,  subject  to  its  acceptance  by 
fhe  legislature,  but  such  acceptance  shall  be  presumed.  [Education  Law 
(L.  1910,  ch.  140)  § 520.] 


3.  Refusal  to  give  bond.  It  is  provided  by  section  1820  of  the  Penal 
Law  that  a person  who  executes  any  functions  of  a public  office  without 
having  executed  and  duly  filed  the  required  security  is  guilty  of  a misdemeanor. 

But  the  acts  of  the  supervisor  are  not  invalidated  because  of  his  failure  to 

execute  the  bond.  See  Penal  Law,  § 1821. 


SCHOOLS  AND  SCHOOL  MONEYS. 


1011 


Education  Law,  ’§§  521-523,  850. 

The  legislature  may  control  and  regulate  the  execution  of  all  such  trusts ; 
and  the  commissioner  of  education  shall  supervise  and  advise  the  trustees, 
and  hold  them  to  a regular  accounting  for  the  trust  property  and  its  income 
and  interest  at  such  times,  in  such  forms,  and  with  such  authentications,  as 
he  shall,  from  time  to  time,  prescribe.  [Education  Law  (L.  1910,  ch.  140) 
§ 521.] 

The  common  council  of  every  city,  the  board  of  supervisors  of  every 
county,  the  trustees  of  every  village,  the  supervisor  of  every  town,  the 
trustees  of  every  school  district,  and  every  other  officer  or  person  who 
shall  be  thereto  required  by  the  commissioner  of  education,  shall  report 
to  him  whether  any  and  if  any,  what  trusts  are  held  by  them  respectively, 
or  by  any  other  body,  officer  or  person  to  their  information  or  belief  for 
school  purposes,  and  shall  transmit,  therewith,  an  authenticated  copy  of 
every  will,  conveyance,  instrument  or  paper  embodying  or  creating  the 
trust;  and  shall,  in  like  manner,  forthwith  report  to  him  the  creation  and 
terms  of  every  such  trust  subsequently  created.  [Education  Law  (L. 
1910,  ch.  140)  § 522.] 


§ 17.  SUPERVISOR  TO  REPORT  TO  SUPERINTENDENT  AMOUNT 
OF  GOSPEL  SCHOOL  FUNDS  IN  HIS  HANDS. 

Every  supervisor  of  a town  shall  report  to  the  commissioner  of  education 
whether  there  be,  within  the  town,  any  gospel  or  school  lot,  and,  if  any, 
shall  describe  the  same,  and  state  to  what  use,  if  any,  it  is  put  by  the  town  ; 
and  whether  it  be  leased,  and,  if  so,  to  whom,  for  what  term  and  upon  what 
rents;  and  whether  the  town  holds  or  is  entitled  to  any  land,  moneys  or 
securities  arising  from  any  sale  of  such  gospel  or  school  lot,  and  the  invest- 
ment of  the  proceeds  thereof,  or  of  the  rents  and  income  of  such  lots  and 
investments,  and  shall  report  a full  statement  and  account  of  such  lands, 
moneys  and  securities.4  [Education  Law  (L.  1910,  ch.  140)  § 523.] 


§ 17.  DISPOSITION  OF  FINES  AND  PENALTIES  FOR  THE  BENEFIT 
OF  THE  COMMON  SCHOOLS;  DISTRICT  ATTORNEY  TO  RE- 
PORT TO  BOARD  OF  SUPERVISORS  FINES  COLLECTED? 
FINES  TO  BE  PAID  TO  COUNTY  TREASURER. 

Whenever,  by  any  statute,  a penalty  or  fine  is  imposed  for  the  benefit  of 
common  schools,  and  not  expressly  of  the  common  schools  of  a town  or 


4.  Gospel  and  school  lots.  As  to  powers  and  duties  of  supervisor  in  regard 
to  gospel  and  school  lots,  see  post,  p.  1026. 


1012  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  §§  851-853. 

school  district,  it  shall  be  taken  to  be  for  the  benefit  of  the  common  schools 
of  the  county  within  which  the  conviction  is  had;  and  the  fine  or  penalty; 
when  paid  or  collected,  shall  be  paid  forthwith  into  the  county  treasury, 
and  the  treasurer  shall  credit  the  same  as  school  moneys  of  the  county, 
unless  the  county  comprise  a city  having  a special  school  act,  in  which 
case  he  shall  report  it  to  the  commissioner  of  education,  who  shall  appor- 
tion it  upon  the  basis  of  population  by  the  last  census,  between  the  city 
and  the  residue  of  the  county,  and  the  portion  belonging  to  the  city  shall 
be  paid  into  its  treasury.  [Education  Law  (L.  1910,  ch.  140)  § 850.] 

Every  district  attorney  shall  report,  annually,  to  the  board  of  supervisors, 
all  such  fines  and  penalties  imposed  in  any  prosecution  conducted  by  him 
during  the  previous  year;  and  all  moneys  collected  or  received  by  him  or 
by  the  sheriff,  or  any  other  officer,  for  or  on  account  of  such  fines  or  penal- 
ties, shall  be  immediately  paid  into  the  county  treasury,  and  the  receipt  of 
the  county  treasurer  shall  be  a sufficient  and  the  only  voucher  for  such 
money.5  [Education  Law  (L.  1910,  ch.  140)  § 851.] 

Whenever  a fine  or  penalty  is  inflicted  or  imposed  for  the  benefit  of  the 
common  schools  of  a town  or  school  district,  the  magistrate,  constable  or 
other  officer  collecting  or  receiving  the  same  shall  forthwith  pay  the  same 
to  the  county  treasurer  of  the  county  in  which  the  school  house  is  located, 
who  shall  credit  the  same  to  the  town  or  district  for  whose  benefit  it  is 
collected.  If  the  fine  or  penalty  be  inflicted  or  imposed  for  the  benefit  of 
the  common  schools  of  a city  having  a special  school  act,  or  of  any  part  or 
district  of  a city,  it  shall  be  paid  into  the  city  treasury.  [Education  Law 
(L.  1910,  ch.  140)  § 852.] 

Whenever  a penalty  or  fine  is  imposed  upon  any  school  district  officer 
for  a violation  or  omission  of  official  duty,  or  upon  any  person  for  any 
act  or  omission  within  a school  district,  or  touching  property  or  the  peace 
and  good  order  of  the  district,  and  such  penalty  or  fine  is  declared  to  be 
for  the  use  or  benefit  of  the  common  schools  of  the  town  or  of  the  county, 
and  such  school  district  lies  in  two  or  more  towns  or  counties,  the  town 
or  county  intended  by  the  act  shall  be  taken  to  be  the  one  in  which  the 
school  house,  or  the  school  house  longest  owned  or  held  by  the  district, 
is  at  the  time  of  such  violation,  act  or  omission.  [Education  Law  (L.  1910, 
ch.  140)  § 853.] 


5.  Money  received  by  district  attorney  for  penalties.  The  district  attorney 
is  required  to  pay  all  money  received  for  a penalty  or  forfeiture  belonging  to 
the  county  to  the  county  treasurer,  and  must  render  an  account  to  the  first 
term  of  the  County  Court  of  his  county  held  in  each  calendar  year  of  all 
money  collected  by  him  from  any  person  belonging  to  the  county  or  to  the 
state.  See  County  Law,  § 201. 


SCHOOLS  AND  SCHOOL  MONEYS. 


1013 


Education  Law,  § 365. 

§ 18.  SUPERVISOR  TO  ANNUALLY  RETURN  TO  DISTRICT  SUPERIN- 
TENDENT AMOUNT  OE  SCHOOL  MONEYS  REMAINING  IN  MIS 

HANDS. 

On  the  first  Tuesday  of  February  in  each  year,  each  supervisor  shall 
make  a return  in  writing  to  the  district  superintendent  of  schools  of  the 
supervisory  district  in  which  the  town  is  situated,  showing  the  amounts 
of  school  moneys  in  his  hands  not  paid  on  the  orders  of  trustees  for  teach- 
ers’ salaries,  and  the  districts  to  which  they  stand  accredited,  and  if  such 
moneys  remain  in  his  hands,  he  shall  report  that  fact;  and  thereafter 
he  shall  not  pay  out  any  of  said  moneys  until  he  shall  have  received  the 
certificate  of  the  next  apportionment ; and  the  moneys  so  returned  by  him 
shall  he  reapportioned  as  directed  in  article  eighteen  of  this  chapter.6 
[Education  Law  (L.  1910,  ch.  140),  § 365,  as  amended  by  L.  1913, 
ch.  130.] 

§ 19.  DISBURSEMENT  OF  SCHOOL  MONEYS;  PAYMENT  OF  MONEYS 
TO  DISTRICT  COLLECTOR  OR  TREASURER;  LIBRARY 
MONEYS;  ACCOUNTS  OF  SCHOOL  MONEYS;  PAYMENT  OF 
MONEYS  BY  PREDECESSOR. 

It  is  the  duty  of  every  supervisor: 

1.  To  disburse  the  school  moneys  in  his  hands  applicable  to  the  payment 
of  teachers’  wages,  upon  and  only  upon  the  written  orders  of  a sole  trustee 
or  a majority  of  the  trustees,  in  favor  of  qualified  teachers.  But  whenever 
the  collector  in  any  school  district  shall  have  given  bonds  for  the  due  and 
faithful  performance  of  the  duties  of  his  office  as  disbursing  agent,  as  re- 
quired by  section  two-  hundred  and  fifty-three  or  whenever  any  school 
district  shall  elect  a treasurer  as  provided  in  this  chapter,  the  said  super- 
visor shall,  upon  the  receipt  by  him  of  a copy  of  the  bond  executed  by  said 
collector  or  treasurer  as  herein  required,  certified  by  the  trustees,  pay  over 
to  such  collector  or  treasurer,  all  moneys  in  his  hands  applicable  to  the  pay- 
ment of  teachers’  wages  in  such  district,  and  the  said  collector  or  treasurer 
shall  disburse  such  moneys  so  received  by  him  upon  such  orders  as  are 
specified  herein  to  the  teachers  entitled  to  the  same. 

2.  To  pay  over  all  the  school  money  apportioned  to  a union  free  school 
district,  to  the  treasurer  of  such  district,  upon  the  order  of  its  board  of 
education. 

3.  To  keep  a just  and  true  account  of  all  the  school  moneys  received 
and  disbursed  by  him  during  each  year,  and  to  lay  the  same,  with  proper 
vouchers,  before  the  town  board  or  board  of  town  auditors  at  each  annual 
meeting  thereof.7 


6.  For  form  of  report  of  supervisor  of  school  moneys  in  his  hands,  see  Form 
No.  154,  post. 

7.  Audit  of  accounts  by  town  board.  The  town  officers  are  required  to 


1014  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  § 360. 

4.  To  provide  a bound  blank  book,  the  cost  of  which  shall  be  a town 
charge,  and  to  enter  therein  all  his  receipts  and  disbursements  of  school 
moneys,  specifying  from  whom  and  for  what  purposes  they  were  received, 
and  to  whom  and  for  what  purposes  they  were  paid  out;  and  to  deliver  the 
book  to  his  successor  in  office. 

5.  To  make  out  a just  and  true  account  of  all  school  moneys  received 
by  him  and  of  all  disbursements  thereof,  within  fifteen  days  after  the  termi- 
nation of  his  office  and  to  deliver  the  same  to  the  town  clerk,  to  be  filed  and 
recorded,  and  to  notify  his  successor  in  office  that  such  account  has  been 
made  and  filed. 

6.  To  deliver  to  his  predecessor  the  county  treasurer’s  certificate  show- 
ing that  he  has  given  to  such  treasurer  the  bond  required  by  section  three 
hundred  and  sixt}^-three  of  this  chapter  and  that  such  bond  has  been  ap- 
proved by  such  treasurer,  and  to  procure  from  the  town  clerk  a copy  of  his 
predecessor’s  account,  and  to  demand  and  receive  from  him  all  school 
moneys  remaining  in  his  hands. 

7.  To  pay  to  his  successor  upon  receipt  of  such  certificate  all  school 
moneys  remaining  in  his  hands,  and  to  forthwith  file  the  certificate  in  the 
town  clerk’s  office.* * * * * * * 8 

8.  To  sue  for  and  recover,  in  his  name  of  office,  when  the  duty  is  not 
elsewhere  imposed  by  law,  all  penalties  and  forfeitures  imposed  by  this 
chapter,  and  for  any  default  or  omission  of  an}?-  town  officer  or  school  dis- 
trict board  or  officer  under  this  chapter;  and  after  deducting  his  costs  and 
expenses  to  report  the  balances  to  the  school  commissioner. 

9.  To  act,  when  legally  required,  in  the  erection  or  alteration  of  a school 
district,  as  provided  in  article  five  of  this  chapter,  and  to  perform  any  other 
duty  which  may  be  devolved  upon  him  by  this  chapter,  or  any  other  act 
relating  to  common  schools.  [Education  Law  (L.  1910,  ch.  140)  § 360, 
subds.  1-9.] 


account  to  the  town  board  or  board  of  town  auditors  for  all  moneys  re- 

ceived and  disbursed  by  them  at  the  meeting  of  such  board  held  on  the  Tues- 

day preceding  the  biennial  meeting  and  on  the  corresponding  date  in  each 

alternate  year,  or  in  towns  holding  town  meetings  at  the  same  time  with  the 

general  election,  on  the  third  Tuesday  of  December  in  each  year.  See  Town 

Law,  sec.  132,  ante,  p.  376,  and  the  notes  thereunder  relating  to  accountings  by 

town  officers  to  the  town  board. 

8.  Payments  to  successor.  It  is  provided  in  section  91  of  the  Town  Law 
(see  ante,  p.  356),  that  every  supervisor  going  out  of  office,  when  so  required, 
shall  deliver  upon  oath  to  his  successor  all  the  records,  books  and  papers  in  his 
possession  or  under  his  control  belonging  to  the  office  held  by  him,  and  shall  at 
the  same  time  pay  over  to  his  successor  the  moneys  belonging  to  the  town  re- 
maining in  his  hands.  If  a supervisor  shall  refuse  to  deliver  books  and  papers 


SCHOOLS  AND  SCHOOL  MONEYS. 


1015 


Education  Law,  § 123;  Idem,  §§  124,  140. 

§ 20.  ALTERATIONS  OF  SCHOOL  DISTRICTS;  REFUSAL  OF  TRUSTEES 
TO  CONSENT;  SUPERVISORS  OF  TOWNS  TO  BE  ASSOCIATED 
WITH  DISTRICT  SUPERINTENDENT  TO  HEAR  OBJECTIONS  AND 
DETERMINE. 

1.  With  the  written  consent  of  the  trustees  of  all  the  districts  to  be 
affected  thereby,  the  district  superintendent  may  make  an  order  alter- 
ing the  boundaries  of  any  school  district  within  his  jurisdiction,  and  fix 
in  such  order  a day  when  the  alteration  shall  take  effect. 

2.  With  the  written  consent  of  the  board  of  education  of  a union  free 
school  district  having  a population  of  five  thousand  or  more,  and  em- 
ploying a superintendent  of  schools,  and  the  written  consent  of  the  board 
of  education  or  trustees  of  a district  in  a supervisory  district  adjoining 
such  union  free  school  district,  the  district  superintendent  having  juris- 
diction may  make  an  order  altering  the  boundaries  of  such  districts, 
and  fix  in  such  order  a day  when  the  alteration  shall  take  effect.  [Edu- 
cation Law  (L.  1910,  ch.  140),  § 123,  as  amended  by  L.  1914,  ch.  154.] 

If  the  trustees  of  any  district  affected  thereby  refuse  to  consent,  the 
school  commissioner  may  make  and  file  with  the  town  clerk  his  order 
making  the  alteration,  but  reciting  the  refusal,  and  directing  that  the  or- 
der shall  not  take  effect  until  a day  therein  to  be  named,  and  not  less 
than  three  months  after  the  date  of  such  order.  [Idem,  § 124.] 

1.  Within  ten  days  after  making  and  filing  such  order  the  school  com- 
missioner shall  give  at  least  a week’s  notice  in  writing  to  the  trustees  of 
all  districts  affected  by  the  proposed  alterations,  that  at  a specified  time, 
and  at  a named  place  within  the  town  in  which  one  of  the  districts  to  be 
affected  lies,  he  will  hear  the  objections  to  the  alteration.* * 9 

2.  The  trustees  of  any  district  to  be  affected  by  such  order  may  re- 
quest the  supervisor  and  town  clerk  of  each  of  the  towns,  within  which 
such  districts  shall  wholly  or  partly  lie,  to  be  associated  with  the  school 
commissioner. 

3.  At  the  time  and  place  mentioned  in  the  notice,  such  commissioner, 
with  the  supervisors  and  town  clerks,  if  they  shall  attend  and  act,  shall 
hear  and  decide  the  matter,  and  the  decision  shall  be  final  unless  duly 
appealed  from.  Such  decision  must  either  affirm  or  vacate  such  order, 
and  must  be  filed  with  and  recorded  by  the  town  clerk  of  the  town  in 
which  the  district  to  be  affected  shall  lie,  and  a tie  vote  shall  be  regarded 
a decision  for  the  purposes  of  an  appeal  on  the  merits.  Upon  such 

pertaining  to  his  office,  to  his  successor,  proceedings  may  be  instituted  to  compel 

such  delivery,  pursuant  to  section  80  of  the  Public  Officer’s  Law. 

9.  Necessity  of  notice.  An  order  altering  or  dividing  a school  district, 
where  the  trustees  of  the  district  object,  cannot  be  made  without  giving  to 
such  trustees  at  least  a week’s  notice  in  writing  that  at  a time  and  place 
specified  by  the  school  commissioner  he  will  hear  their  objections  to  the  pro- 
posed alteration.  Neither  the  superintendent  of  public  instruction  nor  the 
school  commissioner  can  deprive  the  trustees  of  this  statutory  right.  People 
ex  rel.  Board  of  Education  v.  Hooper,  13  Hun,  639.  It  is  also  held  in  this 
case  that  the  provisions  of  the  title  of  the  Consolidated  School  Law  relating 
to  the  alteration  of  school  districts,  from  which  the  above  section  was  derived, 
applied  with  equal  force  and  effect  to  a union  free  school  district. 


101(j  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


Education  Law,  §§  138,  139. 

appeal  the  commissioner  of  education  may  affirm,  modify  or  vacate  the 
order  of  the  school  commissioner  or  the  action  of  the  local  board. 

The  supervisor  and  town  clerk  shall  be  entitled  each,  to  one  dollar  and 
fifty  cents  a day,  for  each  day’s  service  in  any  proceeding  under  section  125 
of  this  article,  to  be  levied  and  paid  as  a charge  upon  their  town.10  [Idem, 
§ 140.] 


§ 21.  DUTIES  OF  SUPERVISOR  AS  TO  THE  PROPERTY  AND  EF- 
FECTS OF  DISSOLVED  SCHOOL  DISTRICTS. 

1.  When  a district  is  divided  into  portions,  which  are  annexed  to  other 
districts,  its  property  shall  be  sold  by  the  supervisor  of  the  town,  within 
which  its  school-house  is  situated,  at  public  auction,  after  at  least  five  days’ 
notice. 

2.  Such  notice  shall  be  given  by  posting  the  same  in  three  or  more 
public  places  of  the  town  in  which  the  school-house  is  situated  and  in  one 
conspicious  place  in  the  district  so  dissolved. 

3.  The  supervisor,  after  deducting  the  expenses  of  the  sale,  shall  apply 
its  proceeds  to  the  payment  of  the  debts  of  the  district,  and  apportion  the 
residue,  if  any,  among  the  owners  or  possessors  of  taxable  property  in  the 
district,  in  the  ratio  of  their  several  assessments  on  the  last  corrected  assess- 
ment-roll of  the  towns,  and  pay  it  over  accordingly.  [Education  Law 
(L.  1910,  ch.  140)  § 138.] 

The  supervisor  of  the  town  within  which  the  school-house  of  the  dis- 
solved district  was  situated  may  demand,  sue  for  and  collect,  in  his  name 
of  office,  any  money  of  the  district  outstanding  in  the  hands  of  any  of  its 
former  officers,  or  any  other  person;  and,  after  deducting  his  costs  and  ex- 
penses, shall  report  the  balance  to  the  school  commissioner  who  shall  appor- 
tion the  same  equitably  among  the  districts  to  which  the  parts  of  the  dis- 
solved district  were  annexed,  to  be  by  them  applied  as  their  district  meeting 
shall  determine.  [Education  Law  (L.  1910,  ch.  140),  § 139.] 


§ 22.  DISTRICTS  IN  TWO  OR  MORE  TOWNS;  EQUALIZATION  OF 
ASSESSMENT  BY  SUPERVISORS. 

WLen  a district  embraces  parts  of  two  or  more  towns,  the  supervisors 


10.  The  compensation  of  supervisor  and  town  clerk  for  services  per- 
formed in  proceedings  relating  to  the  alteration  of  school  districts  as  pre- 
scribed in  the  above  section  is  exclusive  of  any  further  compensation^  and  the 
provisions  of  section  85  of  the  Town  Law  fixing  the  compensation  of  town 


SCHOOLS  AND  SCHOOL  MONEYS. 


1017 


Education  Law,  § 380. 

of  such  towns  shall,  upon  receiving  a written  notice  from  the  trustees  of 
such  district,  or  from  three  or  more  persons  liable  to  pay  taxes  upon  real  es- 
tate therein,  meet  at  a time  and  place  to  be  named  in  such  notice,  which 
time  shall  not  be  less  than  five  or  more  than  ten  days  from  the  service  there- 
of, and  a place  within  the  bounds  of  the  towns  so  in  part  embraced,  and  pro- 
ceed to  inquire  and  determine  whether  the  valuation  of  real  property  upon 
the  several  assessment-rolls  of  said  towns  is  substantially  just  as  compared 
with  each  other. 

2.  If  it  is  ascertained  that  such  assessments  are  not  relatively  equal 
such  supervisor  shall  determine  the  relative  proportion  of  taxes  that  ought 
to  be  assessed  upon  the  real  property  of  the  parts  of  such  district  lying 
in  different  towns,  and  the  trustees  of  such  district  shall  thereupon  assess 
the  proportion  of  any  tax  thereafter  to  be  raised,  according  to  the  deter- 
mination of  such  supervisors,  until  new  assessment-rolls  of  the  town 
shall  be  perfected  and  filed,  using  the  assessment-rolls  of  the  several  towns 
to  distribute  the  said  proportion  among  the  persons  liable  to  be  assessed  for 
the  same. 

3.  If  such  supervisors  shall  be  unable  to  agree,  they  shall  summon  a 
supervisor  from  some  adjoining  town  who  shall  meet  with  them  and  unite 
in  such  inquiry  and  the  finding  of  a majority  shall  be  the  determination 
of  such  meeting. 

4.  Such  supervisors  shall  receive  for  their  services  three  dollars  per 
day  for  each  day  actually  employed  which  shall  be  a town  charge  upon 
their  respective  towns.  [Education  Law  (L.  1910,  ch.  140)  § 414.] 


§ 23.  DISTRICT  SUPERINTENDENTS  OF  SCHOOLS;  POWERS  AND  DUTIES 
OF  BOARDS  OF  SUPERVISORS  AS  TO  SUPERVISORY  DISTRICTS. 

Office  of  district  superintendent  of  schools  created. — The  office  of  dis^ 
trict  superintendent  of  schools  is  hereby  created  to  begin  on  the  first  day 
of  January,  nineteen  hundred  and  twelve.  [Education  Law,  § 380,  as 
amended  by  L.  1910,  ch.  607,  in  effect  January  1,  1912.] 

Supervisory  districts. — 1.  The  territory  embraced  in  the  school  com- 
missioner districts  of  the  state  outside  of  cities  and  of  school  districts  of 
five  thousand  population  or  more,  which  employ  a superintendent  of 
schools,  shall  be  organized  and  divided  into  supervisory  districts.  In 
the  formation  or  division  of  such  territory  into  such  districts  no  town 
shall  be  divided.  The  territory  of  such  districts  must  be  contiguous  and 
compact  and  towns  shall  be  arranged  in  districts  so  that  there  shall  be  as 
equal  a division  of  the  territory  and  number  of  school  districts  as  may 
be  practicable. 

2.  In  a county  entitled  to  two  or  more  supervisory  districts  the  school 


1018 


SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 


Education  Law,  § 381. 

commissioner  of  each  school  commissioner  district  in  such  county  and 
the  supervisor  of  each  town  in  such  county  shall  meet  at  the  county  seat 
of  such  county  on  the  third  Tuesday  in  April,  nineteen  hundred  and 
eleven,  at  ten  o’clock  in  the  forenoon  and  divide  such  county  into  the 
number  of  supervisory  districts  to  which  it  is  entitled. 

3.  The  county  clerk  of  such  county  shall  give  ten  days’  notice,  in 
writing,  of  such  meeting,  to  each  of  such  school  commissioners  and 
supervisors.  The  county  clerk  shall  also  call  such  meeting  to  order  at 
the  proper  hour  and  the  school  commissioners  and  supervisors  present 
shall  elect  from  their  number  a chairman  and  a clerk. 

4.  A copy  of  the  proceedings  of  such  meeting  showing  the  super- 
visory districts  formed  and  naming  the  towns  composing  each  of  such 
districts,  certified  by  the  chairman  and  clerk,  shall  be  deposited  by  the 
clerk  of  such  meeting  in  the  office  of  the  clerk  of  the  county  immedi- 
ately after  the  close  of  the  meeting.  The  county  clerk  on  receipt  of  the 
same  shall  forward  a certified  copy  thereof  to  the  commissioner  of  edu- 
cation. 

5.  The  number  of  supervisory  districts  into  which  each  county  shall 
be  organized  or  divided  is  as  follows : 

a.  Hamilton,  Putnam,  Rockland,  Schenectady,  each  one; 

b.  Chemung,  Fulton,  Genesee,  Montgomery,  Nassau,  Schuyler, 
Seneca,  Yates,  each  two; 

c.  Albany,  Clinton,  Columbia,  Cortland,  Essex,  Greene,  Livingston, 
Niagara,  Orange,  Orleans,  Rensselaer,  Schoharie,  Suffolk,  Sullivan, 
Tioga,  Tompkins,  Warren,  Wyoming,  each  three; 

d.  Broome,  Dutchess,  Franklin,  Herkimer,  Lewis,  Madison,  Monroe, 
Ontario,  Saratoga,  Ulster,  Washington,  Wayne,  Westchester,  each  four; 

e.  Allegheny,  Cattaraugus,  Cayuga,  Chenango,  Erie,  Onondaga, 
Oswego,  each  five ; 

f.  Chautauqua,  Delaware,  Jefferson,  Otsego,  each  six; 

g.  Oneida,  Steuben,  each  seven; 

h.  Saint  Lawrence,  eight  districts.  [Education  Law,  § 381,  as 
amended  by  L.  1910,  ch.  607,  in  effect  July  1,  1910.] 

6.  The  district  superintendents  of  two  or  more  supervisory  districts 
in  a county  may  unite  in  a petition  to  the  board  of  supervisors  of  the 
county  for  a change  in  the  boundaries  of  such  districts  by  including  or 
excluding  one  or  more  towns,  stating  the  reasons  for  such  change,  and 
if  such  change  conforms  to  the  territorial  requirements  of  subdivision 
one  of  this  section,  the  board  of  supervisors  may,  by  resolution,  change 
such  districts  in  accordance  with  such  petition.  A copy  of  such  reso- 
lution, certified  by  the  chairman  and  clerk  of  the  board  of  supervisors, 
shall  be  deposited  by  the  clerk  in  the  office  of  the  clerk  of  the  county. 
The  county  clerk  on  receipt  of  the  same  shall  forward  a certified  copy 
thereof  to  the  commissioner  of  education.  [Subd.  added  by  L.  1916, 
ch.  238.] 


SCHOOLS  AND  SCHOOL  MONEYS. 


1019 


Education  Law,  § 382. 

§ 24.  SCHOOL  DIRECTORS;  ELECTION  OF  DISTRICT  SUPERIN- 

TENDENTS; VACACIES. 

School  directors.  1.  Two  school  directors  shall  he  elected  for  each 
town  at  the  general  election  held  in  the  year  nineteen  hundred  and  ten. 
One  of  such  directors  shall  he  elected  to  serve  until  January  one,  nine- 
teen hundred  and  thirteen,  and  the  other  shall  he  elected  to  serve  until 
January  one,  nineteen  hundred  and  sixteen.  A director  shall  be  elected 
at  the  general  election  in  nineteen  hundred  and  twelve  and  every  fifth 
year  thereafter  and  one  shall  he  elected  in  nineteen  hundred  and  fifteen 
and  every  fifth  year  thereafter.  The  term  of  office  of  the  directors 
elected  in  nineteen  hundred  and  twelve,  and  thereafter  shall  commence 
on  the  first  day  of  January  following  their  election  and  continue  for  five 
years.  In  towns,  except  those  towns  situated  in  the  counties  of  Nassau 
and  Suffolk,  where  biennial  town  meetings  are  held  at  a time  other  than 
the  general  election,  directors  shall  be  elected  at  the  biennial  town  meet- 
ing held  immediately  prior  to  the  expiration  of  the  term  of  their  prede- 
cessors. Such  directors  shall  be  elected  in  the  same  manner  that  town 
officers  are  elected  at  town  meetings  held  at  the  time  of  a general  elec- 
tion, and  the  provisions  of  the  election  law  relating  to  the  nomination 
and  election  of  such  town  officers  shall  apply  to  the  nomination  and  elec- 
tion of  such  directors. 

2.  A school  director  shall  vacate  his  office  by  removal  from  the  town 
or  by  filing  a written  resignation  with  the  town  clerk.  A vacancy  in 
the  office  of  school  director  shall  be  filled  by  the  town  board  of  the  town 
in  which  such  vacancy  exists,  for  the  remainder  of  the  unexpired  term. 
If  the  town  fails  to  elect  a director  a vacancy  shall  be  deemed  to  exist  in 
such  office. 

3.  A school  director  before  entering  upon  the  discharge  of  the  duties 
of  his  office,  and  not  later  than  thirty  days  after  the  date  on  which  he 
was  elected  to  office,  shall  take  the  oath  of  office  prescribed  by  the  con- 
stitution. Such  oath  may  be  taken  before  a justice  of  the  peace  or  a 
notary  public,  and  must  be  filed  in  the  office  of  the  clerk  of  the  town. 

4.  A school  director  shall  receive  two  dollars  per  day  for  each  day’s 
service  and  his  necessary  traveling  expenses,  and  the  town  board  of  the 
town  for  which  such  director  is  chosen  shall  audit  and  allow  the  same.10a 
[Education  Law,  § 382,  as  amended  by  L.  1910,  ch.  607,  and  L.  1916, 
ch.  168,  in  effect  April  7,  1916.] 

Election  of  district  superintendent . 1.  The  school  directors  of  the 

several  towns  composing  a supervisory  district  shall  meet  for  organiza- 
tion at  eleven  o’clock  in  the  forenoon  on  the  third  Tuesday  in  May  fol- 


10a.  School  director  is  not  entitled  to  traveling  expenses  incurred  in  going 
to  and  from  the  town  for  which  he  was  elected.  He  is  only  entitled  to  traveling 
expenses  where  he  attends  meetings  of  the  board  outside  of  the  town.  Rept.  of 
Attv.  Genl.,  May  25,  1011.  Women  are  not  eligible  to  the  office  of  school  director, 
since  it  is  a town  office.  Rept.  of  Atty.  Genl.,  Mch.  6,  1911. 


1020  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  § 3388. 

lowing  their  election.  Such  meeting  shall  he  held  at  a place  in  the  super- 
visory district,  designated  by  the  county  clerk,  at  least  ten  days  previous 
to  the  date  thereof.  At  the  time  the  county  clerk  designates  such  place 
of  meeting  he  shall  also  mail  a notice  of  the  time  and  place  of  such  meet- 
ing to  each  school  director  of  the  district.  The  school  directors  present 
at  such  meeting  shall  organize  by  electing  from  their  number,  a chair- 
man, a clerk  and  two  inspectors  of  election.  The  school  directors  at 
such  meeting  shall  designate  a place  for  holding  future  meetings. 

2.  The  school  directors  of  the  several  towns  composing  a supervisory 
district  shall  be  a board  of  school  directors,  and  such  board  of  directors 
shall  meet  at  eleven  o’clock  in  the  forenoon  on  the  third  Tuesday  in 
August,  nineteen  hundred  and  eleven,  and  on  the  third  Tuesday  in  J une 
every  fifth  year  thereafter,  and  elect  a district  superintendent  of  schools. 
The  clerk  of  such  board  shall  give  each  director  at  least  ten  days’  notice 
in  writing  of  the  hour,  date  and  place  of  such  meeting. 

3.  If  such  directors  fail  to  elect  a district  superintendent  of  schools 
before  the  first  day  of  January  following  the  date  of  such  meeting,  and 
a vacancy  exists  in  such  office,  the  county  judge  shall  appoint  such  super- 
intendent who  shall  serve  until  the  board  of  directors  shall  fill  such 
vacancy. 

4.  In  the  election  of  such  district  superintendent  the  vote  shall  be  by 
ballot  and  the  person  receiving  a majority  of  all  votes  cast  shall  be 
elected.  Each  school  director  shall  be  entitled  to  one  vote  in  such  elec- 
tion. 

5.  The  clerk  of  such  board  shall  file  a copy  of  the  proceedings  of  each 
meeting  and  each  election,  certified  by  himself  and  the  chairman,  in  the 
office  of  the  clerk  of  the  county  in  which  such  meeting  or  election  is  held 
within  three  days  after  the  close  thereof. 

6.  The  county  clerk  on  receipt  of  notice  of  the  election  of  a district 
superintendent  of  schools  in  any  supervisory  district  of  his  county  shall 
deliver  to  the  person  elected  a certificate  of  such  election  attested  by  his 
signature  with  the  seal  of  the  county  and  shall  also  transmit  to  the  com- 
missioner of  education  a duplicate  of  such  certificate  of  election. 

7.  When  a district  superintendent  enters  the  military  or  naval  service  of 
the  United  States  during  the  continuance  of  the  present  war,  the  board  of 
school  directors  of  the  supervisory  district  of  such  district  superintendent 
shall  designate  a person  to  act  as  the  deputy  of  such  district  superintendent. 
This  deputy  shall  during  the  absence  of  said  district  superintendent  per- 
form all  the  duties  and  possess  the  power  and  authority  conferred  by  law 
on  a district  superintendent.  Such  person  shall  also  possess  qualifications 
approved  by  the  commissioner  of  education.  [Education  Law,  § 383,  as 
amended  by  L.  1910,  ch.  607 ; subd.  7 added  by  L.  1918,  ch.  107.] 

Filling  vacancy  in  the  office  of  district  superintendent. — Whenever  a 
vacancy  occurs  it  shall  be  filled  for  the  remainder  of  the  unexpired  term 
by  the  board  of  school  directors.  Upon  direction  of  the  commissioner  of 
education  the  clerk  of  the  board  in  which  the  supervisory  district  having 
such  vacancy  is  located  shall  immediately  call  a special  meeting  of  such 


SCHOOLS  AND  SCHOOL  MONEYS. 


1021 


Education  Law,  §§  389,  390. 

board  for  the  purpose  of  electing  a district  superintendent.  The  pro- 
visions of  this  title  relative  to  the  election  generally  of  a district  super- 
intendent of  schools,  including  notices,  filing  of  the  proceedings  and  all 
other  matters  relating  to  such  an  election,  shall  apply  to  a special  election 
to  fill  a vacancy  in  such  office.  [Education  Law,  § 388,  as  amended  by  L. 
1910,  ch.  607,  in  effect  January  1,  1912.] 

§ 25.  SALARY  AND  EXPENSES  OF  DISTRICT  SUPERINTENDENT. 

Salary  of  district  superintendent . 1.  Each  district  superintendent  shall 

receive  an  annual  salary  from  the  state  of  fifteen  hundred  dollars,  payable 
monthly  by  the  commissioner  of  education  from  moneys  appropriated  there- 
for. [Subd.  amended  by  L.  1917,  ch.  794.] 

2.  The  supervisors  of  the  towns  composing  any  supervisory  district 
may  by  adopting  a resolution  by  a majority  vote  increase  the  salary  to  be 
paid  by  such  district  to  its  district  superintendent.  Such  supervisors 
must  thereupon  file  with  the  clerk  of  the  board  of  supervisors  a certifi- 
cate showing  the  amount  of  such  increase.  The  board  of  supervisors  of 
each  county  shall  levy  such  amount  annually  by  tax  on  the  towns  com- 
posing such  supervisory  district  within  the  county.  [Education  Law,  § 
389,  as  amended  by  L.  1910,  ch.  607,  in  effect  January  1,  1912.] 

Expense  of  district  superintendents.  The  commissioner  of  education 
shall  quarterly  audit  and  allow  the  actual  sworn  expense  incurred  by 
each  district  superintendent  of  schools  in  the  performance  of  his  official 
duties,  but  the  amount  of  such  expense  allowed  shall  not  exceed  in  any 
year  three  hundred  dollars.  Such  expenses  shall  be  paid  by  the  commis- 
sioner of  education  from  moneys  appropriated  therefor.  [Education 
Law,  § 390,  as  amended  by  L.  1910,  ch.  607,  in  effect  January  1,  1912.] 


§ 26.  DUTIES  OF  TOWN  CLERKS  IN  RESPECT  TO  THE  COMMON 
SCHOOLS;  COMPENSATION  AND  EXPENSES  A TOWN  CHARGE. 

It  shall  be  the  duty  of  the  town  clerk  of  each  town : 

1.  To  keep  all  books,  maps,  papers,  and  records  of  his  office  touching 
common  schools,  and  forthwith  to  report  to  the  school  commissioner  any 
loss  or  injury  to  the  same. 

2.  To  receive  from  the  supervisors  the  certificates  of  apportionment  of 
school  moneys  to  the  town,  and  to  record  them  in  a book  to  be  kept  for 
that  purpose. 

3.  To  notify  forthwith  the  trustees  of  the  several  school  districts  of 
the  filing  of  each  such  certificate. 

4.  To  see  that  the  trustees  of  the  school  districts  make  and  deposit 
with  him  their  annual  reports  within  the  time  prescribed  by  law,  and  to 
deliver  them  to  the  school  commissioner  on  demand. 

5.  To  furnish  the  school  commissioner  of  the  school  commissioner  dis- 
trict in  which  his  town  is  situated  the  names  and  post-office  addresses  of 
the  school  district  officers  reported  to  him  by  the  district  clerks. 

6.  To  distribute  to  the  trustees  of  the  school  districts  all  books,  blanks 
and  circulars  which  shall  be  delivered  or  forwarded  to  him  by  the  com- 
missioner of  education  or  school  commissioner  for  that  purpose. 


1022  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  § 340;  Idem,  § 341. 

7.  To  receive  from  the  supervisor,  and  record  in  a book  kept  for  that 
purpose,  the  annual  account  of  the  receipts  and  disbursements  of  school 
moneys  required  to  be  submitted  to  the  town  auditors,  together  with  the 
action  of  the  town  auditors  thereon,  and  to  send  a copy  of  the  account  and 
of  the  action  thereon,  by  mail,  to  the  commissioner  of  education  whenever 
required  by  him,  and  to  file  and  preserve  the  vouchers  accompanying  the 
account. 

8.  To  receive  and  to  record,  in  the  same  book,  the  supervisor’s  final  ac- 
count of  the  school  moneys  received  and  disbursed  by  him,  and  deliver  a 
copy  thereof  to  such  supervisor’s  successor  in  office. 

9.  To  receive  from  the  outgoing  supervisor,  and  file  and  record  in  the 
same  book,  the  county  treasurer’s  certificate,  that  his  successor’s  bond  has 
been  given  and  approved. 

10.  To  receive,  file  and  record  the  descriptions  of  the  school  districts, 
and  all  papers  and  proceedings  delivered  to  him  by  the  school  commissioner 
pursuant  to  the  provisions  of  this  chapter. 

11.  To  act,  when  thereto  legally  required,  in  the  erection  or  alteration 
of  a school  district,  as  in  article  five  of  this  chapter  provided. 

12.  To  receive  and  preserve  the  books,  papers  and  records  of  any  dis- 
solved school  district,  which  shall  be  ordered,  as  hereinafter  provided,  to 
be  deposited  in  his  office. 

13.  To  perform  any  other  duty  which  may  be  devolved  upon  him  by 
this  chapter,  or  by  any  other  act  touching  common  schools.  [Education 
Law  (L.  1910,  ch.  140)  § 340.] 

Expenses  and  disbursements  a town  charge. — The  necessary  expenses 
and  disbursements  of  the  town  clerk  in  the  performance  of  his  said  duties, 
are  a town  charge,  and  shall  be  audited  and  paid  as  such.  [Idem,  § 341.] 


§ 27.  UNPAID  SCHOOL  TAXES,  COLLECTOR  TO  RETURN  ACCOUNT 
OF  TO  TRUSTEES;  TRUSTEES  TO  TRANSMIT  ACCOUNT 
WITH  CERTIFICATE  TO  COUNTY  TREASURER. 

If  any  tax  on  real  estate  placed  upon  the  tax-list  and  duly  delivered  to 
the  collector,  or  the  taxes  upon  nonresident  stockholders  in  banking  associ- 
ations organized  under  the  laws  of  congress,12  shall  be  unpaid  at  the  time 


12.  Bank  shares,  now  taxed.  Under  section  24  of  the  Tax  Law,  ante,  p. 
520,  the  rate  of  tax  upon  the  shares  of  stock  of  banks  and  banking  asso- 
ciations is  one  per  centum  upon  the  value  thereof.  Such  tax  is  in  lieu  of  all 
other  taxes  including  those  for  school  purposes.  Under  such  section  the  board 
of  supervisors  is  required  to  ascertain  the  tax  rate  of  each  of  the  several 
towns,  village,  city,  school  and  other  tax  districts  in  the  county  for  the 


SCHOOLS  AND  SCHOOL  MONEYS. 


1023 


Education  Law,  §§  433,  434,  435. 

the  collector  is  required  by  law  to  return  his  warrant,  he  shall  deliver  to 
the  trustees  of  the  district  an  account  of  the  taxes  remaining  due,  contain- 
ing a description  of  the  lands  upon  which  such  taxes  were  unpaid  as  the 
same  were  placed  upon  the  tax-list,  together  with  the  amount  of  the  tax  so 
assessed,  and  upon  making  oath  before  any  justice  of  the  peace  or  judge 
of  a court  of  record,  notary  public  or  any  other  officer  authorized  to  ad- 
minister oaths,  that  the  taxes  mentioned  in  any  such  account  remain  un- 
paid, and  that,  after  diligent  efforts,  he  has  been  unable  to  collect  the  same, 
he  shall  be  credited  by  said  trustees  with  the  amount  thereof.  [Education 
Law  (L.  1910,  ch.  140)  § 433.] 

Upon  receiving  any  such  account  from  the  collector,  the  trustees  shall 
compare  it  with  the  original  tax  list,  and,  if  they  find  it  to  be  a true  tran- 
script, they  shall  add  to  such  account  their  certificate,  to  the  effect  that 
they  have  compared  it  with  the  original  tax  list  and  found  it  to  be  correct, 
and  shall  immediately  transmit  the  account,  affidavit  and  certificate  to  the 
treasurer  of  the  county.  [Idem,  § 434.] 


§ 28.  COUNTY  TREASURER  TO  PAY  TO  COLLECTOR  OF  SCHOOL 
DISTRICT  AMOUNT  OF  UNPAID  TAXES  RETURNED. 

Out  of  any  moneys  in  the  county  treasury,  raised  for  contingent  ex- 
penses,13 or  for  the  purpose  of  paying  the  amount  of  the  taxes  so  returned 


year  for  which  the  tax  is  imposed  and  the  proportion  of  the  tax  on  bank  stock 
to  which  each  of  such  districts  shall  be  respectively  entitled.  This  proportion 
is  to  be  ascertained  by  taking  such  proportion  of  the  tax  upon  the  shares 
of  stock  as  the  tax  rate  of  the  school  district  shall  bear  to  the  aggregate 
tax  rate  of  all  the  tax  districts  in  which  such  shares  of  stock  shall  be  taxable. 
The  evident  meaning  of  this  provision  is  that  if  the  tax  rate  of  a town  iL 
five  mills,  that  of  a village  is  five  mills,  and  that  of  a school  district  is 
five  mills,  that  the  school  district  will  be  entitled  to  one-third  of  the  tax 
paid  upon  the  stock  of  the  bank  located  in  the  tax  district.  The  board  of 
supervisors  is  required  by  such  section  of  the  Tax  Law  to  issue  its  warrant 
to  the  county  treasurer  directing  him  to  pay  to  the  collector  or  treasurer  of 
the  school  district  the  proportion  of  such  tax  ascertained  by  it  to  belong  to 
such  school  district. 

13.  Duty  of  county  treasurer.  Under  the  provisions  of  the  above  section, 
which  require  the  treasurer  of  a county  to  pay  to  the  trustees  of  a school 
district,  out  of  any  moneys  in  the  county  treasury  raised  for  contingent  ex- 
penses, the  amount  of  taxes  upon  lands  of  non-residents  returned  by  such 
trustees  as  unpaid,  the  authority  of  the  county  treasurer  is  limited  to  the 
particular  fund  specified;  and  if  no  such  fund  has  been  raised,  or  if  it  has  been 
exhausted,  he  has  no  authority,  and  consequently  no  duty  is  imposed  upon 
him  to  pay. 

It  is  provided  by  section  242  of  the  County  Law,  ante , p.  50,  that:  “In 

order  to  enable  the  county  treasurer  to  pay  such  expenses  as  may  become 


1024 


SCHOOLS : DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  §§  436-438. 

unpaid,  the  treasurer  shall  pay  to  the  district  treasurer,  if  there  be  such 
an  officer,  otherwise  to  the  collector,  the  amount  of  the  taxes  so  returned 
as  unpaid,  and  if  there  are  no  moneys  in  the  treasury  applicable  to  such 
purpose,  the  board  of  supervisors,  at  the  time  of  levying  said  unpaid 
taxes,  as  provided  in  the  next  section,  shall  pay  to  the  district  treasurer, 
if  there  be  such  an  officer,  otherwise  to  the  collector  of  the  school  district 
the  amount  thereof  which  has  been  relevied,  by  voucher  or  draft  on  the 
county  treasurer,  in  the  same  manner  as  other  county  charges  are  paid, 
and  the  collector  shall  be  charged  by  the  trustees  with  the  amount  so 
relevied.  [Idem,  § 435,  as  amended  by  L.  1910,  ch.  284,  and  L.  1915, 
ch.  136,  in  effect  Sept.  1,  1915.] 

§ 29.  COUNTY  TREASURER  TO  LAY  ACCOUNT  OF  UNPAID  SCHOOL 
TAXES  BEFORE  BOARD  OF  SUPERVISORS;  ACTION  OF 
BOARD  THEREON;  COLLECTION  OF  SUCH  TAXES. 

Duties  of  board  of  supervisors. — Such  account,  affidavit  and  certificate 
shall  be  laid  by  the  county  treasurer  before  the  board  of  supervisors  of  the 
county,  who  shall  cause  the  amount  of  such  unpaid  taxes,  with  seven  per 
cent,  of  the  amount  in  addition  thereto,  to  be  levied  upon  the  lands  on 
which  the  same  were  imposed;  and  if  imposed  upon  the  lands  of  any  in- 
corporated company,  then  upon  such  company ; and  when  collected  the  same 
shall  be  returned  to  the  county  treasurer  to  reimburse  the  amount  so  ad- 
vanced, with  the  expenses  of  collection.  [Education  Law,  (L.  1910,  ch. 
140)  § 436.] 

When  owner  may  pay  school  tax  to  county  treasurer. — Any  person  whose 
lands  are  included  in  any  such  account  may  pay  the  tax  assessed  thereon, 
with  five  per  centum  added  thereto,  to  the  county  treasurer,  at  any  time 
before  the  board  of  supervisors  shall  have  directed  the  same  to  be  levied. 
[Idem,  § 437.] 

Collection  of  unpaid  tax,  how  made. — The  same  proceedings  in  all 
respects  shall  be  had  for  the  collection  of  the  amount  so  directed  to  be 
raised  by  the  board  of  supervisors  as  are  provided  by  law  in  relation  to  the 
county  taxes;  and,  upon  a similar  account,  as  in  the  case  of  county  taxes 
of  the  arrears  thereof  uncollected,  being  transmitted  by  the  county  treas- 
urer to  the  comptroller,  the  same  shall  be  paid  on  his  warrant  to  the  treas- 
urer of  the  county  advancing  the  same ; and  the  amount  so  assumed  by  the 
state  shall  be  collected  for  its  benefit,  in  the  manner  prescribed  by  law  in 
respect  to  the  arrears  of  county  taxes  upon  land  of  non-residents ; or  if  any 
part  of  the  amount  so  assumed  consisted  of  a tax  upon  any  incorporated 


payable  from  time  to  time,  the  board  of  supervisors  shall  annually  cause 
such  sum  to  be  raised  in  advance  in  their  county,  as  they  may  deem  necessary 
for  such  purpose.” 


SCHOOLS  AND  SCHOOL  MONEYS. 


1025 


Education  Law,  §§  855-857. 

company,  the  same  proceedings  may  also  be  had  for  the  collection  thereof 
as  provided  by  law  in  respect  to  the  county  taxes  assessed  upon  such  com- 
pany. [Idem.  § 438.] 


§ 30.  SPECIAL  PROVISIONS  OF  THE  EDUCATION  LAW  APPLI- 
CABLE TO  TOWN  OFFICERS. 

Liability  of  officers  for  loss  of  school  moneys. — Whenever  the  share  of 
school  moneys  or  any  portion  thereof,  apportioned  to  any  town  or  school 
district,  or  any  money  to  which  a town  or  school  district  would  have  been 
entitled,  shall  be  lost,  in  consequence  of  any  wilful  neglect  of  official  duty 
by  any  school  commissioner,  town  clerk,  trustees  or  clerks  of  school  districts, 
the  officer  guilty  of  such  neglect  shall  forfeit  to  the  town,  or  school 
district  so  losing  the  same,  the  full  amount  of  such  loss  with  interest 
thereon.  [Education  Law  (L.  1910,  ch.  140)  § 855.] 

Penalty  for  refusal  or  neglect  to  sue  for  penalty  imposed,  for  benefit  of 
schools. — Where  any  penalty  for  the  benefit  of  a school  district,  or  of  the 
schools  of  any  school  district,  town,  school  commissioner  district  or  county, 
shall  be  incurred,  and  the  officer,  whose  duty  it  is  by  law  to  sue  for  the 
same,  shall  wilfully  and  unreasonably  refuse  or  neglect  to  sue  for  the  same, 
such  officer  shall  forfeit  the  amount  of  such  penalty  to  the  same  use,  and  it 
shall  be  the  duty  of  his  successor  in  office  to  sue  for  the  same.  [Idem, 
§ 856.] 

Actions  against  school  officers , including  supervisors. — 1.  In  any  action 
against  school  officers,  including  supervisors  of  towns,  in  respect  to  theii 
duties  and  powers  under  this  act,  for  any  act  performed  by  virtue  of  or 
under  the  color  of  their  offices,  or  for  any  refusal  or  omission  to  perform 
any  duty  enjoined  by  law,  and  which  might  have  been  the  subject  of  an 
appeal  to  the  commissioner  of  education;  no  costs  shall  be  allowed  to  the 
plaintiff,  in  cases  where  the  court  shall  certify  that  it  appeared  on  the  trial 
that  the  defendants  acted  in  good  faith. 

2.  The  provision  of  subdivision  one  of  this  section  shall  not  extend  to 
suits  for  penalties,  nor  to  suits  or  proceedings  to  enforce  the  decisions  of 
the  commissioner  of  education.  [Idem,  § 857.] 


1025a  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  §§  610,  611. 


CHAPTEK  LXIX-A 

FARM  SCHOOLS  IN  COUNTIES. 

Section  1.  Establishment  of  farm  schools. 

2.  Acquisition  of  lands  and  erection  of  buildings. 

3.  Board  of  managers. 

4.  Powers  and  duties  of  board. 

5.  Powers  of  superintendent;  discipline  of  school. 

6.  Course  of  instruction. 

7.  State  aid. 

8.  Children  admitted  to  such  school. 

9.  Agreements  with  parents  and  guardians  to  pay  expense  of  maintenance;, 

compulsory  support. 

10.  Maintenance  by  county. 

11.  Reports  to  board  of  supervisors;  inspection. 

12.  Powers  of  commissioner  of  education  and  state  department  of  education. 

§ 1.  ESTABLISHMENT  OF  FARM  SCHOOLS. 

The  board  of  supervisors  of  any  county  outside  of  the  city  of  Xew 
York  may  adopt  a resolution  by  a majority  vote  of  the  members  of  the 
hoard  establishing  a farm  school  for  the  purpose  of  giving  instruction 
in  the  trades  and  in  industrial,  agricultural  and  homemaking  subjects 
to  children  of  the  county  not  more  than  eighteen  nor  less  than  eight 
years  of  age  who  may  be  admitted  thereto  as  provided  by  law.  [Edu- 
cation Law,  § 610,  as  added  by  L.  1915,  ch.  307.] 

§ 2.  ACQUISITION  OF  LANDS  AND  ERECTION  OF  BUILDINGS. 

Upon  the  adoption  of  the  resolution  as  provided  in  the  foregoing  sec- 
tion the  board  of  supervisors  shall  purchase  land  in  some  conveniently 
accessible  place  in  the  county  to  be  used  for  the  purpose  of  such  school. 
They  may  acquire  such  land  by  gift,  purchase  or  condemnation.  The 
land  when  so  acquired  shall  he  held  in  the  name  of  the  county  for  the 
benefit  of  such  school.  Upon  the  acquisition  of  such  land  the  board  of 
supervisors  shall  erect  the  necessary  buildings  and  suitably  equip  them 
for  use.  Such  hoard  may  also  provide  for  the  improvement  of  existing 
buildings  and  make  such  repairs  and  alterations  on  the  buildings  upon 
the  land  used  for  the  purpose  of  the  school  as  may  he  necessary  for  the 
maintenance  and  operation  thereof.  [Education  Law,  § 611,  as  added 
by  L.  1915,  ch.  307.] 


FARM  SCHOOLS  IN  COUNTIES. 


1025b 


Education  Law,  §§  612,  613. 

§ 3.  BOARD  OF  MANAGERS. 

The  board  of  managers  of  such  school  shall  consist  of  not  less  than 
five  members  and  shall  be  composed  of  all  the  city,  village  and  district 
superintendents  of  schools  of  the  county  in  which  it  is  located,  in  addi- 
tion to  such  other  members  as  may  be  necessary  to  make  a total  mem- 
bership of  such  board  of  not  less  than  five.  Such  additional  members 
of  the  board  shall  be  appointed  by  the  board  of  supervisors  from  the 
resident  taxpayers  of  the  county,  who  shall  serve  for  terms  of  four  years 
commencing  on  the  first  day  of  January  succeeding  their  appointment. 
Such  terms  shall  be  so  arranged  that  the  terms  of  no  two  of  the  mem- 
bers so  appointed  shall  expire  in  the  same  year,  and  for  this  purpose  the 
terms  of  the  members  first  appointed  hereunder  shall  be  as  follows: 
In  case  one  member  shall  be  appointed,  the  term  shall  be  four  years,  in 
case  two  members  shall  be  appointed,  the  terms  shall  be  four  and  two 
years,  respectively,  in  case  three  members  shall  be  appointed,  the  terms 
shall  be  four,  three  and  two  years,  and  in  case  four  members  shall  be 
appointed,  the  terms  shall  be  four,  three,  two  and  one  year,  respectively, 
which  terms  shall  commence  on  the  first  day  of  January  succeeding  their 
appointment,  and  their  successors  shall  be  appointed  for  full  terms  of 
four  years  as  above  provided.  Appointments  to  fill  vacancies  shall  be 
for  the  unexpired  portion  of  the  terms.  The  members  of  the  board 
shall  serve  without  compensation.  They  shall  receive  their  necessary 
expenses  incurred  in  the  performance  of  their  duties.  The  amount  of 
such  expenses  shall  be  charged  against  the  county  and  shall  be  paid  in 
the  same  manner  as  other  county  charges.  The  board  shall  organize  by 
the  election  of  one  of  its  members  as  chairman  and  another  as  secretary. 
[Education  Law,  § 612,  as  added  by  L.  1915,  ch.  307.] 

§ 4.  POWERS  AND  DUTIES  OF  BOARD. 

The  board  of  managers  of  such  school  shall  be  responsible  for  the 
operation  and  maintenance  of  the  school ; employ  a superintendent  and 
such  teachers  and  assistants  as  may  be  required  for  the  operation  and 
maintenance  of  the  school  when  authorized  so  to  do  by  the  board  of 


1025c  SCHOOLS  ; DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  §§  614.  615. 

supervisors  of  the  county ; fix  the  compensation  of  such  superintendent, 
teachers  and  assistants  within  the  amount  made  available  therefor  by 
the  said  board  of  supervisors;  prescribe  rules  and  regulations  for  the 
management  of  the  school  and  for  the  purpose  of  carrying  into  effect 
the  object  thereof ; provide  for  the  detention,  maintenance  and  instruc- 
tion of  all  children  who  are  admitted  to  the  school.  [Education  Law, 
§ 613,  as  added  by  L.  1915,  ch.  307.] 

§ 5.  POWERS  OF  SUPERINTENDENT;  DISCIPLINE  OF  SCHOOL. 

The  superintendent  of  the  school  shall,  subject  to  the  regulations  of 
the  board  of  managers : 

1.  Have  the  general  management  of  the  school  and  the  land,  buildings 
and  equipment  thereof,  and  devote  his  entire  time  to  its  affairs ; 

2.  Be  responsible  for  the  welfare  of  pupils  of  the  school  and  see  that 
the  regulations  and  directions  of  the  board  of  managers  are  carried  into 
effect ; 

3.  Supervise  and  direct  the  methods  of  instruction  and  the  perform- 
tance  of  duties  by  the  teachers,  assistants  and  employees  of  such  school ; 

4.  Prescribe  rules  for  the  government  and  discipline  of  the  pupils  of 
the  school  and  cause  such  rules  to  be  enforced ; 

5.  Protect  and  care  for  the  property  of  the  school ; 

6.  Give  special  attention  to  the  proper  instruction,  detention,  re- 
straint, discipline,  comfort  and  physical  and  moral  welfare  of  the  pupils 
of  the  school,  and  perform  such  other  duties  as  may  be  required  of  him 
by  the  board  of  managers,  with  a view  of  carrying  out  the  purposes  of 
this  article.  [Education  Law,  § 614,  as  added  by  L.  1915,  ch.  307.] 

§ 6.  COURSE  OF  INSTRUCTION. 

The  board  of  managers  shall  prescribe  the  courses  of  instruction  to 
be  followed  in  such  school,  subject  to  the  approval  of  the  commissioner 
of  education.  Such  instruction  shall  include  instruction  in  agriculture, 
mechanic  arts,  trades  and  homemaking.  The  provisions  of  this  chapter 
and  of  the  regulations  of  the  education  department  relating  to  voca- 
tional instruction  in  the  public  schools  shall  apply  to  such  school  so  far 


FARM  SCHOOLS  IN  COUNTIES. 


1025d 


Education  Law,  §§  61 6,  617,  618. 

as  they  do  not  conflict  with  the  provisions  of  this  article  and  may  be 
made  applicable  thereto.  [Education  Law,  § 615,  as  added  by  L.  1915, 
ch.  307.] 

§ 7.  STATE  AID. 

There  shall  be  annually  apportioned  to  such  school  from  the  moneys 
appropriated  by  the  state  legislature  for  the  support  of  the  public 
schools  of  the  state  the  sum  of  one  thousand  dollars  and  an  additional 
sum  of  two  hundred  dollars  for  each  teacher  employed  therein  for  a 
period  of  thirty-six  weeks  during  each  school  year,  whose  entire  time  is 
given  to  the  instruction  of  pupils  in  such  school.  ISTo  such  apportion- 
ment shall  be  made  unless  there  are  at  least  fifteen  pupils  enrolled  and 
actually  in  attendance  at  such  school  during  such  period  of  thirty-six 
weeks,  and  unless  such  school  maintains  an  organization  and  a course 
of  study  and  is  conducted  in  a manner  approved  by  the  commissioner  of 
education.  [Education  Law,  § 616,  as  added  by  L.  1915,  ch.  307.] 

§ 8.  CHILDREN  ADMITTED  TO  SUCH  SCHOOL. 

Children  not  more  than  eighteen  nor  less  than  eight  years  of  age  may 
be  admitted  to  or  received  in  such  school,  either  (1)  upon  the  applica- 
tion of  the  parents  or  guardians  having  the  legal  custody  or  control  of 
such  children,  accompanied  by  the  written  consent  of  such  parents  or 
guardians,  or  (2)  upon  commitment  thereto  as  truants  or  incorrigible 
pupils  as  provided  in  section  six  hundred  and  thirty-five  of  this  chapter, 
or  (3)  upon  commitment  thereto  as  juvenile  delinquents  as  provided  by 
law,  provided  that  children  convicted  of  crime  shall  not  be  committed 
to  such  school.  Children  who  have  no  homes  or  who  are  without  proper 
parental  control  or  wTho  are  under  improper  guardianship  may  be  sent 
to  and  received  in  such  school,  in  the  same  manner  and  under  the  same 
authority  as  in  case  of  other  children  who  are  improperly  provided  for 
at  home.  [Education  Law,  § 617,  as  added  by  L.  1915,  ch.  307.] 

§ 9.  AGREEMENTS  WITH  PARENTS  AND  GUARDIANS  TO  PAY  EX- 
PENSE OF  MAINTENANCE;  COMPULSORY  SUPPORT. 

The  board  of  managers  may  make  an  agreement  with  the  parents  or 
guardian  of  a child  in  such  school  for  the  payment  of  an  amount  therein 


1025©  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  §§  619,  619-a. 

specified  for  the  instruction  and  maintenance  of  such  pupil.  An  appli- 
cation for  the  admission  of  a child  with  the  consent  of  the  parents  or 
guardian  shall  not  he  granted  unless  suitable  provision  be  made  for  the 
clothing  for  such  child.  The  amount  agreed  to  be  paid  for  instruction, 
maintenance  and  clothing  shall  be  secured  to  the  satisfaction  of  the 
board  of  managers.  Such  board  shall  ascertain  by  investigation  the 
financial  ability  of  parents,  guardians,  and  other  persons  legally  liable 
for  the  support  of  pupils  admitted  to  such  school  upon  commitment,  and 
may  demand  of  such  parents,  guardians  or  persons  the  payment  of  an 
amount  reasonably  sufficient  to  pay  all  or  a portion  of  the  cost  of  the 
instruction,  maintenance  and  clothing  of  such  pupils.  The  board  may 
proceed  against  such  parents,  guardians  or  persons,  by  proper  suit  or 
proceeding  in  a court  of  competent  jurisdiction  for  the  recovery  of  the 
amount  agreed  or  required  to  be  paid,  as  herein  provided.  The  amount 
so  recovered,  after  the  payment  of  the  necessary  costs  and  expenses  of 
such  suit  or  proceeding,  shall  be  paid  into  the  treasury  of  the  county, 
and  shall  be  applied  to  the  payment. of  the  cost  of  the  instruction,  main- 
tenance and  clothing  of  such  pupils.  [Education  Law,  § 618,  as  added 
by  L.  1915,  ch.  307.] 

§ 10.  MAINTENANCE  BY  COUNTY. 

The  board  of  supervisors  shall  provide  for  the  maintenance  of  such 
school,  the  repair  and  improvement  of  the  lands  and  buildings  used  or 
occupied  thereby,  and  the  equipment  thereof  with  necessary  machinery, 
tools,  apparatus  and  supplies.  The  cost  thereof,  and  the  expenses  in- 
curred for  such  purposes,  shall  be  charges  against  the  county  and  shall 
be  audited  and  paid  in  the  same  manner  as  other  charges  against  the 
county.  The  maintenance  herein  provided  for  shall  include  the  sup- 
port, instruction,  care,  board  and  clothing  of  pupils  and  such  other 
expenses  as  are  necessarily  incurred  in  the  operation  of  the  school. 
[Education  Law,  § 619,  as  added  by  L.  1915,  ch.  307.] 

§11.  REPORTS  TO  BOARD  OF  SUPERVISORS;  INSPECTION. 

The  board  of  managers  of  such  school  shall  report  in  writing  to  the 
board  of  supervisors  of  the  county  when  called  upon  to  do  so,  and  shall 


FARM  SCHOOLS  IN  COUNTIES. 


1025f 


Education  Law,  § 619-Id. 

transmit  to  the  clerk  of  the  board,  annually,  on  or  before  the  thirtieth 
day  of  June.  Such  annual  report  shall  state  such  facts  in  respect  to 
the  school  as  the  board  of  managers  may  deem  advisable  and  as  the 
board  of  supervisors  may  require.  The  board  of  supervisors  may,  by 
a committee  or  any  of  its  members  or  appointees,  inspect  such  school, 
and  for  such  purpose  may  enter  upon  the  land  and  into  the  buildings  of 
such  school  at  all  reasonable  times.  [Education  Law,  § 619a,  as  added 
by  L.  1915,  ch.  307.] 

§ 12.  POWERS  OF  COMMISSIONER  OF  EDUCATION  AND  STATE  DE- 
PARTMENT OF  EDUCATION. 

A school  established  as  provided  herein  shall  be  deemed  a part  of 
the  public  school  system  of  the  state,  and  shall  be  subject  to  the  super- 
vision  and  control  of  the  commissioner  of  education  and  the  state  de- 
partment of  education  in  the  same  manner  as  other  public  schools,  and 
shall  not  be  subject  to  any  of  the  laws  of  the  state  relating  to  charitable 
or  penal  institutions.  [Education  Law,  § 619b,  as  added  by  L.  1915, 
ch.  307.] 


J.U26  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  § 360. 


CHAPTER  LXX. 

GOSPEL  AND  SCHOOL  LOTS. 


Section  1.  Dutiees  of  supervisors  as  to  gospel  and  school  lots. 

2.  Sale  of  gospel  or  school  lots  on  division  of  town. 

3.  Payment  of  proceeds  of  sale  of  gospel  or  school  lots. 

4.  Apportionment  of  gospel  and  school  lot  funds  among  school  districts. 

§ 1.  DUTIES  OF  SUPERVISORS  AS  TO  GOSPEL  AND  SCHOOL  LOTS. 

The  supervisors  shall  have  power,  and  it  shall  be  their  duty, 

1.  To  take  and  hold  possession  of  the  gospel  and  school  lots  of  their 
respective  towns. 

2.  To  lease  the  same  for  such  time  not  exceeding  twenty-one  years,  and 
upon  such  conditions  as  they  shall  deem  expedient. 

3.  To  sell  the  same  with  the  advice  and  consent  of  the  inhabitants  of  the 
town,  in  town-meeting  assembled,  for  such  price  and  upon  such  terms  of 
credit  as  shall  appear  to  them  most  advantageous. 

4.  To  invest  the  proceeds  of  such  sales  in  loans,  secured  by  bond  and 
mortgage  upon  unincumbered  real  property  of  the  value  of  double  the 
amount  loaned. 

5.  To  purchase  the  property  so  mortgaged  upon  a foreclosure,  and  to 
hold  and  convey  the  property  so  purchased  whenever  it  shall  become 
necessary. 

6.  To  re-loan  the  amount  of  such  loans  repaid  to  them,  upon  the  like 
security. 

7.  To  apply  the  rents  and  profits  of  such  lots,  and  the  interest  of  the 
money  arising  from  the  sale  thereof,  to  the  support  of  schools,  as  may  be 
provided  by  law,  in  such  manner  as  shall  be  thus  provided. 

8.  To  render  a just  and  true  account  of  the  proceeds  of  the  sales  and  the 
interest  on  the  loans  thereof,  and  of  the  rents  and  profits  of  such  gospel 
and  school  lots,  and  of  the  expenditure  and  appropriation  thereof,  on  the 
last  Tuesday  next  preceding  the  annual  town-meeting  in  each  year,  to  the 
town  board. 

9.  To  deliver  over  to  his  successor  in  office,  all  books,  papers  and 
securities  relating  to  the  same,  at  the  expiration  of  their  respective  offices. 


GOSPEL  AND  SCHOOL  LOTS. 


102 


Education  Law,  §§  361,  362,  524,  525. 

10.  To  take  therefor  a receipt,  which  shall  be  tiled  in  the  clerk’s  office 
of  the  town ; and, 

11.  To  commence  and  prosecute  in  and  by  the  name  and  style  of  the 
supervisor  of  the  town’ any  suits  against  any  of  his  predecessors  in  office 
or  against  any  other  person  to  recover  any  debt,  dues  or  demands  in  any 
wise  arising  from  such  public  lot;  and  no  such  suit  shall  abate  by  the 
death,  resignation  or  removal  from  office  of  the  said  supervisor  but  the 
same  shall  and  may  be  prosecuted  to  judgment  and  execution  by  his 
successor  in  office.  [Education  Law  (L.  1910,  ch.  140),  § 360,  subd. 10-20.] 

§ 2.  SALE  OF  GOSPEL  OR  SCHOOL  LOTS  ON  DIVISION  OF  TOWN. 

Whenever  a town  having  lands  assigned  to  it  for  the  support  of  the  gospel 
or  of  schools,  shall  be  divided  into  two  or  more  towns,  or  shall  be  altered 
in  its  limits  by  the  annexing  of  a part  of  its  territory  to  other  towns,  such 
lands  shall  be  sold  by  the  supervisor  of  the  town,  in  which  such  lands  were 
included  immediately  before  such  division  or  alteration;  and  the  proceeds 
thereof  shall  be  apportioned  between  the  towns  interested  therein,  in  the 
same  manner  as  the  other  public  moneys  of  towns,  so  divided  or  altered, 
are  apportioned.  [Education  Law,  (L.  1910,  ch.  140),  § 361.] 


§ 3.  PAYMENT  OF  PROCEEDS  OF  SALE  OF  GOSPEL  OR  SCHOOL 
LOTS. 

The  shares  of  such  moneys,  to  which  the  towns  shall  be  respectively 
entitled,  shall  be  paid  to  the  supervisors  of  the  respective  towns,  and  shall 
thereafter  be  subject  to  the  provisions  of  this  article.  [Education  Law, 
(L.  1910,  ch.  140)  § 362.] 

§ 4.  APPORTIONMENT  OF  GOSPEL  AND  SCHOOL  LOT  FUNDS 
AMONG  SCHOOL  DISTRICTS. 

It  shall  be  lawful  for  the  supervisor  of  any  town  having  money  arising 
from  the  sale  of  gospel  lands,  and  known  as  gospel  funds,  to  apportion  such 
funds  among  the  several  school  districts  of  his  respective  town  as  hereinafter 
provided.  [Education  Lawr,  (L.  1910,  ch.  140)  § 524.] 

Authorization  of  apportionment  of  gospel  funds. — 1.  The  town  board 
of  any  town  having  a gospel  fund  of  five  hundred  dollars  or  less  may 
authorize  the  supervisor  of  the  town  to  apportion  such  fund  among  the 
several  school  districts  of  the  town. 

2.  The  voters  of  any  town  having  a gospel  fund  of  more  than  five 
hundred  dollars  may  at  any  regular  or  special  town  meeting  authorize  the 
supervisor  of  the  town  to  apportion  such  fund  among  the  several  school 
districts  of  the  town.  [Idem,  § 525.] 


1028  SCHOOLS;  DUTIES  OF  TOWN  AND  COUNTY  OFFICERS. 

Education  Law,  §§  526-528. 

Payment  of  apportionment  of  gospel  funds.\ — When  such  apportion 
ment  is  authorized  the  supervisor  shall  pay  to  the  collector,  or  if  the  district 
has  a treasurer  to  the  treasurer,  of  the  several  school  districts  of  his  town 
its  pro  rata  share  according  to  the  aggregate  school  attendance  of  each 
school  district  in  the  preceding  year.  [Idem,  § 526.] 

Bond  required  of  collector  or  treasurer. — The  collector  or  the  treasurer 
if  the  district  has  a treasurer,  of  each  of  such  school  districts  shall  execute 
and  file  with  the  supervisor  of  such  town  a bond  of  twice  the  amount  of 
such  apportionment  with  sufficient  sureties,  to  be  approved  by  such 
supervisor.  [Idem,  § 527.] 

Application  of  moneys. — Such  moneys  shall  be  held  by  such  collector 
or  treasurer  and  paid  upon  the  written  order  of  the  trustee  of  the  district 
for  such  purposes  as  the  annual  or  a special  meeting  of  the  district  shall 
direct  [Idem,  § 528.] 


PART  X 


JURORS. 


CHAPTER  LXXI. 

BRAND  AND  TRIAL  JURORS ; COMMISSIONERS  OF  JURORS. 

Section  1.  Preparation  of  grand  jury  lists  by  board  of  supervisors;  persons 
to  be  placed  on  lists. 

2.  Increase  in  number  of  jurors;  duties  of  supervisors. 

3.  Inserting  new  names  in  box  when  list  is  nearly  exhausted. 

4.  Supervisor,  town  clerk  and  assessors  to  make  lists  of  trial  jurors; 

names  to  be  taken  from  assessment-roll. 

5.  Qualifications  of  trial  jurors. 

6.  Who  are  disqualified  to  serve  as  trial  jurors. 

7.  Who  are  entitled  to  be  exempted  from  jury  service. 

8.  Duplicate  jury  lists  to  be  made  and  filed. 

9.  Proceedings  where  county  clerk  does  not  receive  lists. 

10.  Jurors  so  returned  to  serve  for  three  years. 

11.  Commissioner  of  jurors;  office  established;  appointment. 

12.  Term  of  office;  salary;  rooms  and  accommodations. 

13.  Assistants  and  clerks. 

14.  Selection  of  trial  jurors;  aid  of  tax  officers. 

15.  Preparation  of  list  of  trial  jurors;  notice  to  jurors. 

16.  Lists  to  be  filed. 

17.  List  of  grand  jurors. 

18.  Drawing  jurors;  ballots. 

19.  Removal  of  commissioner. 

20.  Application  of  act. 

21.  Fees  of  trial  jurors. 

22.  Supervisors  may  make  allowance  to  grand  and  trial  jurors. 

23.  Extra  allowance  to  trial  jurors. 


§ 1.  PREPARATION  OF  GRAND  JURY  LISTS  BY  BOARD  OF  SUPER- 
VISORS; PERSONS  TO  BE  PLACED  ON  LISTS. 

Unless  otherwise  specially  provided  by  law,  the  supervisors  of  the 
several  counties  of  this  state,  except  the  county  of  New  York,  at  their 

1029 


1030 


JURORS. 


Code  Criminal  Procedure,  §§  229-b-229-d. 

annual  meetings  in  each  year,  shall  prepare  a list  of  the  names  of  three 
hundred  persons,  to  serve  as  grand  jurors  at  the  terms  of  the  supreme 
court  and  county  courts,  to  be  held  in  their  respective  counties  during  the 
then  ensuing  year  and  until  new  lists  shall  be  returned  [Code  Crim.  Pro., 
§ 229-a.] 

In  preparing  such  lists  the  said  boards  of  supervisors  shall  select  such 
persons  only,  whose  names  appear  upon  the  last  assessment  roll  of  the  town 
or  ward,  as  they  know,  or  have  good  reason  to  believe,  are  possessed  of  the 
qualifications  by  law  required  of  persons  to  serve  as  jurors  for  the  trial 
of  issues  of  fact,  and  are  of  approved  integrity,  fair  character,  sound  judg- 
ment and  well  informed.  [Idem,  § 229-b.] 

Persons  exempt  by  law  from  serving  as  jurors  for  the  trial  of  issues 
of  fact,  shall  not  be  placed  on  any  list  of  grand  jurors,  required  by  the 
preceding  provisions.1 2  [Idem,  § 229-c.] 

The  lists  so  made  out  by  the  said  boards  of  supervisors  shall  contain 


1.  Duties  of  supervisors  as  to  grand  juror  lists.  This  section  of  the  Criminal 
Code  makes  it  the  duty  of  boards  of  supervisors  to  prepare  a grand  jury  list 
for  the  county  at  each  annual  session  of  the  board.  The  number  of  grand 
jurors,  unless  increased  as  hereinafter  provided,  is  limited  to  three  hundred. 
The  board  should,  by  a committee  appointed  for  that  purpose,  apportion  the 
grand  jurors  among  the  several  towns  and  the  wards  of  the  several  cities 
according  to  the  population  thereof,  or  by  some  other  just  and  equitable  method 
of  apportionment.  The  apportionment  having  been  made,  it  is  the  usual  practice 
for  the  supervisor  of  each  town  and  ward  to  present  to  the  board  a list  of  the 
persons  who,  in  his  judgment,  are  qualified  to  serve  as  grand  jurors.  These 
lists  are  usually  accepted  by  the  board,  although  the  primary  duty  of  making 
the  selection  rests  with  the  board  itself.  Notwithstanding  the  practice  of  each 
supervisor  preparing  the  list  from  his  own  town  or  ward,  selection  of  the 
jurors  and  the  adoption  and  preparation  of  the  list  is  the  act  of  the  board  and 
this  should  plainly  appear  upon  the  record,  and  in  the  public  proceedings  of  the 
board. 

There  is  usually  in  each  board  a committee  on  grand  juries.  The  lists 
presented  to  the  board  by  the  individual  supervisors  should  be  submitted  to 
this  committee,  and  the  committee  should  carefully  consider  the  qualifications 
of  the  persons  included  in  each  list,  and  thereupon  consolidate  the  lists  and 
make  a report  to  the  board.  Upon  the  adoption  of  the  report  by  the  board 
the  lists  as  so  consolidated  and  prepared  will  become  the  grand  jury  list  for  the 
county.  Such  list  should  then  be  certified  by  the  clerk  of  the  board  of  super- 
visors and  filed  in  the  office  of  the  clerk  of  the  county  on  or  before  the  10th  day 
of  December  in  each  year. 

The  above  statute  as  to  the  preparation  of  grand  jury  lists  by  boards  of  super- 
visors does  not  apply  where  the  office  of  commissioner  of  jurors  has  been 
established,  under  L.  1899,  ch.  441.  See  post , p.  1036. 

2.  As  to  exemptions  from  serving  as  jurors  for  the  trial  of  issues  of  fact, 
see  Judiciary  Law,  § 546,  post,  p.  1032. 


GRAND  AND  TRIAL  JURORS;  COMMISSIONERS  OF  JURORS.  1031 

Code  Criminal  Procedure,  §§  229-f,  229-g,  229-r. 

the  Christian  and  surnames,  at  length,  of  the  persons  named  therein,  their 
respective  places  of  residence,  and  their  several  occupations ; it  shall  be 
certified  by  the  clerk  of  the  board  of  supervisors  and  shall  be  filed  in  the 
office  of  the  clerk  of  the  county  on  or  before  the  tenth  day  of  December 
in  each  year.3 4  [Idem,  § 229-d.] 

§ 2.  INCREASE  IN  NUMBER  OF  JURORS;  DUTIES  OF  SUPERVI- 
SORS. 

If  the  county  judge  of  any  county  of  this  state,  except  the  county  of 
New  York,  shall  at  any  time  be  of  opinion  that  a greater  number  of  persons 
than  that  herein  required,  should  be  returned  to  serve  as  grand  jurors  in 
their  county,  he  may,  by  an  order  under  his  hand,  direct  such  number 
to  be  increased;  but  such  increase  shall  not  exceed  one-half  the  number 
herein  required  to  be  selected  for  such  county.  [Idem,  § 229-f.] 

Upon  any  order  which  is  authorized  by  the  two  last  sections,  being  served 
upon  the  board  of  supervisors,  they  shall  at  their  next  annual  meeting, 
increase  the  number  of  persons  returned  by  them  to  serve  as  giand  jurors, 
pursuant  to  such  order.  [Idem,  § 229-g.] 

§ 3.  INSERTING  NEW  NAMES  IN  BOX  WHEN  LIST  IS  NEARLY  EX- 
HAUSTED. 

When  it  shall  appear  upon  the  representation  of  a county  clerk,  that 
there  are  less  than  fifty  names  remaining  in  the  box  containing  the  names 
of  persons  returned  to  serve  as  grand  jurors,  the  judge  of  the  county  court 
may  select  from  the  citizens  of  the  county  qualified  to  serve  as  grand  jurors, 
and  who  shall  not  have  served  during  the  preceding  twelve  months,  the 
names  of  fifty  persons,  to  serve  as  grand  jurors. 

Such  names  shall  be  certified  to  the  county  clerk,  who  shall  file  such 
certificate  in  his  office,  and  shall  cause  such  names  to  be  written  on 
distinct  pieces  of  paper,  and  deposited  in  the  box  containing  any  undrawn 
names  of  persons  returned  to  serve  as  grand  jurors,  or  if  there  be  none, 
then  in  a proper  box;  and  from  such  box,  in  either  case,  the  clerk  shall 
draw  a grand  jury  to  serve  for  any  court  to  be  held  immediately  after  such 
drawing. 


3.  Defective  list.  Where  it  appears  that  a few  persons  named  in  a grand 
jury  list  are  not  possessed  of  the  qualifications  required  by  law,  the  whole  list 
is  not  therefore  to  be  declared  irregular  and  null  and  void,  especially  when  it 
appears  that  the  names  were  so  added  without  fraud  or  design,  but  by  accident 
or  oversight.  Dolan  v.  People,  64  N.  Y.  485. 

4.  The  power  formerly  conferred  upon  the  judges  of  common  pleas  of  the 
several  counties  is  now  imposed  upon  the  county  judge  of  the  county. 


1032 


JURORS. 


Judiciary  Law,  §§  500-502. 

Such  drawing  shall  be  made  at  the  time,  and  in  the  same  manner, 
in  all  respects,  as  herein  provided  in  respect  to  persons  returned  by  the 
supervisors,  and  the  persons  drawn  shall  be  summoned  in  like  manner, 
and  subject  to  the  same  penalties  for  neglect.  [Idem,  § 229-r.] 


§ 4.  SUPERVISOR,  TOWN  CLERK  AND  ASSESSORS  TO  MAKE  LISTS 
OF  TRIAL  JURORS;  NAMES  TO  BE  TAKEN  FROM  ASSESS- 
MENT-ROLL. 

The  supervisor,  town  clerk  and  assessors  of  each  town  must  meet  on  the 
first  Monday  of  July,  in  the  year  one  thousand  eight  hundred  and  seventy- 
eight,  and  in  each  third  year  thereafter,  at  a place  within  the  town, 
appointed  by  the  supervisor;  or,  in  case  of  his  absence,  or  of  a vacancy  in 
his  office,  by  the  town  clerk ; for  the  purpose  of  making  a list  of  persons  to 
serve  as  trial  jurors  for  the  then  ensuing  three  years.  If  they  fail  to  meet 
on  the  day  specified  in  this  section,  they  must  meet  as  soon  thereafter  as 
practicable.5  [Judiciary  Law,  § 500;  B.  C.  & G.  Cons.  L.,  p.  2829.] 

At  the  meeting  specified  in  the  last  section,  the  officers  present  must 
select  from  the  last  assessment-roll  of  the  town,  and  make  a list  of  the 
names  of  all  persons  whom  they  believe  to  be  qualified  to  serve  as  trial 
jurors,  as  prescribed  in  this  article.  [Judiciary  Law,  § 501;  B.  C.  & G. 
Cons.  L.,  p.  2829.] 

§ 5.  QUALIFICATIONS  OF  TRIAL  JURORS. 

In  order  to  be  qualified  to  serve  as  a trial  juror,  in  a court  of  record,  a 
person  must  be: 

1.  A male  citizen  of  the  United  States,  and  a resident  of  the  county. 

2.  Not  less  than  twenty-one,  nor  more  than  seventy  years  of  age. 

3.  Assessed,  for  personal  property,  belonging  to  him,  in  his  own  right, 
to  the  amount  of  two  hundred  and  fifty  dollars;  or  the  owner  of  a free- 
hold estate  in  real  property,  situated  in  the  county,  belonging  to  him  in 
his  own  right,  of  the  value  of  one  hundred  and  fifty  dollars;  or  the  hus- 
band of  a woman  who  is  the  owner  of  a like  freehold  estate,  belonging 
to  her,  in  her  own  right,6  except  that  in  the  counties  of  Queens  and  Rich- 


5.  Mere  irregularities  by  public  officers  in  making  a list  of  persons  to  serve 
as  trial  jurors  which  cannot  in  any  way  effect  the  rights  of  the  parties  may  be 
disregarded.  Ferris  v.  People,  35  N.  Y.  125.  The  statutes  as  to  selecting,  draw- 
ing and  summoning  jurors  are  merely  directory.  Friery  v.  People,  2 Abb.  Ct. 
App.  Dec.  215. 

6.  The  property  qualification  must  appear  on  and  be  evidenced  by  the  assess- 
ment rolls.  Armsby  v.  People,  2 T.  & C.  157.  It  was  held  in  accordance  with 


GRAND  AND  TRIAL  JURORS;  COMMISSIONERS  OF  JURORS.  1033 


Judiciary  Law,  § 503. 

mond  a person,  to  be  qualified  to  serve  as  such  trial  juror,  shall  possess 
the  property  qualifications  specified  in  subdivision  three  of  section  six 
hundred  eighty-six  of  this  chapter.  [Subd.  amended  by  L.  1910,  ch.  96.] 

4.  In  the  possession  of  his  natural  faculties  and  not  infirm  or  decrepit. 

5.  Free  from  all  legal  exceptions;  of  fair  character;  of  approved  integrity; 
of  sound  judgment;  and  well  informed. 

But  a person  who  was  assessed,  on  the  last  assessment-roll  of  the  town, 
for  land  in  his  possession,  held  under  a contract  for  the  purchase  thereof, 
upon  which  improvements,  owned  by  him,  have  been  made  to  the  value  of 
one  hundred  and  fifty  dollars,  is  qualified  to  serve  as  a trial  juror,  although 
he  does  not  possess  either  of  the  qualifications,  specified  in  subdivision  third 
of  this  section,  if  he  is  qualified  in  every  other  respect.  [Judiciary  Law, 
§ 502;  B.  C.  & G.  Cons.  L.,  p.  2829.] 


§ 6.  WHO  ARE  DISQUALIFIED  TO  SERVE  AS  TRIAL  JURORS. 

Each  of  the  following  officers  is  disqualified  to  serve  as  a trial  juror : 

1.  The  governor;  the  lieutenant-governor;  the  governor’s  private  secre- 
tary. 

2.  The  secretary  of  state;  the  comptroller;  the  state  treasurer;  the  at- 
torney-general; the  state  engineer  and  surveyor;  a canal  commissioner;  an 
inspector  of  state  prisons ; a canal  appraiser ; the  commissioner  of  education  ; 
the  superintendent  of  banks ; the  superintendent  of  insurance ; and  tlie- 
deputy  of  each  officer,  specified  in  this  subdivision. 

3.  A member  of  the  legislature,  during  the  session  of  the  house,  of  which 
he  is  a member. 

4.  A judge  of  a court  of  record,  or  a surrogate. 

5.  A sheriff,  under  sheriff,  or  deputy  sheriff. 

6.  The  clerk  or  deputy  clerk  of  a court  of  record.  [Judiciary  Law,  § 
503’;  B.  C.  & G.  Cons.  L.  p.  2830.] 

§ 7.  WHO  ARE  ENTITLED  TO  BE  EXEMPTED  FROM  JURY  SER- 
VICE. 

Each  of  the  following  persons,  although  qualified,  is  entitled  to  exemp- 


this  proposition  that  where,  upon  challenge  of  the  juror,  it  appeared  that  when 
he  was  placed  on  the  jury  list  he  was  the  owner  of  a farm  for  which  he  was 
assessed,  hut  was  not  assessed  for  personal  property,  and  before  the  trial  he 
sold  his  farm,  taking  back  a mortgage,  that  he  was  not  eligible  and  that  the 
challenge  was  properly  sustained.  Kelly  v.  People,  55  N.  Y.  565.  Mere  pos- 
session of  the  amount  of  property  is  not  enough.  It  must  be  assessed  to  him 
upon  the  town  assessment-roll.  Valton  v.  Nat.  L.  F.  Ass.  Soc.,  17  Abb.  268. 


1034: 


JURORS. 


Judiciary  Law,  § 546. 

tion  from  service  as  a trial  juror,  upon  his  claiming  exemption  there- 
from : 

1.  A clergyman,  or  a minister  of  any  religion  officiating  as  such,  and  not 
following  any  other  calling. 

2.  A resident  officer  of,  or  an  attendant,  assistant,  teacher,  or  other  per- 
son actually  employed  in  a state  asylum  for  lunatics,  idiots  or  habitual 
drunkards. 

3.  The  agent  or  warden  of  the  state  prison,  the  keeper  of  a county  jail, 
or  a person  actually  employed  in  a state  prison  or  county  jail,  and  the  keeper 
of  every  alms-house. 

4.  A practicing  physician  or  surgeon,  having  patients  requiring  his 
daily  professional  attention,  a licensed  pharmacist  actually  engaged  in  his 
profession  as  a means  of  livelihood,  a duly  registered  veterinary  surgeon 
actually  engaged  in  his  profession  as  a means  of  livelihood,  and  a duly 
licensed  embalmer  actually  engaged  in  his  profession  as  a menas  of  liveli- 
hood. 

5.  An  attorney  or  counselor  at  law  regularly  engaged  in  the  practice  of 
the  law  as  a means  of  livelihood. 

6.  A professor  or  teacher,  in  a college  or  academy,  or  an  editor,  editorial 
writer,  artist  or  reporter  of  a daily  newspaper  or  press  association  regu- 
larly employed  as  such  and  not  following  any  other  vocation. 

7.  A person  actually  employed  in  a glass,  cotton,  linen,  woolen  or  iron 
manufacturing  company,  by  the  year,  month  or  season. 

8.  A superintendent,  engineer,  or  collector  on  a canal,  authorized  by  the 
law  of  the  state,  which  is  actually  constructed  and  navigated. 

9.  A master,  engineer,  assistant  engineer  or  fireman,  actually  employed 
upon  a steam  vessel,  making  regular  trips. 

10.  A superintendent,  conductor,  or  engineer,  employed  by  a railroad 
company,  other  than  a street  railroad  company ; or  an  operator  or  an  assist- 
ant operator,  employed  by  a press  association  or  a telegraph  company,  who 
is  actually  doing  duty  in  an  office,  or  along  the  railroad  or  telegraph  line 
of  the  company  or  association,  by  which  he  is  employed. 

11.  An  officer,  non-commissioned  officer,  musician  or  private  of  the 
national  guard  of  the  state,  performing  military  dut}q  or  a person  who  has 
been  honorably  discharged  from  the  national  guard,  after  five  years’  service 
in  either  capacity. 

12.  A person  who  has  been  honorably  discharged  from  the  military  forces 
of  the  state,  after  seven  years’  faithful  service  therein.  But  in  order  to  en- 
title a person  to  exemption,  under  this  subdivision,  his  service  must  have 
been  performed  before  the  twenty-third  day  of  April,  eighteen  hundred  and 
sixty-two,  either  as  a general  or  staff  officer,  or  as  an  officer,  non-commis- 
sioned officer,  musician  or  private  in  a uniformed  battalion,  company  or 
troop  of  the  militia  of  the  state,  and  armed,  uniformed  and  equipped  ac- 


GRAND  AND  TRIAL  JURORS;  COMMISSIONERS  OF  JURORS.  1035 
Judiciary  Law,  §§  505,  509-512. 

cording  to  law;  or  a portion  thereof,  during  that  period  and  in  that  ca- 
pacity, and  the  remainder  since  the  twenty-third  day  of  April,  eighteen 
hundred  and  sixty-two,  as  a member  of  the  national  guard  of  the  state. 

13.  A member  of  a fire  company  or  fire  department  duly  organized  ac- 
cording to  the  laws  of  the  state  and  performing  his  duties  therein;  or  a 
person  who,  after  faithfully  serving  five  successive  years  in  such  a fire  com- 
pany or  fire  department  has  been  honorably  discharged  therefrom. 

14.  A duly  licensed  engineer  of  steam  boilers,  actually  employed  as 
such. 

15.  A person  otherwise  specially  exempted  by  law.  [Judiciary  Law,  § 
546;  B.  C.  & G.  Cons.  L.  p.  2840.] 


§ 8.  DUPLICATE  JURY  LISTS  TO  BE  MADE  AND  FILED. 

Duplicate  lists  of  the  names  of  the  persons  selected  as  prescribed  in  sec- 
tion five  hundred  and  one,  showing  the  place  of  residence,  and  other  proper 
additions,  of  each  of  them,  as  far  as  those  particulars  can  be  conveniently 
ascertained,  must  be  made  out  and  signed  by  the  officers,  or  a majority  of 
them.  Within  ten  days  after  the  meeting,  one  of  the  lists  must  be  trans- 
mitted by  those  officers  to  the  county  clerk,  and  filed  by  him ; and  the  other 
must  be  filed  with  the  town  clerk.  [Judiciary  Law,  § 505,  B.  C.  & G.  Cons. 
L.,  p.  2831.] 

§ 9.  PROCEEDINGS  WHERE  COUNTY  CLERK  DOES  NOT  RECEIVE 
LISTS. 

Before  depositing  the  ballots,  the  county  clerk  must  destroy  each  ballot, 
remaining  in  either  of  the  boxes  kept  by  him,  and  containing  the  name  of 
a resident  of  a town,  for  which  a new  list  has  been  transmitted.  [Judi- 
ciary Law,  § 509;  B.  C.  & G.  Cons.  L.,  p.  2832.] 

If,  for  any  reason,  the  list  from  a town  is  not  received  by  the  county  clerk 
by  the  first  Monday  of  August,  he  shall  give  immediate  notice  thereof  to 
the  town  clerk,  and  if  must  be  transmitted  as  soon  thereafter  as  practicable. 
[Judiciary  Law,  § 510;  B.  C.  & G.  Cons.  L.,  p.  2832.] 

If,  after  the  list  from  a town  is  received  by  the  county  clerk,  it  has  been 
or  shall  be  lost  or  destroyed,  he  must  forthwith  give  notice  thereof  to  the 
town  clerk,  and  a copy  of  the  duplicate  list  on  file  in  the  town  clerk’s  office, 
certified  by  him  to  be  correct,  must  be  transmitted  to  the  county  clerk  as 
soon  thereafter  as  practicable.  [Judiciary  Law,  § 511;  B.  C.  & G.  Cons. 
L.,  p.  2832.] 

Tf  the  duplicate  list,  placed  on  file  in  the  town  clerk’s  office,  is  also  lost 
or  destroyed,  or  can  not  be  found,  a new  list,  to  be  made  forthwith,  as  pre- 
scribed for  making  the  original  list,  must  be  transmitted  to  the  county  clerk 


1036 


JURORS. 


Judiciary  Law,  § 506;  L.  1899,  ch.  441,  § 1. 

as  soon  thereafter  as  practicable;  and  the  county  clerk  must  prepare  new 
ballots,  and  destroy  the  old  ballots  containing  the  names  of  residents  of  that 
town,  immediately  after  the  receipt  by  him  of  the  list  therefrom.  [Judi- 
ciary Law,  § 512;  B.  C.  & G.  Cons.  L.,  p.  2832.] 

§ lO.  JURORS  SO  RETURNED  TO  SERVE  FOR  THREE  YEARS. 

Each  person,  whose  name  is  contained  in  a list,  so  transmitted,  must, 
unless  he  is  excused  or  discharged,  serve,  as  a trial  juror,  for  three  years 
from  the  first  Monday  of  August  of  that  year,  and  thereafter  until  another 
list  from  his  town  is  received  and  filed.  [Judiciary  Law,  § 506;  B.  C.  & G. 
Cons  L.,  p.  2831.] 

§ 11.  COMMISSIONER  OF  JURORS;  OFFICE  ESTABLISHED;  AP- 
POINTMENT. 

Office  established. — The  office  of  commissioner  of  jurors  is  hereby  es- 
tablished in  and  for  each  of  the  counties  of  Schenectady,  Saratoga,  Rich- 
mond, Queens,  Oneida,  Herkimer,  Nassau  and  Niagara,  and  the  board 
of  supervisors  in  any  other  county  of  the  state  may  adopt  a resolution 
at  its  annual  or  a special  meeting  called  for  that  purpose,  to  establish 
the  office  of  commissioner  of  jurors  in  such  county.  A copy  of  such  reso- 
lution certified  by  the  clerk  of  such  board  of  supervosors,  shall  be  filed 
in  the  office  of  the  clerk  of  the  county  within  ten  days  after  its  adoption 
and  a certified  copy  thereof  delivered  within  the  same  time  to  each  of  the 
officers  herein  authorized  to  appoint  a commissioner  of  jurors  for  such 
county.7  [L.  1899,  ch.  441,  § 1,  as  amended  by  L.  1903,  ch.  201,  L. 
1905,  chs.  102,  510,  L.  1906,  ch.  221,  and  L.  1911,  ch.  705.] 


7.  Commissioners  of  jurors  in  other  counties.  As  to  the  appointment  of  a 

commissioner  of  jurors  in  the  counties  of  New  York  and  Kings,  and  the  drawing 
of  special  juries  therein,  see  L.  1901,  ch.  602,  as  amended  by  L.  1904,  ch.  458, 
and  L.  1906,  ch.  499. 

As  to  the  office  of  commissioner  of  jurors  in  the  county  of  Erie,  see  L.  1895, 
ch.  369,  as  amended  by  L.  1896,  ch.  97;  L.  1897,  ch.  21,  and  L.  1901,  ch.  230,  L. 
1905,  ch.  31,  L.  1911,  ch.  690,  and  L.  1912,  ch.  147. 

As  to  the  office  of  commissioner  of  jurors  in  the  county  of  Monroe,  see  L. 
1897,  ch.  346,  as  amended  by  L.  1900,  ch.  565,  L.  1901,  ch.  377,  and  L.  1902,  ch.  408. 

As  to  the  office  of  commissioner  of  jurors  in  the  county  of  Oneida,  see  L.  1906, 
ch.  484,  as  amended  by  L.  1908,  ch.  179. 

As  to  office  of  commissioner  of  jurors  in  Westchester  county  and  the  regu- 
lation of  his  powers  and  duties,  see  L.  1892,  ch.  491,  as  amended  by  L.  1893, 
ch.  269,  and  L.  1904,  ch.  232,  as  amended  by  L.  1907,  ch.  240. 

As  to  the  office  of  commissioner  of  jurors  in  Rensselaer  county,  see  L.  1913,  ch.  553, 
which  confers  upon  the  county  clerk  the  duties  of  this  office  as  it  was  established  by 
L.  1894,  ch.  557,  as  amended  by  L.  1896,  ch.  679.  The  act  of  1894  originally  applied 
to  both  Albany  and  Rensselaer  counties,  but  by  L.  1900,  ch.  320,  § 2,  it  is  provided 
that  ch.  557  of  L.  1894  shall  not  hereafter  apply  to  the  county  of  Albany,  but  such 


GRAND  AND  TRIAL  JURORS;  COMMISSIONERS  OF  JURORS.  1037 
Idem,  § 2;  L.  1899,  ch.  441,  § 3. 

Appointment. — In  any  county  in  which  the  office  of  commissioner  of 
jurors  is  established  as  provided  in  the  preceding  section,  and  in  the  county 
of  Albany,  such  commissioner  and  his  successor  shall  be  appointed  in  the 
following  manner : 

1.  If  only  one  justice  of  the  Supreme  Court  resides  in  such  county,  he 
and  the  county  judge  and  the  county  clerk  shall  make  the  appointment. 

2.  If  two  or  more  justices  of  the  Supreme  Court  reside  in  such  county, 
they  and  the  county  judge  shall  make  the  appointment. 

3.  If  no  justice  of  the  Supreme  Court  resides  in  such  county,  and  the 
county  has  a separate  surrogate,  the  county  judge,  surrogate  and  county 
clerk  shall  make  the  appointment. 

4.  If  no  Supreme  Court  justice  resides  in  such  county  and  such  county 
has  no  separate  surrogate,  the  county  judge,  district  attorney,  and  county 
clerk  shall  make  the  appointment.  The  first  appointment  shall  be  made  in 
the  counties  of  Saratoga  and  Schenectady  within  thirty  days  from  the  date 
this  act  shall  take  effect,  and  in  the  other  counties  to  which  this  act  applies 
within  thirty  days  after  the  adoption  of  the  resolution  to  establish  the  office. 
The  officers  herein  authorized  to  appoint  a commissioner  of  jurors  in  a 
county  shall  constitute  a board  for  that  purpose  and  an  appointment  of  a 
commissioner  by  them  must  be  in  writing,  signed  by  a majority  of  such 
officers  and  filed  in  the  office  of  the  clerk  of  the  county.  [Idem,  § 2,  as 
amended  by  L.  1900,  ch.  320,  L.  1903,  ch.  201,  and  L.  1905,  ch.  102.] 


§ 12.  TERM  OF  OFFICE;  SALARY;  ROOMS  AND  ACCOMMODATIONS. 

Term  of  office;  undertaking . — A commissioner  of  jurors  first  appointed 
under  this  act  shall  take  office  immediately,  and  shall  hold  office  for  a term 
which  shall  expire  five  years  from  the  first  day  of  January  next  suceeding 
his  appointment,  and  each  commissioner  thereafter  appointed  under  this 
act,  except  to  fill  a vacancy,  shall  hold  his  office  for  a term  of  five  years, 
from  the  expiration  of  the  term  of  his  predecessor  in  office.  All  terms  shall 
expire  on  the  thirty-first  day  of  December,  and  before  entering  upon  the 
duties  of  his  office,  he  shall  execute  an  undertaking  to  the  county  in  a sum 
to  be  fixed  and  approved  by  the  appointing  authority,  not  less  than  two 
thousand  dollars,  nor  more  than  five  thousand  dollars,  conditioned  that  he 
will  faithfully  perform  the  duties  of  his  office,  and  account  for  and  pay 
over  all  moneys  which  come  into  his  hands  by  virtue  thereof,  which  shall  be 


county  shall  be  subject  to  the  provisions  of  ch.  441  of  L.  1899,  which  is  the 
general  act  applying  to  all  counties  where  the  board  of  supervisors  have  adopted 
a resolution  as  provided  in  the  above  section. 


1038 


JURORS. 


L.  1899,  ch.  441,  §§  4-7. 

filed  in  the  office  of  the  county  clerk.  [L.  1899,  ch.  441,  § 3,  as  amended 
by  L.  1900,  ch.  320.] 

Salary . — A commissioner  of  jurors  shall  be  entitled  to  receive  an  an- 
nual salary  payable  monthly  by  the  county  treasurer. 

1.  In  counties  having  a population  of  one  hundred  thousand  and  not 
more  than  one  hundred  and  fifty  thousand,  fifteen  hundred  dollars. 

2.  In  counties  having  a population  of  more  than  one  hundred  and  fifty 
thousand  and  not  more  than  three  hundred  thousand,  not  exceeding  three 
thousand  dollars  to  be  fixed  by  the  resolution  creating  the  office. 

3.  In  counties  having  a population  less  than  one  hundred  thousand  a 
sum  to  be  fixed  by  the  resolution  creating  the  office,  except  in  the  coun- 
ties of  Nassau,  Niagara,  Saratoga,  Herkimer  and  Schenectady,  where 
it  shall  be  fixed  by  the  board  which  makes  the  appointment,  not  exceed- 
ing twenty-five  hundred  dollars.  [Idem,  § 4,  as  amended  by  L.  1903, 
ch.  201,  L.  1905,  ch.  102,  L.  1906,  ch.  221,  L.  1911,  ch.  705,  and  L. 
1914,  ch.  375.1 

Rooms  and  accommodations j — In  the  city  of  New  York,  the  munici- 
pal assembty  shall  provide  suitable  rooms  and  accommodations  for  the  com- 
missioner of  jurors  in  each  county  within  such  city,  and  shall  also  make 
provision  for  necessary  printing  and  advertising,  and  for  supplying  him 
with  necessary  books,  stationery  and  other  articles.  In  any  other  county 
such  rooms,  accommodations  and  supplies  shall  be  provided  for  by  the  board 
of  supervisors.  Until  such  provision  has  been  made  a commissioner  of 
jurors  shall  use  the  county  clerk’s  office  of  his  county  to  transact  the  neces- 
sary duties  of  his  office  and  shall  be  supplied  by  the  county  clerk  with  neces- 
sary books  and  other  articles,  which  shall  be  a county  charge.  [Idem,  § 5.] 


§ 13.  ASSISTANTS  AND  CLERKS. 

A commissioner  of  jurors  in  a county  of  more  than  sixty-five  thousand 
population  according  to  the  last  preceding  state  or  federal  census  may  ap- 
point one  assistant  commissioner  of  jurors  whose  compensation  shall  be  fixed 
by  the  board  appointing  the  commissioner,  and  one  clerk  whose  compensa- 
tion shall  be  fixed  in  the  same  manner;  such  compensation  shall  be  paid 
by  the  county  in  equal  monthly  installments  and  an  assistant  commissioner 
of  jurors  may  be  designated  by  the  commissioner  appointing  him  to  per- 
form any  of  the  duties  of  a commissioner  of  jurors  in  his  absence.  A com- 
missioner of  jurors,  or  an  assistant  whom  he  designates  for  the  purpose  by 
a certificate  filed  in  the  office  of  the  county  clerk,  may  administer  an  oath 
or  affirmation  in  relation  to  any  matter  embraced  within  the  provisions  of 
this  act.  [L.  1899,  ch.  441,  § 6,  as  amended  by  L.  1906,  ch.  222.] 


§ 14.  SELECTION  OF  TRIAL  JURORS;  AID  OF  TAX  OFFICERS.* 

Trial  jurors  must  be  selected  by  the  commissioner  of  jurors,  who  must 


GRAND  AND  TRIAL  JURORS;  COMMISSIONERS  OF  JURORS.  1039 


L.  1899,  ch.  441,  §§  8-10. 

alone  decide  upon  their  qualifications  and  exemptions,  except  as  otherwise 
expressly  prescribed  by  law.  But  this  section  does  not  impair  the  right  to 
challenge  a particular  juror  at  the  trial.  The  commissioner  may  issue,  to  a 
person  entitled  to  an  exemption,  a certificate  of  that  fact,  which  exempts  the 
person  to  whom  it  is  granted  from  jury  duty  during  the  time  limited  there- 
in. He  must  keep  a record  of  all  proceedings  before  him,  or  in  his  office. 
[L.  1899,  ch.  441,  § 7.] 

Tax  officers  to  give  aid. — The  president  and  commissioners  of  the  depart- 
ment of  taxes  and  assessments  in  the  city  of  New  York  must  render  to  the 
commissioner  of  jurors  of  each  of  the  counties  of  Richmond  and  Queens  all 
the  assistance  in  their  power  to  enable  him  to  procure  the  names  of  persons 
liable  to  serve  as  trial  jurors,  and  in  the  other  counties  of  this  state  in  which 
commissioners  of  jurors  shall  be  appointed  in  pursuance  of  this  act,  the 
supervisors,  town  clerk  and  assessors  of  each  town  must  furnish  like  assis- 
tance. The  officers  herein  mentioned  shall  forthwith  upon  the  request  of  the 
commissioner  of  jurors  of  any  county  furnish  him  a jury  list  made  by  se- 
lecting and  entering  thereon  from  the  last  revised  assessment-roll  in  their 
possession  the  names  of  all  persons  whom  they  believe  possess  the  qualifica- 
tions for  trial  jurors  as  prescribed  by  law ; such  a list  must  show  the  places 
of  residence  and  other  proper  additions  of  each  person  so  selected,  so  far 
as  these  particulars  can  be  conveniently  ascertained,  and  must  be  certified 
by  the  officers  making  the  same.  [Idem,  § 8.] 


§ 15.  PREPARATION  OF  LIST  OF  TRIAL  JURORS;  NOTICE  TO  JURORS. 

List  of  trial  jurors. — Immediately  upon  the  receipt  of  the  list  mentioned  in 
the  last  section,  the  commissioner  of  jurors  must  commence  the  preparation 
of  the  list  of  trial  jurors  in  his  county,  and  for  that  purpose  the  names  of  per- 
sons liable  to  serve  as  trial  jurors  must  be  entered  in  suitable  books  alphabeti- 
cally with  the  occupation,  places  of  business  and  residence  of  each  as  far  as 
those  particulars  can  be  conveniently  ascertained.  Upon  the  completion  of 
such  list  by  the  commissioner  he  shall  give  notice  by  mail  to  the  persons  named 
in  said  list,  that  their  claims  for  exemption  will  be  heard  by  him  upon  a day 
named  in  said  notice,  and  he  may  also  include  in  said  notice  such  portions  of 
the  law  relating  to  jurors  as  may  seem  to  him  proper  and  expedient.  He  must 
hear  and  determine  all  claims  for  exemption  and  must  keep  a record  of  all 
persons  exempted  and  the  period  of  time  for  which  exemption  is  allowed.  In 
the  county  of  Queens  the  hearing  of  claims  for  exemption  shall  in  the  first 
instance  be  had  in  at  least  two  convenient  places  within  the  ward  in  which  the 
persons  named  m said  list  reside,  and  the  commissioner  shall  hold  a sufficient 
number  of  evening  sessions  from  seven  o’clock  to  ten  o’clock  to  permit  such 
persons  to  appear  and  be  heard.  Any  person  who,  after  having  been  notified 
to  attend,  shall  fail  to  appear  at  such  hearing  held  within  the  ward  in  which  he 
resides  shall  be  heard  at  the  office  of  the  commissioner.  LL.  1899,  ch.  441,  § 9, 
as  amended  by  L.  1913,  ch.  438.] 

Notice  to  jurors,  etc. — The  commissioner  may  cause  to  be  personally  served, 
upon  any  person  within  the  county,  a notice  requiring  him  to  attend 
at  the  commissioner’s  office  at  a specified  time,  not  less  than  twenty-four 
hours  after  service  of  the  notice,  for  the  purpose  of  testifying  concerning  his 


1040 


JURORS. 


L.  1899,  ch.  441,  §§  11-13. 

own  liability,  or  the  liability  of  any  other  person  to  serve  as  a juror.  A 
person  so  notified  must  attend  and  testify  accordingly.  If  he  fails  to  at 
tend,  as  specified  in  the  notice,  for  any  cause,  except  physical  inability, 
or  if  he  refuses  to  be  sworn  or  to  answer  any  legal  and  pertinent  question 
put  to  him  by  the  commissioner,  he  forfeits  fifty  dollars  for  each  failure  or 
refusal.  One  or  more  successive  notices  may  be  served  upon  the  same  per- 
son, where  he  fails  to  attend,  as  required  by  a former  notice,  and  he  is  lia- 
ble to  the  same  penalty  for  each  failure  so  to  attend.  But  the  commissioner 
may,  in  his  discretion,  dispense  with  the  personal  attendance  of  a person  so 
notified,  where  another  person  cognizant  of  the  facts  is  produced  and  testi- 
fies in  his  stead;  and  where  a person  has  so  attended  twice  they  cannot  be 
required  to  attend  again  in  the  same  jury  year.  [Idem,  § 10.] 


§ 16.  LISTS  TO  BE  FILED. 

On  or  before  the  first  day  of  December  in  each  year  the  commissioner 
must  return  to  the  county  clerk,  to  be  filed  in  his  office,  certified  copies  of 
the  lists  prepared  by  him  of  the  persons  liable  to  serve  as  trial  jurors  in  the 
courts  of  record  for  the  ensuing  jury  year.  Before  filing  such  certified  lists, 
however,  he  must  select  therefrom  and  strike  off  therefrom,  two  hundred 
persons  for  each  district  of  the  Municipal  Court  of  the  city  of  New  York  in 
his  county,  if  he  be  commissioner  for  a county  in  the  city  of  New  York,  and 
he  must  on  or  before  the  first  day  of  December  in  each  year  file  with  the  re- 
spective justices  of  said  Municipal  Court,  in  his  county,  certified  lists  of  the 
persons  so  selected  and  struck  off  by  him — the  persons  so  selected  to  be  res- 
idents of  the  Municipal  Court  district  for  which  the}7,  are  selected.  The  list 
so  filed  shall  constitute  the  jury  lists  for  trials  in  the  respective  districts 
where  they  are  filed  until  a new  list  shall  be  filed  in  accordance  with  the 
provisions  of  this  act.  He  may  from  time  to  time  thereafter  strike  from  the 
list  kept  by  him  the  name  of  a person  who  is  found  by  him  to  be  exempt  or 
disqualified,  in  that  case  he  must  record  the  reason  why  the  name  is  struck 
off  as  exempt  or  disqualified.  [L.  1899,  ch.  441,  § 11,  as  amended  by  L. 
1901,  ch.  172.] 

In  a county  which  has  a commissioner  of  jurors,  other  than  a county 
included  in  the  city  of  New  York,  the  commissioner  shall,  on  or  before  the 
fifteenth  day  of  December,  in  each  year,  file  with  each  town  and  city  clerk 
in  such  county  a list  of  the  names  of  the  residents  of  such  town  or  city  which 
have  been  placed  by  him  on  the  trial  jury  list  for  such  county.  [Idem, 

S 12.] 

§17.  LIST  OF  GRAND  JURORS. 

In  a county  which  has  a commissioner  of  jurors  such  commissioner  and 


GRAND  AND  TRIAL  JURORS;  COMMISSIONERS  OF  JURORS.  1041 

L.  1899,  ch.  441,  §§  14-17;  Code  Civ.  Proc.,  § 3313. 

the  board  appointing  him  shall  prepare  in  the  month  of  December  of  each 
year  from  the  trial  jury  list  filed  as  herein  provided  a list  of  the  names  of 
three  hundred  persons  to  serve  as  grand  jurors  in  said  county  during  the 
next  ensuing  jury  year,  and  until  a new  list  shall  be  returned.  The  list 
shall  contain  the  Christian  names  and  surnames  at  length  of  persons  named 
therein,  their  respective  places  of  residence,  and  their  several  occupations. 
It  shall  be  certified  by  said  board  and  filed  in  the  office  of  the  county  clerk 
within  ten  days  thereafter.  [Idem,  § 13.] 

§ 18.  DRAWING  JURORS;  BALLOTS. 

Ballots  for  drawing  grand  jurors. — The  county  clerk  on  the  last  day  of 
December  after  the  list  has  been  transmitted  to  him,  must  prepare  suitable 
ballots  by  writing,  on  a separate  piece  of  paper,  the  name  of  each  person 
thus  selected,  as  contained  in  the  list,  with  his  place  of  residence  and  other 
additions.  The  ballots  must  be  uniform  in  appearance  as  nearly  as  may  be, 
and  the  clerk  must  deposit  them  in  the  boxes  now  required  by  law  to  be 
kept  for  the  purpose  of  drawing  grand  and  trial  jurors.  The  county  clerk 
before  depositing  the  ballots,  must  destroy  each  ballot  remaining  in  either 
of  the  boxes  kept  by  him,  and  containing  the  name  of  a resident  of  a town 
for  which  a new  list  has  been  transmitted.  [L.  1899,  ch.  441,  § 14.] 
Drawing  jurors. — The  grand  and  trial  jurors  shall  be  drawn  as  now  pro- 
vided by  law  by  the  county  clerk  in  the  presence  of  the  county  judge,  the 
sheriff  and  the  commissioner  of  jurors,  or  a majority  of  them.  [Idem,  § 
15.] 

§ 19.  REMOVAL  OF  COMMISSIONER. 

Any  commissioner  of  jurors  appointed  pursuant  to  the  provisions  of  this 
act  may  be  removed  for  cause  by  the  board  by  whom  the  appointment  was 
made.  He  may  also  be  removed  upon  order  of  the  appellate  division  of  the 
Supreme  Court  of  the  department  embracing  the  county  in  which  he  resides. 
The  commissioner  is  entitled  to  notice  of  application  to  the  appellate  divi- 
sion for  his  removal.  [L.  1899,  ch.  441,  § 16.] 

§ 20.  APPLICATION  OF  ACT. 

This  act  shall  not  apply  to  the  counties  of  New  York,  Kings,  Erie,  Mon- 
roe, Onondaga,  Westchester  or  Rensselaer.  [L.  1899,  ch.  441,  § 17,  as 
amended  by  L.  1900,  ch.  320.] 

§ 21.  FEES  OF  TRIAL  JURORS. 

A trial  juror,  in  an  action  or  a specal  proceeding,  in  a court  of  record, 


1042 


JURORS. 


Code  Civ.  Proc.,  §§  3314,  3315. 

is  entitled,  except  as  otherwise  specially  prescribed  by  statute  in  a particular 
court,  or  a particular  county,  to  the  following  fees:  twenty-five  cents  for 
each  cause  in  which  he  is  empanelled,  to  be  paid  by  the  party  noticing  the 
cause  for  trial;  or,  if  it  is  noticed  by  more  than  one  party,  by  the  party 
whom  the  court  directs  to  pay  it.  [Code  Civ.  Proc.,  § 3313.] 

§ 22.  SUPERVISORS  MAY  MAKE  ALLOWANCE  TO  GRAND  AND 
TRIAL  JURORS. 

1.  In  the  counties  within  the  city  of  New  York  the  board  of  aldermen 
and  in  any  other  county  the  board  of  supervisors,  may  direct  that  a sum, 
not  exceeding  four  dollars  in  addition  to  the  fees  prescribed  in  the  last 
section,  or  in  any  other  statutory  provision,  be  allowed  to  each  grand  juror, 
and  each  trial  juror  for  each  day’s  attendance  at  a term  of  a court  of  record, 
of  civil  or  criminal  jurisdiction,  held  within  the  county,  and  in  any  county 
wherein  the  court  holds  evening  or  night  sessions,  or  in  any  county  in  which 
the  grand  jury  holds  evening  or  night  sessions,  the  board  of  supervisors 
may  direct  that  a sum,  not  exceeding  one  dollar  and  fifty  cents  in  addition 
to  the  fees  prescribed  in  this  section  or  the  last  section,  or  in  any  other 
statutory  provision,  be  allowed  to  each  grand  juror  and  to  each  trial  juror 
for  each  evening  or  night’s  attendance  at  a term  of  a court  of  record  of 
civil  or  criminal  jurisdiction  held  within  their  county.  If  a different 
rate  is  not  otherwise  established  as  herein  provided,  each  juror  is  entitled 
to  five  cents  for  each  mile  necessarily  traveled  by  him  in  going  to  and 
returning  from  the  term;  but  such  board  of  aldermen  or  board  of  super- 
visors may  establish  a lower  rate. 

2.  A juror  is  entitled  to  mileage  for  actual  travel  once  in  each  calendar 
week  during  the  term,  except  that  in  the  counties  of  Queens,  Rockland  and 
Orange  grand  and  trial  jurors  may  be  paid  four  cents  a mile  for  each  mile 
necessarily  traveled  in  going  to  and  returning  for  each  day  of  actual  travel 
during  the  term  in  lieu  of  any  other  mileage.  The  sum  so  established  or 
allowed  must  be  paid  by  the  county  treasurer  upon  the  certificate  of  the  clerk 
of  the  court,  stating  the  number  of  days  that  the  juror  actually  attended, 
and  the  number  of  miles  traveled  by  him  in  order  to  attend.  If  a juror  in 
attendance  at  a term  of  a court  of  record  cannot  reach  his  home  upon  the  day 
he  is  excused  from  attendance,  he  shall  be  entitled  to  compensation  for 
an  additional  day,  and  the  clerk  shall  certify  accordingly  upon  satisfactory 
-proof  of  such  fact  by  affidavit.  The  amount  so  paid  must  be  raised  in  the 
same  manner  as  other  county  charges  are  raised.  [Code  Civ.  Pro.,  § 3314, 
as  amended  by  L.  1913,  ch.  257,  and  L.  1917,  ch.  209,  and  L.  1918,  ch. 
638.] 

§ 23.  EXTRA  ALLOWANCE  TO  TRIAL  JURORS. 

Where  the  trial,  by  a jury,  of  an  issue  of  fact,  in  either  a civil  or  a 
criminal  action  or  special  proceeding,  in  a court  of  record,  occupies  more 
than  thirty  days,  the  court,  by  an  order  entered  in  the  minutes,  may  fix 
and  allow,  to  each  juror,  such  an  extra  compensation  as  it  deems  reason- 
able for  his  services  thereupon ; the  amount  of  which  compensation,  to- 
gether with  the  expenses  actually  and  necessarily  incurred,  for  food  for 
the  jurors  during  the  trial,  is  a county  charge.  [Code  Civ.  Pro.,  § 3315.] 


PART  XI. 

PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


CHAPTER  LXXII. 

ACTIONS  BY  AND  AGAINST  TOWN  AND  COUNTY  OFFICERS. 


Section  1.  Investigation  by  Supreme  Court  into  the  expenditure  of  town  moneys 
by  town  officers. 

2.  Actions  against  town  and  county  officers  to  prevent  illegal  acts; 

bonds;  order  restraining  improper  audit  or  fraudulent  judg- 
ments; books,  papers,  etc.,  open  to  inspection. 

3.  Actions  against  municipal  officers  to  prevent  waste,  etc. 

4.  Actions  by  and  against  certain  town  officers  in  their  official  capaci- 

ties. 

5.  Officer,  how  described  in  summons. 

6.  Successor,  when  to  be  substituted. 

7.  When  execution  upon  judgment  cannot  be  issued  against  officer 

personally. 


§ 1.  INVESTIGATION  BY  SUPREME  COURT  INTO  THE  EXPENDI- 
TURE OF  TOWN  MONEYS  BY  TOWN  OFFICERS. 

If  twenty-five  freeholders  in  any  town  or  village  shall  present  to  a jus- 
tice of  the  Supreme  Court  of  the  judicial  district  in  which  such  town  or 
village  is  situated,  an  affidavit,  stating  that  they  are  freeholders  and  have 
paid  taxes  on  real  property  within  such  town  or  village  within  one  year, 
that  they  have  reason  to  believe  that  the  moneys  of  such  town  or  village  are 
being  unlawfully  or  corruptly  expended,  and  the  grounds  of  their  belief, 
such  justice,  upon  ten  days’  notice  to  the  supervisor,  and  the  officers  of  the 
town  disbursing  the  funds  to  which  such  moneys  belong,  or  the  trustees  and 
treasurer  of  the  village,  shall  make  a summary  investigation  into  the  finan 
cial  affairs  of  such  town  or  village,  and  the  accounts  of  such  officers,  and,  in 
his  discretion,  may  appoint  experts  to  make  such  investigation,  and  may 

1043 


1044  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  § 4. 

cause  the  result  thereof  to  be  published  in  such  manner  as  he  may  deem 
proper.1 

The  costs  incurred  in  such  investigation  shall  be  taxed  by  the  justice, 
and  paid,  under  his  order,  by  the  officers  whose  expenditures  are  in- 
vestigated, if  the  facts  in  such  affidavit  be  substantially  proved,  and  other- 
wise, by  the  freeholders  making  such  affidavit.  If  such  justice  shall  be  sat- 
isfied that  any  of  the  moneys  of  such  town  or  village  are  being  unlawfully 
or  corruptly  expended,  or  are  being  appropriated  for  purposes  to  which 
they  are  not  properly  applicable,  or  are  improvidently  squandered  or  wasted, 
lie  shall  forthwith  grant  an  order  restraining  such  unlawful  or  corrupt  ex- 
penditure, or  such  other  improper  use  of  such  moneys.2  [General  Muni- 
cipal Law,  § 4;  B.  C.  & G.  Cons.  L.,  p.  2108.] 


1.  Taxpayer’s  action  to  restrain  the  unlawful  expenditure  of  town  and  county 
money  by  public  officers.  See  General  Municipal  Law,  § 51,  and  Code  Civ.  Proc., 
sec.  1925. 

2.  Object  and  nature  of  proceedings.  The  above  section  provides  for  a 

judicial  investigation  of  the  financial  affairs  of  a town  or  village,  and  is  a 
remedial  statute.  It  is  designed  to:  (1)  Prevent  the  present  or  future  illegal 

appropriation  of  public  moneys;  and  (2)  determine  the  financial  condition  of 
the  town  and  prevent  future  illegal  appropriations  of  public  moneys  by  point- 
ing out  what  proper  and  what  improper  charges  may  have  been  allowed  by  a 
former  town  board.  Thus,  while  the  proceeding  must  be  based  upon  present 
acts  which  contemplate  the  unlawful  expenditure  of  money  already  on  hand,  or 
which  may  thereafter  be  produced  from  the  sources  of  revenue  of  the  town,  the 
experts  in  their  investigation  are  not  limited  to  the  particular  year  in  which 
the  illegal  appropriation  sought  to  be  restrained  is  made.  Matter  of  Town  of 
Hempstead,  36  App.  Div.  320;  55  N.  Y.  Supp.  345;  affd.,  160  N.  Y.  685. 

A justice  has  no  power  to  investigate  or  correct  evils  resulting  from  mere 
error  in  judgment  upon  the  part  of  the  town  officers;  it  is  only  unlawful  or 
corrupt  expenditures  of  public  moneys  which  come  within  the  terms  of  the 
statute.  See  Matter  of  East  Syracuse,  20  Abb.  N.  C.  131.  The  proceeding  should 
not  be  instituted  unless  it  can  be  shown  that  the  officer  acted  illegally  and 
without  statutory  authority;  the  proceeding  will  not  be  sustained  in  case  it  be 
shown  that  the  officer  acted  in  good  faith  and  without  intent  to  defraud  the  tax- 
payers. See  N.  Y.  C.  & H.  R.  R.  R.  Co.  v.  Maine,  54  N.  Y.  St.  Rep.  384;  24  N.  Y. 
Supp.  962. 

Appeal.  An  order  made  by  a justice  of  the  Supreme  Court,  and  affirmed  by 
the  Appellate  Division,  determining  the  result  of  a summary  investigation  into 
the  financial  affairs  of  a town  or  village,  instituted  by  taxpayers  and  free- 
holders under  the  above  section,  is  reviewable  by  the  Court  of  Appeals  as  a 
final  order  in  a special  proceeding.  Matter  of  Taxpayers  of  Plattsburg,  157 
N.  Y.  78;  51  N.  E.  512,  revg.  27  App.  Div.  353,  50  N.  Y.  Supp.  356.  A proceeding 
under  the  above  section  is  a special  proceeding  within  the  definition  contained 
in  sections  3333  and  3334  of  the  code,  and  the  decision  of  the  justices  therein 
is  not,  under  section  2121  of  the  code,  reviewable  by  a writ  of  certiorari.  People 
ex  rel.  Guibord  v.  Kellogg,  22  App.  Div.  177;  47  N.  Y.  Supp.  1023;  see,  also,  Mat- 
ter of  Town  of  Hempstead,  32  App.  Div.  6;  52  N.  Y.  Supp.  618,  in  which  case  it 


ACTIONS  BY  AND  AGAINST  OFFICERS. 


1045 


General  Municipal  Law,  § 51. 

§ 2.  ACTIONS  AGAINST  TOWN  AND  COUNTY  OFFICERS  TO  PRE- 
VENT ILLEGAL  ACTS;  BONDS;  ORDER  RESTRAINING  IM- 
PROPER AUDIT  OR  FRAUDULENT  JUDGMENTS;  BOOKS, 
PAPERS,  ETC.,  OPEN  TO  INSPECTION. 

All  officers,  agents,  commissioners  and  other  persons  acting,  or  who  have 
acted,  for  and  on  behalf  of  any  county,  town,  village  or  municipal  corpora- 
tion in  this  state,  and  each  and  every  one  of  them,  may  be  prosecuted,  and 
an  action  may  be  maintained  against  them  to  prevent  any  illegal  official  act 
on  the  part  of  any  such  officers,  agents,  commissioners  or  other  persons,  or  to 
prevent  waste  or  injury  to,  or  to  restore  and  make  good,  any  property,  funds 
or  estate  of  such  county,  town,  village  or  municipal  corporation  by  any  per- 
son or  corporation  whose  assessment,  or  by  any  number  of  persons  or  cor- 
porations, jointly,  the  sum  of  whose  assessments  shall  amount  to  one  thou- 
sand dollars,  and  who  shall  be  liable  to  pay  taxes  on  such  assessment  in  the 
•county,  town,  village  or  municipal  corporation  to  prevent  the  waste  or  injury 
of  whose  property  the  action  is  brought,  or  who  have  been  assessed  or  paid 
taxes  therein  upon  any  assessment  of  the  above-named  amount  within  one 
year  previous  to  the  commencement  of  any  such  action.  Such  person  or 
corporation  upon  the  commencement  of  such  action,  shall  furnish  a bond  to 
the  defendant  therein,  to  be  approved  by  a justice  of  the  supreme  court  or 
the  county  judge  of  the  county  in  which  the  action  is  brought,  in  such  pen- 
alty as  the  justice  or  judge  approving  the  same  shall  direct,  but  not  less  than 
two  hundred  and  fifty  dollars,  and  to  be  executed  by  any  two  of  the  plain- 
tiffs, if  there  be  more  than  one  party  plaintiff,  providing  said  two  parties 
plaintiff  shall  severally  justify  in  the  sum  of  five  thousand  dollars.  Said 
bond  shall  be  approved  by  said  justice  or  judge  and  be  conditioned  to  pay 
all  costs  that  may  be  awarded  the  defendant  in  such  action  if  the  court 
shall  finally  determine  the  same  in  favor  of  the  defendant.  The  court 


was  held  that  the  proper  way  to  review  the  order  of  a justice  in  such  proceed- 
ings was  by  an  appeal. 

Costs.  Since  the  proceeding  under  the  above  section  is  a special  proceeding 
the  costs  are  to  be  awarded  in  the  discretion  of  the  court  at  the  rates  allowed 
for  similar  services  in  an  action  brought  in  the  same  court;  in  the  absence  of 
a stipulation  stenographers’  fees  cannot  be  taxed  as  costs  in  such  a proceeding; 
but  the  fees  of  the  experts  employed  therein  are  to  be  treated  as  similar  to 
those  of  a referee,  and  are,  therefore,  properly  taxable.  The  costs  of  such  an 
investigation  cannot  be  taxed  against  the  officers  of  the  town,  who  were  not 
made  parties  to  the  proceeding,  although  their  bills  may  have  been  found  to  be 
irregular.  Matter  of  Town  of  Hempstead,  36  App.  Div.  321;  55  N.  Y.  Supp.  345. 

The  costs  of  an  investigation,  if  any  are  awarded,  must  be  restricted  by  force 
of  § 3240  of  the  Code  of  Civil  Procedure  to  those  allowed  for  similar  services  in 
an  action.  Matter  of  taxpayers  of  Plattsburgh,  157  N.  Y.  78,  revg.  27  App.  Div. 
353,  50  N.  Y.  Supp.  356,  on  other  points. 


104G 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  § 51. 

shall  require,  when  the  plaintiffs  shall  not  justify  as  above  mentioned,  and  irt 
any  case  may  require  two  more  sufficient  sureties  to  execute  the  bond  above 
provided  for.  Such  bond  shall  be  filed  in  the  office  of  the  county  clerk  of  the 
county  in  which  the  action  is  brought,  and  a copy  shall  be  served  with  the  sum- 
mons in  such  action.  If  an  injunction  is  obtained  as  herein  provided  for,  the 
same  bond  may  also  provide  for  the  payment  of  the  damages  arising  therefrom 
to  the  party  entitled  to  the  money,  the  auditing,  allowing  or  paying  of  which 
was  enjoined,  if  the  court  shall  finally  determine  that  the  plaintiff  is  not  en- 
titled to  such  injunction.  In  case  the  waste  or  injury  complained  of  consists 
in  any  board,  officer  or  agent  in  any  county,  town,  village  or  municipal  corpora- 
tion, by  collusion  or  otherwise,  contracting,  auditing,  allowing  or  paying,  or 
connivi-ng  at  the  contracting,  audit,  allowance  or  payment  of  any  fraudulent, 
illegal,  unjust  or  inequitable  claims,  demands  or  expenses,  or  any  item  or  part 
thereof  against  or  by  such  county,  town,  village  or  municipal  corporation,  or 
by  permitting  a judgment  to  be  recovered  against  such  county,  town,  village 
or  municipal  corporation,  or  against  himself  in  his  official  capacity,  either  by 
default  or  without  the  interposition  and  proper  presentation  of  any  existing 
legal  or  equitable  defenses,  or  by  any  such  officer  or  agent,  retaining  or  failing 
to  pay  over  to  the  proper  authorities  any  funds  or  property  of  any  county, 
town,  village  or  municipal  corporation,  after  he  shall  have  ceased  to  be  such 
officer  or  agent,  the  court  may,  in  its  discretion,  prohibit  the  payment  or  col- 
lection of  any  such  claims,  demands,  expenses  or  judgments,  in  whole  or  in 
part,  and  shall  enforce  the  restitution  and  recovery  thereof,  if  heretofore  or 
hereafter  paid,  collected  or  retained  by  the  person  or  party  heretofore  or  here- 
after receiving  or  retaining  the  same,  and  also  may,  in  its  discretion,  adjudge 
and  declare  the  colluding  or  defrauding  official  personally  responsible  there- 
for, and  out  of  his  property,  and  that  of  his  bondsmen,  if  any,  provide  for  the 
collection  or  repayment  thereof,  so  as  to  indemnify  and  save  harmless  the  said 
county,  town,  village  or  municipal  corporation  from  a part  or  the  whole  thereof; 
and  in  case  of  a judgment  the  court  may,  in  its  discretion,  vacate,  set  aside 
and  open  said  judgment,  with  leave  and  direction  for  the  defendant  therein  to 
interpose  and  enforce  any  existing  legal  or  equitable  defense  therein,  under 
the  direction  of  such  person  as  the  court  may,  in  its  judgment  or  order,  desig- 
nate and  appoint.  All  books  of  minutes,  entry  or  account,  and  the  books,  bills, 
vouchers,  checks,  contracts  or  other  papers  connected  with  or  used  or  filed  in 
the  office  of,  or  with  any  officer,  board  or  commission  acting  for  or  on  behalf 
of  any  county,  town,  village  or  municipal  corporation  in  this  state  are  hereby 
declared  to  be  public  records,  and  shall  be  open,  subject  to  reasonable  regula- 
tions to  be  prescribed  by  the  officer  having  the  custody  thereof,  to  the  inspection 
of  any  taxpayer.2*1  This  section  shall  not  be  so  construed  as  to  take  away  any 
right  of  action  from  any  county,  town,  village  or  municipal  corporation,  or  from 


2a.  The  right  to  inspect  books  and  papers  filed  with  an  officer,  board  or  com- 
missioner acting  on  behalf  of  a county,  town  or  other  municipality,  which  is 
given  by  this  section,  is  as  broad  as  the  language  used  to  bestow  it  and  there 
is  no  limitation  thereof  save  that  found  in  the  provision  itself.  Matter  of  Egan 
(1912),  205  N.  Y.  147. 


ACTIONS  BY  AND  AGAINST  OFFICERS. 


1047 


General  Municipal  Law,  § 51. 

any  public  officer,  but  any  right  of  action  now  existing,  or  which  may  here- 
after exist  in  favor  of  any  county,  town,  village  or  municipal  corporation,  or 
in  favor  of  any  officer  thereof,  may  be  enforced  by  action  or  otherwise  by 
the  persons  hereinbefore  authorized  to  prosecute  and  maintain  actions ; and 
whenever  by  the  provisions  of  this  section  an  action  may  be  prosecuted  or 
maintained  against  any  officer  or  other  person,  his  bondsmen,  if  any,  may 
be  joined  in  such  action  or  proceeding  and  their  liabilities  as  such  enforced 
by  the  proper  judgment  or  direction  of  the  court;  but  any  recovery  under 
the  provisions  of  this  article  shall  be  for  the  benefit  of  and  shall  be  paid  to 
the  officer  entitled  by  law  to  hold  and  disburse  the  public  moneys  of  such 
county,  town,  village  or  municipal  corporation,  and  shall,  to  the  amount 
thereof,  be  credited  the  defendant  in  determining  his  liability  in  the  action 
by  the  county,  town,  village  or  municipal  corporation  or  public  officer.  The 
provisions  of  this  article  shall  apply  as  well  to  those  cases  in  which  the  body, 
board,  officer,  agent,  commissioner  or  other  person  above  named  has  not. 
as  to  those  in  which  it  or  he  has  jurisdiction  over  the  subject-matter  of  its 
action.3  [General  Municipal  Law,  § 51;  B.  C.  & G.  Cons.  L.,  p.  2122.] 


3.  The  object  of  the  act  is  to  secure  the  protection  of  public  property,  and  to 
subordinate  the  acts  of  officials  in  its  disposition  or  appropriation  to  the  re- 
straint of  the  law.  It  must  be  liberally  construed  and  applied  to  carry  this 
object  into  effect.  Starin  v.  Mayor,  42  Hun,  549;  4 N.  Y.  St.  Rep.  588;  revd.  on 
other  grounds,  112  N.  Y.  206.  In  the  case  of  People  v.  N.  Y.  & M.  B.  Ry.  Co.,  84 
N.  Y.  565,  it  was  held  that  the  act  of  1875,  similar  in  many  respects  to  the 
above  act,  was  for  the  main  purpose  of  authorizing  the  pursuit  of  the  funds 
wrongfully  abstracted  from  municipal  treasuries  into  the  hands  of  officials  or 
other  persons  who  wrongfully  obtained  or  received  them.  Such  statutes  are 
intended  to  provide  ample  remedy  and  protection  to  taxpayers  against  all 
wrongful  acts  to  their  prejudice  of  the  officers  and  agents  of  a municipal  cor- 
poration, affecting  not  only  its  property  rights  but  its  credit;  and  every  process 
or  means  by  which  the  corporation  can  be  charged  pecuniarily,  or  the  taxable 
property  within  its  limits  be  burdened,  are  embraced  within  their  provisions. 
Ayers  v.  Lawrence,  59  N.  Y.  192. 

In  speaking  of  the  above  act  Judge  O’Brien  says,  in  the  case  of  Talcott  v. 
City  of  Buffalo,  125  N.  Y.  280;  26  N.  E.  263:  “In  a single  section,  authority 
was  given  to  any  person  residing  in  the  county,  town  or  municipal  corporation, 
assessed  for  and  liable  to  pay  taxes  therein,  or  who  had  paid  taxes  therein 
within  one  year  previous  to  maintain  an  action  against  all  officers,  agents,  com- 
missioners and  other  persons  acting  for  or  in  behalf  of  such  county,  town  or 
municipal  corporation,  to  prevent  waste  or  injury  to  any  property,  funds  or 
estate  of  such  county,  town  or  municipal  corporation.  That  this  legislation  was 
aimed  at  ‘ frauds,  embezzlements,  and  wrongful  acts  of  public  officers  and 
agents,’  as  indicated  by  the  title,  is  also  clear  when  the  causes  that  moved 
the  legislature  to  its  enactment  and  which  are  matters  of  public  history  are 
considered.  The  origin  of  the  statute  is  to  be  found  in  certain  well  known 
fraudulent  and  corrupt  acts  on  the  part  of  officers  and  commissioners  in  the 


1048  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 

Code  Civ.  Proc.,  § 1925. 

§ 3.  ACTIONS  AGAINST  MUNICIPAL  OFFICERS  TO  PREVENT 
WASTE,  ETC. 

An  action  to  obtain  a judgment,  preventing  waste  of,  or  injury  to,  the 


city  and  county  of  New  York,  whereby  public  funds  were  abstracted  from  the 
treasury  mainly  by  the  audit  and  allowance  of  fictitious  claims  and  corrupt 
contracts,  and  the  proceeds  converted  to  the  individual  benefit  and  use  of  these 
officers  and  agents.  The  terms  ‘ waste  ’ and  ‘ injury  ’ used  in  this  statute 
comprehend  only  illegal,  wrongful  or  dishonest  official  acts,  and  were  not  in- 
tended to  subject  the  official  action  of  boards,  officers  or  municipal  bodies  acting 
within  the  limits  of  their  jurisdiction  and  discretion,  but  which  some  tax- 
payer might  conceive  to  be  unwise,  and  improvident  or  based  on  errors  of 
judgment,  to  the  supervision  of  the  judicial  tribunals.  It  is  believed  that  no 
action  was  ever  maintained  under  this  statute  with  the  sanction  of  this  court, 
without  some  proof  or  allegation  that  the  official  act  or  proceeding  complained 
of  was  without  power  or  was  tainted  by  corruption  or  fraud.” 

This  section  should  be  construed  with  section  1925  of  the  Code  of  Civil  Pro- 
cedure, which  is  contained  in  the  section  immediately  following. 

The  equitable  remedy  of  an  injunction  under  the  General  Municipal  Law  is  to  be 
granted  or  withheld  in  accordance  with  the  general  principles  which  govern  the 
exercise  of  equitable  jurisdiction.  Mere  inaction  by  a public  officer  will  not  justify 
the  intervention  of  a court  of  equity  where  the  legal  remedy  by  mandamus  is  avail- 
able and  adequate.  Southern  Leasing  Co.  v.  Ludwig  (1916),  217  N.  Y.  100,  revg. 
168  App.  Div.  233,  153  N.  Y.  Supp.  545. 

Neither  the  above  act  nor  section  1925  of  the  code  were  intended  as  a mode  of 
putting  an  incapable  or  a confiding  official  under  the  protecting  guardianship 
of  the  court,  and  of  making  him  a ward  in  chancery  to  be  shielded  from  the 
effects  of  his  own  folly,  nor  to  enable  a taxpayer  to  try  a question  of  fraud  be- 
tween the  officer  and  those  who  are  dealing  with  him.  If  the  officer  is  honest 
and  faithful  no  suit  against  him  is  needed.  The  taxpayer  may  explain  to  him 
the  facts  and  discover  to  him  the  fraud  and  the  courts  are  open  for  his  pro- 
tection and  the  means  of  redress  are  at  hand.  It  is  only  when,  in  the  face  of 
explanation  and  knowledge,  he  still  refuses  to  act  and  persists  in  carrying  out 
the  wasteful  contract  that  the  action  against  him  is  needed;  and  then  it  rests 
upon  his  misconduct,  upon  his  collusion  and  fraud,  which  must  be  alleged  and 
proved.  The  legislature  could  not  have  intended  that  the  courts  should  supply 
intelligence  and  prudence  to  incapable  officials  at  the  demand  of  a taxpayer,  but 
manifestly  did  intend  to  give  the  latter  protection  against  the  dishonesty  or  fraud 
of  the  municipal  agents.  Finch,  J.,  in  Ziegler  v.  Chapin,  126  N.  Y.  342,  348 ; 27 
N.  E.  471.  The  only  acts  which  can  be  complained  of  and  against  which  the  above 
statute  may  be  invoked  are  those  performed  by  municipal  officers  in  the  exercise  of 
their  official  duties.  See  Potter  v.  Collis,  19  App.  Div.  392;  46  N.  Y.  Supp.  471; 
affd.,  156  N.  Y.  16;  Sheehy  v.  McMillan,  26  App.  Div.  140;  49  N.  Y.  Supp.  1088; 
Paul  v.  City  of  New  York,  46  App.  Div.  69;  61  N.  Y.  Supp.  570. 

The  word  " otherwise  ” in  the  phrase  “ by  collusion  or  otherwise,  contracting, 
auditing,  etc.,”  is  to  be  interpreted  according  to  the  rule  of  ejusdem  generis.  It  does 
not  mean  any  auditing,  but  an  audit  due  to  some  sinister  or  improper  motive  and 
in  violation  of  a public  trust.  The  allegation  that  a member  of  a board  ot  super- 
visors consisting  of  three  members,  presented  his  own  fraudulent  bills  to  the  board 


ACTIONS  BY  AND  AGAINST  OFFICERS. 


1049 


Code  Civ.  Proe.,  § 1925. 


estate,  funds  or  other  property  of  a county,  town,  city  or  incorporated 


for  audit,  is  not  a sufficient  declaration  as  against  the  two  members  not  presenting 
claims,  to  hold  them  liable  for  the  amount  of  the  claims  presented.  Wallace  v. 
Jones,  83  App.  Div.  152,  82  N.  Y.  Supp.  449. 

Who  may  bring  the  action.  The  action  can  only  be  brought  by  one  who  is 
a taxpayer,  acting  in*  good  faitih  to  protect  his  interests.  Hull  v Ely,  2 Abb. 
N.  C.  440.  The  object  of  the  action  being  to  prevent  waste  or'  injury  to  the 
property,  funds  or  estate  of  a municipal  corporation,  it  is  the  duty  of  the  court 
to  see  to  it  that  he  who  undertakes  to  champion  the  public  cause  is  actuated  by 
public  motives,  and  that  he  is  not  making  use  of  the  power  of  the  court  to  accom- 
plish some  private  end.  Kimball  v.  Hewitt,  17  N.  Y.  St.  Rep.  743;  2 N.  Y.  Supp. 
697;  affd.  15  Daly,  124. 

In  a taxpayer’s  action  under  this  act  the  plaintiff  is  not  bound  to  show  that  he 
will  suffer  peculiar  injury;  he  is  appearing  in  behalf  of  himself  and  all  other  tax- 
payers, and  it  is  enough  for  him  to  show  that  he  has  the  status  of  a taxpayer  which 
the  statute  prescribes,  and  that  the  act  of  the  defendant  is  one  which  the  law  for- 
bids. Rogers  v.  Board  iof  Supervisors,  77  App.  Div.  501,  78  N.  Y.  Supp.  1081. 
Motive  of  plaintiff  is  immaterial.  Kingsley  v.  Bowman,  33  App.  Div.  1,  53  N.  Y. 
Supp.  426  (1898).  And  injury  to  him  as  an  individual  need  not  be  shown.  Warrin 
v.  Baldwin,  105  N.  Y.  534,  revg.  35  Hun,  334;  Gerlach  v.  Brandreth,  34  App.  Div. 
197,  54  N.  Y.  Supp.  479. 

The  legal  capacity  of  a plaintiff  to  maintain  such  an  action  is  not 

affected  by  the  mere  fact  that  he  is  a tenant  in  common  of  the  lands  assessed  on 
which  he  has  paid  the  taxes,  and  that  they  are  listed  on  the  assessment  rolls  in 
the  name  of  the  estate  of  plaintiff’s  ancestor.  Smith  v.  Hedges  (1915),  169  App. 
Div.  115,  154  N.  Y.  Supp.  867. 

Bond  to  be  furnished  by  plaintiff.  The  bond  given  by  the  plaintiff  in  bring- 
ing an  action  under  the  above  act  must  be  in  the  form  prescribed  by  the  act  or  it 
will  not  be  sufficient  to  comply  with  the  provisions  of  sections  620  and  621  of  the 
Code  of  Civil  Procedure  as  to  bonds  in  injunction  proceedings.  Tappen  v.  Crissey, 
64  How.  Pr.  496. 

When  action  may  be  maintained.  The  taxpayer’s  action  was  not  intended 
as  a substitute  for  the  action  to  restrain  public  nuisances,  brought  by  public 
authorities,  nor  as  a substitute  for  an  action  maintainable  by  an  individual  who 
has  suffered,  or  is  likely  to  suffer  special  injury  therefrom.  Gallagher  v.  Keating, 
40  App.  Div.  81 ; 57  N.  Y.  Supp.  632.  In  this  case  a taxpayer,  who  did  not  claim 
to  be  the  owner  of  property  abutting  on  an  avenue  upon  which  it  was  proposed  to 
erect  an  elevated  railroad,  sought  to  restrain  the  erection  of  such  railroad  and  to 
enjoin  the  city  from  authorizing  the  construction  thereof,  and  it  was  held  that  such 
an  action  would  not  lie  under  this  statute,  especially  since  it  appeared  that  the 
proper  city  officers  had  issued  a permit  for  the  construction  of  such  railroad  more 
that  a week  before  the  commencement  of  the  suit. 

The  statute  giving  a taxpayer  a right  of  action  was  not  intended  to  subject  the 
official  acts  of  boards,  officers  or  municipal  bodies  acting  within  their  jurisdiction 
and  discretion  to  the  supervision  of  the  courts,  simply  because  some  taxpayer  might 
conceive  the  same  to  be  unwise,  improvident  or  based  on  errors  of  judgment. 
McBride  v.  Ashley  (1915),  91  Misc.  585,  154  N.  Y.  Supp.  1010. 

To  justify  an  injunction  it  is  not  necessary  that  both  illegal  acts  and  waste 
or  injury  are  threatened.  Either  is  sufficient.  Bull  v.  Miller,  140  App.  Div.  602, 
125  N.  Y.  Supp.  865.  But  relief  by  injunction  should  not  be  granted  against  mere 


1050 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Code  Civ.  Proc.,  § 1925. 


village  of  the  state,  may  be  maintained  against  any  officer  thereof,  or  any 


irregularities  of  taxation,  without  fraud,  corrouption  or  waste  amounting  to  bad 
faith.  Falhys  & Co.  v.  Vaughn,  68  Misc.  541,  125  N.  Y.  Supp.  280. 

A taxpayer  may  maintain  an  action  under  this  section  to  enjoin  either  an  illegal 
act  by  municipal  officers,  or  a waste  of  or  injury  to  public  property  or  funds. 
Brill  v.  Miller,  140  App.  Div.  602,  125  N.  Y.  Supp.  865. 

Bad  faith  and  breach  of  official  duty  is  sufficient  under  the  above  act  to  enable 
a taxpayer  to  maintain  an  action  against  municipal  authorities.  Adamson  v. 
Union  R.  R.  Co.,  74  Hun,  3;  56  N.  Y.  St.  Rep.  214;  26  N.  Y.  Supp.  136. 

An  action  pursuant  to  this  section  is  maintainable  only  when  the  official  act 
complained  of  is  illegal  or  wrongful;  thus,  the  mere  disregard  by  a common  coun- 
cil of  a city  of  legal  formalities  or  orderly  mode  of  procedure  prescribed  by  its 
charter  will  not  necessarily  render  a resolution  “ illegal  ” within  the  meaning  of 
this  section.  Faley  v.  City  of  Lockport,  61  Misc.  417;  113  N.  Y.  Supp.  702. 

Action  will  only  lie  where  the  acts  complained  of  are  without  power  or  where 
corruption,  fraud  or  bad  faith  amounting  to  fraud  is  charged.  It  will  not  lie  to 
restrain  a board  of  town  highway  commissioners  from  granting  a franchise  to  a 
lighting  company  without  compensation.  Craft  v.  Lent,  53  Misc.  484;  103  N.  Y. 
Supp.  366. 

A taxpayer’s  action  may  be  maintained  to  restrain  the  collection  of  rents  by  the 
comptroller  of  the  city  of  New  York  under  leases  of  certain  lands  of  a defunct  town 
to  whose  rights  the  city  has  succeeded,  which  were  invalid  for  collusion  of  the 
former  town  officers.  In  such  an  action  the  proper  parties  defendant  are  the 
comptroller  as  the  acting  fiscal  official,  the  city  of  New  York,  and  the  lessees  and 
other  successors  in  interest.  The  officers  of  the  former  town  are  neither  necessary 
nor  proper  parties.  Any  resident  taxpayer  of  the  city  of  New  York,  who  is  assessed 
the  required  amount,  may  maintain  the  action.  Wenk  v.  City  of  New  York,  171 
N.  Y.  607,  reversing  69  App.  Div.  621,  75  N.  Y.  Supp.  1135,  36  Misc.  496,  73  N.  Y. 
Supp.  1003. 

In  the  case  of  Kittenger  v.  Buffalo  Traction  Co.,  160  N.  Y.  377 ; 54  N.  E.  1081, 
it  was  held  that  a taxpayer  was  not  entitled  to  maintain  an  action  under  the  above 
act  to  procure  a judgment  declaring  a consent  already  obtained  by  a traction 
company  for  the  construction  and  maintenance  of  a street  surface  railroad,  to  be 
illegal  and  void,  and  to  enjoin  in  such  an  action  the  building  of  the  road. 

In  the  ca'se  of  Ziegler  v.  Chapin,  126  N.  Y.  342;  27  N.  E.  471,  it  was  said  that  an 
action  ought  not  to  be  maintained  by  a taxpayer  to  restrain  the  purchase  of  prop- 
erty by  municipal  trustees  merely  on  the  ground  that  the  proposed  price  is  an 
extravagant  one,  and  that  the  proceedings  of  the  municipal  officers  show  a want 
of  prudence  and  good  judgment.  The  action  can  only  be  sustained  upon  allegations 
of  fraud,  collusion,  or  bad  faith.  And  facts  must  be  alleged  showing  that  the  officer 
acted  fraudulently,  collusively,  and  in  bad  faith;  it  will  not  be  sufficient  to  allege, 
as  a mere  conclusion,  that  he  so  acted.  Wallace  v.  Jones,  82  N.  Y.  Supp.  449  (App. 
Div.,  2d  Dept.,  May  28,  1903). 

Where  public  officials  are  in  good  faith  insisting  upon  a right  of  property  in 
the  municipality  against  a person,  although  they  may  be  wrong  in  their  legal 
position,  the  act  does  not  authorize  another  taxpayer  to  interfere  to  restrain  them, 
nor  can  the  person  against  whom  the  right  is  asserted  interfere  in  his  right  as  a 
taxpayer  merely.  Rogers  v.  O’Brien,  1 App.  Div.  397 ; 37  N.  Y.  Supp.  353.  The 
authority  conferred  by  the  act  extends  only  to  official  acts  which,  if  performed, 
would  produce  a public  injury,  and  the  remedy  for  which  by  injunction  wa.s  pre- 


ACTIONS  BY  AND  AGAINST  OFFICERS. 


1051 


Code  Civ.  Proc.,  § 1925. 

agent,  commissioner,  or  other  person,  acting  in  its  behalf,  either  by  a 


viously  available  to  the  attorney-general  or  some  body  or  officer  acting  on  behalf 
of  the  public.  Rogers  v.  O’Brien,  153  N.  Y.  357 ; 47  N.  Y.  Supp.  456. 

A taxpayer’s  action  cannot  be  maintained  under  the  above  act  to  set  a*ide 
grants  of  franchises  by  municipal  authorities  to  street  railway  companies  because 
they  were  made  for  a less  sum  in  return  to  the  municipality  than  might,  by  the 
exercise  of  due  diligence,  have  been  obtained,  and  because  of  fraud,  there  being  no 
charge  of  corruption  and  the  proceedings  being  regular.  Adamson  v.  Nassau  Elec- 
tric R.  Co.,  89  Hun,  261;  34  N.  Y.  Supp.  1073. 

Where  a bid  of  a corporation  for  street  lighting  was  the  lowest  and  was  made 
in  good  faith,  it  was  held  that  a taxpayer’s  action  to  restrain  the  municipality 
from  entering  into  the  contract  could  not  be  maintained,  on  the  ground  that  the 
corporation  had  no  right  to  erect  its  poles  in  the  streets,  and  that  hence  the  contract 
would  be  illegal.  The  corporation  would  be  bound  on  entering  into  the  contract 
to  Obtain  the  necessary  rights  to  enable  it  to  perform.  Boyle  v.  Grant,  12  N.  Y. 
Supp.  801 ; 36  N.  Y.  St.  Rep.  207. 

Although  a mere  error  in  judgment  as  to  price  on  a proposed  purchase  by  a 
municipality  may  not  isuffice  to  sustain  a taxpayer’s  action,  yet  an  excessive  valua- 
tion so  large  as  to  indicate  that  the  officers  acting  are  not  exercising  the  same 
fidelity,  care,  and  caution  as  would  be  expected  of  an  individual  purchasing  for 
himself  with  his  own  money,  wall  sustain  an  action  to  enjoin  the  purchase.  Winklen 
v.  Summers,  22  Abb.  N.  C.  80;  5 N.  Y.  Supp.  723.  In  the  case  of  Warrin  v. 
Baldwin,  105  N.  Y.  534;  12  N.  E.  49,  it  appeared  that  a county  treasurer  had  been 
in  the  habit  of  paying  himself  the  fees  allowed  by  law  upon  the  isale  of  lands  for 
unpaid  taxes  out  of  the  trust  funds  belonging  to  the  town  chargeable  with  such 
fees  which  were  in  his  possession,  without  previous  audit  by  the  board  of  supervisors. 
It  was  held  that  an  action  was  maintainable  under  the  Taxpayers’  Act  of  1881,  by 
a taxpayer  of  the  town  to  restrain  such  illegal  payment. 

A taxpayer  may  maintain  an  action  to  annul  a contract  made  by  a town  board 
which  creates  a monopoly  of  lighting  the  town  for  the  specified  period  as  an  act 
tending  to  injure  the  taxpayers,  though  the  direct  effect  is  not  a loss  or  a waste 
of  public  property.  Parfitt  v.  Ferguson,  3 App.  Div.  176;  38  N.  Y.  Supp.  463; 
affd.  159  N.  Y.  111. 

Individual  taxpayers  cannot  maintain  an  action  against  the  school  commissioner 
of  a school  district  in  which  they  live  and  certain  villages  which  had  been  created 
as  separate  school  districts  therein  to  restrain  the  defendant  school  commissioner 
from  declaring  the  villages  to  be  separate  districts,  or  from  taking  any  other 
proceedings  in  that  respect,  on  a complaint  alleging  that  the  villages  had  been 
created  in  pursuance  of  a fraudulent  scheme  on  the  part  of  their  residents  to  avoid 
their  due  share  of  taxation  for  school  purposes.  Such  a writ  is  not  within  the  scope 
of  this  section.  Prankard  v.  Cooley,  147  App.  Div.  145. 

An  action  to  restrain  the  nomination  and  election  of  delegates  to  a constitutional 
convention  cannot  be  maintained  under  this  section.  Schieffelin  v.  Komfort  (1914), 
212  N.  Y.  520. 

A taxpayer’s  action  may  be  brought  to  restrain  a county  clerk  from  appointing 
deputies  and  assistants  in  contravention  of  the  civil  service  law.  Olmstead  v. 
Mealil  (1916)  219  N.  Y.  270. 

Taxpayers’  action  may  be  brought  to  compel  restoration  of  town  funds  paid  upon 
purchase  price  of  steam  roller  under  conditional  contract  of  sale,  void  under  the 
Highway  Law’.  Shoemaker  v.  Buffalo  Steam  Roller  Co.  (1915),  165  App.  Div.  836, 
151  N.  Y.  Supp.  207. 

Wnere  a taxpayer’s  action  brought  under  this  section,  proceeds  upon  the  assump- 
tion that  the  scheme  of  assessment  adopted  by  the  board  of  estimate  and  appor- 


1052 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Code  Civ.  Proc.,  § 1925. 

citizen,  resident  therein,  or  by  a corporation,  who  is  assessed  for  and  is 


tionment  of  the  city  of  New  York  for  raising  money  to  defray  the  coist  of  extending 
Seventh  avenue  and  widening  Varick  street  is  illegal,  but  there  is  no  evidence  that 
such  scheme  is  unfair,  that  the  percentage  assessed  by  way  of  special  benefit  is 
greater  than  should  justly  be  borne  by  the  property  within  the  special  assessment 
district,  or  that  the  percentage  of  the  cost  assessed  on  each  three  boroughs  is  in 
fact  excessive  or  unequal,  the  complaint  should  be  dismissed  upon  the  merits. 
Goodale  v.  City  of  New  Iork  (1914),  85  Misc.  603;  148  N.  Y.  Supp.  1076. 

The  term  “ waste  or  injury  ” as  used  in  this  section  includes  only  illegal, 
wrongful  or  dishonest  acts.  Daly  v.  Haight  (1915),  170  App.  Div.  459;  156  N.  Y. 
Supp.  538. 

The  mere  illegality  of  an  official  act  in  and  of  itself  does  not  justify  injunctive 
relief  in  the  actions  authorized  to  be  brought  by  a taxpayer  under  this  section, 
but  when  waste  or  injury  is  not  involved,  it  must  appear  that  in  addition  to 
being  an  illegal  official  act  the  threatened  act  is  such  as  to  imperil  the  public 
interests  or  calculated  to  work  public  injury  or  produce  some  public  mischief. 
Altschul  v.  Ludwig  (1916),  216  N.  Y.  459;  affg.  170  App.  Div.;  155  N.  Y.  Supp. 
1091. 

A taxpayer’s  action  is  maintainable  either  to  prevent  an  illegal  act  against,  or 
waste  or  injury  to,  the  property  of  a municipality.  Carpenter  v.  Wise  (1915),  92 
Misc.  246;  155  N.  Y.  Supp.  996. 

A taxpayer  may  by  action  under  this  -section  prevent  any  illegal  official  act 
or  waste  or  injury  and  may  compel  the  restoration  of  all  property  and  funds. 
But  it  is  only  when  the  waste  or  injury  is  by  collusion  or  otherwise  or  by  default 
in  permitting  a wrongful  judgment  or  by  retaining  or  failing  to  pay  over  any 
public  funds  or  property  that  the  court  will  enforce  the  restitution  and  recovery, 
and  also  in  its  discretion  declare  the  official  responsible,  financially,  therefor. 
Daly  v.  Haight  (1915),  170  App.  Div.  469;  156  N.  Y.  Supp.  538. 

Action  against  state  officers.  This  section  authorizes  actions  only  against 
municipal  corporations  and  their  officers,  not  against  state  officers.  Hence,  an 
action  to  restrain  the  expenditure  of  state  moneys  on  highways,  can  only  be 
Brought  by  the  people  of  the  state.  County  of  Albany  v.  Hooker,  204  N.  Y.  1. 

Action  to  restrain  execution  of  illegal  contracts.  A taxpayer  may  bring 
an  action  under  the  above  act  to  enjoin  the  execution  by  public  officials  of  an 
illegal  contract.  Armstrong  v.  Grant,  56  Hun,  226 ; 9 N.  Y.  Supp.  388. 

A city  council  will  be  enjoined  at  the  suit  of  taxpayers  from  making  a contract 
for  paving  streets  with  a specified  material,  which  is  the  subject  of  a monopoly, 
although  two- thirds  of  the  abutting  property  owners  petitioned  for  the  use  of  such 
material,  and  the  city  charter  provides  that,  in  such  case,  the  council  has  no  power 
to  contract  for  a different  kind  of  pavement.  Boon  v.  City  of  Utica,  26  N.  Y.  Supp. 
932;  5 Misc.  391. 

A taxpayer  may,  under  the  above  statute,  maintain  an  action  to  enjoin  a 
municipality  from  paying  for  the  services  of  an  officer  appointed  in  violation  of 
the  Civil  Service  Law.  Rogers  v.  Common  Council  of  Buffalo,  22  Abb.  N.  C.  144; 
2 N.  Y.  Supp.  326 ; Chittenden  v.  Wurster,  152  N.  Y.  345,  368.  In  the  case  of 
Peck  v.  Belknap,  130  N.  Y.  394;  29  N.  E.  977,  it  was  held  that  such  an  action 
could  be  maintained  against  city  officials  to  restrain  them  from  entering  into 
a contract  of  employment,  in  a position  where  a civil  service  examination  is 
required,  with  one  who  has  not  passed  the  examination,  or  to  restrain  the  payment 
of  the  salary  of  such  an  employee  out  of  the  funds  of  the  city.  • It  is  not  a defense 


ACTIONS  BY  AND  AGAINST  OFFICERS. 


1053 


Code  Civ.  Proc.,  § 1925. 

liable  to  pay,  or,  within  one  year  before  the  commencement  of  the 


to  such  an  action  that  the  employment  by  the  city  of  some  person  for  the  purpose 
specified  is  proper  and  lawful,  and  that  the  compensation  agreed  to  he  paid  was 
jiot  extravagant. 

Action  to  restrain  letting  of  contract.  Where  it  appears  that  a contract 
was  let  to  a person  bidding  a number  of  thousand  dollars  lower  than  his  nearest 
competitor,  an  action  will  not  lie  against  the  officers  authorized  to  award  the 
contract  because  of  a failure  to  comply  with  certain  technicalities  not  involving 
the  merits  of  the  transaction.  So  an  action  cannot  be  maintained  by  a taxpayer 
to  set  aside  a contract  awarded  to  a bidder  because  of  the  fact  that  the  bid  was 
not  deposited  in  the  proper  box,  or  because  it  was  not  opened  immediately,  as 
required  by  the  rules  and  regulations  of  the  board  awarding  the  contract. 
McCord  v.  Lauterbach,  91  App.  Div.  315;  86  N.  Y.  Supp.  503. 

Where  a statute  under  which  a county  or  town  officer  or  board  acts  requires 
a contract  to  be  let  to  the  lowest  responsible  bidder,  an  action  under  the  above 
act  will  lie  to  restrain  the  awarding  of  such  a contract  to  a person  who  does  not 
appear  to  be  the  lowest  bidder.  As,  for  instance,  a board  of  supervisors  had 
four  bids  for  work  on  a county  building,  but  refused  to  award  the  contract  to  the 
lowest  bidder  because  of  his  refusal  to  contract  to  employ  only  union  labor,  the 
grounds  of  such  action  being  a resolution  of  the  board  that  only  union  labor 
should  be  employed,  and  that,  if  non-union  men  were  employed,  the  work  might 
be  delayed  by  strikes.  It  was  held  that  a taxpayer’s  action  would  lie  to  prevent 
waste  of  the  county  funds  and  to  restrain  the  awarding  of  the  contract  to  a 
higher  bidder,  which  contract  contained  the  clause  as  to  the  employment  of  union 
labor  objected  to  by  the  lowest  bidder.  Daveirport  v.  Walker,  57  App.  Div.  221 ; 
68  N.  Y.  Supp.  161.  See,  also,  Larned  v.  City  of  Syracuse,  17  App.  Div.  19;  44 
N.  Y.  Supp.  857.  But  the  determination  of  the  question  as  to  what  constitutes 
the  lowest  bid  is  quasi  judicial  and  will  not  be  reviewed  by  the  courts  in  a 
taxpayer’s  action.  Moran  v.  Trustees  of  White  Plains,  12  N.  Y.  Supp.  61 ; 35 
N.  Y.  St.  Rep.  335;  affd.  128  N.  Y.  578. 

Action  to  enjoin  purchase  of  site  and  erection  of  school  building. 

An  action  will  not  lie  on  behalf  of  a taxpayer  to  enjoin  a board  of  education  from 
purchasing  a site  and  erecting  a school  building  thereon,  where  it  appears  that 
the  application  is  based  solely  upon  the  objection  that  the  board  of  education  had 
not  strictly  complied  with  all  the  required  technical  and  legal  formalities,  if  there 
has  been  a substantial  compliance  with  the  law,  and  the  facts  show  that  public 
necessity  requires  the  construction  of  the  school  building,  and  that  there  is  no 
bad  faith  upon  the  part  of  the  board.  Lawson  v.  Lincoln,,  86  App.  Div.  217,  83 
N.  Y.  Supp.  667;  affd.  178  N.  Y.  636. 

Action  restraining  payment  or  audit  of  claim.  Where  expenses  are  not 
a proper  charge  against  a town,  or  are  unauthorized,  their  audit  is  illegal,  and 
payment  of  such  expenses  may  be  enjoined  at  the  suit  of  a taxpayer  Rockefeller 
v.  Taylor,  69  App.  Div.  176;  74  N.  Y.  Supp.  812.  A preliminary  injunction  will 
be  granted  in  taxpayer’s  action  to  restrain  payment  of  unauthorized  claim  for 
compensation.  Beresford  v.  Donaldson,  54  Misc.  138;  103  N.  Y.  Supp.  600. 

A board  of  supervisors  in  auditing  claims  against  a county  exercise  a judicial 
function;  and  if  they  act  within  their  jurisdiction  they  cannot  be  held  personally 
responsible  for  their  audits.  Wallace  v.  Jones,  122  App.  Div.  497,  499;  107  N.  Y. 
•Supp.  288. 


1054 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Code  Civ.  Proc.,  § 1925. 

action,  has  paid,  a tax  therein.4  This  section  does  not  affect  any  right 

Under  the  act  of  1872,  similar  in  some  respects  to  the  above  act,  it  was  held 
that  a taxpayer  might  properly  maintain  an  action  to  vacate  an  audit  by  a town 
board  of  a claim  which  the  board  had  no  authority  to  allow,  or  where  the  audit 
was  fraudulent  and  collusive.  Osterhoudt  v.  Rigney,  98  N.  Y.  222.  But  it  was 
also  held  in  the  same  case  that  the  statute  did  not  abrogate  the  rule  that  the 
acts  of  a board  of  audit  within  its  jurisdiction,  in  the  absence  of  fraud  or  col- 
lusion, are  final  and  conclusive  and  cannot  be  questioned  in  a collateral  pro- 
ceeding. An  excessive  allowance  or  an  erroneous  conclusion  by  the  board  upon 
the  facts,  does  not  constitute  waste  or  injury  to  the  property  of  the  town  within 
the  meaning  of  the  act. 

A complaint  in  a taxpayer’s  action  brought  against  the  supervisor,  auditors  and 
clerk  of  a town,  which  in  substance  merely  alleges  that  during  a certain  year  the 
supervisor  unlawfully  paid  the  town  clerk  a certain  sum  of  money  and  that  the 
town  auditors  unlawfully  audited  the  claim,  fails  to  state  a cause  of  action.  It 
is  necessary  to  set  out  facts  showing  the  illegality  or  fraudulent  character  of  the 
claim. 

A taxpayer  in  order  to  maintain  an  action  against  the  supervisor  and  auditors 
of  a town  must  specifically  allege  facts  which  entitle  him  to  maintain  the  action 
under  the  provisions  of  the  Taxpayers’  Acts.  Persons  to  whom  payments  have 
been  made  by  the  supervisor  of  a town  upon  an  alleged  illegal  audit  by  the  board  of 
auditors  are  necessary  parties  to  a taxpayer’s  action  brought  against  the  super- 
visor and  board  of  auditors.  Daly  v.  Haight  (1914),  163  App.  Div.  234;  148  N.  Y. 
Supp.  42. 

In  an  action  brought  by  a taxpayer  against  a town  supervisor  and  the  superin- 
tendent of  highways  to  compel  them  to  restore  moneys  to  the  town,  the  town 
itself  is  not  a necessary  party.  It  seems,  however,  that  the  town  may  voluntarily 
come  in  and  make  itself  a party.  Neither  need  the  persons  to  whom  the  illegal 
payments  are  alleged  to  have  been  made  be  necessarily  joined  as  defendants,  for 
the  action  is  not  to  cancel  a contract  or  to  annul  t-heir  personal  rights.  An  alle- 
gation that  the  moneys  were  misapplied  and  illegally  paid  with  knowledge  that 
it  was  without  warrant  of  law  is  sufficient,  and  it  need  not  be  averred  in  the 
words  of  the  Code  that  the  misappropriations  were  “ waste  or  injury  to  ” the 

funds  of  the  town,  for  that  would  be  a mere  conclusion  of  law.  Hicks  v.  Cocks 

(1915),  167  App.  Div.  862;  153  N.  Y.  Supp.  776. 

A member  of  the  board  of  supervisors  cannot  act  as  attorney  for  the  board. 
See  Penal  Law,  § 1868.  In  the  case  of  Beebe  v.  Supervisors  of  Sullivan  County,. 
64  Hun,  377;  19  N.  Y.  Supp.  629;  affd.,  142  N.  Y.  631,  it  appeared  that  a board 
of  supervisors,  desiring  to  take  proceedings  against  a county  treasurer  to  recover 
money  not  accounted  for  by  him,  employed  one  of  its  members,  an  attorney,  to 
bring  the  action.  The  attorney  subsequently  presented  a bill  for  his  services 
which  was  audited  by  the  board.  The  attorney  did  not  vote  upon  his  own 

appointment,  nor  upon  the  audit  of  his  account.  It  was  held  that  an  action 

might  be  maintained  by  a taxpayer  to  restrain  the  payment  of  such  claim,  and 
that  the  contract  between  such  board  and  one  of  its  members,  involving  the 
services  of  a member  and  the  payment  by  the  county  therefor,  was  against  public 
policy  and  was  void. 

Where  mandamus  to  compel  payment  by  a town  of  notes  made  by  its  super- 
visor eleven  years  before  had  been  denied,  and  the  order  of  denial  affirmed  on 
the  ground  that  the  claim  was  unauthorized  in  its  origin,  was  barred  by  the 


ACTIONS  BY  AND  AGAINST  OFFICERS. 


1055 


Code  Civ.  Proc.,  § 1925. 

of  action  in  favor  of  a county,  city,  town  or  incorporated  village,  or  any 
public  officer.5  [Code  Civ.  Pro.,  § 1925.] 

statute  of  limitations,  and  questionable  on  its  merits,  and  where  pending  an 
appeal  from  such  order  to  the  Court  of  Appeals  the  board  of  town  auditors 
allowed  the  claim  on  an  oral  assurance  that  the  appeal  would  be  withdrawn,  two 
of  them  having  an  interest  in  the  transaction,  it  was  held  that  an  action  would 
lie  at  the  suit  of  a taxpayer  to  restrain  a payment  of  the  order  for  the  amount 
of  the  claim.  Webb  v.  Bell,  22  App.  Div.  314;  47  N.  Y.  Supp.  989. 

An  action  may  be  brought  by  a taxpayer  to  set  aside  audits  made  by  the  board 
of  supervisors  and  to  recover  on  behalf  of  the  county  moneys  alleged  to  have  been 
allowed  to  a supervisor  for  services  in  preparing  the  tax  rolls  of  the  town,  where 
certain  items  for  which  payment  had  been  made  were  not  properly  chargeable  to 
the  county  under  section  23  of  the  County  Law.  Smith  v.  Hedges  (1915),  169 
App.  Div.  115;  154  N.  Y.  Supp.  867;  reversed  on  other  grounds,  223  N.  Y.  170,  in 
which  it  was  held  that  the  court  has  no  power  in  a taxpayer’s  action  to  re-audit  a 
claim  except  on  findings  of  fact  showing  that  the  audit  was  illegal  either  for  fraud 
or  collusion  or  for  lack  of  jurisdiction,  thus  precluding  on  honest  mistakes  on  the 
facts  merely,  as  a basis  of  the  audit. 

Where  in  a taxpayer’s  action  against  a supervisor  and  a person  employed  pur- 
suant to  a resolution  of  the  town  board  to  recover  town  moneys  paid  by  the 
former  to  the  latter  for  services  rendered  the  court  finds  that  there  was  no 
intentional  wrongdoing  by  either  of  the  defendants;  that  all  the  moneys  were  paid 
before  the  commencement  of  the  action,  and  that  the  supervisor  did  not  receive 
any  of  them,  it  was  error  to  give  judgment  for  the  plaintiff.  Daly  v.  Haight  (1915), 
170  App.  Div.  469;  156  N.  Y.  Supp.  538. 

Action  to  prevent  payment  of  salaries  to  public  officers.  A taxpayer’s 
action  cannot  be  brought  under  the  above  act  to  restrain  the  payment  of  salaries 
to  public  officers  holding  presumptively  valid  appointments  in  the  civil  service, 
upon  the  ground  that  although  the  appointments  are  valid  in  form,  they  are 
invalid  in  fact.  When  the  question  of  title  to  the  office  is  not  collateral  or 
incidental,  but  is  the  central  and  pivotal  question,  the  proper  remedy  is  a pro- 
ceeding by  quo  warranto.  Greene  v.  Knox,  175  N.  Y.  432;  affirming  76  App.  Div. 
405,  78  N.  Y.  Supp.  779. 

Action  in  relation  to  town  bonds.  A taxpayer  may  maintain  an  action 
under  the  above  act  to  restrain  the  payment  of  town  bonds,  illegally  issued;  such 
an  action  is  not  subject  to  the  objections  which  would  defeat  an  action  dependent 
upon  the  general  equity  power  of  the  court,  nor  is  it  barred  by  any  of  the  statutes 
of  limitation.  Strang  v.  Cook,  47  Hun,  46.  But  such  an  action  will  not  lie  to 
restrain  a town  supervisor  from  paying  over  the  interest  on  town  bonds,  from 
moneys  in  his  hands  levied  and  collected  for  that  purpose,  where  the  bonds  are 
apparently  valid  and  have  been  so  treated  by  the  town  and  its  taxpayers,  and  where 
no  fraud  is  imputed.  Calhoun  v.  Millard,  121  N.  Y.  69;  24  N.  E.  27. 

Any  taxpayer  residing  in  any  municipality  which  has,  in  compliance  with 
the  Railroad  Bonding  Act  of  1869,  ch.  907,  as  amended,  issued  its  bonds  to  aid 
in  the  construction  of  a railroad,  may,  by  petition,  institute  proceedings  to 
compel  the  county  treasurer  to  observe  the  duties  imposed  upon  him  by  such 
statute  requiring  him  to  use  and  invest  the  moneys  paid  to  him,  derived  from 
taxes  upon  the  railroads  aided  in  their  construction  to  the  redemption  of  the 
bonds.  Spaulding  v.  Arnold,  24  N.  Y.  St.  Rep.  897 ; 6 N.  Y.  Supp.  336. 

As  to  pleadings  and  practice  in  actions  brought  under  the  above  section, 
see  cases  cited  under  section  1925  of  the  Code  of  Civil  Procedure  in  Gilbert’s 
Code  (1910). 

4.  The  above  section  is  evidently  supplemental  to  § 51  of  the  General  Mu- 


1056 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Code  Civ.  Proc.,  §§  1926,  1927. 

§ 4.  ACTIONS  BY  AND  AGAINST  CERTAIN  TOWN  OFFICERS  IN 
THEIR  OFFICIAL  CAPACITIES. 

An  action  or  special  proceeding  may  be  maintained,  by  the  trustee  or 
trustees  of  a school  district;  the  overseer  or  overseers  of  the  poor  of  a 
village  or  city;  the  county  superintendent  or  superintendents  of  tho 
poor;  or  the  supervisors  of  a county,  upon  a contract,  lawfully  made 
with  those  officers  or  their  predecessors,  in  their  official  capacity;  to 
enforce  a liability  created,  or  a duty  enjoined,  by  law,  upon  those  offi- 
cers,  or  the  body  represented  by  them ; to  recover  a penal  ty  or  a forfeit- 
ure, given  to  those  officers,  or  a body  represented  by  them ; or  to  recover 
damages  for  an  injury  to  the  property  or  rights  of  those  officers,  or  the 
body  represented  by  them ; although  the  cause  of  action  accrued  before 
the  commencement  of  their  term  of  office.* * * * 5 6  [Code  Civ.  Pro.,  § 1926.] 
An  action  or  special  proceeding  may  be  maintained,  against  any  of 


nicipal  Law  relating  to  actions  to  restrain  unlawful  acts  by  municipal  officers. 
The  cases  already  cited  under  such  act  are  in  a measure  applicable  to  proceedings 

instituted  under  the  above  section  of  the  code. 

Boundary  lines.  It  was  held  in  the  case  of  Govers  v.  Supervisors  of  West- 

chester County,  171  N.  Y.  40,  that  the  authorized  action  of  a board  of  super- 
visors in  ascertaining  and  locating  a boundary  line  established  and  settled  by 
statute  between  town®  within  the  counity  by  reference  to  ancient  maps,  cannot 
in  the  absence  of  fraud,  collusion  or  bad  faith  on  the  part  of  the  board,  be 
attacked  in  an  action  brought  under  section  1925  -of  the  code  since  the  words 
“ waste  and  injury  ” used  in  that  section  include  only  illegal,  wrongful  or  dis- 
honest action. 

5.  For  construction  of  code  provisions  see  Gilbert’s  Code  (1910). 

Action  under  § 1925  of  Code  of  Civil  Procedure.  A taxpayer’s  action 
to  restrain  waste  or  injury  to  the  property  or  funds  of  a municipality,  or  to  pre- 
vent any  illegal  official  act  on  the  part  of  the  officers  of  such  municipality,  will,  in 
a proper  case,  lie  under  the  provisions  of  section  1925  of  the  Code  of  Civil  Pro- 
cedure, or  section  51  of  the  General  Municipal  Law.  The  provisions  of  section  51 
of  the  General  Municipal  Law  are  somewhat  broader  in  their  scope,  and  provide 
somewhat  more  specifically  for  an  action  to  prevent  illegal  official  acts,  and,  in  a 
proper  case,  restitution;  but  the  principles  governing  an  action  brought  under 
either  of  the  aforesaid  provisions  are  substantially  the  same.  McBride  v.  Ashley 
(1915),  91  Misc.  585,  154  N.  Y.  Supp.  1010. 

6.  Application  of  section.  In  respect  to  an  action  brought  by  a supervisor 
it  was  held,  prior  to  the  amendment  of  1897,  that  the  section  merely  prescribes 
the  mode  of  enforcing  such  rights  and  claims  as  belong  to  the  supervisor  of  the 
town  without  defending  them  or  declaring  their  nature  or  extent.  Bidelman 
v.  State,  110  N.  Y.  232;  18  N.  E.  115.  The  section  does  not  create  new  causes 
of  action,  but  confers  upon  the  officers  named  the  right  to  maintain  actions  in 
their  own  name  upon  existing  causes  of  action  in  favor  of  the  bodies  represented 
by  them,  or  of  predecessors,  or  upon  a contract  made  by  them.  Chrigstrom  v. 
McGregor,  74  Hun,  343;  26  N.  Y.  Supp.  517. 


ACTIONS  BY  AND  AGAINST  COUNTY  OFFICERS. 


1056a 


Code  Civ.  Proc.,  §§  1928-1930. 

the  officers  specified  in  the  last  section,  upon  any  cause  of  action,  which 
accrues  against  them  or  has  accrued  against  their  predecessors,  or  upon  a 
contract  made  by  their  predecessors  in  their  official  capacity  and  within 
the  scope  of  their  authority.  [Idem,  § 1927.] 

The  last  two  sections  do  not  apply  to  a case,  where  it  is  specially  pre- 
scribed by  law,  that  an  action  may  be  maintained,  by  or  against  the 
body,  represented  by  an  officer  designated  in  those  sections ; but,  in  such 
a case,  the  prosecution  or  defence  of  the  action,  as  the  case  may  be,  must 
be  conducted  by  the  persons  then  in  office,  who  represent  that  body. 
[Idem,  § 1928.] 

§ 5.  OFFICER,  HOW  DESCRIBED  IN  SUMMONS. 

In  an  action  or  special  proceeding,  brought  pursuant  to  section  one 
thousand  nine  hundred  and  twenty-six  or  section  one  thousand  nine 
hundred  and  twenty-seven  of  this  act,  the  officer,  by  or  against  whom 
it  is  brought,  must  be  described  in  the  summons,  or  other  process  by 
which  it  is  commenced,  and  in  the  subsequent  proceedings  therein,  by 
his  individual  name,  with  the  addition  of  his  official  title.  An  objec- 
tion growing  out  of  an  omission  to  join  any  officer,  who  ought  to  be 
joined  with  the  others,  must  be  taken  by  the  answer,  or,  in  a special 
proceeding,  before  the  close  of  the  case,  on  the  part  of  the  defendant; 
otherwise  it  is  waived.7  [Code  Civ.  Pro.,  § 1929.] 

§ 6.  SUCCESSOR,  WHEN  TO  BE  SUBSTITUTED. 

In  such  an  action  or  special  proceeding,  the  court  must,  in  a proper 
case,  substitute  a successor  in  office,  in  place  of  a person  made  a party 

Section  11  of  the  Town  Law,  ante,  p.  393,  provides  that  an  action  on  a con- 
tract made  with  any  of  the  officers  by  whom  a town  is  represented  to  enforce 
the  liability  of  the  town  thereon,  shall  be  in  the  name  of  the  town.  This  section 
of  the  Town  Law  requires  that  an  action  on  a contract  of  a town  overseer  of  the 
poor  shall  be  against  the  town  and  not  against  such  officer  although  there  is  no 
express  repeal  of  the  above  section  of  the  code  in  the  Town  Law.  This  is  so 
since  section  1928  of  the  code  provides  that  sections  1926  and  1927  do  not  apply 
to  a case  where  it  is  especially  provided  by  statute  that  an  action  may  be  main- 
tained by  or  against  the  body  represented  by  the  officers  designated  in  such 
sections.  Miller  v.  Bush,  87  Hun,  507 ; 34  N.  Y.  Supp.  286.  The  effect  of  such 
section  of  the  Town  Law  would  seem  to  supersede  as  to  all  officers  named  in  the 
above  section  of  the  code  the  power  of  town  officers  of  maintaining  actions  on 
contracts  in  their  own  names. 

7.  Actions  against  county.  In  a suit  against  a county,  the  board  of  super- 
visors should  be  named  as  defendants  and  the  individual  members  of  the  board 
should  not  be  named.  Hill  v.  Supervisors  of  Livingston  County,  12  N.  Y.  52; 
see,  also,  Wilde  v.  Supervisors  of  Columbia  County,  9 How.  Pr.  315. 


1050b  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Code  Civ.  Proc.,  § 1931. 

in  Ills  official  capacity,  who  has  died  or  ceased  to  hold  office ; but  such  a 
successor  shall  not  be  substituted  as  a defendant,  without  his  consent, 
unless  at  least  fourteen  days’  notice  of  the  application  for  the  substitu- 
tion, has  been  personally  served  upon  him.  [Code  Civ.  Pro.,  § 1930.] 

§ 7.  WHEN  EXECUTION  UPON  JUDGMENT  CANNOT  BE  ISSUED 
AGAINST  OFFICER  PERSONALLY. 

An  execution  cannot  be  issued  upon  a judgment  for  a sum  of  money, 
rendered  against  an  officer  in  an  action  or  special  proceeding,  brought  by 
or  against  him,  in  his  official  capacity,  pursuant  to  this  article,  except 
where  it  is  rendered  against  the  trustee  or  trustees  of  a school  district, 
or  the  commissioner  or  commissioners  of  highways  of  a town.  In  either 
of  those  cases,  an  execution  may  be  issued  against  and  be  collected  out 
of  the  property  of  the  officer,  and  the  sum  collected  must  be  allowed  to 
him,  in  the  settlement  of  his  official  accounts,  except  as  otherwise  spe- 
cially prescribed  by  law.  [Code  Civ.  Pro.,  § 1931.] 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1057 


CHAPTER  LXXIII. 

TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


Section  1.  Temporary  loans,  when  to  be  made. 

2.  Funded  debt  not  to  be  contracted  except  for  specific  object. 

3.  Municipal  bonds,  how  paid. 

4.  Retirement  of  bonds  by  new  issue;  sale  of  new  bonds;  certificate 

of  amount  of  existing  bonds;  town  meeting  may  authorize  issue 
of  bonds. 

5.  Municipal  bonds,  how  issued. 

€.  Municipal  bonds  may  be  registered;  fees  for  registry;  effect  of 
registry. 

7.  Coupon  bonds  may  be  converted  into  registered  bonds. 

8.  Municipal  bonds  not  invalidated  by  certain  defects. 

9.  Limitation  of  indebtedness  of  town  and  county  under  authority 

of  board  of  supervisors. 

10.  Limitation  of  indebtedness  in  county  containing  city  of  more  tha/ 

one  hundred  thousand  inhabitants. 

11.  Constitutional  provisions  as  to  loan  of  credit  or  gifts  by  ^*ns, 

cities  and  counties;  limitation  of  indebtedness. 

12.  Resolutions  of  boards  of  supervisors  authorizing  issue  of  obligations 

by  town  or  county  officers. 

13.  Actions  by  bond  holders  and  municipal  corporations  against  officers 

for  misfeasance,  malfeasance  or  negligence  of  officers  in  relation 
to  the  issue  of  municipal  bonds. 

14.  Board  of  supervisors  may  abolish  office  of  railroad  commissioner. 

15.  County  judge  to  appoint  commissioners;  term  of  office;  compensation. 

16.  Oath  and  undertaking  of  commissioners. 

17.  When  railroad  stock  and  bonds  may  be  sold  or  exchanged;  dis- 

position of  proceeds  of  sale. 

18.  Annual  report  of  railroad  commissioners  and  payment  of  railroad 

bonds. 

19.  Accounts  and  loans  by  railroad  commissioner. 

20.  Re-issue  of  lost  or  destroyed  bonds. 

21.  Payment  of  judgments  against  town  or  county. 

22.  Liability  for  damages  by  mobs  and  riots. 

23.  Condemnation  of  real  property. 

24.  Insurance  of  town  or  county  property. 

25.  Supervisor  to  report  to  board  of  supervisors  amount  of  town  bonds 

outstanding;  form  of  report;  publication. 


1058 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Genera!  Municipal  Law,  § 5. 

Section  26.  Duplicate  report  to  be  presented  to  town  meeting  and  filed  in  the  office 
of  town  clerk. 

27.  Town  board  to  cancel  bonds  and  coupons  which  have  been  paid. 

28.  Limitation  of  indebtedness. 

29.  Legalizing  bonds  of  municipalities;  procedure. 

30.  Minimum  rate  of  interest  on  municipal  bonds. 

31.  Separate  specifications  for  certain  contract  work. 

§ 1.  TEMPORARY  LOANS,  WHEN  TO  BE  MADE. 

Moneys  shall  not  be  borrowed  by  a municipal  corporation  on  tempo- 
rary loan,  except  in  anticipation  of  the  taxes  of  the  current  fiscal  year, 
and  for  the  purposes  for  which  such  taxes  are  levied,  and  shall  not  be  in 
excess  of  the  amount  of  such  taxes.1  Such  loans  shall  be  payable  out  of 
the  taxes  on  account  of  which  such  loans  are  made,  and  in  no  case  shall 
interest  run  on  any  such  loan  pfter  such  taxes  are  paid  into  the  treasury 


1.  Power  to  borrow  money.  According  to  a large  number  of  decided  cases 
in  this  and  other  states,  the  power  to  borrow  money,  if  not  expressly  granted 
by  charter  or  by  statute,  does  not  exist  by  implication  in  a municipal  corpora- 
tion. See  Mayor  of  Nashville  v.  Ray,  19  Wall.  (U.  S.)  468;  Police  Jury  v. 
Britton,  15  Wall.  (U.  S.)  566;  Wells  v.  Supervisors,  102  U.  S.  625;  Minot  v. 
West  Roxbury,  112  Mass.  1;  17  Am.  St.  Rep.  52;  Hawkins  v.  Carroll  County,  50 
Miss.  762;  Hackettstown  v.  Swackhamer,  37  N.  J.  L.  191;  Wells  v.  Town  of 
Salina,  119  N.  Y.  280;  23  N.  E.  870. 

The  case  of  Wells  v.  Town  of  Salina,  supra,  is  the  leading  New  York  case 
upon  this  subject.  In  this  case  Judge  Earl  says:  “It  is  the  policy  of  the 

laws  that  town  charges  shall  be  met  by  annual  recurring  taxation,  and  thus 
extravagance  and  improvidence  are  in  some  degree  checked,  as  those  who 
create  town  charges  or  are  the  taxpayers  when  they  arise,  must  bear  the 
burden  of  taxation  to  meet  them.  It  is  quite  easy  for  the  taxpayers  of 
to-day  to  create  a debt  which  they  are  not  to  feel  and  which  the  taxpayers 
of  the  future  are  to  discharge.  The  system  of  laws  relating  to  towns  requires 
that  all  bills  for  moneys  expended  or  materials  furnished,  or  services  ren- 
dered to  the  town  shall  be  verified  and  presented  to  the  board  of  town 
auditors  and  audited  by  them,  and  then  enforced  by  warrants  of  the  board  of 
supervisors  against  the  taxpayers  of  the  town.  This  whole  system  would 
be  subverted  if  towns  could  borrow  money  upon  credit  to  meet  town  charges. 
Then  the  money  would  have  to  be  repaid  whether  the  town  had  had  the  bene- 
fit thereof  or  not,  and  the  wise  provisions  of  the  statutes  to  secure  economy 
and  safety  by  the  audit  of  accounts  would  be  entirely  frustrated.” 

In  the  case  of  Starin  v.  Town  of  Genoa,  23  N.  Y.  439,  Lott,  J.,  said:  “The 

towns  of  this  state  have  not  the  general  power  to  borrow  money,  nor  are  their 
officers,  in  the  exercise  of  their  ordinary  duties,  authorized  to  issue  bonds  or 
any  other  evidence  of  indebtedness  in  the  name  of  the  towns  represented  by 
them,  for  loans  or  other  debts  contracted  or  incurred  on  their  behalf.” 

And  in  the  case  of  Parker  v.  Supervisors  of  Saratoga  County,  106  N.  Y. 
392;  13  N.  E.  308,  Andrews,  J.,  said:  “The  contention  that  boards  of  super- 

visors have  no  inherent  power  to  borrow  money  or  to  issue  negotiable  paper, 
accords  with  the  general  understanding  and  with  the  tenor  of  the  adjudged 
cases  and  the  course  of  legislation  which  pre-supposes  the  necessity  of  ex- 
press legislative  sanction  in  order  to  justify  the  exercise  of  this  authority. 
In  this  state  the  powers  of  boards  of  supervisors  are  not  only  the  subject 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1059 


General  Municipal  Law,  § 6. 

of  the  corporation.  [General  Municipal  Law,  § 5,  as  amended  by  L. 
1916,  ch.  166;  B.  C.  & G.  Cons.  L.,  p.  2109.] 

§ 2.  FUNDED  DEBT  NOT  TO  BE  CONTRACTED  EXCEPT  FOR  SPECI- 
FIC OBJECT. 

A funded  debt2  shall  not  be  contracted  by  a municipal  corporation,  ex- 
cept for  a specific  object,  expressly  stated  in  the  ordinance  or  resolution  pro- 
posing it ; nor  unless  such  ordinance  or  resolution  shall  be  passed  by  a two- 
thirds  vote  of  all  the  members  elected  to  the  board  or  council  adopting  it,  or 
submitted  to,  and  approved  by  the  electors  of  the  town  or  county,  or  tax- 
payers of  the  village  or  city  when  required  by  law;  provided,  however, 
that  a funded  debt  contracted  by  a city  of  the  second  class  for  the 
building  of  a school  building  or  for  the  construction  or  reconstruction 
of  a school  building  shall  require  for  its  passage  only  a majority  vote 
of  all  the  members  elected  to  the  common  council  adopting  it.  Such 
ordinance  or  resolution  shall  provide  for  raising  annually,  by  tax,  a 
sum  sufficient  to  pay  the  interest  and  the  principal,  as  the  same  shall 
become  due.  Whenever  bonds  have  been  issued  and  sold,  prior  to  January 
first,  nineteen  hundred  and  eighteen,  pursuant  to  this  section,  by  a city 
of  the  second  class,  located  in  a county  having  a population  of  not  less  than 
two  hundred  thousand  nor  more  than  two  hundred  and  fifty  thousand, 
the  proceeds  or  any  part  thereof  may  be  used  for  any  purpose  for  which 
bonds  may  be  issued  if  authorized  by  a two-thirds  vote  of  all  the  members 
elected  to  the  common  council  and  such  action  of  the  common  council  is 
ratified  by  a two-thirds  vote  of  the  members  of  the  board  of  estimate  and 
apportionment  of  such  city.3  [General  Municipal  Law,  § 6,  as  amended  by 
L.  1910,  ch.  677,  and  L.  1918,  ch.  210;  B.  C.  & G.  Cons.  L.,  p.  2110.] 


of  express  affirmative  definition,  but  for  the  purpose  of  confining  the  action 
of  these  bodies  to  the  exercise  of  enumerated  powers,  it  is  declared  that  ‘ no 
county  shall  possess  or  exercise  any  corporate  powers,  except  such  as  are 

enumerated  or  shall  be  specially  given  by  law,  or  shall  be  necesary  to  the 

exercise  of  the  powers  so  enumerated  or  given.’  The  power  of  borrowing 
money  is  incident  to  the  powers  of  a business  corporation,  unless  excluded  by 
its  charter.  Boards  of  supervisors  have  the  recourse  of  taxation  for  the  rais- 
ing of  money  for  county  purposes.  The  power  to  borrow  money  is  not  neces- 
sary to  the  execution  of  powers  expressly  given.  But  the  denial  of  this  power 

to  those  quasi  public  corporations  also  stands  strongly  upon  considerations 
of  public  policy,  and  the  doctrine  that  they  have  no  implied  power  to  borrow 
money  is  an  important  safeguard  to  the  protection  of  political  communities 
against  the  creation  of  ruinous  liabilities  through  the  action  of  incapable, 
negligent  or  unfaithful  public  agents.  We  concur,  therefore,  with  the  proposi- 
tion that  the  power  of  the  board  of  supervisors  to  extend  the  original  debt  by 
means  of  new  loans,  or  by  renewals  of  prior  obligations,  if  it  existed,  must  be 
found  in  the  statute,  given  either  expressly  or  by  implication.” 

The  above  section  of  the  General  Municipal  Law  expressly  limits  the  power 
of  municipal  corporations  to  borrow  money  upon  a temporary  loan  except  where 
taxes  have  been  levied  for  the  current  fiscal  year,  and  then  only  can  money 
be  borrowed  for  the  purposes  for  which  such  taxes  were  expressly  levied.  The 
object  and  intent  of  the  statute  was  to  limit  the  power  of  municipal  rorpora- 
tions  to  borrow  money  to  those  cases  where  the  obligation  of  the  municipality 
had  been  recognized  and  steps  had  been  taken  for  the  raising  of  money  by 
taxation  to  meet  such  obligation. 

By  subdivision  6 of  section  12  of  the  County  Law,  ante , p.  55,  boards  of  super- 
visors are  authorized  to  borrow  money  for  certain  specified  purposes  and  to 
issue  county  obligations  therefor,  and  may  authorize  a town  to  borrow  money 
and  issue  it3  obligations  for  town  uses  and  purposes. 


1060 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  § 7. 

§ 3.  MUNICIPAL.  BONDS,  HOW  PAID. 

Where  the  bonds  of  a municipal  corporation  have  been  lawfully  issued, 
and  the  payment  of  the  principal  or  interest  thereof  shall  not  have  been 
otherwise  paid  or  provided  for,  the  same  shall  be  a charge  upon  such  cor- 


2.  Funded  debt.  The  words  “ funded  debt,”  as  used  in  the  above  section 
include  all  municipal  indebtedness  embraced  within  or  evidenced  by  a bond,  the 
principal  of  which  is  payable  at  a time  beyond  the  current  fiscal  year  of  its 
issue,  with  periodical  terms  for  the  payment  of  interest,  and  where  provision  is 
made  for  payment  by  the  raising  of  the  necessary  funds  by  future  taxation  and 
the  quasi  pledging,  in  advance,  of  the  municipal  revenue.  People  ex  rel.  Peene 
v.  Carpenter,  31  App.  Div.  603;  52  N.  Y.  Supp.  781.  Where  a proposition  to 
establish  village  water  works  and  issue  bonds  to  be  refunded  by  an  annual  tax 
upon  property  within  the  village  is  submitted  to  voters  at  a special  election,  the 
bonds  when  issued  become  “ a funded  debt.”  Gould  v.  Village  of  Seneca  Falls, 
137  App.  Div.  417,  121  N.  Y.  Supp.  723,  affd.  200  N.  Y.  523. 

A fund  raised  by  a fire  district  under  a duly  adopted  resolution  is  a funded 
debt  within  the  meaning  of  this  section.  American  Metal  Ceiling  Co.  v.  New  Hyde 
Park  Fre  District  (1915),  91  Misc.  236,  154  N.  Y.  Supp.  661. 

3.  For  form  of  resolution  providing  for  the  issue  of  town  and  county  bonds 
adopted  by  a board  of  supervisors,  see  Form  No.  115,  post.  Each  such  resolu- 
tion must  contain  a provision  for  raising  annually  by  taxation  a sum  sufficient 
to  pay  the  interest  and  the  principal  as  the  same  shall  become  due.  Without 
such  provision  the  bonds  issued  pursuant  to  the  resolution  would  be  of  doubtful 
validity. 

Application.  This  section  does  not  apply  to  a proposition  submitted  to  tax- 
payers to  acquire  property  at  a maximum  figure,  since  the  extent  of  the  liability 
therefor  cannot  be  ascertained  at  the  time  of  the  passage  of  the  resolution. 
Village  of  Waverly  v.  Waverly  Water  Co.,  127  App.  Div.  440,  444,  112  N.  Y.  Supp. 
1149. 

When  municipal  improvements  are  voted  with  the  provision  that  90  per  cent, 
of  their  cost  shall  be  borne  by  abutting  property  owners  and  10  per  cent,  by 
the  village  at  large,  bonds  for  the  whole  cost  are  not  authorized  by  such  vote; 
but  where  legislative  authority  is  subsequently  given  for  an  issue  of  bonds  for 
the  whole  amount  of  certain  of  the  improvements,  and  bonds  for  the  full  amount 
of  the  remainder  of  the  improvements  are  expressly  authorized  by  a subse- 
quent vote  of  the  electors,  they  may  constitute  valid  obligations  of  the  munici- 
pality. Matter  of  Village  of  Kenmore,  59  Misc.  388,  110  N.  Y.  Supp.  1008. 

This  section  does  not  require  the  resolution  to  specify  the  sum  which  shall  be 
raised.  Thus,  a bonding  proposition  submitted  to  the  taxpayers  of  a village 
which  provides  for  “ a sum  to  be  raised  annually  by  levying  a tax  on  all  taxable 
property  in  said  village  sufficient  to  pay  the  interest  and  principal  of  all  said 
bonds  as  the  same  become  due,  complies  with  this  section.  Village  of  Branx- 
ville  v.  Seymour,  122  App.  Div.  377,  106  N.  Y.  Supp.  834. 

Where  a resolution  proposing  an  issue  of  bonds  does  not  comply  with  the 
provisions  of  the  above  section  to  the  effect  that  such  resolution  shall  provide 
for  raising  annually  by  a tax  a sum  sufficient  to  pay  the  interest  and  the  princi- 
pal of  such  bonds  as  the  same  shall  become  due  it  is  fatally  defective.  A state- 
ment in  a resolution  “ that  a sum  sufficient  to  pay  the  interest  and  principal  of 
said  bonds  as  the  same  shall  become  due,  be  raised  by  an  annual  tax,  as  other 
taxes  for  general  purnoses  in  said  village  are  raised,”  is  not  sufficient.  It 
should  state  the  installments  in  which  the  bonds  were  to  be  made  payable  and 
the  number  which  were  to  be  met  in  each  year.  Village  of  Canandaigua  v. 
Fayes.  90  Ann.  Div.  336,  85  N.  Y.  Supp.  488.  See  Lyon  v.  Binghamton,  160  App 
Div.  222,  145  N.  Y.  Supp.  424. 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1061 


General  Municipal  Law,  § 8. 

poration,  and  shall  be  levied  and  assessed,  collected  and  paid  the  same  as 
other  debts  and  charges.  When  for  any  reason  any  portion  of  the  principal 
or  interest  due  upon  such  bonds  shall  not  have  been  paid,  the  same  shall  be 
assessed,  levied  and  collected  at  the  first  assessment  and  collection  of  taxes 
by  such  corporation  after  such  omission.4  [General  Municipal  Law,  § 7 ; 
B.  C.  & G.  Cons.  L.,  p.  2110.] 

§ 4.  RETIREMENT  OF  BONDS  BY  NEW  ISSUE;  SALE  OF  NEW 

BONDS;  CERTIFICATE  OF  AMOUNT  OF  EXISTING  BONDS; 

TOWN  MEETING  MAY  AUTHORIZE  ISSUE  OF  BONDS. 

The  bonded  indebtedness  of  a municipal  corporation,  including  interest 
due  or  unpaid,  or  any  part  thereof,  may  be  paid  up  or  retired  by  the  issue 
of  the  new  substituted  bonds  for  like  amounts  by  the  board  of  supervisors 
or  supervisor,  board,  council  or  officers  having  in  charge  the  payment  of 
such  bonds.  Such  new  bonds  shall  only  be  issued  when  the  existing  bonds 
can  be  retired  by  the  substitution  of  the  new  bonds  therefor,  or  can  be 
paid  up  by  money  realized  by  the  sale  of  such  new  bonds.  Where  such 
bonded  indebtedness  shall  become  due  within  two  years  from  the  issue  of 
such  new  bonds,  such  new  bonds  may  be  issued  and  sold  to  provide  money 
in  advance  to  pay  up  such  existing  bonds  when  they  shall  become  due. 
Such  new  bonds  shall  contain  a recital  that  they  are  issued  pursuant  to  this 
section,  which  recital  shall  be  conclusive  evidence  of  their  validity  and  of 
the  regularity  of  the  issue ; shall  be  made  payable  not  less  than  one  or  more 
than  thirty  years  from  their  date;  shall  bear  date  and  draw  interest  from 
the  date  of  the  payment  of  the  existing  bonds,  or  the  receipt  of  the  money 
to  pay  the  same,  at  not  exceeding  the  rate  of  five  per  centum  per  annum, 
payable  quarterly,  semi-annually  or  annually;  and  an  amount  equal  to  not 
less  than  two  per  centum  of  the  whole  amount  of  such  new  bonds  may  be 
payable  each  year  after  the  issue  thereof.  Such  new  bonds  shall  be  sold  and 
negotiated  at  the  best  price  obtainable,  not  less  than  tlieir  par  value;  shall 
be  valid  and  binding  on  the  municipal  corporation  issuing  them.  All  bonds 
and  coupons  retired  or  paid  shall  be  immediately  canceled.  A certificate 
shall  be  issued  by  the  officer,  board  or  body  issuing  such  new  bonds,  stating 


4.  Payment  of  town  bonds.  It  is  the  duty  of  a town  to  provide  means  for  the 
payment  of  its  bonds  lawfully  issued.  In  case  of  failure  to  perform  its  duty, 
the  holder  of  the  bonds  may  maintain  an  action  against  the  town  thereon,  and 
this,  although  by  the  act  under  which  they  were  issued,  it  is  made  the  duty  of 
the  board  of  supervisors  of  the  county  to  impose  and  levy  a tax  to  pay  the  bonds. 
Such  settled  and  admitted  obligations  of  the  town  need  not  be  audited  and 
allowed  by  the  board  of  town  auditors.  Marsh  v.  Town  of  Little  Valley,  64  N.  Y. 
112;  see,  also,  Horn  v.  Town  of  New  Lots,  83  N.  Y.  100. 


1062 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  § 9. 

the  amount  of  existing  bonds,  and  of  the  new  bonds  so  issued,  which  shall 
be  forthwith  filed  in  the  office  of  the  county  clerk.  Except  as  provided  in 
this  section,  new  bonds  shall  not  be  issued  in  pursuance  thereof,  for  bonds 
of  a municipal  corporation  adjudged  invalid  by  the  final  judgment  of  a 
competent  court.  A majority  of  the  taxpayers  of  a town,  voting  at  a general 
town  meeting,  or  special  town  meeting  duly  called,  may  authorize  the  issue 
in  pursuance  of  this  section  of  new  bonds  for  such  invalid  bonds,  and  each 
new  bond  so  issued  shall  contain  substantially  the  following  recital : “ The 
issue  of  this  bond  is  duly  authorized  by  a vote  of  the  taxpayers  of  the  said 
town,”  which  shall  be  conclusive  evidence  of  such  fact.  The  payment, 
adjustment  or  compromise  of  a part  of  the  bonded  indebtedness  of  a muni- 
cipal corporation  shall  not  be  deemed  an  admission  of  the  validity  or  a 
recognition  of  any  part  of  the  bonded  indebtedness  of  such  municipal  corpo- 
ration not  paid,  adjusted  or  compromised.5  All  bonds  of  a municipal 
corporation,  until  payable,  shall  be  exempt  from  taxation  for  town,  county, 
municipal  or  state  purposes.  [General  Municipal  Law,  § 8;  B.  C.  & G. 
Cons.  L.,  p.  2111.] 

§ 5.  MUNICIPAL  BONDS,  HOW  ISSUED. 

Each  bond  issued  by  a municipal  corporation  shall  be  signed  by  each 
officer  issuing  the  same,  with  the  designation  of  his  office;  and  the  interest 
coupons  attached  thereto,  if  any,  shall  be  signed  by  one  of  their  number. 
Each  such  bond  shall  state  the  place  of  payment  and,  if  no  coupons  are 
attached  thereto,  the  name  of  the  payee  shall  be  inserted  therein  and 
registered  with  the  treasurer,  chamberlain,  comptroller,  supervisor,  clerk 
or  other  designated  official  of  such  municipal  corporation  before  any 
interest  shall  be  paid  thereon 

All  bonds  hereafter  issued  by  any  municipal  corporation,  or  by  any 
school  district  or  civil  division  of  the  state,  shall  be  sold,  in  the  case  of  a 
city  of  the  first  class  as  required  by  its  charter  or  by  any  special  act  under 
which  such  bonds  are  issued,  in  the  case  of  a city  of  the  second  class  as 
required  by  section  sixty-one  of  the  second  class  cities  law,  and  in  all  other 
cases  at  public  sale  not  less  than  five  or  more  than  thirty  days  after  a 
notice  of  such  sale,  stating  the  amount,  date,  maturity  and  rate  of  interest, 
has  been  published  at  least  once  in  the  official  paper  or  papers,  if  any,  of 
any  such  municipality,  provided  that  if  there  is  no  official  paper,  then  such 
notice  of  sale  shall  be  published  in  a newspaper  published  in  the  county 
in  which  such  bonds  are  to  be  issued,  or  a copy  thereof  shall  be  sent  to  and 
published  in  a financial  newspaper  published  and  circulating  in  New 


5.  Issue  of  new  bonds  for  existing  bonds.  The  law,  as  it  existed  prior  to  the 
amendment  of  1897  to  the  section  of  the  former  law,  did  not  expressly  permit  the 
issue  of  new  bonds  by  a municipal  corporation  to  take  the  place  of  bonds  which 
had  been  declared  invalid.  But  under  the  law  prior  to  such  amendment  it  was* 
held  that  where  bonds  were  issued  in  exchange  for  others,  which  were  con- 
tested, and  the  validity  of  which  was  in  dispute,  the  town  will  be  deemed  to: 
have  elected  to  compromise  by  the  issue  of  the  new  bonds,  and  cannot  thereafter 
contest  the  validity  of  such  new  bonds  on  the  ground  of  the  illegality  of  those 
which  had  been  retired.  Hills  v.  Peekskill  Sav.  Bank,  101  N.  Y.  490;  5 N.  E.  327. 

Wherever  under  the  present  law  it  is  sought  to  cure  the  defects  in  existing 
bonds  by  the  issue  of  new  bonds  the  provisions  of  the  above  section  relating  thereto 
must  be  complied  with. 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1063 


General  Municipal  Law,  § 10. 

York  city.^  [General  Municipal  Law,  § 9,  as  amended  by  L.  1917,  ch. 
534;  B.  C.  & G.  Cons.  L.,  p.  2112.] 

§ 6.  MUNICIPAL  BONDS  MAY  BE  REGISTERED;  FEES  FOR  REG- 
ISTRY; EFFECT  OF  REGISTRY. 

Each  municipal  corporation  shall  keep  in  the  office  of  its  clerk  suitable 
books,  in  which  shall  be  entered  a full  description  of  the  amount,  rate  of 
interest,  class,  number,  date  of  issue,  pursuant  to  what  law  and  maturity 
of  all  bonds  issued  by  any  of  its  officers  and,  if  such  statement  is  not  already 

6.  Compliance  with  statute.  The  rule  is  settled  in  this  state,  that  to  entitle  a 
party  to  recover  in  an  action  upon  bonds  issued  by  a municipality  there  must  be 
affirmative  and  extrinsic  proof  that  all  the  preliminary  conditions  required  to 
authorize  the  issue  of  such  bonds  have  been  complied  with.  Dodge  v.  County  of 
Platte,  82  N.  Y.  218;  Town  of  Venice  v.  Woodruff,  62  N.  Y.  465;  People  v.  Mead, 
24  N.  Y.  114;  Starin  v.  Town  of  Genoa,  23  N.  Y.  439. 

Although  where  towns  are  authorized  to  issue  bonds  under  special  statutes  to 
pay  the  expenses  of  improvements,  the  holder  of  the  bonds  must  show  that  the 
requirements  of  the  law  have  been  complied  with,  yet  where  the  plaintiff  shows 
the  taking  of  the  oath  by  the  commissioners  appointed  to  carry  out  the  im- 
provement, that  they  entered  upon  the  discharge  of  their  duties,  that  the  im- 
provement was  made  by  them,  and  that  the  bonds  were  issued  by  the  town  on 
the  requisition  from  the  commissioners  for  such  improvement,  and  the  defend- 
ants admit  that  the  bonds  set  forth  in  the  complaint  were  made,  signed  and 
countersigned  as  therein  mentioned,  a prima  facie  case  of  the  due  and  proper 
issue  of  the  bonds  is  established.  Manhattan  Sav.  Inst.  v.  Town  of  East  Chester,  44 
Hun,  537. 

The  fact  that  the  names  of  the  commissioners  authorized  to  issue  the  bonds 
were  lithographed  on  the  coupons  of  such  bonds  was  held  not  to  make  them 
invalid,  as  the  commissioners  adopted  and  delivered  as  their  own  the  signatures 
in  that  form.  Beattys  v.  Town  of  Solon,  64  Hun,  120;  19  N.  Y.  Supp.  37. 

Execution  by  two  of  three  commissioners.  Where  town  bonds  are  executed 
by  two  only  of  three  commissioners  authorized  to  issue  such  bonds,  it  will  be  pre- 
sumed, in  absence  of  any  proof  to  the  contrary  that  the  third  commissioner  had 
notice  of  the  meeting  when  the  bonds  were  issued,  and  consulted  with  those  who 
acted;  and  the  absence  of  his  signature  will  not,  therefore,  invalidate  the  bonds. 
Hilis  v.  Peekskill  Sav.  Bank,  46  Hun,  180. 

Recital  in  bonds.  The  recital  contained  in  a municipal  bond  should  show 
the  authority  under  which  the  officer  acted  who  executed  the  bond.  It  was  held 
in  the  case  of  Dodge  v.  Platt,  82  N.  Y.  218,  230,  that  since  the  recital  in  the 
bonds  did  not  show  or  tend  to  establish  any  power  or  authority  to  issue  the 
same,  that  the  plaintiff  could  not  be  regarded  as  a bona  fide  holder  of  the  coupons 
for  value  without  notice;  for  no  presumption  is  to  be  indulged  in  favor  of  the 
validity  of  bonds  issued  under  statutory  authority  where  the  recital  is  such  as 
to  put  the  holder  upon  inquiry.  A recital  that  all  necessary  legal  steps  and  pro- 
ceedings have  been  taken  to  comply  with  the  laws  under  which  the  bonds  were 
issued,  does  not  estop  the  town  board  from  disputing  their  validity,  even  in  the 
hands  of  a bona  fide  holder.  Starin  v.  Town  of  Genoa,  23  N.  Y.  438;  Craig  v. 
Town  of  Andes,  93  N.  Y.  405. 

Services  in  sale  of  bonds.  An  express  power  in  a board  of  water  commission- 
ers to  sell  water  bonds  carries  with  it  the  implied  power  to  employ  such  reason- 
able or  proper  assistance  as  may  be  requisite  to  bring  about  an  advantageous 
sale;  and  this  power  is  not  limited  to  the  employment  of  a broker  to  sell  the 
bonds.  Armstrong  v.  Village  of  Ft.  Edward,  159  N.  Y.  315;  53  N.  E.  1116,  revg. 
84  Hun,  261,  32  N.  Y.  Supp.  433. 


1064: 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  § 11. 

entered,  of  all  bonds  converted  from  coupon  into  registered  bonds.  A bond  to 
which  no  coupons  are  attached  may  be  registered,  at  the  request  of  the  payee, 
in  the  books  so  kept  in  the  office  of  such  clerk,  and  a certificate  of  such  regis- 
try shall  be  indorsed  upon  the  bond  by  such  clerk,  and  attested  by  his  seal,  if 
he  has  one.  The  clerk  shall  be  entitled  to  a fee  of  twenty-five  cents  for  each 
bond  so  registered.  The  principal  and  interest  of  a registered  municipal  bond 
shall  be  payable  only  to  the  payee,  his  legal  representatives,  successors  or  as- 
signs, and  shall  be  transferable  only  upon  presentation  to  such  clerk,  with  a, 
written  assignment  duly  acknowledged  or  approved.  The  name  of  the  assignee 
shall  be  entered  upon  such  bond  so  transferred  and  the  books  so  kept  in  the 
office  of  the  clerk.  It  shall  be  the  duty  of  the  clerk  or  other  officer  having  charge 
of  the  office  where  such  registry  is  kept,  to  transmit  a statement  of  such 
indebtedness  to  the  clerk  of  the  board  of  supervisors  of  the  county  in  which 
such  office  is  situated,  annually,  on  or  before  the  first  day  of  November.  Except 
that  in  cities  of  the  second  class,  the  books  of  the  municipal  corporation  an 
which  there  shall  be  entered  a description  of  the  amount,  rate  of  interest,  class, 
number,  date  of  issue,  pursuant  to  what  law,  and  the  maturity  of  all  bonds 
issued  by  any  of  its  officers,  and  of  all  bonds  converted  from  coupon  into  regis- 
tered bonds,  as  above  provided,  shall  be  kept* in  the  office  of  the  comptroller  of 
said  city  instead  of  in  the  office  of  the  city  clerk,  and  all  the  duties  to  be  performed 
by  the  clerk  of  the  municipal  corporation,  as  hereinbefore  provided,  shall,  in 
cities  of  the  second  class,  be  performed  by  the  comptroller  of  said  city  instead  of 
by  the  clerk;  and1  all  municipal  bonds  in  cities  of  the  second'  class  shall  be  regis- 
tered with  the  comptroller  instead  of  with  the  clerk.  And,  except  further,  that 
in  the  case  of  the  issuance  of  county  bonds  the  books  in  which  there  shall  be 
entered  a description  of  the  amount,  rate  of  interest,  class,  number,  date  of  issue, 
pursuant  to  what  law,  and  the  maturity  of  all  bonds  issued  by  any  of  its  officers 
and  of  all  bonds  converted  from  coupons  into  registered  bonds,  as  above  provided, 
shall  be  kept  in  the  office  of  the  county  treasurer  of  such  county  and  all  the 
duties  to  be  performed  by  the  clerk  of  the  municipal  corporation,  as  hereinbefore 
provided,  shall,  in  the  case  of  county  bonds,  be  performed  by  the  county  treasurer 
of  such  county;  and  all  such  county  bonds  shall  be  registered  by  the  treasurer  of 
the  county  instead  of  the  clerk  of  such  municipal  orporation.  [General  Municipal 
Law,  § 10,  as  amended  by  L.  1910,  eh.  129,  and  L.  1915,  ch.  382;  B.  C.  & G.  Cons. 
L.,  p.  2113.] 

§ 7.  COUPON  BONDS  MAY  BE  CONVERTED  INTO  REGISTERED 
BONDS. 

When  the  owner  of  coupon  bonds  of  a municipal  corporation  shall  present 

any  such  bonds  to  the  officers  who  issued  the  same,  or  their  successors,  with 

a written  request  for  their  conversion  into  registered  bonds,  such  officer 
shall  cut  off  and  destroy  the  coupons  and  stamp,  print  or  write  upon  each 
of  the  bonds  a statement,  properly  dated,  of  the  amount  and  value  of  such 

coupons,  and  that  the  interest,  at  the  rate  and  on  the  date,  as  was  provided 
by  the  coupons,  as  well  as  the  principal,  is  to  be  paid  to  such  owner,  his 

legal  representatives,  successors  or  assigns,  at  a place  therein  stated,  which 
shall  be  the  place  stated  in  the  coupons,  unless  changed  with  the  written 
consent  of  the  owner;  and  thereupon  such  bonds  may  be  registered  in  the 
office  of  the  clerk  of  the  municipal  corporation.  This  section  shall  not  apply 


Duty  to  provide  for  payment.  It  is  the  duty  of  a town  to  provide  means 
for  the  payment  of  its  bonds  lawfully  issued.  In  case  of  failure  to  perform  this 
duty  the  holder  of  the  bonds  may  maintain  action  against  the  town  thereon, 
even  if  it  is  made  the  duty  of  the  Board  of  Supervisors  to  levy  a tax  to  pay  the 
bonds.  Marsh  v.  Town  Little  Valley,  64  N.  Y.  112. 

Town  bonds  are  not  negotiable  paper.  There  can  be  no  bona  fide  holder 
of  town  bonds  within  the  meaning  of  the  law  applicable  to  negotiable  paper,  as 
they  can  only  be  issued  by  virtue  of  special  authority  conferred  by  some  statute, 
and  are  only  binding  upon  the  town  when  issued  in  a way  pointed  out  by  the 
statute.  Persons  taking  them  must  show  that  the  provisions  of  the  statute  are 
complied  with.  Cagwin  v.  Town  of  Hancock,  84  N.  Y.  532. 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 
General  Municipal  Law,  §§  3,  12,  13. 


1065 


where  provision  is  otherwise  made  by  law  or  local  ordinance,  for  the  con- 
version or  exchange  of  coupon  for  registered  bonds.  [General  Municipal 
Law,  § 11;  B.  C.  & G.  Cons.  L.,  p.  2113.] 

§ 8.  MUNICIPAL  BONDS  NOT  INVALIDATED  BY  CERTAIN  DE- 
FECTS. 

When  the  bonds  of  a municipal  corporation  have  been  issued  and  sold 
by  the  proper  authorities,  and  the  time  fixed  for  their  maturity  shall  be  for 
a longer  period  than  provided  by  the  law  under  which  they  were  issued,  a 
variance  of  not  exceeding  sixty  days  shall  not  affect  their  validity.  [Gen- 
eral Municipal  Law,  § 12 ; B.  C.  & G.  Cons.  L.,  p.  2114.] 

f 9.  LIMITATION  OF  INDEBTEDNESS  OF  TOWN  AND  COUNTY 
UNDER  AUTHORITY  OF  BOARD  OF  SUPERVISORS. 

An  issue  of  town  or  county  obligations  shall  not  be  authorized  when  such 
issue,  with  the  amounts  issued  and  outstanding  under  any  previous  or  other 
authority  of  the  board,  shall  exceed  ten  per  centum  of  the  assessed  valuation 
of  the  real  estate  of  such  town  or  county,  as  it  shall  appear  on  the  last 
assessment-rolls  thereof,  except  that  in  towns  such  obligation  may  be  issued 
in  excess  of  such  amount  with  the  assent  of  a majority  of  the  electors  of 
such  town  whose  credit  is  proposed  to  be  given,  voting  on  the  question  at  a 
regular  town  meeting  of  such  town ; but  in  no  case  shall  the  amount  of  such 
town  obligations,  issued  and  outstanding,  exceed  one-third  of  such  assessed 
valuation.  This  section  shall  not  include  any  case  where  special  authority 
has  been  given  by  the  legislature  to  issue  such  town  obligations  in  excess  of 
the  amounts  herein  authorized.  [County  Law,  § 13 ; B.  C.  & G.  Cons.  L., 
p.  716.] 


§ 10.  LIMITATION  OF  INDEBTEDNESS  IN  COUNTY  CONTAINING 
CITY  OF  MORE  THAN  ONE  HUNDRED  THOUSAND  INHAB- 
ITANTS. 

No  county  containing  a city  of  more  than  one  hundred  thousand  in- 
habitants, nor  any  such  city  shall  contract  any  debt,  the  amount  of  which, 
exclusive  of  its  outstanding  debt  shall  exceed  a sum  equal  to  five  per 
centum  of  the  aggregate  valuation  of  the  real  property  within  its  bounds, 
as  assessed  for  state  and  county  purposes  upon  the  then  last  corrected 
assessment-roll,  nor  shall  it  contract  any  such  debt  if  the  amount  thereof 
inclusive  of  its  outstanding  debts  shall  exceed  a sum  equal  to  ten  per  centum 
of  such  valuation.  This  section  shall  not  be  construed  to  prevent  the  issu- 
ing of  certificates  of  indebtedness  or  revenue  bonds  issued  in  anticipation 
of  the  collection  of  taxes  of  amounts  actually  contained  or  to  be  contained 


1066  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Constitution,  art.  8,  § 10. 

in  the  taxes  for  the  year  when  such  certificates  or  revenue  bonds  are  issued 
and  payable  out  of  such  taxes.  Nor  shall  this  section  be  construed  to  pre- 
vent the  issuing  of  bonds  to  provide  for  the  supply  of  water,  but  the  term  of 
the  bonds  issued  to  provide  for  the  supply  of  water  shall  not  exceed  twenty 
years,  and  the  sinking  fund  shall  be  created  on  the  issuing  of  said  bonds 
for  their  redemption  by  raising  annually  a sum  which  will  produce  an 
amount  equal  to  the  amount  of  the  principal  of  said  sum  and  interest  of 
said  bonds  at  their  maturity.  This  section  shall  not  apply  to  debts  con- 
tracted for  the  purpose  of  retiring  or  paying  any  existing  indebtedness  pur- 
suant to  the  provisions  of  this  chapter.  [General  Municipal  Law,  § 3 ; 
B.  C.  & G.  Cons.  L.,  p.  2108.] 


§11.  CONSTITUTIONAL  PROVISIONS  AS  TO  LOAN  OF  CREDIT  OR 
GIFTS  BY  TOWNS,  CITIES  AND  COUNTIES;  LIMITATION 
OF  INDEBTEDNESS. 

No  county,  city,  town  or  village  shall  hereafter  give  any  money  or  prop- 
erty, or  loan  its  money  or  credit  to  or  in  aid  of  any  individual,  association 
or  corporation,  or  become  directly  or  indirectly  the  owner  of  stock  in,  or 
bonds  of,  any  association  or  corporation;  nor  shall  any  such  county,  city, 
town  or  village  be  allowed  to  incur  any  indebtedness  except  for  county, 
city,  town  or  village  purposes.7 


7.  County,  city  or  town  purposes.  The  credit  of  the  county,  city  or  town 
cannot  be  loaned,  nor  can  any  such  county,  city  or  town  incur  any  indebtedness 
except  for  a county,  city  or  town  purpose.  Such  a purpose  is  one  which  is 
necessary  for  the  common  good  and  general  welfare  of  the  municipality  sanc- 
tioned by  its  citizens,  public  in  character  and  authorized  by  the  legislature. 
Sun  Printing  Co.  v.  Mayor,  152  N.  Y.  257;  46  N.  E.  499.  In  the  case  of  Parsons 
v.  Van  Wyck,  56  App.  Div.  329,  337;  67  N.  Y.  Supp.  1054,  the  court  said: 
“ Speaking  generally,  what  undoubtedly  was  aimed  at  by  the  constitutional 
provision,  was  to  prevent  the  appropriation  of  moneys  raised  by  taxation  for 
private  enterprises  and  purposes  as  distinguished  from  public,  and  although 
every  public  purpose  is  not  necessarily  a city  purpose,  yet  where  the  object 
sought  is  to  promote  the  welfare  of  all  the  citizens  and  the  advantages  to 
be  derived  from  the  proposed  appropriation  are  common  property  and  are 
within  the  legitimate  scope  of  municipal  enterprises  in  the  way  of  securing  the 
advancement,  education,  the  convenience  or  health  of  the  people  and  the  adorn- 
ment of  the  city,  it  is  competent  for  the  legislature  to  authorize  the  expendi- 
ture.” This  remark  is  evidently  as  appropriate  in  the  case  of  a town  or  county 
purpose  as  in  that  of  a city  purpose.  In  this  case  it  was  held  that  an  act 
authorizing  the  construction  of  a soldiers’  monument  and  the  issue  of  bonds  in 
payment  thereof  are  a proper  exercise  of  legislative  function,  and  that  the  bonds 
so  issued  were  for  a legitimate  city  purpose. 

In  the  case  of  Deady  v.  Village  of  Lyon,  39  App.  Div.  139;  57  N.  Y.  Supp.  448, 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


Constitution,  art.  8,  § 10. 


106" 


This  section  shall  not  prevent  such  county,  city,  town  or  village  from 
making  such  provision  for  the  aid  or  support  of  its  poor  as  may  be  author- 
ized by  law.  No  county  or  city  shall  be  allowed  to  become  indebted  for  any 
purpose  or  in  any  manner  to  an  amount  which,  including  existing  indebted- 
ness, shall  exceed  ten  per  centum  of  the  assessed  valuation  of  the  real 
estate  of  such  county  or  city  subject  to  taxation,  as  it  appeared  by  the 
assessment  rolls  of  said  county  or  city  on  the  last  assessment  for  the  state 
or  county  taxes  prior  to  the  incurring  of  such  indebtedness;  and  all  in- 
debtedness in  excess  of  such  limitation,  except  such  as  now  may  exist,  shall 
be  absolutely  void,  except  as  herein  otherwise  provided.  No  county  or  city 
whose  present  indebtedness  exceeds  ten  per  centum  of  the  assessed  valuation 
of  its  real  estate  subject  to  taxation,  shall  be  allowed  to  become  indebted  in 
any  further  amount  until  such  indebtedness  shall  be  reduced  within  such 
limit.  This  section  shall  not  be  construed  to  prevent  the  issuing  of  certifi- 
cates of  indebtedness  or  revenue  bonds  issued  in  anticipation  of  the  col- 
lection of  taxes  for  amounts  actually  contained,  or  to  be  contained  in  the 
taxes  for  the  year  when  such  certificates  or  revenue  bonds  are  issued  and 
payable  out  of  such  taxes;  nor  to  prevent  the  city  of  New  York  from  issuing 
bonds  to  be  redeemed  out  of  the  tax  levy  for  the  year  next  succeeding  the 
year  of  their  issue,  provided  that  the  amount  of  such  bonds  which  may  be 
issued  in  any  one  year  in  excess  of  the  limitations  herein  contained  shall 
not  exceed  one-tenth  of  one  per  centum  of  the  assessed  valuation  of  the  real 
estate  of  said  city  subject  to  taxation.  Nor  shall  this  section  be  construed 
to  prevent  the  issue  of  bonds  to  provide  for  the  supply  of  water;  but  the 
term  of  the  bonds  issued  to  provide  the  supply  of  water,  in  excess  of  the 
limitation  of  indebtedness  fixed  herein,  shall  not  exceed  twenty  years,  and 
a sinking  fund  shall  be  created  on  the  issuing  of  the  said  bonds  for  their 
redemption,  by  raising  annually  a sum  which  will  produce  an  amount  equal 
to  the  sum  of  the  principal  and  interest  of  said  bonds  at  their  maturity. 
All  certificates  of  indebtedness  or  revenue  bonds  issued  in  anticipation  of 
the  collection  of  taxes,  which  are  not  retired  within  five  years  after  their 
date  of  issue,  and  bonds  issued  to  provide  for  the  supply  of  water,  and  any 
debt  hereafter  incurred  by  any  portion  or  part  of  a city  if  there  shall  be 
any  such  debt,  shall  be  included  in  ascertaining  the  power  of  the  city  to 
become  otherwise  indebted;  except  that  debts  incurred  by  the  city  of  New 


it  was  held  that  an  expenditure  of  money  by  a village  for  the  purpose  of  re- 
taining a county  court  house  therein,  and  preventing  its  removal  to  another 
village,  is  in  violation  of  the  provisions  of  the  above  section  to  the  effect  that 
no  county,  city,  town  or  village  shall  “ give  any  money  or  property,  or  loan 
its  money  or  credit  to,  or  in  aid  of,  any  individual,  association  or  corporation;  ” 
this  prohibition  includes  gifts  to  public  as  well  as  to  private  corporations. 


1068  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Constitution,  art.  8,  § 10. 

York  after  the  first  day  of  January,  nineteen  hundred  and  four,  and  debts 
incurred  by  any  city  of  the  second  class  after  the  first  day  of  January, 
nineteen  hundred  and  eight,  and  debts  incurred  by  any  city  of  the  third 
class  after  the  first  day  of  January,  nineteen  hundred  and  ten,  to  provide 
for  the  supply  of  water,  shall  not  be  so  included;  and  except  further  that 
any  debt  hereafter  incurred  by  the  city  of  Yew  York  for  a public  improve- 
ment owned  or  to  be  owned  by  the  city,  which  }delds  to  the  city  current  net 
revenue,  after  making  any  necessary  allowance  for  repairs  and  maintenance 
for  which  the  city  is  liable,  in  excess  of  the  interest  on  said  debt  and  of  the 
annual  instalments  necessary  for  its  amortization  may  be  excluded  in 
ascertaining  the  power  of  said  city  to  become  otherwise  indebted,  pro- 
vided that  a sinking  fund  for  its  amortization  shall  have  been  established 
and  maintained  and  that  the  indebtedness  shall  not  be  so  excluded  during 
any  period  of  time  when  the  revenue  aforesaid  shall  not  be  sufficient  to  equal 
the  said  interest  and  amortization  instalments,  and  except  further  that 
any  indebtedness  heretofore  incurred  by  the  city  of  Yew  York  for  any  rapid 
transit  or  dock  investment  may  be  so  excluded  proportionately  to  the  extent 
to  which  the  current  net  revenue  received  by  said  city  therefrom  shall  meet 
the  interest  and  amortization  instalments  thereof,  provided  that  any  in- 
crease in  the  debt  incurred  power  of  the  city  of  Yew  York  which  shall  result 
from  the  exclusion  of  debts  heretofore  incurred  shall  be  available  only  for 
the  acquisition  or  construction  of  properties  to  be  used  for  rapid  transit  or 
dock  purposes.  The  legislature  shall  prescribe  the  method  by  which  and 
the  terms  and  conditions  under  which  the  amount  of  any  debt  to  be  so 
excluded  shall  be  determined,  and  no  such  debt  shall  be  excluded  except  in 
accordance  with  the  determination  so  prescribed.  The  legislature  may  in  its 
discretion  confer  appropriate  jurisdiction  on  the  appellate  division  of  the  su- 
preme court  in  the  first  judicial  department  for  the  purpose  of  determining 
the  amount  of  any  debt  to  be  so  excluded.  Yo  indebtedness  of  a city  valid 
at  the  time  of  its  inception  shall  thereafter  become  invalid  by  reason  of  the 
operation  of  any  of  the  provisions  of  this  section.  Whenever  the  boundaries 
of  any  city  are  the  same  as  those  of  a county,  or  when  any  city  shall  include 
within  its  boundaries  more  than  one  county,  the  power  of  any  county  wholly 
included  within  such  city  to  become  indebted  shall  cease,  but  the  debt  of 
the  county,  heretofore  existing,  shall  not,  for  the  purposes  of  this  section, 
be  reckoned  as  a part  of  the  city  debt.  The  amount  hereafter  to  be  raised 
by  tax  for  county  or  city  purposes,  in  any  county  containing  a city  of  over 
one  hundred  thousand  inhabitants,  or  any  such  city  of  this  state,  in  addi- 
tion to  providing  for  the  principal  and  interest  of  existing  debt,  shall  not 
in  the  aggregate  exceed  in  any  one  year  two  per  centum  of  the  assessed 
valuation  of  the  real  and  personal  estate  of  such  county  or  city,  to  be  ascer- 
tained as  prescribed  in  this  section  in  respect  to  county  or  city  debt.  [Con- 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1069 


County  Law,  § 14;  General  Municipal  Law,  § 52. 

etitution,  art.  8,  § 10,  as  amended  by  vote  of  the  people,  November,  1909. 
in  effect  January  1,  1910.] 

§ 12.  RESOLUTIONS  OF  BOARDS  OF  SUPERVISORS  AUTHORIZING 
ISSUE  OF  OBLIGATIONS  BY  TOWN  OR  COUNTY  OFFICERS. 

Every  resolution  of  any  such  board,  authorizing  the  issue  of  such  obliga- 
tions, shall  specify  the  form  thereof,  the  place  of  payment,  in  annual  instal- 
ments or  otherwise,  within  a period  not  exceeding  thirty  years  from  the 
date  of  such  obligation,  and  the  rate  of  interest  to  be  paid  thereon,  not  ex- 
ceeding the  legal  rate;  and  no  such  obligation  shall  be  sold  for  less  than 
par.  Such  resolution  shall  also  contain  a provision  requiring  adequate 
security  to  be  given  by  the  officer,  or  board  of  officers  authorized  to  issue 
such  obligations,  for  the  faithful  performance  of  his,  or  their  duty,  in  issu- 
ing the  same,  and  the  lawful  application  of  the  funds  arising  therefrom, 
and  of  the  funds  which  may  be  raised  by  tax  for  the  payment  thereof,  which 
may  come  into  their  hands.8  [County  Law,  § 14;  B.  C.  & G.  Cons.  L., 
p.  717.] 

§ 13.  ACTIONS  BY  BOND  HOLDERS  AND  MUNICIPAL  CORPORA- 
TIONS AGAINST  OFFICERS  FOR  MISFEASANCE,  MALFEAS- 
ANCE OR  NEGLIGENCE  OF  OFFICERS  IN  RELATION  TO  THE 
ISSUE  OF  MUNICIPAL  BONDS. 

Recovery  against  officer  by  bona  fide  holder. — Any  bona  fide  purchaser 
and  holder  of  any  bonds  or  other  obligations  for  the  payment  of  money 
payable  to  bearer  and  transferable  by  delivery,  and  any  such  purchaser  and 
holder  of  any  interest-bearing  coupon  or  obligation  originally  attached  to 
such  bonds,  which  said  bonds  or  coupons  shall  have  been  issued  or  put  in 
circulation  by  means  of  the  misfeasance,  malfeasance,  or  negligence  of  any 
public  officer,  of  any  of  the  civil  or  municipal  divisions  of  this  state,  whose 
right  of  recovery  or  cause  of  action  upon  any  such  bond  or  coupon  has 
been,  or  shall  be  determined  by  the  judgment  of  a court  of  competent 
jurisdiction  in  any  suit  or  action,  or  who  has  been  or  shall  be  a privy  to 
such  suit  or  action,  may  within  three  years  after  the  determination  of  said 
right  of  recovery  and  cause  of  action  begin  an  action  against  such  officer, 
and  recover  all  damages  which  said  purchaser,  holder  or  privy  shall  have 


8.  For  form  of  resolution  of  board  of  supervisors  authorizing  the  issue  of 
town  and  county  obligations,  see  Form  No.  115,  post. 

Section  prescribes  form  and  term  of  obligations,  which  shall  not  exceed  thirty 
years,  and  limits  the  rate  of  interest  to  the  legal  rate.  Ghiglione  v.  Marsn,  23 
App.  Div.  61,  48  N.  Y.  Supp.  604. 


1070 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  §§  53-55. 

suffered  because  of  the  misfeasance,  malfeasance  or  negligence  of  such  public 
officer.  [General  Municipal  Law,  § 52;  B.  C.  & G.  Cons.  L.,  p.  2128.] 
Recovery  against  officer  by  municipal  corporation. — Any  municipal  cor 
poration  within  this  state,  or  any  civil  division  of  this  state,  which 
has  been  or  shall  be  compelled  to  pay  any  negotiable  bond,  or  any  cou- 
pon originally  attached  to  such  bond,  by  the  judgment  of  a court  of 
competent  jurisdiction,  because  of  the  misfeasance,  malfeasance,  or  neg- 
ligence of  any  public  officer  or  agent  of  such  municipal  corporation  or 
civil  division,  may  within  three  years  from  the  time  when  such  payment 
shall  have  been  compelled  as  aforesaid,  begin  an  action  against  any  such 
officer  in  any  court  of  competent  jurisdiction  and  recover  the  amount  so 
paid  with  interest  from  the  time  of  such  payment.  [General  Municipal 
Law,  § 53 ; B.  C.  & G.  Cons.  L.,  p.  2129.] 

Statute  of  limitations. — No  limitation  of  the  time  for  commencing  an 
action  shall  affect  any  of  the  actions  hereinbefore  mentioned  except  as  herein, 
provided,  and  in  such  action  an  order  of  arrest  and  an  execution  against 
the  person  of  the  defendant  may  be  issued  in  the  manner  and  form  pro- 
vided by  the  Code  of  Civil  Procedure  against  a person  who  shall  have 
wrongfully  misappropriated  money  held  by  him  in  a fiduciary  capacity. 
[General  Municipal  Law,  § 54;  B.  C.  & G.  Cons.  L.,  p.  2129.] 

Appeals. — In  any  suit  or  action  upon  any  coupon  hereinbefore  men- 
tioned, or  upon  any  bonds  hereinbefore  mentioned,  or  to  recover  any  damages 
hereinbefore  mentioned,  any  party  to  such  action  shall  have  and  is  hereby 
granted  a right  of  appeal,  to  the  general  term  or  appellate  division  of  the 
Supreme  Court  from  the  judgment  of  any  trial  court,  or  to  the  Court  of 
Appeals  from  any  judgment  of  the  general  term  or  of  the  appellate  division 
of  the  Supreme  Court,  althongh  the  amount  in  controversy  in  such  action 
has  been  or  may  be,  less  than  five  hundred  dollars.  Appeals  from  any 
inferior  court  to  any  appellate  court,  including  an  appeal  to  the  Court  of 
Appeals  although  the  amount  in  controversy  may  be  less  than  five  hundred 
dollars,  from  any  judgment  in  any  suit  or  action  to  recover  against  any 
municipal  corporation  or  civil  division  of  this  state  upon  any  negotiable 
bonds  or  upon  any  coupon  originally  attached  thereto,  issued  or  put  in  circu- 
lation by  the  agents  or  officers  of  such  municipal  corporation  or  civil  di- 
vision of  this  state,  may  be  taken  by  any  person  who  has  been  or  shall  be 
bound  as  a privy  by  such  judgment  within  sixty  days  after  such  privy  shall 
have  been  served  by  any  of  the  parties  to  such  civil  action,  with  a copy  of 
the  said  judgment  and  with  a written  notice  of  the  entry  thereof,  and  said 
appeal  may  be  taken  in  the  name  of  such  party  without  entering  an  order 
of  substitution  as  such  party  by  said  person  so  bound  as  a privy,  upon  his 
giving  the  security  and  serving  the  notices  of  appeal  prescribed  by  the 
Code  of  Civil  Procedure  concerning  an  appeal  by  a party  to  such  an  action, 
and  also  upon  giving  to  the  party  in  whose  name  such  an  appeal  is  taken 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1071 


General  Municipal  Law,  § 16. 

an  undertaking  with  two  sufficient  sureties  conditioned  in  the  penal  sum  of 
five  hundred  dollars,  to  save  such  party  to  such  action  in  whose  name  such 
appeal  shall  be  taken  harmless  of  and  from  all  costs  and  disbursements 
which  may  be  recovered  against  him  upon  such  appeal,  which  said  under- 
taking shall  be  approved  as  to  its  form  and  as  to  the  sufficiency  of  the 
sureties  thereon  by  justices  of  the  Supreme  Court.  Said  appeal  when  so 
taken  by  said  privy  shall  be  conducted  and  determined  in  the  same  manner 
as  if  taken  by  said  party  of  the  said  action,  except  as  herein  otherwise  pro- 
vided. [General  Municipal  Law,  § 55;  B.  C.  & G.  Cons.  L.,  p.  2129.] 

§ 14.  BOARD  OF  SUPERVISORS  MAY  ABOLISH  OFFICE  OF  RAIL- 
ROAD COMMISSIONER. 

The  board  of  supervisors  of  any  county  may,  upon  the  application  of  the 
auditing  board  of  any  municipal  corporation  therein,  by  resolution,  abolish 
the  office  of  rairoad  commissioners  of  such  municipal  corporation,  and 
direct  the  manner  of  the  transfer  of  their  duties  to  the  supervisor  of  the 
town,  or  the  treasurer  of  the  municipal  corporation  other  than  a town,  and 
upon  his  compliance  with  such  directions,  such  transferee  shall  be  vested 
with  all  the  powers  conferred  upon  such  railroad  commissioners  and  subject 
to  all  the  duties  imposed  upon  them.9 10  [General  Municipal  Law,  § 16;  B. 
C.  & G.  Cons.  L.,  p.  2117.] 


9.  Right  of  appeal.  The  provision  of  the  act  for  the  protection  of  bona  fide 
holders  of  negotiable  municipal  bonds  put  in  circulation  through  official  mis- 
feasance to  the  effect  that  a party  or  privy  of  a party  to  any  action  upon  such 
bonds,  or  upon  coupons  thereof  is  given  a right  of  appeal  to  the  several  appel- 
late courts  of  the  state,  including  “ an  appeal  to  the  Court  of  Appeals,  although 
the  amount  in  controversy  may  be  less  than  $500,”  applies  to  those  actions  only 
in  which  the  right  of  appeal  had  not  been  exhausted  when  the  act  was  passed. 
Germania  Sav.  Bank  v.  Supension  Bridge,  159  N.  Y.  362;  54  N.  E.  33. 

10.  Office  of  railroad  commissioner  abolished.  The  above  section  of  the 
General  Municipal  Law  was  inserted  as  a new  section  by  the  Statutory  Revision 
Commission.  See  report  of  Statutory  Revision  Commission,  1892.  General 
Municipal  Law,  §§  226-230,  authorizes  towns  having  railroad  commissioners  to 
transfer  the  powers  and  duties  of  such  officers  to  the  supervisors  of  such  towns, 
and  to  abolish  the  office  of  railroad  commissioner.  The  above  section  of  the 
General  Municipal  Law  would  seem  to  provide  additional  means  for  abolishing 
the  office  of  railroad  commissioner,  and  notwithstanding  this  enactment  action 
may  properly  be  taken  under  §§  226-230.  Such  sections  are,  therefore,  inserted 
and  are  as  follows: 

“ Transfer  of  powers  of  railroad  commissioner  to  supervisor.  Every  town 
in  which  railroad  commissioners  heretofore  appointed  or  elected  under  the 
provisions  of  any  general  or  special  statute  of  this  state  authorizing  towns  to 
incur  indebtedness  in  aid  of  the  construction  of  any  railroad,  remain  in  office, 
and  in  which  the  duties  imposed  by  such  statutes,  upon  such  commissioners,  are 


1072  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 

General  Municipal  Law,  § 14. 

§ 15.  COUNTY  JUDGE  TO  APPOINT  COMMISSIONERS;  TERM  OP 
OFFICE;  COMPENSATION. 

The  county  judge  of  any  county  within  which  is  a municipal  corporation 
having  or  being  entitled  to  have  railroad  commissioners,  on  October  first, 
eighteen  hundred  and  ninety-two,  and  in  which  the  duties  imposed  upon 


not  yet  fully  performed,  is  hereby  authorized  and  empowered,  at  an  annual 
town  meeting,  or  at  a special  town  meeting  called  for  such  purpose  in  the 
manner  prescribed  by  law,  to  authorize  the  transfer  of  the  powers  and  duties 
of  such  railroad  commissioner  or  commissioners  to  the  supervisor  of  such  town, 
by  a resolution  to  such  effect  passed  and  adopted  by  a majority  vote  of  all  per- 
sons voting  at  such  town  meeting.  [General  Municipal  Law,  § 226;  B.  C.  & G. 
Cons  L.,  p.  2152.] 

“ Supervisor’s  bond.  Within  twenty  days  after  the  passage  of  such  resolution 
at  such  town  meeting  the  said  supervisor  shall  file  in  the  office  of  the  town 
clerk  of  said  town  a bond  running  to  the  people  of  the  state  of  New  York,  exe- 
cuted by  himself  and  two  or  more  sureties,  in  a penalty  to  be  fixed  by  the  board 
of  town  auditors  of  said  town  as  hereinafter  provided,  and  conditioned  for  the 
faithful  performance  of  the  duties  of  railroad  commissioners  transferred  to  him 
under  said  resolution,  and  the  payment  over  according  to  law  of  all  moneys 
coming  into  his  hands  by  reason  of  such  transfer;  such  bonds  also  to  be  ap- 
proved as  to  form  and  sufficiency  of  sureties  by  the  county  judge  of  the  county 
in  which  said  town  is  located.  [General  Municipal  Law,  § 227;  B.  C.  & G.  Cons. 
L.,  p.  2152.] 

“ Transfer,  when  to  take  effect.  Forthwith,  upon  the  filing  of  such  bond  as 
aforesaid,  the  town  clerk  of  the  town  shall  indorse  upon  copies  of  such  bond 
to  be  provided  by  the  said  supervisor,  a certificate  to  the  effect  that  the  said 
bond  has  been  filed  in  the  office  of  such  town  clerk,  and  said  supervisor  shall 
serve  such  copies  and  certificate  upon  the  railroad  commissioners  respectively, 
and  thereupon  it  shall  be  the  duty  of  such  railroad  commissioners  to  pay  over 
to  such  supervisor  all  moneys  remaining  in  their  hands  as  railroad  commis- 
sioners of  such  town,  and  to  deliver  all  books,  papers,  securities  and  other  prop- 
erty belonging  to  said  town  and  remaining  in  their  hands  as  such  commissioners 
unto  the  said  supervisor,  and  to  take  his  receipt  therefor,  which  receipt  shall  be 
to  them  a proper  and  sufficient  voucher.  Immediately  upon  the  delivery  of 
said  moneys  and  property  by  the  said  railroad  commissioners  to  the  super- 
visor, as  aforesaid,  and  in  the  manner  aforesaid,  the  office  of  railroad  com- 
missioner of  such  town  shall  wholly  cease,  and  the  said  supervisor  shall  there- 
upon be  invested  with  all  the  powers  conferred  upon  such  railroad  commissioners 
by  the  statute  and  proceedings  under  and  by  which  they  were  appointed,  and 
shall  be  subject  to  all  the  duties  imposed  upon  such  commissioners  by  such  stat- 
ute, and  all  securities  and  evidences  of  debt  transferred  by  said  commissioners 
to  said  supervisor  as  aforesaid,  which  by  the  terms  thereof  are  payable  to  the 
said  railroad  commissioners,  shall  be  paid  when  due  to  said  supervisor,  upon  his 
indorsement  as  supervisor,  in  the  same  manner  and  to  the  same  effect  as  if 
indorsed  by  said  railroad  commissioners.  [General  Municipal  Law,  § 228;  B.  C. 
and  G.  Cons.  L.,  p.  2153.] 

“ Amount  of  bond,  how  fixed.  The  board  of  town  auditors  shall  meet  for ’the 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1073 


General  Municipal  Law,  § 15. 

such  commissioners  are  not  fully  performed,  shall  continue  to  appoint  and 
commission,  upon  the  application  of  twenty  freeholders  within  such  corpo- 
ration, three  persons,  who  shall  be  freeholders  and  resident  taxpayers 
therein,  commissioners  for  the  purpose  of  performing  the  duties  and  com- 
pleting the  business  required  of  them  pursuant  to  this  chapter  or  any  law. 
Such  commissioners  shall  hold  their  office  for  five  years,  and  until  others 
are  appointed  by  the  county  judge,  unless  their  duties  shall  be  sooner  per- 
formed, or  the  office  shall  be  abolished,  who  shall  also,  in  like  manner,  fill 
any  vacancies  that  may  exist  therein.  Such  commissioners  shall  each  re- 
ceive the  sum  of  three  dollars  per  day  for  each  day  actually  engaged  in  the 
discharge  of  their  duties,  and  the  necessary  disbursements  to  be  audited  and 
paid  by  the  usual  auditing  and  disbursing  officers  of  such  municipal  corpo- 
ration. A majority  of  such  commissioners,  at  a meeting  of  which  all  have 
notice,  shall  constitute  a quorum.11  [General  Municipal  Law,  § 14 ; B.  C.  & 
G.  Cons.  L.,  p.  2116.] 

§ 16.  OATH  AND  UNDERTAKING  OF  COMMISSIONERS. 

Before  entering  upon  their  duties  such  commissioners  shall  take  the 


purpose  of  fixing  the  penalty  of  the  bond  of  said  supervisor,  as  provided  in 
section  two  hundred  and  twenty-seven  of  this  article,  at  the  office  of  the  town 
clerk  within  ten  days  after  the  town  meeting  at  which  the  resolution  herein- 
before provided  for  was  passed,  upon  a day  to  be  fixed  by  said  town  clerk, 
whereof  each  member  of  said  board  shall  be  notified  by  said  clerk  either  person- 
ally or  by  mail,  at  least  three  days  before  the  time  fixed  for  said  meeting.  In  fix- 
ing the  penalty  of  the  bond  to  be  given  by  said  supervisor  under  the  provisions 
of  section  two  hundred  and  twenty-seven  of  this  article,  said  board  of  town  au- 
ditors shall  take  into  consideration  the  amount  of  moneys  likely  to  come  into 
the  hands  of  such  supervisor  by  reason  of  the  additional  duties  imposed  upon 
him  by  this  article.  Hereafter,  in  a town  in  which  the  duties  of  railroad  com- 
missioner have  been  transferred  to  the  supervisor,  the  general  bond  given  by 
such  officer,  conditioned  to  safely  hold  and  pay  over  all  moneys  coming  into  his 
hands  and  belonging  to  said  town,  shall  be  deemed  to  include  and  be  a security 
for  the  payment  over  of  all  moneys  coming  into  the  hands  of  such  supervisor 
under  and  by  reason  of  the  provisions  of  this  article.  [General  Municipal  Law, 
§ 229;  B.  C.  and  G.  Cons.  L.,  p.  2154.] 

“ Additional  compensation  of  supervisor.  For  the  performance  of  the  addi- 
tional duties  devolved  upon  him  under  the  provisions  of  this  article,  such 
supervisor  shall  be  entitled  to  reasonable  compensation,  to  be  fixed  by  the 
board  of  town  auditors  of  such  town.”  [General  Municipal  Law,  § 230;  B.  C.  and 
G.  Cons.  L.,  p.  2154.1 

11.  Commissioners  not  town  officers.  Under  the  former  law  it  was  held  that 
town  commissioners  are  not  town  officers  and  that  a town  was  not  bound  by  the 
acts  of  its  commissioners  beyond  the  authority  of  the  act  under  which  they  were 
appointed.  Horton  v.  Town  of  Thompson,  71  N.  Y.  513. 


1074  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  §§  17,  18. 

constitutional  oath  of  office,  and  make  and  file  with  the  county  clerk 
of  their  county,  their  joint  and  several  undertaking,  with  two  or  more 
sureties  to  be  approved  by  the  county  judge  of  their  county,  to  the  effect 
that  they  will  faithfully  discharge  their  duties  as  such  commissioners, 
and  truly  keep,  pay  over  and  account  for  all  moneys  belonging  to  such 
corporation  coming  into  their  hands.  [General  Municipal  Law,  § 15; 
B.  C.  & G.  Cons.  L.,  p.  2117.] 

§ 17.  WHEN  RAILROAD  STOCK  AND  BONDS  MAY  BE  SOLD  OR  EX- 
CHANGED; DISPOSITION  OF  PROCEEDS  OF  SALE. 

The  railroad  commissioners  or  officers  of  a municipal  corporation,  having 
the  lawful  charge  and  control  of  any  railroad  stock  or  bonds,  for  or  in 
payment  of  which  the  bonds  of  such  municipal  corporation  have  been  law- 
fully issued  in  aid  of  such  railroad  corporation,  may  exchange  the  stock 
or  bonds  of  such  railroad  corporation  for  and  in  payment  of  such  bonds, 
or  the  new  substituted  bonds  of  such  municipal  corporation,  when 
such  exchange  can  be  made  for  not  less  than  the  par  value  of  the  stocks 
or  bonds  so  held  by  them.  If  they  cannot  make  such  exchange  they  may 
sell  such  stocks  or  bonds  at  not  less  than  par;  but  they  may,  on  the 
application  and  with  the  approval,  of  the  governing  board  of  the  muni- 
cipal corporation,  owning  such  stock  or  bonds,  exchange,  sell  or  dispose  of 
such  stock  or  bonds,  at  the  best  price  and  upon  the  best  terms  obtainable, 
for  the  municipal  corporation  they  represent,  and  shall  execute  to  the 
purchaser  the  necessary  transfers  therefor.  All  moneys  received  for  any 
stock  or  bonds  shall  only  be  applied  to  the  payment  and  extinguishment 
of  the  bonds  of  the  municipal  corporation,  lawfully  issued  in  aid  of  any 
such  railroad,  or  substituted  therefor;  except  that  if  the  bonds  so  issued 
or  substituted  have  all  been  paid,  or  the  moneys  so  realized  shall  be  more 
than  sufficient  to  pay  them  in  full,  and  all  the  costs  and  expenses  of  the 
sale,  such  proceeds  or  balance  thereof  shall  be  paid  by  the  officers  making 
the  sale,  to  the  supervisor  of  the  town,  or  the  treasurer  of  the  municipal 
corporation,  and  applied  to  such  lawful  uses  as  the  governing  board  of 
the  municipal  corporation,  entitled  to  the  same,  may  direct.  The  pro- 
visions of  this  section  shall  apply  to  all  such  commissioners  or  officers 
of  a muunicipal  corporation  elected  or  appointed  or  acting  under  the 
provisions  of  any  special  act,  and  the  authority  hereby  conferred  shall 
not  be  limited  by  the  provisions  of  any  such  special  act.  [General 
Municipal  Law,  § 17;  B.  C.  & G.  Cons.  L.,  p.  2117.] 


§ 18.  ANNUAL  REPORT  OF  RAILROAD  COMMISSIONERS  AND  PAY- 
MENT OF  RAILROAD  BONDS. 

The  railroad  commissioners  of  a municipal  corporation,  having  in  charge 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1075 


General  Municipal  Law,  §§  19,  20. 

the  moneys  received  and  collected,  and  who  are  responsible  for  the  pay- 
ment of  the  interest  of  the  bonds  lawfully  issued  by  such  municipal  cor- 
poration, in  aid  of  railroads,  shall  annually  report  to  the  governing  board 
of  the  municipal  corporation,  the  total  amount  of  the  municipal  indebted- 
ness of  the  municipal  corporation  they  represent,  upon  such  bonds  or  such 
new  bonds  substituted  therefor,  the  date  of  the  bonds  and  when  payable, 
the  rate  of  interest  thereon,  the  acts  under  which  they  were  issued,  the 
amount  of  principal  and  interest  that  will  become  due  thereon  before  the 
next  annual  tax  levy  and  collection  of  taxes  for  the  next  succeeding  year, 
and  the  amount  in  their  hands  applicable  to  the  payment  of  the  principal 
or  interest  thereon.  Each  year  such  governing  board  shall  levy  and  collect 
of  the  municipal  corporation  sufficient  money  to  pay  such  principal  and 
interest,  as  the  same  shall  become  due  and  payable.  When  collected,  such 
moneys,  with  the  unpaid  sums  on  hand,  shall  be  forthwith  paid  over  to 
such  commissioners,  and  applied  by  them  to  the  purposes  for  which  col- 
lected or  held.  When  paid,  such  bonds  shall  be  presented  by  such  railroad 
commissioners  to  the  governing  board  of  the  municipal  corporation,  at 
least  five  days  before  the  annual  town  meeting,  village  or  city  election,  or 
meeting  of  the  board  of  supervisors,  next  thereafter  held,  who  shall  cancel 
the  same,  and  make  and  file  a record  thereof  in  the  clerk’s  office  of  the 
municipal  corporation,  whose  bonds  were  so  paid  or  cancelled.  [General 
Municipal  Law,  § 18;  B.  C.  & G.  Cons.  L.,  p.  2118.] 


§ 19.  ACCOUNTS  AND  LOANS  BY  RAILROAD  COMMISSIONERS. 

Such  railroad  commissioners  shall  present  to  the  auditing  board  of  the 
municipal  corporation  they  represent,  at  each  annual  meeting  of  such 
board,  a written  statement  or  report,  showing  all  their  receipts  and  ex- 
penditures, with  vouchers.  They  shall  also  loan  on  proper  security  or 
collaterals,  or  deposit  in  some  solvent  bank  or  banking  institutions,  at  the 
best  rate  of  interest  they  can  obtain,  or  invest  in  the  bonds  of  the  muni- 
cipal corporation  they  represent,  or  in  bonds  of  the  state,  or  of  any  town, 
village,  city  or  county  therein,  issued  pursuant  to  law,  or  in  the  bonds 
of  the  United  States,  all  moneys  that  shall  come  into  their  hands  by  virtue 
of  their  office,  and  not  needed  for  current  liabilities;  and  all  earnings, 
profits  or  interest  accruing  from  such  loans,  deposits  or  investments,  shall 
be  credited  to  the  municipal  corporation  they  represent,  and  accounted 
for  in  their  annual  settlement  with  the  governing  board  thereof.  [General 
Municipal  Law,  § 19;  B.  C.  & G.  Cons.  L.,  p.  2118.] 

§ 20.  RE-ISSUE  OF  LOST  OR  DESTROYED  BONDS. 

When  any  bonds  lawfully  issued  by  a municipal  corporation  in  aid 


1076  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  §§  70,  71. 

of  any  railroad,  or  in  substitution  for  bonds  so  issued,  shall  be  lost  or 
destroyed,  the  railroad  commissioners  may  issue  new  bonds  in  the  place  of 
the  ones  so  lost  or  destroyed,  at  the  same  rate  of  interest,  and  to  become 
payable  at  the  same  time,  upon  the  owner  furnishing  satisfactory  proof 
by  affidavit,  of  such  ownership,  and  loss  or  destruction,  and  a written 
indemnity,  with  at  least  two  sureties,  approved  as  to  form  and  sufficiency, 
by  the  county  judge  of  the  county  in  which  such  municipal  corporation 
is  situated.  Every  new  bond  so  issued  shall  state  upon  its  face  the  number 
and  denomination  of  the  bond  for  which  it  is  issued,  that  it  is  issued 
in  the  place  of  such  bond  claimed  to  have  been  lost  or  destroyed,  that  it 
is  issued  as  a duplicate  thereof,  and  that  but  one  is  to  be  paid.  Such 
affidavit  and  indemnity,  duly  indorsed,  shall  be  immediately  filed  in  the 
county  clerk’s  office.  [General  Municipal  Law,  § 20;  B.  C.  & G.  Cons. 
L.,  p.  2119.] 

§ 21.  PAYMENT  OF  JUDGMENTS  AGAINST  TOWN  OR  COUNTY. 

When  a final  judgment  for  a sum  of  money  shall  be  recovered  against  a municipal 
corporation,  and  the  execution  thereof  shall  not  be  stayed  pursuant  to  law,  or  the 
time  for  such  stay  shall  have  expired,  the  treasurer  or  other  financial  officer  of  such 
corporation  having  sufficient  moneys  in  his  hands  belonging  to  the  corporation  not 
otherwise  specifically  appropriated,  shall  pay  such  judgment  upon  the  production 
of  a certified  copy  of  the  docket  thereof.12  [General  Municipal  Law,  § 70;  B.  C.  & 
G.  Cons.  L.,  p.  2130.] 

§ 21a.  LEVY  OF  TAX  TO  PAY  A FINAL  JUDGMENT. 

If  a final  judgment  for  a sum  of  money,  or  directing  the  payment  of  money  shall 
have  been,  or  shall  hereafter  be  recovered  against  any  county,  town,  city  or  incorpo- 
rated village  within  this  state,  and  the  same  remains,  or  shall  hereafter  remain 
unpaid,  and  the  execution  thereof  is  not,  or  shall  not  be  stayed  as  required  by  law, 
or  if  so  stayed,  the  stay  has  expired,  or  shall  hereafter  expire,  it  shall  be  the  duty 
of  the  board  of  supervisors,  if  the  judgment  is,  or  shall  be,  recovered  against  a 
county  or  town,  or  of  the  common  council  of  the  city,  or  the  board  of  trustees  of 
the  village,  if  the  judgment  is,  or  shall  be,  recovered  against  a city  or  an  incorporated 
village,  and  the  said  board  of  supervisors,  common  council  or  board  of  trustees  is 
hereby  empowered  to  assess,  levy,  and  cause  to  be  collected  at  the  same  time  and  in 
like  manner  as  other  moneys  for  the  necessary  expense  of  the  county,  town,  city  or 
village,  as  the  case  may  be,  are  then  next  thereafter  to  be  assessed,  levied  and  col- 
lected, and  in  addition  to  the  moneys  now  authorized  by  law  to  be  assessed,  levied 
and  collected  for  that  purpose,  a sum  of  money  sufficient  to  pay  the  said  judgment 
with  the  interest  thereupon,  .and  the  fees  and  expenses  chargeable  by  law  upon  the 
execution,  if  any,  issued  to  collect  the  same.  The  moneys  so  assessed  and  levied 
as  soon  as  collected  and  paid  to  the  proper  receiving  and  disbursing  officer,  or  so 
much  thereof  as  may  be  necessary,  shall  from  time  to  time,  be  paid  by  him  to  the 
judgment  creditor,  administrator  or  assignee,  or  other  person  entitled  to  receive 
the  same  by  reason  of  the  said  judgment,  without  any  deduction  for  his  fees  or 
commissions.  [General  Municipal  Law,  § 82.] 

§ 22.  LIABILITY  FOR  DAMAGES  BY  MOBS  AND  RIOTS. 

A city  or  county  shall  be  liable  to  a person  whose  property  is  destroyed  or  injured 
therein  by  a mob  or  riot,  for  the  damages  sustained  thereby,  if  the  consent  or 
negligence  of  such  person  did  not  contribute  to  such  destruction  or  injury,  and  such 
person  shall  have  used  all  reasonable  diligence  to  prevent  such  damage,  shall  have 
notified  the  mayor  of  the  city,  or  sheriff  of  the  county,  of  a threat  or  attempt  to 
destroy  or  injure  his  property  by  a mob  or  riot,  immediately  upon  acquiring  such 
knowledge,  and  shall  bring  an  action  therefor  within  three  months  after  such 

12.  Judgments  against  county  and  town.  By  section  240  of  the  County 
Law,  ante,  p.  37,  a judgment  against  the  county  is  made  a county  charge,  and  by 
section  170  of  the  Town  Law,  ante,  p.  388,  a judgment  against  a town  is  made  a 
town  charge.  Money  may  be  borrowed  by  a town  to  pay  a judgment.  See  Town 
Law,  sec.  139,  post,  p.  399a. 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1077 


' General  Municipal  Law,  § 71. 

damages  were  sustained.  A major  or  sheriff  receiving  notification  of  a 
threat  or  attempt  to  destroy  or  injure  property  by  a mob  or  riot  shall 
take  all  lawful  means  to  protect  such  property;  and  if  he  shall  neglect 
or  refuse,  the  person  whose  property  shall  be  destroyed  or  injured,  may 
elect  to  bring  his  action  for  damages  against  such  officer  instead  of  the 
city  or  county.13  [General  Municipal  Law,  § 71;  B.  C.  & G.  Cons.  L., 
p.  2131.] 


13.  Quelling  riots  and  mobs.  It  is  provided  in  section  106  of  the  Code  of 
Criminal  Procedure  that  “ when  persons  to  the  number  of  five  or  more  armed 
with  dangerous  weapons,  or  to  the  number  of  ten  or  more  whether  armed  or 
not,  are  unlawfully  or  riotously  assembled  in  a city,  village  or  town,  the  sheriff 
of  the  county  and  his  under-sherifi  and  deputies,  the  mayor  and  aldermen  of  a 
city,  or  the  supervisor  of  a town,  or  president  or  chief  executive  officer  of  a 
village,  and  the  justices  of  the  peace  or  police  justices  of  the  city,  village  or 
town,  or  such  of  them  as  can  forthwith  he  collected,  must  go  among  the  persons 
assembled,  and  command  them,  in  the  name  of  the  people  of  the  state,  im- 
mediately to  disperse.” 

If  any  of  such  officers  having  notice  of  an  unlawful  or  a riotous  assembly, 
neglect  to  perform  their  duties  under  the  above  section,  he  is  guilty  of  a mis- 
demeanor. Code  Crim.  Proc.,  sec.  109.  Such  officers  may  arrest  the  persons  so 
assembled  and  for  that  purpose  may  command  the  aid  of  all  persons  present 
or  within  the  county.  If  a person  commanded  to  aid  neglects  to  do  so,  he  is 
deemed  one  of  the  rioters  and  is  punishable  accordingly.  See  Code  Crim.  Proc., 
secs.  107,  108. 

The  governor  may  declare  the  county  in  a state  of  insurrection  whenever  it 
appears  that  the  power  of  the  county  has  been  exerted  and  is  insufficient  to 
quell  a riot  or  enforce  obedience  to  lawful  mandates.  After  a proclamation 
issued  by  the  governor,  he  may  call  out  the  militia.  See  Code  Crim.  Proc.,  secs. 
115-117. 

Riot  defined.  Section  2090  of  the  Penal  Law  defines  a riot  as  follows: 

“ Whenever  three  or  more  persons,  having  assembled  for  any  purpose,  disturb 
the  public  peace,  by  using  force  or  violence  to  any  other  person,  or  to  property, 
or  threaten  or  attempt  to  commit  such  disturbance,  or  to  do  any  unlawful  act 
by  the  use  of  force  or  violence,  accompanied  with  the  power  of  immediate  ex- 
ecution of  such  threat  or  attempt,  they  are  guilty  of  riot.” 

Liability  of  municipality  for  damages.  The  above  section  makes  a county 
liable  for  damages  occasioned  by  a mob  or  riot.  It  has  been  held  that  such 


1078  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  § 74. 

§ 23.  CONDEMNATION  OF  REAL  PROPERTY. 

A municipal  corporation  authorized  by  law  to  take  and  hold  real  prop- 
erty for  the  uses  and  purposes  of  the  corporation,  may,  if  it  is  unable 
to  agree  with  the  owners  for  the  purchase  thereof,  acquire  title  to  such 
property  by  comdemnation.  [General  Municipal  Law,  § 74;  B.  C.  & 
G.  Cons.  L.,  p.  2133.] 


liability  exists  although  the  trespassers  in  doing  the  damages  did  not  commit 
the  crime  of  riot  or  any  other  offense.  To  recover  for  such  damages  it  is  only 
necessary  to  show,  by  a preponderance  of  evidence,  facts  and  circumstances 
from  which  the  jury  might  infer  that  the  property  was  destroyed  by  a mob  or 
riot  within  the  spirit,  true  intent  and  meaning  of  the  statute.  Marshall  v.  City 
of  Buffalo,  50  App.  Div.  149;  64  N.  Y.  Supp.  411.  In  this  case  it  appeared  that 
the  property  destroyed  consisted  of  several  unoccupied  buildings,  located  in  a 
residence  and  business  part  of  the  defendant  city.  There  was  evidence  that 
one  morning  a crowd  of  men,  women,  boys  and  girls  appeared  upon  the  premises 
with  shovels,  axes  and  other  tools  and  commenced  to  abolish  the  buildings  and 
take  the  material  away  in  wagons;  that  from  one  to  two  hundred  people  were  en- 
gaged in  the  work  of  destruction,  which  continued  for  three  days,  until  only  the 
foundation  walls  were  left.  It  was  held  that  there  was  sufficient  evidence  to 
warrant  the  jury  in  finding  that  the  buildings  were  unlawfully  and  with  force 
and  violence  demolished  and  removed  by  a riotous  and  disorderly  mob  or  in  a 
riotous  and  disorderly  manner  by  a mob  in  the  execution  of  a common  purpose 
in  defiance  of  law  and  order.  It  was  further  held  that  where  the  property  of 
an  individual  is  destroyed  by  a mob,  without  any  previous  threat  or  attempt  to 
injure  it,  and  without  any  warning  or  notice  to  the  owner  thereof  until  after 
the  damage  is  done,  the  city  or  county  in  which  the  property  is  situated  is  liable 
to  the  owner  under  the  above  section.  This  liability  exists  whether  or  not  the 
authorities  had  notice  or  could  have  prevented  the  damages. 

In  the  case  of  Solomon  v.  City  of  Kingston,  24  Hun,  562,  the  facts  were  as 
follows:  A building  in  which  the  plaintiff  occupied  a store  caught  fire;  the  fire 

not  having  as  yet  reached  his  store,  he  remained  in  it  keeping  the  shutters  and 
doors  closed.  A crowd  which  had  assembled  to  see  the  fire,  having  shown  an 
inclination  to  break  into  the  store,  the  chief  engineer  turned  a stream  of  water 
upon  them,  whereupon  he  was  struck  with  a brick  and  went  away  to  get  a 
revolver.  While  he  was  gone  a crowd  burst  open  the  door,  went  into  the  store 
and  broke  the  show  cases  therein,  threw  and  left  upon  the  floor  a portion  of  the 
plaintiff’s  goods  and  carried  other  portions  of  them  away.  It  was  held  that  the 
plaintiff  could  recover;  that  the  fact  that  the  crowd  assembled  for  a lawful 
purpose,  that  is,  to  see  the  fire,  did  not  constitute  a defense,  since  they  after- 
ward united  in  unlawful  conduct  and  wrongfully  entered  the  store;  and  that 
under  the  circumstances  the  plaintiff  wras  not  bound  to  notify  the  mayor  or  the 
sheriff  of  the  threatened  danger  to  his  property. 

In  the  case  of  Marshall  v.  City  of  Buffalo,  above  cited,  Laughlin,  J.,  in  speaking 
of  the  liability  of  cities  and  counties  for  damages  occasioned  by  mobs  and  riots 
uses  the  following  language,  which  seems  to  appropriately  define  the  purpose  and 
intent  of  the  above  statute:  “ The  liability  does  not  depend  upon  the  diligence 

of  the  public  authorities.  It  is  an  extension  of  the  ancient  English  law  which 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1079 


General  Municipal  Law,  § 78. 

§ 24.  INSURANCE  OF  TOWN  OR  COUNTY  PROPERTY. 

Public  officers  having  by  law  the  care  and  custody  of  the  public  buildings 
and  other  property  of  municipal  corporation,  may  insure  the  same  at 
the  expense  and  for  the  benefit  of  such  corporation.  [General  Municipal 
Law,  § 78;  B.  C.  & G.  Cons.  L.,  p.  2134.] 


made  the  inhabitants  of  the  respective  hundreds  liable  for  burglaries  and  un- 
lawful destruction  of  property.  The  theory  of  the  statute  is  that  it  is  the  duty  of 
municipalities  to  preserve  the  peace  and  protect  the  property  of  all  persons 
within  their  limits,  and  that  imposing  such  liability  would  not  only  tend  to 
incite  the  citizens  and  officials  to  greater  vigilance,  but  that  the  compulsory 
payment  of  losses  occasioned  by  riots  would  be  a proper  and  just  penalty  for 
the  negligence  of  which  they  have  been  presumptively  guilty.  The  statute 
was  intended  to  punish  the  inhabitants  for  permitting  riots  and  unlawful 
assemblages  and  to  incite  them  to  prevent  and  suppress  the  same  by  making  it 
a matter  of  interest  to  the  taxpayers  to  give  their  moral  support  to  the  enforce- 
ment of  law  and  order.” 

The  following  cases  are  cited  in  this  connection:  Darlington  v.  Mayor,  31  N. 
Y.  164;  Ely  v.  Supervisors  of  Niagara  County,  36  N.  Y.  297;  Sarles  v.  Mayor,  47 
Barb.  447;  Moody  v.  Supervisors  of  Niagara  County,  46  Barb.  659;  Luke  v. 
City  of  Brooklyn,  43  Barb.  54;  Wolfe  v.  Supervisor  of  Richmond  County,  11 
Abb.  Pr.  270;  Eastman  v.  Mayor,  5 Robt.  389;  Davidson  v.  Mayor,  2 Robt.  258. 
In  the  case  of  Duryea  v.  Mayor,  10  Daly,  300;  affd.,  100  N.  Y.  625,  it  was  held 
that  the  city  was  not  liable  where  it  appeared  that  three  or  four  boys  in  the 
day  time,  without  any  tools  or  implements,  began  tearing  down  the  stoop  of  an 
old  unoccupied  wooden  building.  They  were  soon  joined  by  from  fifty  to  seventy- 
five  other  boys,  ranging  in  age  from  eight  to  seventeen  years.  It  was  shown 
that  they  had  no  common  purpose  and  were  merely  gratifying  individual  pro- 
pensities. The  work  was  continued  for  only  an  hour  and  the  boys  fled  on  the 
arrival  of  a police  officer. 

What  constitutes  destruction  by  riot.  The  destruction  of  an  unoccupied 
frame  building  by  a varying  crowd  of  young  men  and  boys  numbering  from 
eight  to  thirty,  there  being  no  evidence  of  any  purpose  to  accomplish  the 
destruction  by  violence  and  in  spite  of  any  resistance  does  not  constitute  the 
destruction  of  a building  by  a riot  rendering  the  city  liable  for  the  damages 
sustained  thereby.  Adamson  v.  City  of  New  York,  188  N.  Y.  255,  affg.  110  App. 
Div.  58,  96  N.  Y.  Supp.  907. 

Evidence.  Where  there  is  no  dispute  that  the  property  of  the  plaintiff  was 
destroyed  unlawfully  by  a mob,  the  fact  that  the  mob  proceeded  to  accomplish 
the  purpose  for  which  it  was  gathered  as  peaceably  as  might  be,  in  the  absence 
of  any  opposition  to  its  course,  and  that  it  had  no  malice  towards  the  plaintiff 
or  anyone  else,  but  simply  a desire  to  possess  itself  of  the  material  of  which 
the  buildings  destroyed  were  made,  does  not  affect  the  plaintiff’s  right  to  recover. 
Marshall  v.  City  of  Buffalo,  63  App.  Div.  603,  71  N.  Y.  Supp.  719,  affd.  176  N.  Y. 
545. 

Judgments  rendered  pursuant  to  this  section  for  riot  damages  have  the  same 
force  against  the  property  of  a city  as  judgments  recovered  for  any  other  cause 
of  action.  Darlington  v.  Mayor,  etc.,  of  New  York,  31  N.  Y.  164. 


1080  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Town  Law,  §§  190-195. 

§ 25.  SUPERVISOR  TO  REPORT  TO  BOARD  OF  SUPERVISORS 
AMOUNT  OF  TOWN  BONDS  OUTSTANDING;  FORM  OF  RE- 
PORT; PUBLICATION. 

When  a town  has  a public  debt,  consisting  of  bonds,  or  other  evidence 
of  debt  issued  on  the  credit  of  the  town,  the  supervisor  thereof,  shall  make 
a report  to  the  board  of  supervisors  of  the  county,  at  every  annual  session 
thereafter,  of  the  amount  of  such  indebtedness.14  [Town  Law,  § 190; 
B.  C.  & G.  Cons.  L.,  p.  6200.] 

Such  report  shall  be  in  tabular  form,  specifying  the  different  acts 
under  which  the  bonds  or  debts  were  issued,  with  the  rate  of  interest 
thereon,  the  amount  unpaid  at  the  time  of  the  election  of  the  supervisor, 
and  the  amount  of  debt  paid  at  the  date  of  his  report,  and  coming  due 
during  his  term  of  office.  [Idem,  § 191 ; B.  C.  & G.  Cons.  L.,  p.  6200.] 
The  report  so  made,  shall  be  published  in  the  annual  report  of  the 
proceedings  of  the  board  of  supervisors.  [Idem,  § 192;  B.  C.  & G.  Cons. 
L.,  p.  6201.] 

§ 26.  DUPLICATE  REPORT  TO  BE  PRESENTED  TO  TOWN  MEET- 
ING AND  FILED  IN  THE  OFFICE  OF  TOWN  CLERK. 

The  supervisor  shall  also,  at  the  expiration  of  his  term  of  office,  at 
the  biennial  town  meeting,  make  and  present  thereto  a duplicate  copy  of 

such  report  to  the  board  of  supervisors,  including  and  adding  thereto 

the  amount  of  bonds  issued,  and  the  amounts  and  interest  paid,  since 

the  date  of  the  report  up  to  the  day  and  date  of  the  expiration  of  his 

term  of  office,  duly  attested  before  a justice  of  the  peace  of  his  town,  which 
report  shall  be  filed  in  the  town  clerk’s  office  of  the  town,  subject  to  the 
inspection  by  any  elector  thereof.  [Town  Law,  § 193 ; B.  C.  & G.  Cons. 
L.,  p.  6201.] 

§ 27.  TOWN  BOARD  TO  CANCEL  BONDS  AND  COUPONS  WHICH 
HAVE  BEEN  PAID. 

All  such  bonds  and  coupons  thereof  paid,  shall  be  canceled  by  the  town 
board  of  the  town,  at  a meeting  thereof  to  be  held  for  that  purpose,  within 
ten  days  previous  to  the  annual  town  meeting;  and  a record  thereof  shall 
be  filed,  signed  by  the  board,  in  the  office  of  the  clerk  of  the  town.  [Town 
Law,  § 194;  B.  C.  & G.  Cons.  L.,  p.  6201.] 

§ 28.  LIMITATION  OF  INDEBTEDNESS. 

town  including  a portion  of  the  Adirondack  park  and  having  state 
lands  within  the  boundaries  of  the  town  shall  hereafter  contract  any  debt 
or  debts  which  shall  exceed  the  sum  of  three  thousand  dollars,  except 

14.  For  form  of  annual  report  of  town  indebtedness,  see  Form  No.  155*  post. 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1081 


Town  Law,  § 135,  General  Municipal  Law,  §§  22,  23. 

upon,  the  duly  verified  petition  of  the  owners  of  at  least  sixty-five  per 
centum  of  the  taxable  real  property  therein,  as  such  real  property  ap- 
pears on  the  last  preceding  completed  assessment-roll  of  such  town.  For 
the  purposes  of  this  article  the  consent  of  the  comptroller  shall  be  deemed 
to  be  the  consent  of  the  state.  This  section  shall  not  apply  to  debts  con- 
tracted for  the  purpose  of  retiring  or  paying  any  existing  indebtedness 
pursuant  to  law,  nor  shall  it  apply  to  any  town  within  the  boundaries  of 
which  there  is  wholly  or  partly  contained  an  incorporated  village  having 
a population  of  least  three  thousand  inhabitants  as  shown  by  the  last  pre- 
ceding state  or  federal  census.  [Town  Law,  § 195,  as  amended  by  L.  1913, 
ch.  116,  and  L.  1917,  ch.  120;  B.  C.  & G.  Cons.  L.,  p.  6201.] 

§ 29.  LEGALIZING  BONDS  OF  MUNICIPALITIES;  PROCEDURE. 

Legalizing  proceedings. — Proceedings  heretofore  or  hereafter  taken 
by  a municipal  corporation  authorized  by  law  to  issue  bonds,  or  by  its 
officers,  agents  or  voters,  pursuant  to  a statute  authorizing  or  requiring 
such  proceedings,  may  be  legalized  and  confirmed  by  the  supreme  court 
in  the  manner  and  with  the  effect  provided  by  this  article.  A proceed- 
ing may  be  instituted  hereunder  for  the  purposes  of  legalizing  and  con- 
firming such  proceedings  taken  prior  to  the  issuance  and  sale  of  such 
bonds,  or  for  the  purpose  of  legalizing  and  confirming  such  preliminary 
proceedings  and  also  the  issuance,  sale  and  form  of  such  bonds.  Such 
a proceeding  may  be  instituted  by  the  officer  or  officers  of  such  municipal 
corporation  authorized  or  required  by  law  to  sell  such  bonds,  or  if  the 
purpose  of  such  proceeding  also  includes  the  legalizing  and  confirming  of 
the  proceedings  in  respect  to  the  issuance,  sale  and  form  of  such  bonds, 
by  any  taxpayer  of  the  municipal  corporation  or  by  a purchaser  or  holder 
of  such  bonds.  [General  Municipal  Law,  § 22,  as  inserted  by  L.  1911, 
ch.  769.] 

Petition. — The  officer  or  person  commencing  such  proceeding  shall 
present  a verified  petition  to  a special  term  of  the  supreme  court  held 
within  the  judicial  district  in  which  such  municipal  corporation  is  wholly 
or  partly  situated,  stating  the  statute  under  which  it  is  proposed  to  issue 
such  bonds  or  under  which  such  bonds  were  issued,  the  purpose  thereof, 
the  aggregate  amount  of  bonds  proposed  to  be  issued  or  issued,  the  time 
when  such  bonds  are  payable,  and  all  proceedings  that  have  been  taken 
by  the  municipal  corporation,  or  bv  its  officers,  agents  or  voters,  in  re- 
spect to  the  issuance  and  sale  of  such  bonds,  and  praying  that  such  court 
shall  investigate  the  law  and  facts  in  relation  to  such  proceedings  and  de- 
termine whether  such  proceedings  substantially  complied  with  the  statute 
under  which  it  is  proposed  to  issue  and  sell  such  bonds,  or  under  which 
such  bonds  were  issued  and  sold.  Such  petition  may  also  state  anv  par- 
ticular in  which  the  petition  deems  that  such  proceedings  may  not  have 
complied  with  the  statute  under  which  it  is  proposed  to  issue  and  sell 
such  bonds  or  under  which  the  same  were  issued  and  sold.  fid.  § 23,  ns 
inserted  by  L.  1911,  ch.  769.1 


1081a  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 

General  Municipal  Law,  §§  24,  25,  26. 

Notice  of  presentation  of  petition ; filing;  answer. — A notice  stating 
the  time  and  place  of  the  presentation  of  such  petition  and  briefly  de- 
scribing the  proceedings  sought  to  be  legalized  and  confirmed  shall  he 
published  at  least  twice  in  a newspaper,  if  any,  published  in  the  muni- 
cipal corporation,  or  if  no  newspaper  be  published  therein,  in  a news- 
paper published  in  the  city,  village  or  town  nearest  to  such  municipal 
corporation.  Such  publication  shall  be  made  at  least  twenty  and  not 
more  than  thirty  days  prior  to  the  date  of  such  hearing.  Such  notice 
shall  also  be  posted  in  at  least  ten  conspicuous  public  places  in  the  muni- 
cipal corporation.  If  such  proceeding  be  instituted  by  a taxpayer,  or  a 
purchaser  or  holder  of  bonds  which  have  been  issued,  such  notice  shall 
also  be  served  upon  the  mayor  of  a city,  the  president  of  a village,  the 
supervisor  of  a town,  or  the  officer,  board  or  commission  authorized  or 
required  by  law  to  sell  such  bonds,  and  upon  any  known  purchaser  or 
holder  of  such  bonds.  Such  notice  shall  be  so  served  personally  or  by 
mail  at  least  twenty  days  before  the  date  of  such  hearing  and  shall  be 
accompanied  by  the  petition  proposed  to  be  presented  at  such  hearing, 
and  at  least  ten  days  prior  to  such  hearing  such  municipal  corporation 
may  serve  on  the  petitioner  a verified  answer  to  such  petition.  If  such 
proceeding  be  instituted  by  a municipal  officer  or  officers,  a copy  of  the 
petition  proposed  to  be  presented  at  the  hearing  shall  be  filed  in  the  office 
of  the  officer  or  officers  authorized  or  required  by  law  to  sell  such  bonds. 
At  any  time  prior  to  such  hearing  a taxpayer  of  such  municipality,  or  if 
such  bonds  have  been  issued,  a holder  or  purchaser  may  file  in  such  office 
a verified  answer  to  such  petition.  [Id.  § 24,  as  inserted  by  L.  1911r 
ch.  769.] 

Hearing. — At  the  time  of  such  hearing  any  taxpayer  of  the  municipal 
corporation,  or  if  such  bonds  have  been  issued,  any  holder  or  purchaser 
thereof  may  intervene  and  with  the  consent  of  the  court  be  made  a party 
thereto.  Upon  such  hearing  any  party  to  such  proceeding  may  appear, 
by  counsel,  and  may  produce  and  examine  witnesses  as  to  the  proceedings 
taken  in  respect  to  the  issue  and  sale  of  such  bonds.  Such  witnesses  shall 
be  subject  to  cross-examination  by  any  party  appearing  at  such  hearing. 

The  court  may  appoint  a referee  to  take  testimony  in  respect  to  the 
proceeding  for  the  issuance  and  sale  of  such  bonds  and  may  otherwise  re- 
quire the  parties  thereto  to  produce  proof,  by  affidavit  or  otherwise,  of 
any  facts  which  may  tend  to  enable  the  court  to  make  a full  and  com- 
plete determination  in  respect  to  the  proceedings  for  the  issuance  and 
sale  of  such  bonds.  [Id.  § 25,  as  inserted  by  L.  1911,  ch.  769.] 

Determination  of  court. — If,  after  such  hearing  and  investigation, 
such  court  is  satisfied  that  the  statute  under  which  such  proceedings  were 
taken  authorized  bonds  to  be  issued  by  the  municipal  corporation  for  the 
aggregate  amount  for  which  it  is  proposed  to  issue  the  same,  or  for  the 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1081b 


General  Municipal  Law,  § 27. 

amount  of  bonds  issued  and  sold  thereunder  if  such  bonds  have  been  al- 
ready issued  and  sold,  and  that  the  proceedings  taken  by  such  municipal 
corporation,  its  officers,  agents  or  voters,  prior  to  the  issuance  and  sale  of 
such  bonds,  or  including  the  issuance  and  sale  of  such  bonds  have  been 
already  issued,  substantially  complied  with  the  statute  under  which  it  is 
proposed  to  issue  such  bonds,  or  under  which  such  bonds  were  issued  and 
sold,  the  court  may,  by  order,  legalize  and  confirm  the  proceedings  taken 
prior  to  the  issue  and  sale  of  such  proposed  bonds,  or  if  such  bonds  have 
been  issued,  including  the  proceedings  on  the  issuance  and  sale  thereof 
and  the  form  of  the  bonds  issued  thereunder,  with  the  same  force  and 
effect  as  though  all  the  provisions  of  law  in  relation  to  such  proceedings 
and  form  had  been  strictly  complied  with.  The  court  may  determine 
that  such  statute  was  substantially  complied  with  if  it  authorized  the 
aggregate  amount  of  bonds  proposed  to  be  issued  or  issued  thereunder, 
that  the  proposition  to  issue  such  bonds  was  adopted  at  the  election,  if 
any,  to  which  it  was  submitted  or  by  the  required  vote  of  the  meeting 
of  the  body  or  board  to  which  it  was  submitted,  and  that  such  bonds,  if 
issued  and  sold  were  sold  at  not  less  than  par  and  at  a rate  of  interest 
no  greater  than  was  authorized  by  the  statute  under  which  such  bonds 
were  issued,  notwithstanding  any  irregularity  or  technicality  in  the  form 
of  proposition  or  resolution  proposing  or  authorizing  such  issue,  or  in 
the  notice  of  the  election  or  of  the  meeting  of  the  board  or  body  adopting 
such  reslution  or  authorization,  or  in  the  time  or  manner  of  service 
thereof,  or  in  the  conduct  of  the  election  or  meeting  at  which  such  propo- 
sition or  authorization  was  adopted,  or  in  that  such  proposition  was  sub- 
mitted more  than  once  within  one  year  or  other  shorter  period  than  au- 
thorized by  law,  or,  if  such  bonds  have  already  been  issued  in  the  man- 
ner of  issuance  or  sale  thereof,  or  in  the  time  or  times  of  payment  thereof, 
or  notwithstanding  any  other  technical  or  formal  irregularity  of  like 
nature  in  such  proceedings.  If  the  court  is  satisfied  that  the  proceedings 
for  the  issuance  and  sale  of  such  bonds  did  not  substantially  comply  with 
the  statute  under  which  it  was  proposed  to  issue  and  sell  the  same  or  un- 
der which  the  same  were  issued  and  sold  he  may  make  an  order  accord- 
ingly specifying  the  particulars  in  which  he  deems  that  such  proceedings 
failed  to  comply  with  such  statute.  [Id.  § 26,  as  inserted  by  L.  1911, 
ch.  769.] 

Appeal. — An  appeal  may  be  taken  to  the  appellate  division  from  the 
order  of  the  supreme  court  legalizing  and  confirming  such  proceedings, 
or  refusing  to  legalize  and  confirm  the  same.  Such  appeal  must  be  taken 
within  ten  days  after  the  entry  of  the  order,  by  the  service  of  the  notice 
of  appeal  upon  all  the  parties  to  such  proceeding  who  appeared  per- 
sonally or  by  counsel  at  the  hearing  before  the  supreme  court.  The  de- 
cision of  the  appellate  division  thereon  shall  be  final.  [Id.  § 27.  as 
inserted  by  L.  1911,  ch.  769.] 


1081c  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Municipal  Law,  §§  28,  29,  21,  88. 

Effect  of  determination.  If  the  order  of  the  supreme  court  legalizes  and 
confirms  such  proceedings,  upon  the  expiration  of  the  time  to  appeal  therefrom 
if  no  appeal  be  taken,  or  upon  the  entry  of  the  final  order  of  the  appellate  division 
confirming  such  order  of  the  supreme  court,  such  proceedings  shall  be  deemed 
legalized  and  confirmed.  If  such  proceeding  was  instituted  to  legalize  and  con- 
firm proceedings  prior  to  the  issuance  and  sale  of  such  bonds,  the  officer  or  officers 
of  such  municipal  corporation  authorized  to  issue  such  bonds  may  issue  and  sell 
the  same  accordingly,  and  the  validity  of  such  bonds  shall  not  thereafter  be  in  any 
manner  questioned  by  reason  of  any  defect  or  irregularity  in  such  preliminary 
proceedings,  and  notwithstanding  any  such  irregularity  or  defect  shall  be  binding1 
and  legal  obligations  upon  the  municipal  corporation  issuing  and  selling  the  same. 
If  such  proceeding  was  instituted  to  legalize  and  confirm  the  proceedings  for  the 
issue  and  sale  of  bonds  that  were  issued  and  sold  at  the  time  such  proceeding  was 
instituted,  such  bonds  shall  be  valid  and  binding  obligations  upon  the  municipal 
corporation,  in  like  manner,  and  the  validity  thereof  shall  not  in  any  manner 
be  questioned  by  reason  of  any  irregularity  or  defect  in  the  proceedings  for  the 
issue  and  sale  of  such  bonds,  or  in  the  form  thereof.  [Id.,  § 28,  as  inserted  by 
L.  1911,  ch.  769.] 

Definitions.  The  term  “ municipal  corporation  ” as  used  in  this  article  in- 
cludes a city,  county,  village,  town,  school  district,  sewer  district,  water  district, 
lighting  district  or  any  other  district  or  territory  authorized  by  law  to  issue 
bonds. 

The  term  “ bonds  ” as  used  in  this  article  includes  bonds,  corporate  stock, 
certificates  of  indebtedness  or  any  other  obligations  whereby  a municipal  corpo- 
ration agrees  to  pay  a stated  sum  of  money.  [Id.,  § 29,  as  inserted  by  L.  1911, 
ch.  769.] 

§ 30.  MAXIMUM  RATE  OF  INTEREST  ON  MUNICIPAL  BOND'. 

If  in  any  general  or  special  law  passed  before  January  first,  nineteen  hundred  and 
eighteen,  authorizing  or  requiring  an  issue  of  bonds  by  a municipal  corporation,  or 
by  any  department,  board,  commission,  or  officer  thereof,  a maximum  rate  of  interest 
on  the  bonds  to  be  issued  thereunder  be  prescribed,  the  rate  of  interest  on  such  bonds 
hereafter  issued  in  pursuance  of  such  general  or  special  law  may  be  fixed  by  the  de- 
partment, board,  commission  or  officer  charged  by  law  with  the  duty  of  issuing  such 
bonds  at  any  rate  not  more  than  the  legal  rate  of  interest,  notwithstanding  the 
provisions  of  such  general  or  special  law  prescribing  a different  maximum  rate.  The 
term  “ municipal  corporation  ” as  used  in  this  section  includes  a city,  county,  village, 
town,  school  district,  sewer  district,  water  district,  lighting  district  or  any  other 
district  or  territory  authorized  by  law  to  issue  bonds,  and  the  term  “ bonds  ” 
includes  bonds,  corporate  stock,  certificates  of  indebtedness  or  any  other  obligation 
whereby  a municipal  corporation  agrees  to  pay  a stated  sum  of  money.  [General 
Municipal  Law,  § 21,  as  added  by  L.  1911,  ch.  573,  and  amended  by  L.  1918,  ch.  23.] 

§ 31.  SEPARATE  SPECIFICATIONS  FOR  CERTAIN  CONTRACT 
WORK. 

Every  officer,  board,  department,  commission  or  commissions,  charged  with  the 
duty  of  preparing  specifications  or  awarding  or  entering  into  contracts  for  the 
erection,  construction  or  alteration  of  buildings  in  any  county  or  city,  or  the 
borough  of  any  city,  when  the  entire  cost  of  such  work  shall  exceed  one  thousand 


TOWN  AND  COUNTY  FINANCES  AND  PROPERTY. 


1081d 


General  Municipal  Law,  §§  86-b,  90. 

dollars,  must  have  prepared  separate  specifications  for  each  of  the  following 
branches  of  work  to  be  performed: 

1.  Plumbing  and  gas  fitting. 

2.  Steam  heating,  hot  water  and  ventilating  apparatus. 

Such  specifications  must  be  so  drawn  as  to  permit  separate  and  independent 
bidding  upon  each  of  the  classes  of  work  enumerated  in  the  above  .sub-divisions. 
All  contracts  hereafter  awarded  by  any  county,  city  or  borough,  or  a department, 
board,  commission,  or  commissioner  or  officer  thereof,  for  the  erection,  construc- 
tion or  alteration  of  buildings  or  any  part  thereof,  shall  award  the  respective 
work  specified  in  the  above  sub-divisions  separately  to  responsible  and  reliable 
persons,  firms  or  corporations.  Nothing  in  this  section  shall  be  constructed  to 
prevent  the  authorities  in  charge  of  any  county  or  municipal  building  from 
performing  any  such  branches  of  work  by  or  through  their  regular  employees,  or 
in  the  case  of  public  institutions,  by  the  inmates  thereof.  [General  Municipal 
Law,  § 88,  as  added  by  L.  1912,  ch.  514.] 

§ 32.  RETAINED  PERCENTAGES  UNDER  CONTRACTS  MAY  BE 
WITHDRAWN. 

A clause  may  be  inserted  in  any  contract  hereafter  made  or  awarded  by  any 
municipal  corporation,  or  any  public  department  or  official  thereof,  providing  that 
the  contractor  may,  from  time  to  time,  withdraw  the  whole  or  any  portion  of 
the  amount  retained  from  payments  to  the  contractor  pursuant  to  the  terms  of 
the  contract,  upon  depositing  with  the  comptroller  or  disbursing  officer  of  the 
municipality,  corporate  stock  or  bonds  of  the  municipality  of  a market  value 
equal  to  the  amount  so  withdrawn.  The  said  clause  may  further  provide  that 
the  municipality  shall,  from  time  to  time,  collect  all  interest  or  income  on  the 
stock  or  bonds  so  deposited,  and  shall  pay  the  same,  when  and  as  collected,  to  the 
contractor  who  deposited  the  stock  or  bonds.  The  said  clause  may  further  pro- 
vide that  if  the  deposit  be  in  the  form  of  coupon  bonds,  the  coupons  as  they 
respectively  become  due  shall  be  delivered  to  the  contractor.  The  said  clause  may 
further  provide  that  the  contractor  shall  not  be  entitled  to  interest  or  coupons  or 
income  on  any  of  the  deposited  stock  or  bonds,  the  proceeds  of  which  shall  be 
used  or  applied  by  the  municipality,  pursuant  to  the  terms  of  the  contract. 
[General  Municipal  Law,  § 86b,  as  added  by  L.  1916,  ch.  176.] 

§ 33.  WORKMEN’S  COMPENSATION  INSURANCE  ON  PUBLIC 

WORKS. 

Each  contract  to  which  a municipality,  or  any  public  department  or  official 
thereof,  is  a party  and  which  is  of  such  a character  that  the  employees  engaged 
thereon  are  required  to  be  insured  by  the  provisions  of  chapter  forty-one  of  the 
laws  of  nineteen  hundred  and  fourteen,  known  as  the  workmen’s  compensation  law, 
and  acts  amendatory  thereto,  shall  contain  a stipulation  that  the  same  shall  be 
void  and  of  no  effect  unless  the  person  or  corporation  making  or  performing  the 
same  shall  secure  compensation  for  the  benefit  of,  and  keep  insured  during  the 
life  of  said  contract,  such  employees,  in  compliance  with  the  provisions  of  said  law. 
[General  Municipal  Law,  § 90,  as  added  by  L.  1916,  ch.  478.] 


1082 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Penal  Law,  §§  1820-1822. 


CHAPTER  LXXIV. 

PENAL  PROVISIONS  APPLICABLE  TO  TOWN  AND  COUNTY  OFFICERS. 

Section  l.  Acting  in  public  office  without  having  qualified. 

2.  Bribery  in  executive  office. 

3.  Prevention  of  officers  from  performance  of  duties. 

4.  Taking  unlawful  fees  or  rewards  for  doing  or  omitting  to  do  official 

acts;  taking  fees  for  services  not  rendered. 

5.  Corrupt  bargains  for  appointments  to  office. 

6.  Grants  of  rights  to  make  appointments  or  perform  official  duties. 

7.  Wrongful  intrusion  into  public  office;  officer  refusing  to  surrender 

to  successor. 

8.  Neglect  of  public  officer  to  perform  duties  of  his  office. 

9.  Misappropriation  of  public  funds  and  falsification  of  public  accounts 

by  public  officers. 

10.  Public  officers  not  to  be  interested  in  contracts. 

§ 1.  ACTING  IN  PUBLIC  OFFICE  WITHOUT  HAVING  QUALIFIED. 

A person  who  executes  any  of  the  functions  of  a public  office  without  having 
taken  and  duly  filed  the  required  oath  of  office,  or  without  having  executed 
and  duly  filed  the  required  security,  as  prescribed  by  law,  is  guilty  of  a mis- 
demeanor. [Penal  Law,  § 1820;  B.  C.  & G.  Cons.  L.,  p.  4041.] 

1.  Any  person  who  holds  himself  out  to  the  public  as  being  entitled  to  act 
as  a notary  public  or  commissioner  of  deeds,  or  who  assumes,  uses  or  adver- 
tises the  title  of  notary  public  or  commissioner  of  deeds,  or  equivalent  terms 
in  any  language,  in  such  a manner  as  to  convey  the  impression  that  he  is  a 
notary  public  or  commissioner  of  deeds  without  having  first  been  appointed 
as  notary  public  or  commissioner  of  deeds,  or 

2.  A notary  public  or  commissioner  of  deeds,  who  in  the  exercise  of  the 
powers,  or  in  the  performance  of  the  duties  of  such  office  shall  practice  any 
fraud  or  deceit,  the  punishment  for  which  is  not  otherwise  provided  for  by  this 
act,  shall  be  guilty  of  a misdemeanor.*  [Penal  Law,  § 1820a,  as  added  by  L. 
1910,  ch.  471.] 

The  last  section  must  not  be  construed  to  affect  the  validity  of  acts  done  by 
a person  exercising  the  functions  of  a public  office  in  fact,  where  persons  other 
than  himself  are  interested  in  maintaining  the  validity  of  cuch  acts.  [Idem, 
§ 1821;  B.  C.  & G.  Cons  L.,  p.  4041.] 

§ 2.  BRIBERY  IN  EXECUTIVE  OFFICE. 

A person  who  gives  or  offers  a bribe  to  any  executive  officer  of  this  state 
with  intent  to  influence  him  in  respect  to  any  act,  decision,  vote,  opinion  or 
other  proceeding  as  such  officer,  is  punishable  by  imprisonment  in  a state 
prison  not  exceeding  ten  years,  or  by  fine  not  exceeding  five  thousand  dollars, 
or  by  both.  [Penal  Law,  § 1822;  B.  C.  & G.  Cons.  L.,  p.  4041.] 

1,  A notary  public  who  draws  and  takes  the  affidavit  of  an  individual  in  such 
form  as  to  lead  the  affiant  to  believe  that  it  is  of  the  general  character  of  a 
passport,  violates  subdivision  2 of  this  section.  Rept.  of  Atty.-Gen.  (1911), 
vol.  2,  p.  550. 


PENAL  PROVISIONS. 


1083 


Penal  Law,  §§  1823-1825,  1829. 

An  executive  officer,  or  person  elected  or  appointed  to  an  executive  office, 
who  asks,  receives  or  agrees  to  receive  any  bribe,  upon  an  agreement  or 
understanding  that  his  vote,  opinion  or  action  upon  any  matter  then 
pending  or  which  may  by  law  be  brought  before  him  in  his  official  capacity, 
shall  be  influenced  thereby,  is  punishable  by  imprisonment  in  a state  prison 
not  exceeding  ten  years,  or  by  a fine  not  exceeding  five  thousand  dollars, 
or  by  both ; and  in  addition  thereto  forfeits  his  office  and  is  forever  disquali- 
fied from  holding  any  public  office  under  this  state.  [Idem,  § 1823 ; B.  C. 
& G.  Cons.  L.,  p.  4041.] 


§ 3.  PREVENTION  OF  OFFICERS  FROM  PERFORMANCE  OF  DUTIES. 

A person  who  attempts,  by  means  of  any  threat  or  violence,  to  deter 
or  prevent  an  executive  officer  from  performing  any  duty  imposed  upon 
such  officer  by  law,  is  guilty  of  a misdemeanor.  [Penal  Law,  § 1824; 
B.  C.  & G.  Cons.  L.,  p.  4041.] 

A person  who  knowingly  resists,  by  the  use  of  force  or  violence,  any 
executive  officer,  in  the  performance  of  his  duty,  is  guilty  of  a misde- 
meanor. [Idem,  § 1825;  B.  C.  & G.  Cons.  L.,  p.  4041.] 


§ 4.  TAKING  UNLAWFUL  FEES  OR  REWARDS  FOR  DOING  OR 
OMITTING  TO  DO  OFFICIAL  ACTS;  TAKING  FEES  FOR  SER- 
VICES NOT  RENDERED. 

A public  officer  or  a deputy  clerk,  assistant  or  other  subordinate  of  a 
public  officer,  or  any  person  appointed  or  employed  by  or  in  the  office  of 
a public  officer,  who  shall,  in  any  manner,  act  for  or  in  behalf  of  any  such 
officer,  who  asks  or  receives,  or  consents  or  agrees  to  receive  any  emolu- 
ment, gratuity  or  reward,  or  any  promise  of  emolument,  gratuity  or  reward,, 
or  any  money,  property  or  thing  of  value  or  of  personal  advantage, 
except  such  as  may  be  authorized  by  law  for  doing  or  omitting  to  do 
any  official  act,  or  for  performing  or  omitting  to  perform,  or  for  having 
performed  or  omitted  to  perform  any  act  whatsoever  directly  or  indirectly 
relating  to  any  matter  in  respect  to  which  any  duty  or  discretion  is  by  or 
in  pursuance  of  law  imposed  upon  or  vested  in  him,  or  may  be  exercised  by. 
him  by  virtue  of  his  office,  or  appointment  or  employment,  or  his  actual 
relation  to  the  matter,  shall  be  guilty  of  a felony,  punishable  by  imprison- 
ment for  not  more  than  ten  years  or  by  a fine  of  not  more  than  four  thou- 
sand dollars,  or  both.  [Penal  Law,  § 1826;  B.  C.  & G.  Cons.  L.,  p.  4042.] 
An  executive  officer  who  asks  or  receives  any  emolument,  gratuity  or 
reward,  or  any  promise  of  any  emolument,  gratuity  or  reward,  for  omitting 
or  deferring  the  performance  of  any  official  duty,  is  guilty  of  a misde- 
meanor. [Idem,  § 1829;  B.  C.  & G.  Cons.  L.,  p.  4042.] 


1084  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Penal  Law,  §§  1830,  1832-1834. 

An  executive  officer  who  asks  or  receives  any  fee  or  compensation  for 
any  official  service  which  has  not  been  actually  rendered  except  in  cases 
of  charges  for  prospective  costs,  or  of  fees  demandable  in  advance  in  the 
cases  allowed  by  law,  is  guilty  of  a misdemeanor.  [Idem,  § 1830;  B.  C. 
& G.  Cons.  L.,  p.  4043.] 

§ 5.  CORRUPT  BARGAINS  FOR  APPOINTMENTS  TO  OFFICE. 

1.  A person  who  gives  or  offers  to  give  any  gratuity  or  reward,  in  con- 
sideration that  himself  or  any  other  person  shall  be  appointed  to  a public 
office,  or  to  a clerkship,  deputation,  or  other  subordinate  position,  in  such  an 
office,  or  shall  be  permitted  to  exercise,  perform  or  discharge  any  preroga- 
tives or  duties,  or  to  receive  any  emoluments  of  such  an  office,  is  guilty 
of  a misdemeanor. 

2.  A person  who  asks  or  receives,  or  agrees  to  receive,  any  gratuity  or 
reward,  or  any  promise  thereof,  for  appointing  another  person,  or  pro- 
curing for  another  person  any  appointment  to  a public  office  or  to  a clerk- 
ship, deputation  or  other  subordinate  position  in  such  an  office,  is  guilty  of  a 
misdemeanor.  If  the  person  so  offending  is  a public  officer,  a conviction 
also  forfeits  his  office.1  [Penal  Law,  § 1832;  B.  C.  & G.  Cons.  L.,  p. 
4043.] 


§ 6.  GRANTS  OP  RIGHTS  TO  MAKE  APPOINTMENTS  OR  PERFORM 
OFFICIAL  DUTIES. 

A public  officer  who,  for  any  reward,  consideration  or  gratuity,  paid  or 
agreed  to  be  paid,  directly  or  indirectly,  grants  to  another  the  right  or 
authority  to  discharge  any  functions  of  his  office,  or  permits  another  to 
make  appointments  or  perform  any  of  its  duties,  is  guilty  of  a misdemeanor, 
and  a conviction  for  the  same  forfeits  his  office  and  disqualifies  him  forever 
from  holding  any  office  whatever  under  this  state.  [Penal  Law,  § 1833 ; 
B.  C.  & G.  Cons.  L.,  p.  4043.] 

A grant,  appointment,  or  deputation,  made  contrary  to  the  provisions  of 
•either  of  the  last  two  sections  is  avoided  and  annulled  bv  a conviction  for 
the  violation  of  either  of  those  sections,  in  respect  to  such  grant,  appoint- 
ment or  deputation;  hut  any  official  act  done  before  conviction,  is  unaffected 
by  the  conviction.  [Idem,  § 1834;  B.  C.  & G.  Cons.  L.,  p.  4044.] 


1.  An  agreement  by  an  applicant  for  deputy  sheriff  to  pay  to  the  sheriff  a 
portion  of  the  fees  received  by  him  is  prohibited  by  this  section  and  cannot  be 
enforced.  Deyoe  v.  Woodworth,  144  N.  Y.  448,  affg.,  70  Hun,  599,  24  N.  Y.  Supp. 
373. 


PENAL  PROVISIONS. 


1085 


Penal  Law,  §§  1835,  1836,  1841,  1865,  1866. 

§ 7.  WRONGFUL  INTRUSION  INTO  PUBLIC  OFFICE;  OFFICER  RE- 
FUSING TO  SURRENDER  TO  SUCCESSOR. 

A person  who  wilfully  intrudes  himself  into  a public  office,  to  which  he 
has  not  been  duly  elected  or  appointed,  or  who,  having  been  an  executive 
or  administrative  officer,  wilfully  exercises  any  of  the  functions  of  his  office, 
after  his  right  so  to  do  has  ceased,  is  guilty  of  a misdemeanor.  [Penal 
Law,  § 1835;  B.  C.  & G.  Cons.  L.,  p.  4044.] 

A person  who,  having  been  an  executive  or  administrative  officer,  wrong- 
fully refuses  to  surrender  the  official  seal,  or  any  books  or  papers,  apper- 
taining to  his  office,  upon  the  demand  of  his  lawful  successor,  is  guilty  of 
a misdemeanor.  [Penal  Law,  § 1836;  B.  C.  & G.  Cons.  L.,  p.  4044.] 


§ 8.  NEGLECT  OF  PUBLIC  OFFICER  TO  PERFORM  DUTIES  OF  HIS 
OFFICE. 

A public  officer,  or  person  holding  a public  trust  or  employment,  upon 
whom  any  duty  is  enjoined  by  law,  who  wilfully  neglects  to  perform  the 
duty,  is  guilty  of  a misdemeanor.  This  and  section  eighteen  hundred  and 
forty  do  not  apply  to  cases  of  official  acts  or  omissions,  the  prevention  or 
punishment  of  which  is  otherwise  specially  provided  by  statute.  [Penal 
Law,  § 1841 ; B.  C.  & G.  Cons.  L.,  p.  4045.] 


% 9.  MISAPPROPRIATION  OF  PUBLIC  FUNDS  AND  FALSIFICATION 
OF  PUBLIC  ACCOUNTS  BY  PUBLIC  OFFICERS. 

A public  officer,  or  a deputy,  or  clerk  of  any  such  officer,  and  any  other 
person  receiving  money  on  behalf  of,  or  for  account  of  the  people  of  this 
state,  or  of  any  department  of  the  government  of  this  state,  or  of  any 
bureau  or  fund  created  by  law,  and  in  which  the  people  of  this  state  are 
directly  or  indirectly  interested,  or  for  or  on  account  of  any  city,  county, 
village  or  town,  who 

1.  Appropriates  to  his  own  use,  or  to  the  use  of  any  person  not  entitled 
thereto,  without  authority  of  law,  any  money  so  received  by  him  as  such 
officer,  clerk  or  deputy,  or  otherwise ; or, 

2.  Knowingly  keeps  any  false  account,  or  makes  any  false  entry  or 
erasure  in  any  account  of,  or  relating  to,  any  money  so  received  by  him  ; or, 

3.  Fraudulently  alters,  falsifies,  conceals,  destroys  or  obliterates  any  such 
account  ; or, 

4.  Wilfully  omits  or  refuses  to  pay  over  to  the  people  of  this  state  or 
their  officer  or  agent  authorized  by  law  to  receive  the  same,  or  to  such  city, 
village,  county  or  town,  or  the  proper  officer  or  authority  empowered  to 
demand  and  receive  the  same,  any  money  received  by  him  as  such  officer 
when  it  is  his  duty  imposed  by  law  to  pay  over,  or  account  for,  the  same. 


1086  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Penal  Law,  § 1868. 

Is  guilty  of  a felony.  [Penal  Law,  § 1865 ; B.  C.  & G.  Cons.  L.,  p.  4051.] 

An  officer  or  other  person  mentioned  in  the  last  section  who  wilfully  dis- 
obeys any  provision  of  law  regulating  his  official  conduct,  in  cases  other 
than  those  specified  in  that  section,  is  guilty  of  a misdemeanor,  punishable 
by  a fine  not  exceeding  one  thousand  dollars,  or  imprisonment  not  exceeding 
two  years,  or  both.  [Idem,  § 1866;  B.  C.  & G.  Cons.  L .,  p.  4052.] 

§ 10.  PUBLIC  OFFICERS  NOT  TO  BE  INTERESTED  IN  CONTRACTS. 

A public  officer,  or  school  officer,  who  is  authorized  to  sell  or  lease  any 
property,  or  to  make  any  contract  in  his  official  capacity,  or  to  take  part 
in  making  any  such  sale,  lease  or  contract,  who  voluntarily  becomes  in- 
terested individually  in  such  sale,  lease  or  contract,  directly  or  indirectly, 
except  in  cases  where  such  sale,  lease  or  contract,  or  payment  under  the 
same,  is  subject  to  audit  or  approval  by  the  commissioner  of  education,  is 
guilty  of  a misdemeanor.2  [Penal  Law,  § 1868;  B.  C.  & G.  Cons.  L.,  p. 
4052.] 


2.  Application  of  section.  The  assignment  to  the  superintendent  of  the  poor 
of  a claim  for  services  in  finding  homes  for  orphans  is  not  prohibited  by  this 
section.  People  ex  rel.  Spaulding  v.  Supervisors,  66  App.  Div.  117,  72  N.  Y. 
Supp.  782.  Assignment  in  contravention  of  section.  Banigan  v.  Village  of 
Nyack,  25  App.  Div.  150,  49  N.  Y.  Supp.  199. 

A contract  between  a board  of  supervisors  and  one  of  its  members  an  at- 
torney at  law,  for  legal  services  to  be  rendered  the  board,  is  void.  Beebe  v. 
Board,  etc.,  19  N.  Y.  Supp.  629,  630. 

A contract  made  by  a board  of  supervisors  for  the  necessary  purchase  of  Mazda 
lamps,  at  their  fair  market  value,  with  relator,  a corporation  of  which  a member 
of  the  board  of  supervisors  is  a stockholder,  officer  and  director,  is  clearly  illegal 
under  section  1868  of  the  Penal  Law;  such  contract  is  unenforcible  because  the 
said  member  of  the  board  of  supervisors  had  some,  though  not  necessarily  a money, 
interest  in  conflict  with  his  duty  as  a public  officer.  Schenectady  Illuminating 
Co.  v.  Supervisors  of  Schenectady  (1914),  88  Misc.  226,  151  N.  Y.  Supp.  830,  affd. 
166  App.  Div.  758. 

Purchase  from  corporation  of  which  supervisor  is  officer.  A board  of 

supervisors  acting  for  a county  cannot  make  a valid  contract  to  purchase  chattels 
from  a corporation  of  wThich  a member  of  the  board  is  an  officer  and  stockholder. 
And  this  is  true  although  the  supervisor  knew  nothing  of  the  transaction  and  did 
not  participate  therein  personally  on  behalf  of  either  party,  and  although  the  sum 
involved  is  insignificant  and  the  goods  were  fully  worth  the  contract  price.  People 
ex  rel.  Schenectady  Illuminating  Co.  v.  Board  of  Supervisors  (1915),  166  App. 
Div.  758. 


WEIGHTS  AND  MEASURES. 


108T 


Membership  Corporation  Law,  § 77. 


CHAPTER  LXXV. 

MISCELLANEOUS  PROVISIONS;  WEIGHTS  AND  MEASURES. 


Section  l.  Supervisor  may  cause  dead  bodies  to  be  removed  from  one  cemetery 
to  another. 

2.  Neglect  of  town  clerk  to  return  names  of  constables. 

3.  Duties  of  state  superintendent  of  weights  and  measures. 

4.  Copies  of  standard  weights  and  measures. 

5.  County  sealer;  duty  of  supervisors. 

6.  Weights  and  measures  to  be  sealed;  fees. 

7.  Method  of  sale  of  certain  commodities. 

9.  Net  contents  of  containers  to  be  indicated  on  the  outside  thereof. 

10.  When  sections  sixteen,  seventeen  a and  seventeen  shall  not  apply. 

11.  Guaranty  furnished  by  wholesaler,  jobber  or  manufacturer. 

12.  Definition  of  terms  “ container  ” and  “ person.” 

13.  Examination  and  prosecution. 

14.  Penalties. 

5 1.  SUPERVISOR  MAY  CAUSE  DEAD  BODIES  TO  BE  REMOVED  FROM 
ONE  CEMETERY  TO  ANOTHER. 

The  supervisors  of  any  town  containing  a private  cemetery  may  remove 
any  dead  bodies  or  human  remains  interred  in  such  cemetery  to  any 
other  cemetery  within  such  town,  if  the  owners  of  such  cemeteries  and 
the  persons  residing  within  the  state  who  are  next  of  kin  of  such  de- 
ceased persons  consent  to  such  removal.  The  owners  of  such  cemeteries 
may  remove  the  remains  of  deceased  persons  interred  therein  to  any 
cemetery  within  such  town,  or  to  some  cemetery  designated  by  the  per- 
sons who  are  next  of  kin  of  such  deceased  persons.  Xotice  of  such 
removal  shall  be  mailed  or  served  personally  upon  the  next  of  kin  of 


1088 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Penal  Law,  § 1859 ; General  Business  Law,  § 11. 

such  deceased  persons,  if  known  to  such  owners,  within  ten  days  of  such 
removal.  [Membership  Corporation  Law,  § 77 ; B.  C.  & G.  Cons.  L.,  p. 
3427.] 

§ 2.  NEGLECT  OF  TOWN  CLERK  TO  RETURN  NAMES  OF  CON- 
STABLES. 

A town  clerk  who  wilfully  omits  to  return  to  the  county  clerk  the  name 
of  a person  who  has  qualified  as  constable,  pursuant  to  law,  is  punishable 
by  a fine  not  exceeding  ten  dollars.  [Penal  Law,  § 1859;  B.  C.  & G.  Cons. 
L.,  p.  4049.] 

§ 3.  DUTIES  OF  STATE  SUPERINTENDENT  OF  WEIGHTS  AND 
MEASURES. 

The  state  superintendent  of  weights  and  measures  shall  take  charge 
of  the  standards  adopted  by  this  article  as  the  standards  of  the  state, 
cause  them  to  be  kept  in  a fire-proof  building  belonging  to  the  state, 
from  which  they  shall  not  be  removed,  except  for  repairs  or  for  certi- 
fication, and  take  all  other  necessary  precautions  for  their  safe-keeping. 
He  shall  maintain  the  state  standards  in  good  order  and  shall  submit  them 
once  in  ten  years  to  the  national  bureau  of  standards  for  certification. 
He  shall  correct  the  standards  of  the  several  cities  and  counties,  and,  as 
often  as  once  in  five  years,  compare  the  same  with  those  in  his  possession, 
and  shall  keep  a record  of  the  same,  and  where  not  otherwise  provided  by 
law  he  shall  have  a general  supervision  of  the  weights,  measures  and  measur- 
ing and  weighing  devices  of  the  state,  and  offered  for  sale,  hire, 
award,  or  sold  or  in  use  in  the  state.  He  shall  upon  the  written  request  of 
any  citizen,  firm,  corporation  or  educational  institution  of  the  state,  test  or 
calibrate  weights,  measures,  weighing  or  measuring  devices  and  instruments 
or  apparatus  used  as  standards  in  the  state.  He,  or  his  deputies  or  inspectors 
by  his  direction,  shall  at  least  once  annually  test  all  weights  and  measures, 
and  weighing  and  measuring  devices  used  in  checking  the  receipt  or  disburse- 
ment of  supplies  in  every  state  institution  and  he  shall  report  in  writing  his 
findings  to  the  executive  officer  of  the  institution  concerned ; and  at  the  re- 
quest of  said  officers  the  superintendent  of  weights  and  measures  shall  ap- 
point in  writing  one  or  more  employees,  then  in  actual  service,  of  each  in- 
stitution, who  shall  act  as  special  deputies  for  the  purpose  of  checking  the 
receipt  or  disbursement  of  supplies.  He  shall  keep  a complete  record 
of  the  standards,  balances  and  other  apparatus  belonging  to  the  state 
and  take  receipt  for  the  same  from  his  successor  in  office.  He  shall 
annually  during  the  first  two  weeks  of  January  make  to  the  legislature 
a report  of  the  work  done  by  his  office.  The  state  superintendent,  or 
his  deputies  or  inspectors  by  his  direction,  shall  inspect  all  standards 
used  bv  the  counties  or  cities  at  least  once  in  two  years  and  shall  keep 
a record  of  the  same.  He,  or  his  deputies  or  inspectors  at  his  direction, 
shall  at  least  once  in  two  years  visit  the  various  cities  and  counties  of 
the  state  in  order  to  inspect  the  work  of  the  local  sealers  and  in  the  perform- 
ance of  his  duties  he  or  his  deputies  or  inspectors  may  inspect  the  weights, 
measures,  balances  or  any  other  weighing  or  measuring  appliances  of  any 
person,  firm  or  corporation.  He  shall  establish  amounts  of  tolerance,  or 
reasonable  variations  allowable  for  weights,  measures,  and  weighing  and 
measuring  devices,  and  shall  issue  instructions  to  the  county  and  eity 


WEIGHTS  AND  MEASURES. 


1089 


General  Business  Law,  § 12. 

sealers,  and  these  shall  be  binding  upon  and  govern  said  sealers  in  the 
discharge  of  their  duties.1  [General  Business  Law,  § 11,  as  amended  by  L. 
1910,  ch.  187,  and  L.  1917,  ch.  531.] 

§ 4.  COPIES  OF  STANDARD  WEIGHTS  AND  MEASURES. 

The  state  shall  have  a complete  set  of  copies  of  the  original  stand- 
ards of  weights  and  measures  adopted  by  this  article,  which  shall  be  used 
for  adjusting  county  standards,  and  the  original  standards  shall  not 
be  used  except  for  the  adjustment  of  this  set  of  copies  and  for  scientific 
purposes. 

The  state  superintendent  of  weights  and  measures  shall  see  that  the 
foregoing  provisions  of  this  section  are  complied  with  and  procure  such 
apparatus  and  fixtures,  if  the  same  have  not  already  been  procured,  as 
are  necessary  in  the  comparison  and  adjustment  of  the  county  standards. 

He  shall  cause  all  the  city  and  county  standards  to  be  impressed  with 
the  emblem  of  the  United  States,  the  letters  “ N.  Y.,”  and  such  other 
device  as  he  shall  direct  for  the  particular  county.  [General  Business 
Law,  § 12;  B.  C.  & G.  Cons.  L.,  p.  1804.] 

§ 5.  COUNTY  SEALER;  DUTY  OF  SUPERVISORS. 

There  shall  be  a county  sealer  of  weights  and  measures  in  each  county, 
except  where  such  county  is  wholly  embraced  within  a city,  who  shall  be 
appointed  by  the  board  of  supervisors  and  hold  office  during  the  pleasure 
of  such  board.  He  shall  be  paid  a salary  determined  by  the  board  of  super- 
visors and  shall  be  provided  by  them  with  the  necessary  working  equipment 
of  standard  weights  and  measures.  He  shall  take  charge  of  and  safely 
keep  the  county  standards,  and  at  least  once  in  every  five  years  shall  sub- 
mit such  standards  to  the  state  superintendent  of  weights  and  measures, 
at  the  place  where  the  standards  of  the  state  are  kept,  for  calibration  and 
certification.  Where  not  otherwise  provided  by  law,  the  county  sealer  shall 
have  the  power  within  his  county  to  inspect,  test,  try  and  ascertain  if  they 
are  correct,  all  weights,  scales,  beams,  measures  of  every  kind,  instruments 
or  mechanical  devices  for  measurement  and  the  tools,  appliances  or  acces- 
sories connected  with  any  or  all  such  instruments  or  measurements  used 
or  employed  within  the  county  by  any  proprietor,  agent,  lessee  or  employee 
in  determining  the  size,  quantity,  extent,  area  or  measurement  of  quantities, 
things,  produce,  articles  for  distribution  or  consumption  offered  or  sub- 
mitted by  such  person  or  persons  for  sale,  for  hire  or  award.  He  shall 
at  least  twice  in  each  year  and  as  much  oftener  as  he  may  deem  necessary 
see  that  the  weights,  measures  and  all  apparatus  used  in  the  county  are 


1.  The  scheme  of  the  statute  is  that  the  county  and  city  sealers  shall  enforce  the 
observation  by  individuals  of  the  standards  of  weights  and  measures,  and  that  the 
State  Superintendent  shall  enforce  the  performance  of  this  duty  by  the  county  seal- 
ers and  city  sealers.  While  there  is  no  express  provision  of  law  as  to  the  manner  in 
which  the  State  Superintendent  shall  enforce  the  performance  of  their  statutory 
duty  by  the  county  and  city  sealers,  yet  his  general  powers  of  supervision  over  them 
and  over  the  standards  of  the  State  are  sufficient  to  support  his  authority  to  direct 
them  in  the  performance  of  their  duties  and  to  insist  that  the  mandates  of  the 
statute  be  observed.  Rept.  of  Atty.  Genl.  (1911),  vol.  2,  p.  661. 

Powers  of  State  Superintendent  of  Weights  and  Measures  conferred  upon  Depart- 
ment of  Farms  and  Markets,  see  Farms  and  Markets  Law,  §§  20,  21,  25,  100. 


1090-a-b 


PROVISIONS  RELATING  TO  COUNTIES. 


General  Business  Law,  §§  15  ,16,  17. 

correct.  He  may  for  the  purposes  above  mentioned,  and  in  the  general 
performance  of  his  official  duties,  enter  or  go  into  or  upon  and  without 
formal  warrant,  any  stand,  place,  building  or  premises  or  may  stop  any 
vender,  peddler,  junk  dealer,  coal  wagon,  ice  wagon  or  any  dealer  what- 
soever, for  the  purposes  of  making  the  proper  tests.  Whenever  the  county 
sealer  finds  a violation  of  the  statutes  relating  to  weights  and  measures 
he  shall  cause  the  violator  to  be  prosecuted.  The  county  sealer  shall  keep 
a complete  record  of  the  work  done  by  him  and  shall  make  an  annual 
report  to  his  board  of  supervisors,  and  an  annual  report,  duly  sworn  to, 
not  later  than  the  first  day  of  December  to  the  state  superintendent  of 
weights  and  measures.  The  county  sealer  of  weights  and  measures  shall 
forthwith  on  his  appointment  give  a bond,  with  sureties  to  be  approved 
by  the  appointing  power,  for  the  faithful  performance  of  the  duties  of  his 
office  and  for  the  safety  of  the  local  standards  and  such  appliances  for  veri- 
fication as  are  committed  to  his  charge  and  for  the  surrender  thereof 
immediately  to  his  successor  in  office  or  to  the  person  appointed  by  the 
proper  authority  to  receive  them.2  [General  Business  Law,  § 13,  amended 
by  L.  1910,  ch.  187,  and  L.  1917,  ch.  529.] 

§ 6.  WEIGHTS  AND  MEASURES  TO  BE  SEALED. 

Whenever  the  sealer  of  a city  or  county  compares  weights  and  meas- 
ures and  finds  that  they  correspond  or  causes  them  to  correspond  with 
the  standards  in  his  possession,  he  shall  seal  and  mark  such  weights  and 
measures  with  the  appropriate  devices.  [General  Business  Law,  § 15, 
as  amended  by  L.  1910,  ch.  187.] 

§ 7.  METHOD  OF  SALE  OF  CERTAIN  COMMODITIES. 

All  meat,  meat  products  and  butter,  shall  be  sold  or  offered  for  sale 
by  weight.  All  other  commodities  not  in  containers  shall  be  sold  or  of- 
fered for  sale  by  standard  weight,  standard  measure,  or *  *or  offered  for 
sale  by  standard  weight,  standard  measure  or  numerical  count;  and  such 
weight,  measure  or  count  shall  be  marked  on  a label  or  a tag  attached 
thereto;  provided,  however,  that  vegetables  may  be  sold  by  the  head  or 
bunch.  [General  Business  Law,  § 16,  as  added  by  L.  1912,  ch.  81,  in 
effect  June  1,  1913.] 

§ 9.  NET  CONTENTS  OF  CONTAINERS  TO  BE  INDICATED  ON  THE 
OUTSIDE  THEREOF. 

When  commodities  are  sold  or  offered  for  sale  in  containers  of  other 
sizes  than  those  specified  in  section  sixteen-a  or  whose  sizes  are  not  other- 
wise provided  by  statute,  the  net  quantity  of  the  contents  of  each  con- 
tainer, or  a statement  that  the  specified  weight  includes  the  container, 
the  weight  of  which  shall  be  marked,  shall  be  plainly  and  conspicuously 


2.  Jurisdiction  of  a county  sealer  of  weights  and  measures  does  not  extend  to  the 
cities  within  his  county.  Rept.  of  Atty.  Genl.,  Oct.  19,  1910. 

*Line  repeated  in  original.  * 


WEIGHTS  AND  MEASURES. 


1090c 


General  Business  Law,  §§  17a,  17b,  17c. 

marked,  branded  or  otherwise  indicated  on  the  outside  or  top  thereof  or 
on  a label  or  a tag  attached  thereto,  in  terms  of  weight,  measure  or 
numerical  count;  provided,  however,  that  reasonable  variations  shall  be 
permitted.  [General  Business  Law,  § IT,  as  added  by  L.  1912,  ch.  81,  in 
effect  June  1,  1913.] 

§ 10.  WHEN  SECTIONS  SIXTEEN,  SIXTEEN-A  AND  SEVENTEEN  SHALL 
NOT  APPLY. 

Sections  sixteen,  sixteen-a  and  seventeen  shall  not  apply  to  containers 
or  commodities  in  containers  with  ornamentations  or  decorations  ex- 
clusively for  gifts  or  social  favors,  or  to  commodities  dispensed  for  con- 
sumption on  the  premises,  or  to  commodities  or  containers  put  in  recep- 
tacles used  merely  for  the  purpose  of  carrying  or  delivering  of  commodi- 
ties or  retainers  complying  with  the  provisions  of  such  sections  or  when 
the  numerical  count  of  the  individual  units  is  six  or  less,  or  in  the  case 
of  liquids  when  the  contents  is  two  fluid  ounces  or  less,  or  when  the 
weight  of  the  contents  is  three  avoirdupois  ounces  or  less,  or  to  com- 
modities packed,  put  up  or  filled  prior  to  eight  months  after  this  section 
takes  effect  or  to  bottles  used  for  the  purposes  of  the  bottling  of  spiritu- 
ous, maltous,  vinous,  or  carbonated  beverages  until  eight  months  after 
this  section  takes  effect.  [General  Business  Law,  § 17a,  as  added  by  L. 
1912,  ch.  81,  and  amended  by  L.  1913,  ch.  514.] 

§ 11.  GUARANTY  FURNISHED  BY  WHOLESALER,  JOBBER  OR  MANUFAC- 
TURER. 

No  person  shall  be  prosecuted  under  the  provisions  of  this  article,  fol- 
lowing section  fifteen  thereof,  when  he  can  show  a guaranty  signed  by  a 
wholesaler,  jobber  or  manufacturer,  residing  in  the  state  of  New  York 
from  whom  he  purchased  the  commodity  in  containers  to  the  effect  that 
they  were  not  incorrectly  marked  within  the  meaning  of  such  sections 
of  this  article.  The  person  making  the  sale  and  guaranty  shall  then  be 
amenable  to  the  prosecution,  fines,  and  other  penalties  which  would  in 
due  course  attach  to  the  dealer  under  the  provisions  of  such  sections. 
The  name  appearing  on  the  container  and  the  marking  as  provided  by 
section  seventeen  shall  be  deemed  to  constitute  a guaranty.  [General 
Business  Law,  § 17b,  as  added  by  L.  1912,  ch.  81,  in  effect  June  1, 1912.] 

§ 12.  DEFINITION  OF  TERMS  “ CONTAINER”  AND  “PERSON.” 

“A  container  ” as  used  in  this  article,  following  section  fifteen  thereof, 
shall  include  any  carton,  box,  crate,  barrel,  half-barrel,  hamper,  keg, 
drum,  jug,  jar,  crock,  bottle,  bag,  basket,  pail,  can,  wrapper,  parcel  or 
package.  “A  person  ” as  used  in  such  sections  shall  be  considered  to  im- 
port both  the  vsingular  and  the  plural  and  shall  include  corporations,  com- 
panies, societies  and  associations,  and  whether  acting  through  an  agent 


1090d  PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


General  Business  Law,  §§  18,  18a. 

or  servant.  [General  Business  Law,  § 17c,  as  added  by  L.  1912,  ch.  81, 
in  effect  June  1,  1912.] 

§ 13.  EXAMINATION  AND  PROSECUTION. 

The  examination  of  the  weight,  measure  or  numerical  count  of  the 
contents  of  containers  as  provided  by  section  seventeen  shall  be  made 
by  the  state  superintendent  of  weights  and  measures  or  under  his  super- 
vision or  direction  by  any  of  the  weights  and  measures  officials  of  the 
state;  except  that  in  the  city  of  New  York  such  examination  shall  be 
made  by  the  commissioner  of  the  mayor’s  bureau  of  weights  and  meas- 
ures of  the  city  of  New  York.  When  after  such  examination  there  is 
cause  to  believe  that  a provision  of  section  seventeen  has  been  intention- 
ally violated  the  state  superintendent  of  weights  and  measures  shall, 
after  notifying  in  writing  the  person  so  accused  of  such  accusation, 
certify  the  results  to  the  attorney-general  with  a copy  of  the  results  of 
the  examination  duly  authenticated  under  oath  by  the  official  making 
examination.  The  attorney-general  shall  cause  appropriate  proceedings 
in  the  name  of  the  people  of  the  state  of  New  York  to  be ‘commenced  and 
prosecuted  in  the  proper  courts  of  the  state  without  delay  for  the  enforce- 
ment of  the  penalties  therefor;  except  that  in  the  city  of  New  York  the 
commissioner  of  the  mayor’s  bureau  of  weights  and  measures  shall  in 
cases  where  he  acts,  after  notifying  in  writing  the  person  so  accused  of 
such  accusation  certify  the  result  to  the  attorney-general,  with  a copy 
of  the  result  of  the  examination  duly  authenticated  under  oath  by  the 
official  making  such  accusation.  Such  attorney-general  shall  cause  ap- 
propriate proceedings  in  the  name  of  the  people  of  the  state  of  New  York 
to  be  commenced  and  prosecuted  in  the  courts  of  the  state  of  New  York 
without  delay  for  the  enforcement  of  the  penalties  therefor.  The  state 
superintendent  of  weights  and  measures  with  the  co-operation  of  the 
chief  or  principal  weights  and  measures  officials  of  the  cities  of  the  first 
class  shall  establish  uniform  tolerances  or  amounts  of  reasonable  varia- 
tion and  shall  make  uniform  rules  and  regulations  for  carrying  out  the 
provisions  of  sections  sixteen,  sixteen-a,  seventeen,  seven teen-a  and  seven- 
teen-b.  [General  Business  Law,  § 18,  as  amended  by  L.  1912,  ch.  81, 
in  effect  June  1,  1912.] 

§ 14.  PENALTIES. 

A person  violating  any  of  the  provisions  of  sections  sixteen,  sixteen-a, 
sixteen-b,  seventeen,  seven teen-b,  shall  be  punished  by  a fine  of  not  less 
than  twenty-five  dollars  nor  more  than  one  hundred  dollars  for  the  first 
and  second  violations,  and  by  a fine  of  not  less  than  one  hundred  dollars 
nor  more  than  five  hundred  dollars  for  subsequent  violations.  [General 
Business  Law,  § 18a,  as  added  by  L.  1912.  and  amended  by  L.  1913 
<h.  426.]  « 


FORESTS;  PREVENTION  OF  FIRE. 


1090e-f-g 


Conservation  Law,  § 60. 


CHAPTER  LXXV-A. 

FORESTS;  PREVENTION  OF  FIRE. 

Section  1.  Communal  forests. 

3.  Fire  districts  and  fire  towns. 

4.  Fire  moneys  and  accounts. 

5.  Forest  fire  prevention. 

6.  Railroads  in  forest  lands. 

7.  Damages  on  account  of  forest  fires. 

§ 1.  COMMUNAL  FORESTS. 

A county,  city,  town,  or  school  district  may  acquire  by  purchase,  or 
gift,  or  take  over  lands  in  its  possession  within  the  boundaries  thereof 
and  use  the  same  for  forestry  purposes. 

1.  Power  and  authority.  The  governing  board  of  a county,  city,  town 
or  school  district  may  appropriate  money  or  issue  bonds  either  for  purchase 
of  lands  for  the  purposes  herein  provided,  to  establish  forest  plantations 
or  for  the  care  and  management  of  forests.  Such  boards  may  undertake 
such  work  at  regular  or  special  meetings  by  majority  vote  of  such  board 
after  two  weeks  public  notice  setting  forth  the  fact  that  such  plan  is  con- 
templated and  that  moneys  are  to  be  appropriated  for  such  purpose. 

2.  Assistance  and  trees.  The  conservation  commission  may  assist  and 
advise  such  boards  in  its  reforesting  work,  and  the  commission  may  furnish 
trees  for  reforesting  such  publicly  owned  lands  without  charge  provided 
they  are  planted  in  accordance  with  the  instructions  of  the  commission. 

3.  Use.  Such  governing  board  shall  have  full  power  and  authority 
to  acquire,  maintain,  manage  and  operate  such  forests  for  the  benefit  of 
the  inhabitants  of  the  district. 

4.  Revenue.  The  net  income  from  such  lands  shall  be  paid  into  the 
general  fund  of  such  municipal  division  and  shall  be  used  only  upon  order 
of  its  governing  board.  [Conservation  Law,  § 60,  as  amended  by  L.  1916, 
ch.  451.] 

§ 3.  FIRE  DISTRICTS  AND  FIRE  TOWNS. 

The  following  classification  of  districts  is  made  for  the  purpose  of  pro- 
tecting the  forests  from  fire. 

1.  Forest  preserve.  The  forest  preserve  shall  include  the  lands  owned 
or  hereafter  acquired  by  the  state  within  the  county  of  Clinton,  except  the 
towns  of  Altona  and  Dannemora,  and  the  counties  of  Delaware,  Essex, 
Franklin,  Fulton,  Hamilton,  Herkimer,  Lewis,  Oneida,  Saratoga,  Saint 
Lawrence,  Warren,  Washington,  Greene,  Ulster  and  Sullivan,  except 

(a)  Lands  within  the  limits  of  any  village  or  city,  and 

(b)  Lands  not  wild  lands  and  not  situated  within  either  the  Adirondack 
park  or  the  Catskill  park  acquired  by  the  state  on  foreclosure  of  mort- 
gages made  to  loan  commissioners.  [Subd.  as  amended  by  L.  1917,  ch. 
266.] 


1090h 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS 


Conservation  Law,  § 62. 

2.  Fire  districts.  The  commission  may  establish  a forest  fire  pro- 
tective system  in  such  other  parts  of  the  state  as  it  may  deem  necessary 
where  there  are  contiguous  areas  of  forest  land  aggregating  seventy-five 
thousand  acres  or  upwards.  In  such  regions  the  commission  may 
establish,  equip  and  operate  fire  observation  stations  with  the  necessary 
accessories,  prepare  and  post  fire  notices,  organize  a fire  protective  force, 
and  require  the  town  authorities  to  perform  their  duties  in  forest  fire 
protection.  If  the  town  supervisor  fails  to  certify  to  the  conservation 
commission  by  February  fifteenth  of  any  year  a list  of  the  fire  wardens 
for  such  town  then  the  conservation  commission  may  appoint  necessary 
fire  wardens. 

3.  Towns  generally.  In  the  towns  other  than  the  fire  towns  the  town 
supervisor  shall  be  superintendent  of  fires  in  his  town  and  he  shall  be 
charged  with  the  duty  of  preventing  and  extinguishing  forest  fires.  He 
shall  have  the  power  and  is  hereby  required  to  appoint  necessary  and 
competent  fire  wardens.  On  or  before  February  fifteenth  of  each  year, 
the  town  supervisor  shall  state  to  the  commission,  in  writing,  the  names 
of  the  persons  whom  he  appoints  to  act  as  fire  wardens  during  the  cur- 
rent calendar  year.  [Conservation  Law,  § 52,  as  added  by  L.  1916, 
ch.  451.] 

10.  Fire  towns  are  as  follows:  All  towns  in  Hamilton  county;  the 

towns  of  Altona,  Ausable,  Black  Brook,  Dannemora,  Ellenburg  and 
Saranac,  Clinton  county ; the  towns  of  Andes,  Colchester,  Hancock  and 
Middletown,  Delaware  county;  the  towns  of  Chesterfield,  Elizabeth- 
town, Jay,  Keene,  Lewis,  Minerva,  Moriah,  Heweomb,  Horth  Elba, 
Xorth  Hudson,  Saint  Armand,  Schroon  and  Wilmington,  Essex  county; 
the  towns  of  Altamont,  Belmont,  Brighton,  Duane,  Franklin,  Harrietts- 
town,  Santa  Clara  and  Waverly,  Franklin  county ; the  towns  of  Bleecker, 
Caroga,  Mayfield  and  Stratford,  Fulton  county;  the  towns  of  Hunter, 
Jewett,  Lexington  and  Windham,  Greene  county;  the  towns  of  Ohio, 
Bussia,  Salisbury,  Webb  and  Wilmurt,  Herkimer  county;  the  towns  of 
Croghan,  Diana,  Greig,  Lyonsdale  and  Watson,  Lewis  county;  the  towns 
of  Forestport  and  Remsen,  Oneida  county;  the  towns  of  Corinth,  Day, 
Edinburg  and  Hadley,  Saratoga  county;  the  towns  of  Clare,  Clifton, 
Colton,  Fine,  Hopkinton,  Parishville,  Piercefield,  Pitcairn,  Saint  Law- 
rence county;  the  towns  of  Keversink,  Rockland,  Sullivan  county;  the 
towns  of  Denning,  Gardiner,  Hardenburgh,  Olive,  Rochester,  Shan- 
daken,  Shawangunk,  Wawarsing  and  Woodstock,  Ulster  county;  the 


FORESTS;  PREVENTION  OF  FIRE. 


1090i 


Conservation  Law,  § 53. 

towns  of  Bolton,  Caldwell,  Chester,  Hague,  Horicon,  Johnsburgh,  Lu- 
zerne, Queensbury,  Stony  Creek,  Thurman  and  Warrensburgh,  Warren 
county;  the  towns  of  Dresden,  Fort  Ann  and  Putnam,  Washington 
county.  [Conservation  Law,  § 62,  subd.  10,  as  amended  by  L.  1916, 
ch.  451.] 

§ 4.  FIRE  MONEYS  AND  ACCOUNTS. 

In  order  to  carry  into  effect  the  provisions  of  this  article  the  follow- 
ing is  prescribed. 

1.  Temporary  loan.  The  state  comptroller  shall  have,  subject  to  the 
approval  of  the  governor,  the  authority  to  make,  on  behalf  of  the  state, 
a temporary  loan  not  exceeding  one  hundred  thousand  dollars  in  any 
fiscal  year,  for  the  use  of  the  conservation  commission  in  protecting  the 
forests  and  extinguishing  fires  as  provided  by  this  article  upon  the 
certification  of  the  conservation  commission  that  an  emergency  exists 
whereby  through  insufficiency  of  appropriations  it  is  found  to  be  impos- 
sible to  protect  the  forests  from  fire.  The  comptroller  shall  thereupon 
borrow  such  sums  as  may  be  directed  by  the  governor  for  such  purposes 
and  shall  report  such  transactions  to  the  legislature  which  shall  there- 
upon appropriate  the  moneys  borrowed.  Section  thirty-five  of  the 
finance  law  shall  not  apply  to  any  indebtedness  so  incurred. 

2.  Payment  of  fire  bills.  All  salaries  and  other  expenses  incurred 
by  the  commission  and  its  employees  in  protecting  the  forests  in  the 
fire  towns  from  fire  shall  be  paid  by  the  state. 

3.  Debate  by  fire  towns.  One-half  of  all  expense  incurred  under 
subdivision  two  of  this  section  in  extinguishing  fires  actually  burning, 
except  salaries  and  expenses  of  regular  employees,  shall  be  a charge 
upon  the  town  in  which  the  fire  burned.  The  commission  shall,  on  or 
before  November  twentieth  of  each  year,  transmit  to  the  clerk  of  the 
board  of  supervisors  of  each  county  containing  fire  towns  a summary 
statement  of  expenses  incurred  together  with  the  amount  charged  against 
each  town  in  such  county.  The  said  clerk  shall  immediately  deliver 
such  statement  to  the  board  of  supervisors  who  shall  thereupon  levy  the 
said  amount  due  from  each  town  to  the  state  upon  the  taxable  property 
of  such  town  by  including  the  said  amount  in  the  sums  to  be  raised  and 
collected  in  the  next  levy  and  assessment  of  taxes  therein,  and  the  same 
shall  be  collected  as  other  town  taxes  are  collected  and  the  amount  due 
the  state  shall  be  paid  by  the  supervisor  to  the  conservation  commission 
on  or  before  May  first  following  the  levy  thereof. 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


lOOOj 

Conservation  Law,  § 54. 

4.  May  pay  accounts.  If  any  person  incurs  expenses  fighting  forest 
fires  in  a fire  town,  the  commission  may  upon  the  receipt  of  satisfactory 
proof  and  accounts  filed  in  its  offices  within  sixty  days  from  the  time  the 
expense  was  incurred  audit  and  pay  all  or  such  portion  thereof  as  in  its 
judgment  the  public  interest  requires. 

5.  Recovery  of  expenses.  Any  moneys  necessarily  expended  by  the 
state,  a municipality,  or  any  person  in  fighting  forest  fires  may  be  sued 
for  by  the  state,  municipality  or  person  expending  the  same  and  recov- 
ered from  the  person  causing  the  fire.  Such  actions  may  be  maintained 
in  addition  to  other  actions  for  damages  or  penalties  and  may  be 
demanded  in  the  same  or  separate  actions. 

6.  Certain  towns  raise  fire  fund.  Towns  other  than  fire  towns  may 
raise  necessary  funds  for  prevention  and  extinguishment  of  forest  fires 
in  their  towns  either  by  levy  or  by  the  supervisor  making  temporary 
loans. 

7.  Advance  by  comptroller.  The  comptroller  may  upon  request  of 
the  conservation  commission  advance,  not  to  exceed  five  thousand  dollars 
at  any  time,  to  said  commission  for  the  purpose  of  facilitating  payment 
of  fire  accounts.  [Conservation  Law,  § 53,  as  added  by  L.  1916,  ch. 
451.] 

§ 5.  FOREST  FIRE  PREVENTION. 

The  following  provision*  shall  apply  in  protecting  forests  from  fire : 

1.  Proclamation  by  governor.  Whenever,  by  reason  of  drought,  the 
forests  of  the  state  are  in  danger  of  fires  which  may  be  caused  by 
hunters,  fishermen,  trappers,  or  campers,  the  governor  shall  have  the 
power  to  determine  and  shall  determine  and  declare  that  such  pursuits 
are  contrary  to  the  public  interest,  and  shall  have  the  further  authority 
to  forbid  by  proclamation  any  person  or  persons  carrying  on  such  pur- 
suits in  so  much  of  the  territory  included  within  the  fire  towns  as  he 
deems  the  public  interest  requires.  Such  proclamations  shall  be.  in 
full  force  and  effect  at  the  expiration  of  twenty-four  hours  after  notice 
is  given  in  the  manner  the  governor  may  determine. 


So  in  original. 


FORESTS;  PREVENTION  OF  FIRE. 


1090k 


Conservation  Law,  § 54. 

2.  Top  lopping  evergreen  trees.  Every  person  who  shall  within  any 
of  the  fire  towns  fell  or  cause  to  be  felled  or  permit  to  be  felled  any 
evergreen  tree  for  sale  or  other  purposes  shall  cut  off  or  cause  to  he  cut 
off  from  the  said  tree  at  the  time  of  felling  the  said  tree,  unless  other- 
wise authorized  by  the  commission  before  the  trees  are  felled,  all  the 
limbs  thereof  up  to  a point  where  the  trunk  of  the  said  tree  has  a longest 
diameter  which  does  not  exceed  three  inches,  unless  the  said  tree  be 
felled  for  sale  and  use  with  the  limbs  thereon  or  for  use  with  the  limbs 
thereon. 

3.  Fires  generally.  No  fires  shall  be  set  on  or  near  forest  land  and 
left  unquenched;  no  fire  shall  be  set  which  will  endanger  the  property 
of  another ; no  person  shall  set  forest  land  on  fire ; no  person  shall  negli- 
gently suffer  fire  on  his  own  property  to  extend  to  property  of  another ; 
no  person  shall  use  combustible  gun  wads  or  carry  naked  torches  on 
forest  lands ; no  fire  shall  be  set  in  or  near  forest  land  in  connection  with 
camping  without  all  inflammable  material  having  first  been  removed  for 
a distance  of  three  feet  around  the  fire;  no  person  shall  drop,  throw,  or 
otherwise  scatter  lighted  matches,  burning  cigars,  cigarettes  or  tobacco ; 
no  person  shall  deface  or  destroy  any  notice  posted  containing  forest  fire 
warnings,  laws,  or  rules  and  regulations. 

4.  Unpiloted  hot  air  balloons.  No  unpiloted  hot  air  balloon  shall  be 
sent  up  in  any  fire  town  or  in  a town  adjacent  thereto. 

5.  Fires  to  clear  land.  No  person  shall  set  or  cause  to  be  set  fire 
for  purpose  of  clearing  land  or  burning  logs,  brush  stumps,  or  dry  grass, 
in  any  of  the  fire  towns,  without  first  having  obtained  from  the  com- 
mission a written  permit  so  to  do.  If  such  burning  is  done  near  forest 
lands  and  if  there  is  danger  of  the  fire  spreading,  a person  designated  to 
issue  such  permits  must  be  present. 

6.  Protection  on  steam  plants.  No  device  for  generating  power  which 
burns  wood,  coke,  lignite  or  coal  shall  be  operated  in,  through  or  near 
forest  land,  unless  the  escape  of  sparks,  cinders  or  coals  shall  be  prevented 
in  such  manner  as  may  be  required  by  the  commission. 

7.  Material  adjoining  rights  of  way.  In  fire  any  of  the  towns,  brush, 
logs,  slash  or  other  inflammable  material  resulting  from  the  cutting  of 


10901 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Conservation  Law,  § §54. 

trees  hereafter  shall  not  be  left  or  allowed  to  remain  on  land  within  twenty- 
five  feet  01  the  right  of  way  of  a railroad  or  within  twenty  feet  of  the 
right  of  way  of  a public  highway. 

8.  Deposit  of  inflammable  material.  No  person  shall  deposit,  and  leave 
in  any  of  the  fire  towns,  brush  or  inflammable  material  upon  the  right  of 
way  of  highways.  [Conservation  Law,  § 54,  as  added  by  L.  1916,  ch.  451, 
and  amended  by  L.  1917,  ch.  266.] 

§ 6.  RAILROADS  IN  FOREST  LANDS. 

In  order  to  secure  proper  protection  to  the  forests  from  fire  the  rail- 
roads which  operate  through  such  territory  shall  be  subject  to  the  following 
restriction. 

1.  Railroad  patrol.  All  railroads  shall,  on  such  parts  of  their  rights 
of  ways  as  are  operated  through  forest  lands,  maintain  from  April  first 
to  November  fifteenth  of  each  year  a sufficient  number  of  competent  fire 
patrolmen  unless  relieved  by  the  commission.  The  railroad  shall  file  in 
the  office  of  the  commission  on  or  before  April  first  of  each  year  a complete 
list  of  such  patrol  indicating  the  names  of  the  men,  their  post-office 
addresses  and  portion  of  right  of  way  assigned  to  each  patrolman.  If  any 
changes  are  subsequently  made  similar  data  shall  be  furnished  on  request 
of  the  commission. 

2.  Clearing  rights  of  way.  The  right  of  way  of  all  railroads  which  are 
operated  through  forest  lands  shall  be  kept  cleared  of  all  inflammable 
material  whenever  required  by  the  commission. 

3.  Locomotives  to  be  equipped.  No  locomotive  shall  be  operated  unless 
equipped  with  fire  protective  devices  of  ash  pan  and  front  end  which  have 
been  approved  by  the  commission.  Such  devices  shall  be  maintained  and 
properly  used. 

4.  Reports  of  fires.  A verified  report  of  every  forest  fire  which  originates 
on  the  right  of  way  or  within  two  hundred  feet  thereof,  in  any  of  the  fire 
towns  or  protected  forest  lands,  shall  be  prepared  by  the  railroad  concerned, 
upon  blanks  furnished  by  the  commission,  and  filed  in  the  office  of  the 
commission  within  ten  days  after  such  fire  occurs. 


FORESTS;  PREVENTION  OF  FIRE. 


1090m 


Conservation  Law,  § 56. 

5.  Examination  of  engine  and  records.  Every  railroad  company  shall 
examine  each  coal  burning  locomotive  each  day  it  is  operated  between 
March  first  and  December  first,  and  record  the  condition  of  the  fire  pro- 
tective devices  in  a book,  or  books,  kept  for  that  purpose.  Such  book,  or 
hooks,  shall  be  kept  on  file  at  such  place  or  places  in  this  state,  as  may  be 
selected  by  each  railroad  company,  and  shall  at  all  times  at  such  places 
he  accessible  to  inspectors  of  the  conservation  commission.  Each  railroad 
company  shall  within  thirty  days  after  the  taking  effect  of  this  act  file  with 
the  conservation  commission  a statement  of  the  place  or  places  at  which  it 
keeps  such  books;  and  in  the  event  of  a change  of  such  place  or  places  by 
said  company,  it  shall  file  a statement  of  such  change  within  five  days  after 
such  change  takes  effect.  [Subd.  5,  amended  by  L.  1917,  ch.  266.] 

6.  Deposit  of  coals,  et  cetera.  Fire,  live  coals  or  hot  ashes  shall  not  be 
deposited  unless  properly  protected  upon  any  track  or  right  of  way  on  or 
near  forest  land. 

7.  Use  of  protective  devices.  Employees  of  a railroad  shall  at  all  times 
use  in  a proper  and  effective  manner  the  fire  protective  appliancs  provided 
by  such  railroad.  [Conservation  Law,  § 55,  as  added  by  L.  1916,  ch.  451.] 

§ 7.  DAMAGES  ON  ACCOUNT  OF  FOREST  FIRES. 

In  case  of  damages  by  forest  fires  negligently  caused  the  injured  party 
may  maintain  actions  in  accordance  with  such  of  the  following  provisions 
as  are  applicable  thereto  and  shall  have  redress  therefor. 

1.  Injury  to  state  lands.  Any  person  who  causes  a fire  which  burns 
on  or  over  state  lands  shall  be  liable  to  the  state  for  treble  damages  and,  in 
addition,  to  a penalty  of  ten  dollars  for  every  tree  killed  by  such  fire. 

2.  Injury  to  municipal  or  private  lands.  Any  person  who  causes  a fire 
which  burns  on  or  over  lands  belonging  to  another  person  or  to  a munici- 
pality shall  be  liable  to  the  party  injured  for  actual  damages  in  case  of 
fire  negligently  caused  or  for  damages  at  the  rate  of  one  dollar  for  each 
tree  killed  or  destroyed  in  case  of  fire  wilfully  caused. 

3.  Recovery  for  damages  from  fires.  The  state,  a municipality  or  any 
person  may  sue  for  and  recover  under  subdivision  one  or  two  of  this 
section,  however  distant  from  the  place  where  the  fire  was  set  or  started 
and  notwithstanding  the  same  may  have  burned  over  and  across  several 
separate,  intervening  and  distinct  tracts,  parcels  or  ownerships  of  land. 


1090n 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


Conservation  Law,  § 56. 

4.  Method  of  computing  value  of  state  property.  Damages  to  state 
lands  and  timber  shall  be  ascertained  and  determined  at  the  same  rate 
of  value  as  if  such  property  were  privately  owned. 

5.  Prima  facie  cause  on  right  of  way.  The  fact  that  a fire  originates 
upon  the  right  of  way  of  a railroad  shall  be  prima  facie  evidence  that 
the  fire  was  caused  by  negligence  of  the  railroad  company. 

6.  Prima  facie  cause  in  clearing  lands.  Whenever  a fire  has  been 
set  for  the  purpose  specified  in  subdivision  five  of  section  fifty-four  in 
any  of  the  fire  towns  it  shall  be  prima  facie  evidence  that  the  fire  was 
started  by  the  owner  or  occupant  of  the  land.  [Conservation  Law, 
§ 56,  as  added  by  L.  1916,  ch.  451.] 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


1091 


CHAPTER  LXXVL 


FEES  OF  COUNTY  AND  TOWN  OFFICER& 


Section  l.  Assessors. 

2.  Auditors,  town. 

3.  Collectors. 

4.  Constables. 

5.  Coroners. 

6.  County  clerks. 

7.  County  treasurer. 

8.  Court  criers. 

District  superintendent 

9.  Election  officers. 

10.  Fence  viewers. 

11.  Health  officer. 

12.  Jurors. 

13.  Jurors,  commissioners  of. 

14.  Justices  of  the  peace. 

15.  Overseers  of  the  poor. 

16.  Physicians. 

17.  Pound  masters. 

18.  Printers’  fees. 

19.  Railroad  commissioner. 

School  director. 

20.  Sheriffs. 

21.  Supervisors. 

22.  Town  clerks. 

23.  Town  superintendents  of  highways. 

24.  United  States  loan  commissioners. 


§ 1.  Assessors. 

Compensation,  chargeable  to  towns,  for  each  day’s  services  for  the 

town  in  completing  assessment  [Town  Law,  § 85,  ante.'] 2 

As  fence  viewers,  compensation  for  services  performed  in  settling 
disputes  as  to  all  questions  submitted  to  them  relating  to  division 
fences,  per  day  [Town  Law,  § 364,  ante.] 1 


Fees  for  traveling  to  place  where  strayed  animals  are  kept,  per 

mile  

Fees  for  certificate  of  charges  in  proceedings  relative  to  strayed 

animals  [Town  Law,  § 385,  ante.] 

Compensation  for  services  in  determining  damages  for  injuries  to 

sheep  caused  by  dogs,  under  County  Law,  § 118,  per  day 2 

[For  special  provisions  relating  to  compensation  of  assessors  in  towns 
having  an  assessed  valuation  of  $20,000,000  and  in  the  towns  in  Monroe 
and  Nassau  counties,  see  Town  Law,  § 85.] 


00 

50 

10 

75 

00 


1092 


FEES  OF  COUNTY  AND  TOWN  OFFICERS. 


Meeting  with  state  board  of  tax  commissioners.  Section  173  of  the 
Tax  Law  {ante),  requires  one  or  more  of  the  state  tax  commissioners  to 
visit  each  county  at  least  once  in  two  years,  “ and  inquire  into  the  methods 
of  assessment  and  taxation,  and  ascertain  whether  the  assessors  faithfully 
discharge  their  duties.”  It  is  customary  for  the  several  town  assessors  to 
meet  such  state  tax  commission  on  such  visits  at  some  place  within  the 
county.  Section  241a  of  the  County  Law  (ante),  provides  that  “town  as- 
sessors shall  be  entitled  to  receive  compensation  at  the  rate  of  four  dollars 
per  day  for  each  calendar  day  actually  and  necessarily  spent  in  attending 
a meeting  within  the  comity  held  for  the  purpose  of  conference  with  the 
state  board  of  tax  commissioners  or  a member  of  such  board,  and  mileage 
at  the  rate  of  eight  cents  per  mile  by  the  most  direct  route  from  his  resi- 
dence, in  going  to  and  returning  from  the  place  within  the  county  where 
such  meeting  is  held.  Such  compensation  and  mileage  shall  be  a county 
charge.”  See  also  Tax  Law,  § 171b,  which  requires  town  assessors  to  meet 
with  the  state  tax  commission  at  a place  to  be  designated,  once  in  two 
years.  The  expenses  incurred  by  such  assessors  in  attending  such  conference 
are  a charge  against  the  county. 

§ 2.  Auditors,  town. 

Compensation: 

In  towns  of  less  than  twelve  thousand  inhabitants,  for  each  day,  not 

exceeding  ten  in  any  one  year $3  00 

In  towns  of  more  than  twelve  thousand  inhabitants,  for  each  day, 

not  exceeding  thirty  in  one  year 3 00 

In  towns  of  more  than  twenty  thousand  inhabitants,  for  each  day, 
not  exceeding  sixty  days  in  one  year  to  be  fixed  by  the  town 
hoard  at  from  [Town  Law,  § 154,  ante ] 3 00  to  5 00 

§ $.  Collectors. 

Fees : 

On  all  taxes  paid  within  thirty  days  from  date  of  notice  of  receipt 


of  assessment-roll,  on  amount  of  $2,000  and  less 2 per  cent. 

On  amounts  of  over  $2,000 1 per  cent. 

On  taxes  collected  after  expiration  of  thirty  days 5 per  cent. 

On  taxes  returned  to  county  treasurer  as  unpaid  [Tax  Law,  § 81, 

ante.}  . 2 per  cent. 

For  collecting  dog  tax,  on  every  $100  collected 10  00 

For  each  dog  killed  because  of  non-payment  of  tax  [County  Law, 

§ 115,  ante.} 1 00 


§ 4.  Constables. 

In  civil  actions: 

In  an  action  brought  before  a justice  of  the  peace,  or  in  a justice’s 
court  of  a city: 

For  serving  a summons 25 

For  serving  a summons  and  executing  an  order  of  arrest 1 00 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


1093 


In  civil  actions — (continued): 

For  serving  a summons  and  levying  a warrant  of  attachment $1  00 

For  serving  a summons  and  affidavit  and  executing  a requisition,  in 

an  action  for  a chattel 1 00 

For  serving  an  order  directing  the  action  to  be  continued  before  a 
justice  other  than  the  one  before  whom  it  is  pending  and  for  at- 
tending before  the  latter  50 

And  in  addition  if  he  so  attends  with  a person  in  his  custody 50 

For  collecting  money  by  virtue  of  an  execution,  for  every  dollar  col- 
lected, to  the  amount  of  fifty  dollars  05 

For  every  dollar  collected  over  fifty  dollars  02| 


And  where  a judgment  or  an  execution  is  settled  after  a levy,  the 
constable  is  entitled  to  poundage  on  the  sum  at  which  the  settle- 
ment is  made,  not  exceeding  the  value  of  the  property  levied  on. 

For  each  mile  necessarily  traveled,  going  and  returning  to  serve  a 
summons  or  to  serve  or  to  execute  any  other  mandate,  except  a 
venire,  the  distance  to  be  computed  from  the  place  of  abode  of  the 
person  served,  or  the  place  where  it  is  served,  to  the  place  where 


it  is  returnable  10 

But  where  two  or  more  mandates  in  one  action  are  served  or  ex- 
ecuted on  one  journey,  or  where  a mandate  is  served  on  or  ex- 
ecuted against  two  or  more  persons  in  one  action,  he  is  entitled, 

in  all,  for  each  mile  necessarily  traveled,  to  only id 

For  notifying  the  plaintiff  of  the  execution  of  an  order  of  arrest  ...  25 

And  for  going  to  the  plaintiff’s  residence,  or,  if  he  is  found  else- 
where, to  the  place  where  he  is  found,  to  serve  such  a notice,  for 

each  mile  traveled  going  and  returning  10 

For  subpoenaing  each  witness,  not  exceeding  four 25 

For  notifying  the  jurors  to  attend  a trial 1 50 

For  taking  charge  of  a jury  during  their  deliberations 50 

Where  witnesses,  not  exceeding  four,  are  subpoenaed  by  any  person 

other  than  a constable,  the  fee  therefor  is,  each 10 


In  a speeial  proceeding : 

For  notifying  jurors  to  attend  to  assess  damages,  in  proceedings 

relating  to  highways 2 00 

For  notifying  jurors  to  attend  in  any  other  case,  unless  a fee  there- 
for is  specially  prescribed  by  law,  for  each  person  notified 10 

And  for  each  mile  actually  and  necessarily  traveled,  going  from  and 

returning  to  his  place  of  residence 10 

For  serving  a precept  or  other  mandate,  by  which  the  special  pro- 
ceeding is  commenced 25 

For  serving  a warrant,  in  any  case  where  a fee  therefor  is  not 

specially  prescribed  by  law 50 

For  serving  an  order,  directing  the  special  proceeding  to  be  con- 
tinued before  justice  other  than  the  one  before  whom  it  is  pend- 
ing, and  for  attending  before  the  latter,  with  or  without  a person 

in  his  custody 1 00 

For  arresting  and  committing  any  person,  pursuant  to  process  ...  1 00 

For  subpoenaing  each  witness,  not  exceeding  four 25 


1094 


FEES  OF  COUNTY  AND  TOWN  OFFICERS. 


In  a special  proceeding — (continued): 

For  each  mile  necessarily  traveled,  going  and  returning,  to  serve  or 
execute  a mandate,  the  distance  to  be  computed  from  the  place  where 
it  is  served  or  executed,  to  the  place  where  it  is  returnable,  unless 
a different  rate  of  travel  fees  upon  the  service  or  execution  thereof 

is  specially  prescribed  by  statute 10 

Where  two  or  more  mandates  are  served  or  executed  in  one  special 
proceeding,  the  limitation  upon  the  amount  of  travel  fees  specified 
in  the  preceding  subdivision  applies  [Code  Civ.  Proc.,  § 3323]. 

For  attending  a sitting  of  a court  of  record,  pursuant  to  a notice  from 
the  sheriff,  to  a fee  for  each  day’s  actual  attendance,  to  be  fixed  by 
the  board  of  supervisors,  and  mileage  as  allowed  by  law  to  trial 
jurors  in  courts  of  record.  Also  compensation  for  an  additional 
day  when  unable  to  reach  home  upon  the  day  he  is  excused  from 

attendance.  [Code  Civ.  Proc.,  § 3312] 4 00 

For  compensation  for  attending  evening  or  night  sessions  of  court  or 
grand  jury,  and  amount  as  may  be  provided  by  the  board  of  super- 
visors [Code  Civ.  Proc.,  § 3312,  as  amended  by  L.  1917,  ch.  158.] 


In  criminal  cases : 

For  serving  a warrant • 75 

For  each  mile  traveled,  going  and  returning 10 

For  taking  a defendant  in  custody  on  a commitment 25 

For  each  mile  traveled  in  taking  a prisoner  to  a jail,  going  and 

returning  . . 10 

For  serving  every  subpoena 25 

For  every  mile  traveled  in  serving  a subpoena,  going  and  returning.  05 

For  notifying  a complainant 25 

For  each  mile  traveled  in  notifying  a complainant,  going  and  re- 
turning . . 05 

For  keeping  a prisoner  after  being  brought  before  a justice,  and 

by  his  direction  in  custody,  per  day 1 00 

For  taking  charge  of  a jury  during  their  deliberations 50 

For  attending  any  court,  pursuant  to  a notice  by  the  sheriff,  per 

day  00 

For  each  mile  traveled,  going  and  returning  from  court 05 

Which  fees  (last  two  items)  shall  be  chargeable  to  the  county,  and 
shall  be  paid  by  the  treasurer  thereof  on  the  production  of  the 
certificate  of  the  clerk,  specifying  the  number  of  days  and  dis- 
tance traveled.  [Code  Crim.  Pro.,  § 740-b.] 


The  board  of  supervisors  may  allow  such  further  compensation  for 
the  service  of  process,  and  the  expenses  and  trouble  attending  the  same, 
as  they  shall  deem  reasonable: 

For  services  in  criminal  cases,  for  which  no  compensation  is  speci- 
ally provided  by  law,  such  sum  as  the  board  of  supervisors  of  the 
county  shall  allow.  [County  Law,  § 240,  subd.  6.] 

Mileage.  Whenever  a subpoena  for  witnesses  in  criminal  cases  or 
complaints,  containing  one  or  more  names,  shall  be  served  by  a con- 
stable or  other  officer,  such  officer  shall  be  allowed  for  mileage  only 
for  the  distance  going  and  returning,  actually  traveled  to  make  such 
service  upon  all  the  witnesses  in  such  case  or  complaint,  and  not 
separate  mileage  for  each  witness,  unless  the  board  of  supervisors 
auditing  accounts  for  such  services  shall  deem  it  equitable  to  make  a 
further  allowance.  [Code  Crim.  Pro.,  § 619-b] 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


1095' 


I 5.  Coroners. 

Board  of  supervisors  may  prescribe  that  coroners  receive  a salary 
instead  of  fees  and  may  fix  the  amount  of  such  salary.  [County 
Law,  § 191.] 

Reasonable  allowance  as  salvage  may  be  allowed  to  a coroner  for 
services  in  the  recovery  of  wrecked  property.  [Navigation  Law, 
§ 88.] 

Fees  upon  inquest.  The  coroners  in  and  for  the  State  of  New  York, 
except  in  the  counties  of  New  York  and  Kings,  and  such  other  coun- 
ties as  shall  have  prescribed  a different  compensation,  shall  be  entitled 
to  receive  the  following  compensation  for  services  performed,  charge- 
able to  the  county: 


Mileage  to  the  place  of  inquest  and  return,  per  mile 10 

Viewing  body  5 00 

Serving  of  subpoena,  per  mile  traveled 10 

Swearing  each  witness 15 

Drawing  decision  1 00 

Copying  decision  for  record,  per  folio 25 

(But  such  officers  shall  receive  pay  for  one  copy  only.) 

For  making  and  transmitting  statement  to  board  of  supervisors, 

each  decision  50 

For  warrant,  of  commitment 1 00 


For  arrest  and  examination  of  offenders,  fee  shall  be  the  same  as 
justices  of  the  peace  in  like  cases.  (See  Justices  of  the  Peace.) 

[County  Law,  § 192.] 

A coroner  is  entitled  to  fees  where  an  inquest  is  held  but  is  not 
entitled  to  disbursements  in  addition  thereto.  Where  no  inquest  is  held 
he  is  entitled  to  actual  and  necessary  disbursements  but  no  fee.  Rept. 
of  Atty.  Genl.,  March  3,  1911. 

Fees  when  performing  duties  of  sheriff.  For  performing  any  duty  of 
a sheriff,  in  an  action  or  a special  proceeding,  in  which  the  sheriff 
is,  for  any  cause,  disqualified,  the  same  fees  to  which  a sheriff 
is  entitled  for  the  same  services. 

For  confining  a sheriff  in  a house,  by  virtue  of  a mandate,  and 
maintaining  him  while  there,  for  each  day,  to  be  paid  by  the 
sheriff  before  he  is  entitled  to  be  discharged.  [Code  Civ.  Pro., 

§ 3310.]  2 00 

Shall  be  reimbursed  for  all  moneys  paid  out  actually,  and  neces- 
sarily, by  him  in  the  discharge  of  official  duties  as  shall  be  al- 
lowed by  the  board  of  supervisors. 

moneys  paid  out  actually,  and  necessarily,  by  him  in  the  dis- 
charge of  official  duties  as  shall  be  allowed  by  the  board  of 
supervisors. 

Shall  receive  for  each  and  every  day  and  fractional  part  thereof 


spent  in  taking  an  inquisition 3 00 

For  performing  the  requirements  of  law  in  regard  to  wrecked 

vessels,  for  each  day  and  fractional  part  thereof 3 00 

And  a reasonable  compensation  for  all  official  acts  performed,  and 

mileage  to  and  from  such  wrecked  vessel,  per  mile 10 

For  taking  ante-mortem  statement  he  shall  be  entitled  to  the  same 
rates  of  mileage  as  before  mentioned,  and  for  each  day  and  frac- 
tional part  thereof 3 00 

For  taking  deposition  of  injured  person  in  extremis  [County  Law, 

§ 192.]  1 00 


109G 


FEES  OF  COUNTY  AND  TOWN  OFFICERS. 


Fees  as  a witness.  Whenever,  in  consequence  of  the  performance  of 
his  official  duties,  a coroner  becomes  a witness  in  a criminal 
proceeding,  he  shall  be  entitled  to  receive  mileage  to  and  from 

his  place  of  residence,  per  mile 10 

And  for  each  day  or  fractional  part  thereof,  actually  detained  as  a 

witness.  [County  Law,  § 193.] 3 00 


§ 6.  County  clerks. 

Fees  generally.  A county  clerk  is  entitled,  for  the  services  specified, 
except  where  another  fee  is  allowed  therefor  by  special  statu- 
tory provision,  to  the  following  fees  to  be  paid  in  advance: 

For  searching  and  certifying  the  title  to,  and  incumbrances  upon 
real  property,  for  each  year  for  which  the  search  is  made,  for 


each  name,  and  each  kind  of  conveyance  or  lien 05 

For  a copy  of  an  order,  record  or  other  paper,  entered  or  filed  in 

his  office,  for  each  folio 08 

For  filing  a transcript,  and  making  an  entry  as  prescribed  in  sec- 
tion 1258  of  the  Code  of  Civil  Procedure 12 


For  issuing  an  execution  upon  a judgment,  a transcript  whereof,  or 
of  the  docket  of  which,  has  been  filed  in  his  office,  to  be  paid  by 
the  party  at  whose  request  the  execution  is  issued,  and  to  be  col- 
lected by  the  sheriff  in  addition  to  the  sum  due  upon  the  judg- 


ment   50 

For  recording  and  indexing  a notice  of  the  pendency  of  an  action 

filed  in  his  office,  for  each  folio  contained  in  the  notice 10 

For  cancelling  such  a notice,  or  a notice  filed  in  his  office,  as  pre- 
scribed in  section  649  of  the  Code  of  Civil  Procedure 25 

For  recording  any  instrument,  which  must  or  may  legally  be  re- 
corded by  him,  for  each  folio 10 

For  filing  a certificate  of  satisfaction,  or  other  satisfaction-piece  of 

a mortgage,  and  entering  the  satisfaction 25 

For  affixing  and  indexing  a notice  of  foreclosure  of  a mortgage  as 

prescribed  in  section  2390  of  the  Code  of  Civil  Procedure 25 

For  entering  a minute  that  a mortgage  has  been  foreclosed 10 

For  filing  and  entering  a satisfaction  of  an  assignment  of  a judg- 
ment . . 12 

For  filing  and  entering  the  bond  of  a collector  or  other  officer 

authorized  to  receive  taxes 12 

For  searching  for  a bond 06 

For  entering  a satisfaction  thereof 12 

For  sealing  any  paper  when  required 12 

For  filing  and  docketing  notice  of  a mechanics’  lien 10 

For  filing  and  entering  specifications  and  all  other  papers  relating 

to  a lien  against  a vessel 25 

For  filing  any  paper  required  by  law  to  be  filed  in  his  office,  other 

than  as  expressly  provided  for  in  this  section 06 

For  filing  any  paper  deposited  with  him  for  safekeeping 06 

For  searching  for  such  a paper,  when  required,  for  each  paper 

necessarily  opened  and  examined 03 

For  a certificate,  other  than  that  a paper,  for  the  copying  of  which 

he  is  entitled  to  a fee,  is  a copy 25 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS.  1097 
Fees  generally — (continued) : 

For  inquiring  into,  determining  and  certifying  the  sufficiency  of  the 

sureties  of  a sheriff 50 

For  attending  upon  the  canvassing  of  votes,  given  at  an  election . . 2 00 

For  drawing  the  necessary  certificates  of  the  result  of  the  canvass, 

for  each  folio 18 

And  for  the  necessary  copies  thereof,  for  each  folio 09 


The  board  of  supervisors  may  fix  the  compensation  of  county  clerks 
for  services  performed  in  respect  to  election.  [See  Election  Law,  § 319.] 

For  notifying  the  governor  that  any  person  has  taken  an  oath 

of  office,  the  necessary  postage  and 10 

For  notifying  the  governor  that  any  person  has  neglected  to  take 
dn  oath  of  office,  or  to  file  or  renew  any  security,  within  the  time 
prescribed  by  law,  or  of  a vacancy  in  an  office  in  his  county,  the 


necessary  postage  and 10 

For  notifying  any  person  of  his  appointment  to  office,  the  expenses 
actually  and  necessarily  incurred  in  giving  notice,  which  the 

comptroller  deemst  reasonable,  and 25 

For  entering  in  the  minutes  of  the  County  Court  a license  to  keep 

a ferry,  and  for  a copy  thereof 1 00 

For  taking  and  entering  a recognizance,  from  any  person  authorized 

to  keep  a ferry 25 

But  the  county  clerk  is  not  entitled  to  any  fee,  under  this  section, 
for  a copy  of,  or  for  filing  or  certifying,  any  paper,  in  a civil  action 
or  special  proceeding,  in  a court  of  which  he  is  ex  officio  clerk. 

[Code  Civ.  Proc.,  § 3304.] 


Fees  as  clerk  of  a court : 

Upon  the  trial  of  an  action,  or  the  hearing,  upon  the  merits,  of 

the  special  proceeding,  from  the  party  bringing  it  on 1 00 

For  entering  final  judgment  in  the  action,  or  entering  a final  order 
in  the  special  proceeding,  including  the  filing  of  the  judgment- 

roll,  and  a copy  of  the  judgment  to  insert  therein 50 

And  in  addition  for  each  folio  exceeding  ten,  contained  in  the  order 

or  judgment  10 

For  entering  any  other  order  or  an  interlocutory  judgment,  for 

each  folio,  exceeding  five 10 

For  a certified  or  other  copy  of  an  order,  record  or  other  paper, 

entered  or  filed  in  his  office,  for  each  folio 05 

Where,  on  an  appeal  from  a judgment  or  order,  a party  shall 


present  to  the  clerk  a printed  copy  of  the  judgment  or  order 
appealed  from,  it  shall  be  the  duty  of  the  clerk,  as  required, 
to  compare  and  certify  the  same,  for  which  service  he  shall  be 


entitled  to  be  paid  at  the  rate  of,  per  folio 01 

For  a certified  transcript  of  the  docket  of  a judgment 12 

For  filing  a transcript  and  docketing  or  redocketing  a judgment 

thereupon  . 06 

For  making  the  entries  of  moneys  deposited  with  the  county  treas- 
urer, in  each  case,  to  be  paid  by  the  party  to  the  action  or  pro- 
ceeding, and  taxed  as  a disbursement  therein.  [Code  Civ.  Proc., 

§ 3306-a.]  50 


3 098 


FEES  OF  COUNTY  AND  TOWN  OFFICERS. 


Fees  generally — (continued) : 

For  all  services,  upon  the  filing  of  a declaration  of  intention  by 
an  alien  to  become  a citizen,  including  the  oath  or  affirmation, 
the  recording  of  the  same,  and  a certificate  thereof  delivered 

to  the  alien. 20 

For  all  services,  upon  the  admission  of  the  alien  to  be  a citizen, 
including  the  recording  of  the  papers,  and  a certified  copy  of 
the  record,  which  must  be  delivered  to  any  person  requiring  it 
(Judiciary  Law,  § 253).  [Code  Civ.  Proc.,  § 3301.] 50 

Other  fees: 

Notary  public,  of  the  fees  payable  by  a,  the  county  clerk  of 
every  county,  except  New  York,  Kings  and  Erie  may  retain-...  50 

Of  the  fees  payable  by  a notary  public  in  Erie  county,  may  retain  - • 1 50 

In  New  York  and  Kings  county,  not  exceeding  in  the  total  $1,500 
in  Kings  county  or  $3,000  in  New  York  county  [Executive  Law, 

§ 104]  3 00 

From  each  commissioner  of  deeds  qualifying  shall  receive  [Ex- 
ecutive Law,  § 106] 1 00 

For  recording  official  bonds  and  undertakings,  the  same  fees  as  are 

allowed  for  recording  conveyances  [County  Law,  § 247] 

For  registering  county  bonds,  for  each  bond  [General  Municipal 

Law,  § 10]. 25 

For  registering  each  physician  [Public  Health  Law,  § 170] 1 CO 

When  registered  in  another  county  [Public  Health  Law,  § 171]  ...  25 

For  registering  each  dentist 1 00 

When  registered  in  another  county  [Public  Health  Law,  § 199] 25 

For  registering  each  veterinary  surgeon  [Public  Health  Law,  § 220]  1 00 

When  registered  in  another  county  [Public  Health  Law,  § 221]  ...  25 

For  registering  each  chiropodist  [Public  Health  Law,  § 280] 2 00 

For  recording  an  optometrist’s  certificate  of  registration  or  exemp- 
tion . 50 

For  fees  as  to  filing  chattel  mortgages,  see  Town  Clerks,  post. 

For  filing  and  recording  certificate  of  partnership 1 00 

For  each  additional  name  of  a partner  beyond  two 10 

For  a certified  copy  of  certificate  of  partnership  [Partnership  Law, 

§ 21]  50 

For  filing  a building  loan  contract  or  modification  thereof  [Lien 

Law,  § 22] 20 

For  countersigning  and  delivering  hunting  license,  to  a non-resi- 
dent or  alien 50 

To  a resident  [Conservation  Law,  § 185,  subd.  3] 10 

For  recording  the  statement  of  the  description  and  pedigree  of  a 
stallion  kept  for  services,  and  for  the  certificate  that  such  cer- 
tificate has  been  filed  and  recorded,  per  folio  [Lien  Law,  § 161].  10 


5 7.  County  treasurer. 

Fees  as  to  moneys  paid  into  court: 

For  receiving  money  paid  into  court  upon  the  sum  so  received . . *6  per  cent. 

For  paying  out  the  same,  upon  the  sum  so  paid  out Y2  percent. 

For  investing  money,  pursuant  to  the  direction  of  a court,  upon 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


1099 


Feet  as  to  moneys  paid  into  court — (continued)  : 

the  sum  invested,  not  exceeding  two  hundred  dollars % percent. 

And  upon  the  excess,  over  two  hundred  dollars M percent. 

For  receiving  the  interest  upon  an  investment,  and  paying  the 
same  to  the  person  entitled  thereto,  upon  the  interest  so  received 
and  paid  [Code  Civ.  Proc.,  § 3321] % per  cent. 

Fees  as  administrator: 

For  receiving  and  paying  out  all  sums  not  exceeding  one  thousand 

dollars 5 per  cent. 

For  receiving  and  paying  out  all  additional  sums  not  amounting 

to  more  than  ten  thousand  dollars 2^  per  cent. 

For  all  sums  above  eleven  thousand  dollars  and  all  necessary 

expenses  [Code  Civ.  Proc.,  §§  2593,  2753].. 1 per  cent. 

Fees  for  receiving  and  paying  over  taxes : 

The  county  treasurer  may  retain  on  all  taxes  paid  and  accounted 
for  on  account  of  the  state  tax 1 per  cent. 

Not  exceeding  in  any  one  year  on  account  of  all  taxes  for  state 
purposes  received  and  paid  out  by  him,  including  schools  [Tax 
Law,  § 91] 1,500  00 

Fees  for  receiving  and  paying  over  on  account  of  taxable  transfers: 

On  all  taxes  paid  and  accounted  for  by  him  each  year  on  the  first 
fifty  thousand  dollars 5 per  cent. 

On  the  next  fifty  thousand  dollars 2^4  per  cent. 

On  all  additional  sums  [Tax  Law,  § 237] 1 per  cent. 

Fees  on  account  of  the  collection  of  the  liquor  tax: 

Of  all  taxes,  penalties  and  fines  collected  in  counties  containing  a 
city  of  the  first  or  second  class 1 per  cent. 

In  counties  containing  a city  of  the  third  class  but  not  a city  of 
the  first  or  second  class 2 percent. 

In  all  other  counties  [Liquor  Tax  Law,  § 11] 3 per  cent. 


§ 8.  Court  criers. 

The  compensation  of  criers  of  courts  of  record  for  attendance 

thereat,  is  per  day 3 00 

Traveling  fees  going  to  and  returning  from  the  place  of  attend- 
ance, per  mile. 05 

In  the  county  of  Queens  the  crier  receives  a yearly  salary  of 

[County  Law,  § 240,  sub.  4,  ante] 1,200  00 

In  county  of  Westchester,  compensation  to  be  fixed  by  the  county 
judge  at  not  to  exceed,  per  annum  [Judiciary  Law,  § 365.] 1,200  00 

5 8a.  District  superintendents  of  schools. 

Each  district  superintendent  of  schools  shall  receive  an  annual  salary 

from  the  state  of  1,500  00 

The  supervisors  of  the  towns  composing  any  supervisory  district  may  by 
adopting  a resolution  by  a majority  vote  increase  the  salary  to  be  paid  by 
such  district  to  its  superintendent  [Education  Law,  § 389]. 


1100 


FEES  OF  COUNTY  AND  TOWN  OFFICERS. 


§ 9.  Election  officers. 

Inspectors  of  election,  in  towns: 

For  each  day  actually  and  necessarily  devoted  by  them  to  the 


service  of  the  town  upon  days  of  registration  and  election  day 

[Town  Law,  § 85.].  . . 2 00 

For  compensation  for  services  for  filing  returns  in  office  of  county 

clerk  . . 5 00 

For  mileage  in  going  to  and  returning  from  clerk’s  office,  for  each 

mile  [Election  Law,  § 319] 04- 

Ballot  clerks  and  poll  clerks  are  entitled  to  the  same  compensation 
as  Inspectors  for  services  performed  on  election  day. 


But  the  board  of  supervisors  may  establish  in  their  county  a higher 
rate,  not  exceeding  six  dollars  per  day.  [Town  Law,  § 85.] 


§ 10.  Fence  viewers. 

The  compensation  of  assessors  and  highway  commissioners  as 
fence  viewers  for  services  performed  in  settling  disputes  as  to 

division  fences,  per  day  [Town  Law,  § 364,  ante] 1 50 

Fees  for  traveling  to  place  where  strayed  animals  are  kept,  per 

mile  . . 10 

Fees  for  certificate  of  charges  in  proceedings  relative  to  strayed 

animals  [Town  Law,  § 385,  ante] 75 


Compensation  in  drainage  proceedings  is  the  same  as  in  settling 
disputes  as  to  division  fences.  [Drainage  Law,  § 93.] 

§ 11.  Health  officer. 

The  annual  compensation  of  the  health  officer  of  a town  is  to  be  fixed  by 
the  town  board  acting  as  a local  board  of  health,  at  not  less  than  ten  cents 
per  capita  for  each  inhabitant  in  a town  having  a population  of  8000,  and 
not  less  than  $800  in  all  towns  having  a population  of  more  than  8600. 
[Public  Health  Law,  § 21,  ante.] 

In  addition  to  such  compensation  the  town  board,  as  a local  board  of 
health,  may  allow  the  reasonable  expense  of  such  health  officer  in  going 
to,  attending  and  returning  from  the  annual  sanitary  conference  of  health 
officers;  and  may  also,  whenever  the  services  rendered  by  such  health  officer 
are  extraordinary  or  extra  hazardous  by  reason  of  epidemic  or  otherwise, 
allow  to  him  such  further  sum  in  addition  to  his  fixed  compensation  as 
shall  be  audited  by  the  town  board.  [Idem.] 

Fees  for  reporting  to  the  state  department  of  health,  for  each  case  of 
infectious  or  contagious  disease  to  be  paid  by  the  town  [Health 


Law,  § 26,  ante] 20 

§ 12.  Jurors. 

For  each  cause  in  which  he  is  empanelled,  trial  juror  is  entitled  to 

[Code  Civ.  Proc.,  § 3313] 25 

Compensation  of  trial  and  grand  jurors  may  be  fixed  by  the  board  of 
supervisors  not  exceeding  in  addition  to  the  fee  of  twenty-five  cents 


for  each  cause  in  which  a trial  juror  is  empanelled  for  each  day’s 
attendance  at  a term  of  a court  of  record  the  sum  of  and  for  an  ad- 
ditional day  when  unable  to  reach  home  upon  the  day  when  excused 


for  attendance  4 00 

For  night  sessions,  where  some  one  held 1 50 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS. 


1101 


Jurors — (continued)  : 

Mileage  is  allowed,  going  to  and  returning  from  such  courts, 
unless  a lower  rate  is  fixed  by  the  board  of  supervisors,  for  each 

mile  [Code  Civ.  Proc.,  § 3314] 05 

In  a special  proceeding,  before  a judge  of  a court  of  record;  or 
upon  a writ  of  inquiry;  or  upon  a trial,  before  a sheriff,  of  a 
claim  to  personal  property,  seized  by  virtue  of  a warrant  of  at- 
tachment or  an  execution  [Code  Civ.  Proc.,  § 3316] 25 


A juror  is  entitled  to  mileage  for  actual  travel  once  in  each  calendar 
week  during  the  term,  except  that  in  the  counties  of  Queens,  Rock- 
land and  Orange,  grand  and  trial  jurors  may  be  paid  four  cents  a mile 
for  each  mile  necessarily  traveled  in  going  to  and  returning  for  each 
day  of  actual  travel  during  the  termin  lieu  of  any  other  mileage.  [Code 
Civ.  Proc.,  § 3314.] 

Where  the  trial  occupies  more  than  thirty  days  the  court  may  fix 
and  allow  to  each  juror  an  extra  compensation  for  his  services  there- 
upon to  be  paid,  including  all  necessary  expenses  for  food  by  the 
county.  [Code  Civ.  Proc.,  § 3315.] 

The  fees  of  jurors  necessarily  summoned  upon  any  coroner’s  inquest 
shall  be  not  to  exceed  one  dollar  for  each  day’s  service,  shall  be  a 
county  charge  and  shall  be  audited  and  allowed  by  the  boards  of 
supervisors  in  the  same  manner  as  other  fees  and  charges  mentioned 
in  this  act.  But  the  coroner  holding  such  inquest  and  summoning  said 
jurors  shall  make  report  to  the  next  succeeding  board  of  supervisors 
after  every  such  inquest  of  the  names  of  such  jurors  and  the  term  of 
service  of  each,  and  upon  what  inquest  rendered,  on  or  before  the  third 
day  of  the  annual  session  in  each  year.  [Code  Crim.  Proc.,  § 774.] 

§ 13.  Jurors,  commissioners  of. 

In  counties  where  a commissioner  of  jurors  is  appointed,  having 
a population  of  less  than  100,000,  the  salary  of  such  commissioner  is 
fixed  by  the  board  of  supervisors,  except  in  the  counties  of  Nassau, 
Niagara,  Saratoga,  Herkimer  and  Schenectady,  where  it  shall  be  fixed 


by  the  board  which  makes  the  appointment,  not  exceeding 2,500  00 

In  counties  of  over  100,000  and  not  more  than  150,000  the  annual 

salary  is  fixed  by  statute  at 1,500  00 

In  counties  of  more  than  150,000  and  not  more  than  300,000  the 
annual  salary  is  fixed  by  the  board  of  supervisors  not  exceeding 
([L.  1899,  ch.  441,  § 4,  ante] 3,000  00 


§ 14.  Justices  of  the  peace. 

Compensation t chargeable  to  town  for  services  rendered,  per  day 

[Town  Law,  § 85,  ante] 2 00 

Fees  in  civil  actions.  In  an  action  brought  before  a justice  of  the 
peace: 

For  a summons. 25 

For  an  order  of  arrest 25 

For  a warrant  of  attachment 25 

For  a requisition  in  an  action  for  a chattel 25 

For  a subpoena,  including  all  the  names  inserted  therein 25 

For  the  acknowledgment  of  a power  of  attorney 25 


1102 


FEES  OF  COUNTY  AND  TOWN  OFFICERS. 


Fees  in  civil  action — (continued)  : 

For  taking  an  affidavit  or  administering  an  oath 10 

For  drawing  an  affidavit,  application  or  notice  required  by  statute, 

each  folio  05 

For  drawing  a bond  or  an  undertaking 25 

For  hearing  an  application  for  a commission  to  examine  one  or 

more  witnesses  50 

For  an  order  for  such  a commission,  and  attending,  settling,  and 

certifying  interrogatories  50 

For  hearing  an  application  to  discharge  a defendant  from  arrest, 
or  to  vacate  or  modify  a warrant  of  attachment,  or  increase 

the  plaintiff’s  security  thereupon 50 

For  an  adjournment,  except  where  it  is  made  by  the  justice  upon 

his  own  motion 25 

For  a venire. 25 

For  empanelling  and  swearing  a jury 25 

For  hearing  the  plaintiff’s  evidence,  where  the  defendant  does 

not  appear  25 

For  the  trial  of  a demurrer 25 

For  the  trial  of  an  issue  of  fact,  where  the  defendant  appears,  for 

each  day  actually  spent  in  the  trial 1 50 

For  receiving  and  entering  the  verdict  of  a jury 25 

For  entering  judgment 25 

For  filing  each  paper  required  by  statute  to  be  filed OS 

For  a transcript  of  a judgment 25 

For  a copy  of  any  paper  for  which  a fee  is  not  expressly  pre- 
scribed by  law,  for  each  folio 06 

For  an  execution,  or  the  renewal  of  an  execution 25 

For  making  a return  upon  an  appeal  from  a judgment 2 00 

For  an  order,  directing  an  action  or  a special  proceeding  to  be 

continued  before  another  justice 25 

For  services  when  associated  with  another  justice,  in  any  case 
where  a fee  therefor  is  not  expressly  prescribed  by  law,  for 
each  day  actually  spent  [Code  Civ.  Proc.,  § 3322,  subd.  1,  as 

amended  by  L.  1910,  ch.  324] 2 00 

For  each  animal  sold  in  a proceeding  relative  to  animals  straying 

upon  a highway  [Code  Civ.  Proc.,  § 3092] 1 00 

* In  a special  proceeding , or  an  action  not  brought  before  a justice  of 
the  peace: 

For  a warrant,  in  case  where  a fee  therefor  is  not  expressly  pre- 
scribed by  law 25 

For  a warrant  for  the  apprehension  of  a person  charged  with  being 

the  father  of  a bastard 50 

For  indorsing  a warrant,  issued  from  another  county 25 

For  services  when  associated  with  another  justice,  in  any  case 
where  a fee  therefor  is  not  expressly  prescribed  by  law,  for  each 

day  actually  spent 2 00 

For  a precept  or  other  mandate,  whereby  a special  proceeding  is 
commenced,  in  a case  where  a fee  therefor  is  not  specially  pre- 
scribed by  law 25 

For  a view  of  real  property,  in  a case  where  it  is  required  by  law.  50 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS.  1103 

Jn  special  proceeding — (continued)  : 

For  a warrant  of  attachment  to  arrest  a delinquent  juror  or  wit- 
ness   25 

For  drawing,  signing  and  depositing  with  the  clerk,  a minute  or 
record  of  conviction  of  such  a juror  or  witness,  or  of  any  person 
for  contempt,  in  any  case  where  a fee  therefor  is  not  specially 

prescribed  by  law 50 

For  an  execution  upon  such  a conviction  before  him 25 

For  drawing,  copying  and  certifying  a bond,  an  undertaking,  a 
recognizance  or  other  written  security,  and  filing  the  same  with 
the  county  clerk  or  other  officer  with  whom  it  must  be  filed. ...  25 

For  a warrant  of  commitment  for  any  cause 25 

For  a subpoena,  including  all  the  names  inserted  therein 25 

For  a precept  to  notify  a jury 50 

For  empanelling  and  swearing  a jury 25 

For  empanelling  and  swearing  a jury  in  proceedings  to  alter  or 

lay  out  a highway 2 00 

For  hearing  the  matter,  concerning  which  a jury  is  called  for 

each  day  actually  spent 75 

For  receiving  and  entering  the  verdict  of  the  jury,  and  the  order. 

If  any,  thereupon 25 

For  any  service  for  which  a fee  is  not  expressly  allowed  by  this 


subdivision,  and  for  which,  if  rendered  in  an  action  before  a 
justice,  a fee  is  allowed  by  the  first  subdivision  of  this  section, 
the  fee  allowed  in  such  an  action  for  the  same  service. 

For  taking  the  deposition  of  a witness,  upon  an  order  made,  or 
commission  issued,  by  a court  of  record  of  the  state,  or  a court 


in  another  state  or  territory,  or  a foreign  country,  for  each  folio.  10 

For  making  the  necessary  return  and  certificate  thereto 50 

For  taking  an  affidavit  or  administering  an  oath  [Code  Civ.  Proc., 

§ 3322]  10 

Fees  upon  a commission.  Where  a commision  has  been  issued  in  an 


action  before  a justice  of  the  peace,  a party  recovering  costs  in  such 
action  is  entitled  to  recover  his  actual  disburements  upon  such  commis- 
sion not  exceeding  the  following  sums: 


Commissioner’s  fees  for  taking  and  returning  testimony 1 00 

For  each  subpoena  isuea  and  oath  administered  by  commissioner.  06 

For  expense  of  serving  each  subpoena 25 

Witnesses’  fees  for  each  day’s  attendance  before  the  commissioner.  25 
Postage  for  sending  and  returning  the  commission  and  papers  an- 
nexed [Code  Civ.  Proc.,  § 3325] 1 00 

Fees  in  criminal  cases: 

For  administering  an  oath 10 

For  drawing  an  information 50 

For  taking  a deposition  of  a witness  on  information 25 

For  examination  of  information  and  deposition  and  issuing  a warrant 

of  arrest  50 

For  endorsing  a warrant  from  another  county 25 

For  each  day’s  necessary  attendance  upon  the  hearing  or  examination 

of  the  accused  1 50 

For  every  necessary  adjournment  of  the  hearing  or  examination 25 


1104 


FEES  OF  COUNTY  AXD  TOWN  OFFICERS. 


Fees  in  criminal  cases — (continued)  : 

For  a subpoena,  including  all  the  names  inserted  therein 25 

For  each  copy  of  a subpoena  for  service 10 

For  filing  each  paper  required  by  law 05 

For  furnishing  copies  of  papers  in  any  proceeding,  at  the  rate,  per  folio.  10 

For  each  application,  order,  certificate  or  report  or  other  paper  to  be 

filed,  or  copies  thereof,  required  by  law 25 

For  drawing  an  undertaking  of  bail 50 

For  taking  an  acknowledgment 25 

For  return  and  filing  papers  in  county  clerk’s  office  when  defendant  is 

held  to  answer 1 00 

Courts  of  special  sessions , fees  of  justice: 

For  a venire  25 

For  swearing  each  witness  on  the  trial  10 

For  swearing  a jury  25 

For  swearing  a constable  to  attend  jury 25 

For  a trial  fee,  per  day 1 50 

For  receiving  and  entering  verdict  of  jury 25 

For  entering  sentence  or  adjudication  of  court 25 

For  temporary  commitment  25 

For  warrant  of  commitment 25 

For  record  of  conviction  and  filing  same 1 00 


But  all  such  charges  in  any  one  case  shall  not  exceed  five  dollars,  unless 
such  court  continue  more  than  one  day;  in  such  case  the  costs  of  such  addi- 
tional day  may  be  added  thereto: 


For  return  to  any  appeal,  to  be  paid  by  the  county 2 00 

For  services  when  associated  with  another  justice  of  the  peace  or  in  case 
of  bastardy,  per  day  [Code  Crim.  Pro.,  § 740-a,  as  amended  by  L.  1918, 

ch.  78]  2 00 

For  application  and  license  to  carry  concealed  weapon  to  be  paid  by  per- 
son applying  therefor 1 50 


No  magistrate  in  a criminal  proceeding  shall  charge  or  be  allowed  for  more 
than  six  subpoenas  in  any  one  criminal  case,  nor  shall  any  board  of  super- 
visors allow  any  charge  for  issuing  or  serving  any  subpoena  in  any  criminal 
case  or  proceeding  issued  or  served  on  behalf  of  the  defendant.  [Code  Crim. 

Pro.,  § 611-a,  and  see  Town  Law,  §§  107,  171,  ante.] 

§ 15.  OVERSEERS  OF  THE  POOR. 

Compensation  chargeable  to  town  for  each  day’s  service  [Town  Law,  § 85, 
ante ] 2 00 

§ 16.  PHYSICIANS. 

Compensation  of  physician  as  health  officer,  see  Health  Officer. 

The  county  superintendent  of  the  poor  may  appoint  physicians  for  alms- 
houses, unless  keepers  of  such  alms-houses  are  appointed  by  the  board  of 
supervisors.  [Poor  Law,  § 3,  sub.  4,  ante.] 

Compensation  of  such  physicians  is  to  be  paid  by  the  county  treasurer 
upon  the  draft  of  the  superintendent. 

The  district  attorney  is  authorized  to  employ  a physician  to  assist  him  in 
examining  physically  or  chemically  a dead  body  or  any  portion  thereof;  the 
expense  for  such  services  is  a county  charge,  to  be  paid  by  the  county 
treasurer  on  the  certificate  of  the  district  attorney.  [Penal  Law,  § 2213.] 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS.  1105 
Physicians — (continued)  : 

The  cost  necessarily  incurred  in  determining  the  question  of  the  in- 
sanity of  a poor  or  indigent  person  is  a charge  upon  the  town  or 
county  securing  his  commitment.  Such  costs  include  the  fees  allowed 
by  the  judge  or  justice  ordering  the  commitment  and  the  medical  ex- 
aminers. [Insanity  Law,  § 84,  ante.] 

The  board  of  supervisors  of  each  county  is  authorized  to  appoint  a 
jail  physician  and  may  fix  his  compensation.  [Prison  Law,  § 348. j 


§ 17.  Poundmasters. 

Fees  : 

For  keeping  in  the  pound  each  horse  or  mule,  not  exceeding  per 

day  . . • • • 50 

For  keeping  each  head  of  cattle,  not  exceeding  per  day 25 

For  keeping  each  other  beast,  not  exceeding  per  day  [Town  Law, 

§ 392,  ante ] 15 

For  taking  into  the  pound  and  discharging  therefrom  any  horse, 

mule  or  head  of  cattle 15 

For  taking  into  pound  and  discharging  therefrom  any  other  beast 

[Town  Law,  § 142,  ante ] 10 


§ 18.  Printers’  fees. 

Unless  otherwise  especially  prescribed  by  law  there  shall  be  al- 
lowed, for  the  publication  of  notices,  orders,  etc.,  except  session 

laws,  for  each  folio  for  the  first  insertion 75 

For  each  folio  for  each  subsequent  insertion  [Code  Civ.  Pro.,  § 

3317]  . . 50 

In  counties  containing  wholly  or  partly  a city  of  the  first  class, 

for  each  folio  for  the  first  insertion 1 00 

For  each  folio  for  each  subsequent  insertion 75 

For  printing  session  laws,  a sum  to  be  fixed  by  the  board  of  super- 
visors, for  each  folio,  not  more  than  [Code  Civ.  Pro.,  § 3317] 50 


For  printing  election  notices,  and  the  official  canvass,  the  compen- 
sation is  to  be  fixed  by  the  board  of  supervisors.  [County  Law,  § 22, 
ante.] 

The  expense  of  printing  the  copies  of  the  calendar  for  a term  of  court 
other  than  calendars  for  the  term  of  the  Appellate  Division  of  the 
Supreme  Court,  is  a charge  upon  the  county  in  which  the  term  is  held 
and  must  be  audited  by  the  board  of  supervisors  and  paid  in  the  same 
manner  as  other  contingent  charges.  [County  Law,  § 240.] 

1 19.  Railroad  commissioner. 

The  compensation  for  services  performed  by  railroad  commission- 
ers relative  to  bonds  issued  by  a town  in  aid  of  the  construction 
of  railroads,  for  each  day  actually  engaged  in  the  performance 

thereof  [General  Municipal  Law,  § 14,  ante] 3 00 

Where  a supervisor  acts  as  railroad  commissioner  his  compensation 
is  fixed  by  the  board  of  town  auditors.  [General  Municipal  Law,  § 230, 
ante.] 


1106 


FEES  OF  COUNTY  AND  TOWN  OFFICERS. 


$ 19a.  School  director. 

A school  director  shall  receive  his  necessary  traveling  expenses, 
and  for  each  day’s  service  [Education  Law,  § 382] 2 00 

§ 29.  Sheriffs. 

Fees  generally: 

For  service  of  a summons,  or  for  serving  or  executing  an  order 
of  arrest  or  any  other  mandate,  for  the  service  or  execution  of 
which  no  other  fee  is  especially  prescribed  by  law,  except  a sub- 


poena for  each  person  served 1 00 

For  going  and  returning,  each  mile 06 

For  levying  a warrant  of  attachment  or  executing  a requisition  to 

replevy 1 00 

(Additional  compensation  may  be  allowed  in  the  discretion  of  the 
court.) 

For  making  and  filing  a description  of  real  property  or  an  inven- 
tory of  personal  property  attached,  for  each  folio 25 

For  each  necessary  copy  thereof,  for  each  folio 12 

For  copy  of  mandate,  summons,  complaint,  affidavit  or  other  paper 

served  by  him,  for  each  folio 12 

Calendar  fee  . . 50 

(But  not  more  than  $1.50  can  be  charged  in  one  action.) 

For  notifying  jurors  to  attend  writ  of  inquiry,  to  try  the  validity 

of  a claim  to  personal  property,  etc.,  for  each  juror  notified  - - • • 26 

For  attending  a jury  in  such  a case 2 00 

For  receiving  and  entering  execution 50 

For  mileage  upon  an  execution,  for  each  mile,  going 10 

For  collecting  money  upon  an  execution,  warrant  of  attachment, 
etc.  (except  in  counties  of  New  York,  Kings  and  Westchester),  on 


amount  collected  up  to  $250 3 per  cent. 

On  residue  of  amount 2 per  cent. 

(Additional  compensation  in  certain  cases  is  in  the  discretion  of 


the  court.  Code  Civ.  Pro.,  § 3307,  sub.  7.) 

For  advertising  sale  of  real  or  personal  property  by  virtue  of  an 

execution,  warrant  of  attachment,  etc 2 00 

If  it  is  stayed  or  settled  before  sale 1 00 

For  duplicate  certificates  of  sale  of  real  property  on  an  execution, 

per  folio 25 

For  drawing  and  executing  a conveyance  of  real  property 2 00 

(The  sheriff  is  entitled  to  printing  fees  for  publication  of  a notice 
of  sale  of  real  property.) 

For  returning  any  mandate 12 

For  certified  copy  of  an  execution  and  the  return  of  satisfaction 

thereof  . . 25 

For  posting  and  publishing  the  notice  of  sale,  selling  and  convey- 
ing real  property  by  virtue  of  or  direction  in  a judgment,  the  like 
fees  as  for  the  same  services  upon  an  execution.  But  in  an  action 


to  foreclose  a mortgage  the  sheriff’s  entire  compensation  cannot 


exceed  . . 50  00 

For  taking  a bond  for  the  liberties  of  the  jail 1 00 

For  taking  any  other  bond  or  undertaking w 50 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS.  HOT 
Fees  generally — (continued) : 

For  a certified  copy  of  a bond  or  undertaking 25 

For  executing  a mandate  requiring  him  to  put  a person  into  posses- 
sion of  real  property  and  removing  the  person  in  possession ....  150 

For  each  person  committed  to  prison  in  an  actual  or  special  pro- 
ceeding . . 1 00 

For  attending  before  an  officer  for  the  purpose  of  surrendering  a 
prisoner,  or  receiving  into  custody  a prisoner  surrendered  in 

exoneration  of  bail 1 00 

For  attending  a view,  for  each  day 2 00 

For  traveling,  going  and  returning,  for  each  mile 08 

For  bringing  up  a prisoner  upon  a writ  of  habeas  corpus 1 50 

For  traveling  to  and  from  the  jail,  each  mile 12 


(And  also  his  necessary  expenses  incurred  because  of  such  writ.) 
For  any  services  which  may  be  rendered  by  a constable,  other  than 
those  herein  specified,  the  same  fees  as  a constable  for  like  ser- 
vices. (See  Fees  of  Constables,  ante.) 

For  notifying  constables  to  attend  a court,  for  each  constable 


notified  . . 50 

For  attending  a term  of  court,  which  he  is  required  by  law  to  at- 
tend, for  each  day  [Code  Civ.  Pro.,  § 3307] 3 00 

For  giving  notice  of  any  general  or  special  election,  to  all  officers, 
to  whom  he  is  required  to  give  such  a notice,  in  addition  to  the 
expense  of  publishing  the  notices,  for  each  town  or  ward  [Code 

Civ.  Pro.,  § 3307] 1 00 

For  executing  a warrant,  to  remove  any  person  from  state  or  Indian 


lands,  such  a sum  as  the  comptroller  audits,  and  certifies  to  be 
a reasonable  compensation.  [Code  Civ.  Pro.,  § 3307.] 

Note.  Section  3307  of  the  Code  of  Civil  Procedure,  as  amended  by  L. 
1915,  ch.  565,  increased  the  fees  of  sheriffs  in  the  counties  of  New  York, 
Kings,  Bronx,  Queens  and  Richmond. 


Fees  in  proceedings  for  foreclosure  of  liens  on  vessels: 

For  serving  warrant 1 00 

For  return  of  same 1 00 

Necessary  sums  paid  by  him  for  the  expense  of  keeping  the  vessel  in 

custody,  not  exceeding,  per  day  [Lien  Law,  § 105] 2 50 

Fees  in  criminal  proceedings.  (County  charges.) 

For  every  person  committed  to  prison 37  V> 

For  every  prisoner  discharged  from  prison 37 Ms 

For  summoning  a grand  jury  for  a (court  of  oyer  and  terminer  or 

general  sessions),  now  Supreme  Court  or  County  Court 10  00 

For  serving  a warrant  or  performing  any  other  duty  which  may  be 
performed  by  a constable,  the  same  fees  as  are  allowed  by  law  to  a 
constable  for  such  service.  (See  Fees  of  Constables,  ante.) 


The  fees  herein  allowed  for  services  of  sheriffs  in  criminal  proceedings 
are  county  charges  and  are  to  be  audited  by  the  board  of  supervisors  of  the 
county  in  which  such  services  are  rendered,  and  shall  be  paid  in  the  same 
manner  as  are  other  contingent  charges  of  the  county.  [Countv  Law, 
§ 240.] 


1108 


FEES  OF  COUNTY  AND  TOWN  OFFICERS. 


Fees  for  conveying  convicts  to  state  prison  or  penitentiary.  Chargeable 


to  state.) 

For  conveying  one  convict  to  a state  prison  or  penitentiary  from, 

for  each  mile  actually  traveled 20 

For  conveying  two  convicts,  for  each  mile  so  traveled 35 

For  conveying  three  convicts,  for  each  mile  so  traveled 40 

For  conveying  four  or  more  convicts,  for  each  mile  so  traveled, 

for  each  convict 12 

For  the  maintenance  of  such  convict  while  on  the  way  to  a state 

prison  or  penitentiary,  per  day 1 00 

But  not  exceeding  for  every  thirty  miles  of  travel  [Prison  Law, 

§ 12]  1 00 


The  account,  certified  and  attested  as  provided  in  the  preceding  sec- 
tion, shall  be  audited  by  the  comptroller,  and  paid  out  of  the  treasury, 
unless  otherwise  provided. 

All  the  convicts  who  shall  be  sentenced  to  imprisonment  in  the  same 
state  prison,  or  in  the  same  house  of  refuge,  at  one  session  of  a crim- 
inal court,  shall  be  transported  at  the  same  time,  unless  said  cou?t 
shall  expressly  direct  otherwise.  [Prison  Law,  §§  14,  15.] 


§ 21.  Supervisors. 

a.  As  town  officers , The  following  are  town  charges: 

Compensation  for  duties  performed,  generally,  per  day  [Town 

Law,  § 85,  ante ] 2 00 

For  each  day’s  services  in  the  formation,  alteration  or  dissolution 
of  school  districts  [Education  Law,  § 140,  ante] 1 50 


For  services  as  railroad  commissioner,  such  sum  as  shall  be  fixed 
by  the  board  of  town  auditors  [General  Municipal  Law,  § 230.] 
Supervisors  can  charge  town  for  expenses  necessarily  incurred  for 
the  use  of  the  town.  [Town  Law,  § 170,  sub.  2,  ante ] 

Town  board  may  fix  compensation  for  services  under  Highway  Law, 
in  lieu  of  all  other  compensation  and  fees.  [Highway  Law,  § 110.] 

On  all  moneys  paid  out  by  him  as  such  supervisor  except  moneys 
expended  for  highway  purposes  or  paid  over  to  his  successor 

[Town  Law,  § 85] 1 per  cent. 

For  list  of  special  acts  relating  to  the  salaries  of  supervisors  in 
certain  counties,  see  ante. 

b.  As  county  officers.  The  following  are  county  charges: 

Compensation  while  attending  sessions  of  the  board  of  supervisors 
and  board  of  county  canvassers,  or  while  actually  engaged  in 
investigations  or  other  duties  committed  to  them  by  the  board 


(except  in  counties  in  which  special  provisions  are  made  for  compen- 
sation), per  day  [County  Law,  § 23,  ante ] 4 00 

mileage  for  once  going  to  and  from  place  where  session  of  board 
is  held,  per  mile  [County  Law,  § 23,  ante ] 08 

Copying  assessment  rolls,  as  follows: 

For  first  100  written  lines,  each  line...... 03 

For  second  100  lines,  each  line  02 


PROVISIONS  RELATING  TO  COUNTIES  AND  TOWNS.  U09 
County  officers — (continued)  : 

For  each  written  line  in  excess  of  200  [County  Law,  § 23,  ante] 01 

Extending  tax  roll,  for  each  line  extended  [County  Law,  § 23.  ante] . . 01 


Supervisors,  except  in  certain  counties,  while  in  attendance  upon  cer- 
tain duties,  five  miles  or  more  from  the  place  of  meeting  of  the  board, 
are  entitled  to  their  actual  expenses  [County  Law,  § 23,  ante.] 
While  attending  meetings  of  state  tax  commission,  supervisors  are  al- 
lowed four  dollars  per  day,  to  be  paid  by  county  [Tax  Law,  § 173.] 


§ 22.  Town  clerks. 

The  following  are  town  charges: 

Compensation  for  services  performed  for  the  town,  each  day  [Town 

Law,  §§  85,  86,  ante] 2 00 

For  services  performed  in  the  formation,  alteration  or  dissolution 

of  school  districts,  each  day  [Education  Law,  § 140,  ante] 1 50 

For  election  services,  a sum  to  be  fixed  by  the  other  members  of 
the  town  board  [Election  Law,  § 319.] 

For  each  certified  copy  of  jury  list  furnished  to  justices  of  the 

peace  [Code  Civ.  Pro.,  § 2990] 1 00 


Town  board  may  fix  compensation  for  services  under  the  Highway 
Law,  in  lieu  of  other  compensation  and  fees.  [Highway  Law, 
§ 110.] 

The  town  clerk  may  charge  individuals  as  follows: 

Fees  for  filing  each  chattel  mortgage  and  contract  of  conditional 


sale  . 06 

For  issuing  a receipt  for  same 06 

For  entering  the  same.  ...  06 

For  searching  for  each  paper  [Lien  Law,  § 234,  and  Personal  Prop- 
erty Law,  § 64] 06 

For  issuing  marriage  license  [Domestic  Relations  Law,  § 15] 1 00 

For  hunting  license.  See  ante,  County  Clerk. 

Fees  while  acting  as  fence  viewers.  See  Fence  Viewers. 

For  filing  and  entering  bond  of  school  tax  collector,  chargeable  to 

school  district  [Education  Law,  § 252] 25 

For  filing  marriage  certificates  and  contracts  [Domestic  Relations 

Law,  § 22] 25 

For  certified  copy  thereof 10 


Fees  for  records.  Town  clerks  are  required  to  search  the  files,  papers, 
records  and  dockets  of  his  office  and  make  transcripts  thereof  upon  de- 
mand, and  are  entitled  to  the  same  fees  therefor  as  county  clerks. 
[Public  Officers’  Law,  § 66.] 


For  searching  for  a paper  filed  with  him — for  each  paper  neces- 
sarily opened  and  examined 03 

For  a copy  of  an  order,  record  or  other  paper  entered  or  filed  in 

his  office,  per  folio 08 

For  a certificate  other  than  a paper  for  the  copying  of  which  he 

is  entitled  to  a fee  [Code  Civ.  Pro.,  § 3304] 25 

dtrayed  animals.  For  recording  notice,  for  each  strayed  animal 

[Town  Law,  § 381,  ante,  p.  455] 10 


1110 


FEES  OF  COUNTY  AND  TOWN  OFFICERS. 


Tax  notices.  For  filing  notices  of  nonresidents  as  to  place  where 
tax  notices  may  be  sent  by  collectors  [Tax  Law,  § 70,  ante,  p. 

415]  1 00 

§ 2$.  Town  superintendents  of  highways. 

Compensation  for  each  day’s  services  rendered  in  performing  duties 
prescribed  by  the  Highway  Law  in  respect  to  town  highways  and 

bridges  [Highway  Law,  § 45,  ante] 2 00  to  5 00 

(The  amount  to  be  fixed  by  the  town  board.) 

Compensation  for  services  rendered  in  maintaining  state  and  county 
highways,  to  be  fixed  by  the  state  commissioner  of  highways. 
[Highway  Law,  § 175.] 


PART  XII 


FORMS. 


FORM  No.  1. 

General  Form  of  Resolution  of  Board  of  Supervisors. 

Resolution  as  to  the  water  supply  for  the  county  buildings  (or  state  gen- 
erally the  subject  of  the  resolution). 

Passed  by  the  board  of  supervisors  of  county,  pursuant  to 

County  Law,  sections  12  subdivisions  1 and  13  (or  state  law  authorizing  board 
to  act),  twelve  supervisors  voting  in  favor  of  such  resolution,  and  three 
supervisors  against  the  same. 

Whereas , the  water  supply  for  the  county  buildings,  located  in  the  village 

of is  insufficient  for  the  uses  and  purposes  of  such  buildings 

(or  state  specifically  the  reasons  why  the  resolution  is  submitted),  there- 
fore be  it 

Resolved , That  the  committee  on  county  buildings  be,  and  they  are  hereby 
directed  to  examine  as  to  the  present  supply  of  water  now  furnished  for 
use  in  the  county  buildings,  ascertain  the  cost  of  making  such  supply  suffi- 
cient for  the  uses  and  purposes  of  such  buildings  and  report  the  facts  con- 
cerning the  same  to  this  board  at  its  present  session. 

(To  be  certified  by  chairman  and  clerk  of  board.) 


FORM  No.  2. 

Resolution  Requesting  Action  by  State  Legislature. 

Resolution  requesting  the  legislature  of  the  state  of  New  York  to  appro- 


priate the  sum  of dollars  for  the  purpose  of  draining  the 

creek,  in  the  town  of county  of 


Whereas , for  a number  of  years  the  creek,  in  the  town  of 

has  annually  overflowed  and  damaged,  to  a great  extent,  the 

property  and  highways  within  such  town,  which  overflow  was  caused  by  the 

1111 


1112 


FORMS. 


construction  of  a state  dam  for  the  use  of  the  canal  in  such 

creek  at in  the  county  of ; now,  therefore,  be  it 

Resolved , That  the  board  of  supervisors  of county  hereby 

requests  the  legislature  of  the  state  of  New  York  to  appropriate  the  sum 

of  dollars  for  the  purpose  of  draining  and  cleaning  out  the  said 

creek  in  the  town  of county  of and 

for  the  purpose  of  performing  such  other  work  as  may  be  necessary  to  pre- 
vent in  the  future  the  overflow  of  such  creek  in  such  town,  the  sum  so 
appropriated  to  be  expended  by  the  superintendent  of  public  works  in  ac- 
cordance with  plans  and  specifications  to  be  adopted  by  him;  and 

Resolved,  That  we  urge  upon  the  member  of  assembly  from  this  county, 
and  the  state  senator  from  this  district,  that  they  each  of  them  do  all  in 
their  power  to  secure  the  passage  of  a bill  by  the  legislature  of  the  state 
of  New  York,  at  its  coming  session,  to  secure  the  appropriation  of  the 
amount  hereby  requested;  and 

Resolved,  That  the  clerk  of  the  board  of  supervisors  transmit  a copy  of 

this  resolution  to  the  assemblyman  of  county* 

and  to the  state  senator  from  this  district. 


FORM  No.  3. 

Subpoena  by  Board  or  Committee. 
(County  Law,  § 27,  ante,  p.  22.) 


The  People  of  the  State  of  "New  York  to  A.  B.: 

We,  the  supervisors  of  the  county  of  (or  a committee  of 

the  board  of  supervisors  of  the  county  of  ),  command  you, 

that  (all  and  singular)  business  and  excuses  being  laid  aside  you  attend 
before  said  board  (or  said  committee),  at  the  rooms  of  said  board  (or  at 

[state  place]),  in  the of  the  city  of on  the 

day  of  19..,  at  ....  o’clock  in  the  noon,  to  testify 

touching  (state  matter),  and  that  you  produce  on  such  examination  all  books, 
papers  and  documents  in  your  possession  or  under  your  control,  relating  to 
(state  matter)  (or  if  any  particular  hook  or  document  is  required,  so  specify 
it),  and  for  a failure  to  attend  and  to  produce  such  books,  papers  and  documents 
you  will  be  deemed  guilty  of  contempt  and  will  be  proceeded  against  in  the 
manner  provided  by  the  Code  of  Civil  Procedure. 


Dated  this 


day  of 


19 


C.  D., 
Chairman. 


FORMS. 


1113 


FORM  No.  4. 


Accounts  Against  a County. 
(County  Law,  § 24,  ante,  p.  34.) 


The  County  of  Albany, 


/ 

Albany,  N.  Y.,  October 1899. 


1899. 
June  28. 


To  Matthew  Bender  & Co.,  Dr. 


To  10  copies  Gilbert’s  Town  and  County  Officers’  Manual,  at 

$7.50 $75  00 

To  5 copies  Cumming  & Webster’s  Annotated  Tax  Laws  of  the 
State  of  New  York,  at  $4.50 22  50 


$97  50 


STATE  OF  NEW  YORK,  ) 

County  of  Albany,  j 

Matthew  Bender,  being  duly  sworn,  deposes  and  says  that  he  is  president  of 
Matthew  Bender  & Co.,  a domestic  corporation;  that  the  several  items  charged 
in  the  foregoing  account  are  just,  true  and  correct,  and  [if  for  disbursement 
and  services,  that  the  disbursements  (and  services)  charged  therein  have  been 
in  fact  made  (or  rendered)  or  are  necessary  to  be  made  (or  rendered)  at  the 
present  session  of  the  board  of  supervisors  of  such  county]  and  that  no  part 
thereof  has  been  paid  or  satisfied. 

MATTHEW  BENDER. 

Subscribed  and  sworn  to  before  me, 

this day  of 19. . 

JOHN  DOE, 

Notary  Public  in  and  for  Albany  County. 


FORM  No.  5. 

Contract  with  Penitentiary  for  Support  of  Prisoners, 

(County  Law,  § 12,  sub.  11,  ante , p.  57.) 

This  agreement,  made  this day  of 19 — , between 

keeper  (or  superintendent)  of  the County  Penitentiary,  party 

of  the  first  part,  the  authorized  agent  of  the  county  of state 

of  New  York,  and  the  board  of  supervisors  of  the  county  of 


1114 


FORMS. 


party  of  the  second  part,  the  agents  of  the  county  of state  of 

New  York,  authorized  to  make  this  contract  by  subdivision  11  of  section  12  of 
the  County  Law; 

Witnesseth , That  the  party  of  the  first  part  agrees  for  and  in  behalf  of  the 
said  penitentiary,  in  consideration  of  the  sum  hereinafter  mentioned,  to  safely 
keep  and  board  all  prisoners  legally  sentenced  and  committed  by  the  several 

courts  of  the  said  county  of  and  delivered  by  the  sheriff  of 

such  county  or  his  deputies,  or  by  any  constable  of  any  town  in  said  county,  for 
any  term  not  less  than  sixty  days,  and  to  provide  all  such  prisoners  with  proper 
medical  care  and  attention,  subject  however  to  the  rules  and  regulations  estab- 
lished for  the  management  and  government  of  said  penitentiary. 

Also  to  give  to  the  aforesaid  sheriff  or  his  deputies  or  any  constable  of  said 
county,  for  prisoners  so  delivered  at  such  penitentiary,  a receipt  stating  the  date 
and  length  of  sentence  and  amount  of  fine,  if  any,  imposed  on  said  prisoner. 

The  party  of  the  second  part  agrees  to  deliver  to  such  penitentiary  all 

prisoners  sent  by  the  several  courts  of  the  county  of to  hard 

labor  for  a term  of  sixty  days  and  upwards,  from  the  date  of  this  contract  to 
and  including  the  thirty-first  day  of  December,  19.. 

And  the  party  of  the  second  part  further  agrees  to  pay  to  the  party  of  the 
first  part  the  sum  of  $2.10  per  week  for  each  and  every  person  so  kept  for 

the  said  county  of  at  the  said  penitentiary,  and  to  pay  all 

drafts  drawn  upon  the  treasury  of  the  said  county  of for  the 

board,  care  and  maintenance  aforesaid,  when  accompanied  by  an  account  for  the 
same,  properly  made  and  verified,  and  in  accordance  with  the  terms  of  this 
contract,  on  the  first  day  of  January,  19..,  for  the  term  ending  on  the  thirty- 
first  day  of  December,  19.. 

And  the  party  of  the  second  part  further  agrees  to  pay  as  above  to  the  party 
of  the  first  part,  the  necessary  expenses  of  sending  back  to  the  said  county 

of  all  such  prisoners  whose  terms  have  expired  while  at  the 

said  penitentiary,  and  the  party  of  the  first  part  further  agrees  to  credit  to  the 

said  county  of  all  moneys  which  shall  be  collected  for  fines 

imposed  on  prisoners,  sentenced  and  confined  as  herein  stipulated  at  the  said 
penitentiary,  and  to  make  return  of  the  same  on  the  first  day  of  January,  19. 
but  any  fines  imposed  and  paid  by  labor  of  any  convict,  shall  not,  nor  shall  any 
part  thereof  be  credited  to  the  said  county  of 

It  is  also  further  agreed  that  any  convict  sentenced  in  the  said  county  of 

to  said  penitentiary,  who  may  become  insane  while  confined  in 

such  penitentiary,  must  be  forthwith  removed  from  the  said  penitentiary,  when 
due  notice  is  given  to  the  superintendent  of  the  poor  of  said  county.  This 
clause  does  not  apply  to  persons  convicted  of  felonies. 

Witness  our  hands  and  seals  this  day  and  year  as  above  written. 


Keeper  (or  superintendent)  of 


County  Pennitentiary . 


Chairman  of  Board  of  Supervisors  of 


County. 


FORMS. 


1115- 


FORM  No.  6. 

Oath  of  Office  of  Clerk  of  Board  of  Supervisors. 

STATE  OF  NEW  YORK,  | 

County  of j 

I,  A,  B.,  do  solemnly  swear  (or  affirm)  that  I will  support  the  constitution 
of  the  United  States,  and  the  constitution  of  the  state  of  New  York,  and  that  I 
will  faithfully  discharge  the  duties  of  the  office  of  clerk  of  the  board  of  super- 
visors of  the  county  of according  to  the  best  of  my  ability. 

A.  B. 

Subscribed  and  sworn  to  before  me, 

this day  of 19. . 

C.  D. 

(Title  of  office.) 


FORM  No.  7. 

Statement  of  County  and  Town  Accounts. 

(County  Law,  § 51,  ante,  p.  96.) 

I. — County  Charges. 

Accounts  against  the  county  of  presented  to  the  board  of 

supervisors,  at  its  annual  meeting  for  the  year  19. .,  with  amount  claimed  by  and 
allowed  to  each  person  named. 


CLAIMANT. 

Nature  of  Account. 

Amount 

claimed. 

Amount 

allowed. 

A.  B 

Printing 

$350  00 

$200  00 

II. — Town  Abstracts. 
Town  of 


Abstract  containing  a list  of  claims  audited  by  the  town  board  (or  bo-trd 
of  town  auditors)  of  the  town  of during  the  year  ending  on 


1116 


FORMS. 


the day  of , 19..,  wiJi  the  amounts  claimed  by  and 

allowed  to  the  several  persons  named  therein: 


Claimed.  Allowed. 


A.  L.  Kellogg,  services  as  attorney $275  00  $275  00 

A.  L.  Van  Duzen,  town  clerk 29  00  29  00 

(And  so  on  for  each  town.) 


III. — Supervisors’  Accounts. 

County  of  

To  John  Dooley,  supervisor  of  the  town  of  Stamford,  Dr. 

December  30,  19. .. 

Claimed.  Allowed. 


To  16  days’  attendance  at  annual  session  of  the  board  of 

supervisors,  at  $4.00 $64  00  $64  00 

To  4 days’  services  on  the  committee  for  the  repair  of  the 

county  jail,  at  $4.00  16  00  16  00 

To  making  copy  of  assessment-roll 15  00  15  00 

To  46  miles,  to  and  from  annual  session  of  board,  at  $.08..  3 68  3 68 


$98  68  $98  68 


(The  same  for  each  supervisor.) 


The  board  of  supervisors  of  the  county  of  was  in  session 

during  the  year  ending  December  31,  19..,  for  16  days,  and  the  distance 
necessarily  traveled  by  each  member  of  the  board  of  supervisors  in  attending 
the  meetings  thereof  is  specified  in  the  foregoing  accounts  of  the  several 
supervisors. 

COUNTY  OF 

Office  of  Clerk  of  Board  of  Supervisors, 

I,  J.  K.,  clerk  of  the  board  of  supervisors  of county,  do 

hereby  certify  that  the  foregoing  statement  contains  the  names  of  all  persons 
presenting  claims  against  such  county  which  were  audited  by  such  board  of 
supervisors  at  its  last  annual  session,  or  by  the  town  boards  or  boards  of 
town  auditors  of  the  respective  towns  in  such  county  so  far  as  returned  to 
me,  together  with  the  amounts  claimed  and  allowed  thereon;  that  no  account 
was  audited  at  such  session  of  the  board  of  supervisors,  unless  the  same  had 
been  duly  verified  as  required  by  law;  that  the  statement  as  to  the  number  of 
days  of  the  sessions  of  such  board,  and  the  mileage  charged  in  the  several 
supervisors’  accounts  are  true  and  correct  to  the  best  of  my  knowledge  and 
belief. 

Dated  this day  of 19.. 


J.  K., 

Clerk  of  the  Board  of  Supervisors  of 


County. 


FORMS. 


HIT 


FORM  No.  8, 

County  Clerk’s  Statement  to  Board  of  Supervisors. 


(County  Law,  § 164,  ante,  p.  132.) 


To  the  Board  of  Supervisors,  county  of : 

I,  A.  B.,  clerk  of county,  hereby  submit  the  following  annual 

statement,  as  required  by  section  164  of  the  County  Law: 


Receipts. 

Fees  received  during  the  year  for  searches  and  certificates  thereof.  $735  00 


Fees  received  for  recording  documents  and  certificates  thereof 826  00 

Sums  received  for  services  rendered  the  county 241  00 

Sums  received  for  official  services 318  00 


$2,120  00 

Payments. 


Paid  for  clerical  services  to  (A.  B.) $1,216  00 

Paid  for  fuel  to  (B.  C.) 118  00 

Paid  for  lights  to  (C.  D.) 40'  00 

Paid  for  stationery  to  (E.  F.) 320  00 

Paid  for  incidental  expenses: 

To  G.  H.  (State  purpose) 68  00 

To  H.  L.  (State  purpose) 34  00 

1,796  00 


Balance  $324  00 


Dated  this day  of 


19.. 


A.  B., 

County  Clerk. 


STATE  OF  NEW  YORK.  ) 

County  of ) 

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  county  clerk  of  the 

county  of  and  that  the  foregoing  account  is  true  and  correct, 

and  that  the  amounts  stated  therein  were  actually  received  and  expended 
by  him. 

A.  B. 

Subscribed  and  sworn  to  before  me, 

this  ....  day  of ,19.. 

Rotary  Public. 


1118 


FORMS. 


FORM  No.  9. 

Report  of  District  Attorney. 


(County  Law,  § 201,  ante,  p.  139.) 


A.  B.t  district  attorney,  in  account  with  the  county  of 


Dr. 


Cr. 


To  penalties  recovered 

$400  00 
100  00 

To  amount  paid  county  treasurer, 
May  16,  1901 

$100  00 

Balance 

300  00 

Dated  this day  of 


19.. 


A.  B., 


District  Attorney. 


STATE  OF  NEW  YORK, 

County  of 

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  district  attorney 

of  the  county  of and  that  the  foregoing  report  is  a true  account 

of  all  moneys  received  by  him  by  virtue  of  his  office  during  the  year  ending 
with  the day  of ,19.. 

A.  B. 

Subscribed  and  sworn  to  before  me, 
this  day  of  19.. 


C.  D., 

. Notary  Public. 


FORMS. 


1119 


FORM  No.  10. 

Calendar  of  Prisoners  Confined  in  County  Jail. 


(County  Law,  § 97,  ante,  p.  182.) 


NAMES  OF 
PRISONERS 

When 

committed. 

By  what 
precept. 

Cause  of  de- 
tention. 

By  whom  committed; 
(if  disorderly  person). 

FORM  No.  11. 

Form  or  Application  and  Notice  for  Alteration  of  Boundaries  or  Erection' 
of  Towns  by  Boards  of  Supervisors. 

(County  Law,  § 35,  37,  ante,  p.  235.) 

To  the  Board  of  Supervisors  of  the  County  of ; 

Application  is  hereby  made  by  the  undersigned,  freeholders  of  the  towns 

of for  the  division  of  (or  the  alteration  of)  the  boundaries  of 

the  towns  of  

(If  the  alteration  of  town  boundary  lines  is  desired,  state  as  follows:) 
The  undersigned  hereby  respectfully  request  that  the  board  of  supervisors 

of  such  county  alter  the  northern  boundary  line  of  the  town  of 

so  that  such  line  shall  be  established  and  defined  as  follows: 

(Specify  by  sufficiently  definite  metes  and  bounds  the  location  of  the  pro- 
posed new  boundary  line.) 

And  that  the  southern  boundary  line  of  the  town  of  shall 

be  established  and  defined  as  follows: 

(State  specifically  by  sufficiently  definite  metes  and  bounds  the  proposed 
boundary  line  of  such  town.) 

(If  it  is  proposed  to  divide  a town  and  to  erect  therefrom  a new  town,  the 
application  should  state  as  follows:)  The  undersigned  applicants  respect- 
fully request  that  the  board  of  supervisors  of  such  town  shall  divide  and 

alter  the  bounds  of  the  town  of  in  the  county  of  

so  that  the  boundaries  of  such  town  shall  be  as  follows: 

(Specify  in  detail  with  sufficiently  definite  metes  and  bounds  the  proposed 
new  boundary  lines  of  the  town  to  be  divided.) 

That  a new  town  be  erected  to  consist  of  that  part  of  the  former  town  of 


1120 


FORMS. 


lying  northerly  of  (specify  generally  a division),  and  that  the 

boundaries  of  such  new  town  shall  be  as  follows: 

(Specify  in  detail  and  with  sufficiently  definite  metes  and  bounds  the  boun- 
dary lines  of  the  proposed  new  town.) 

The  said  applicants  also  respectfully  request  the  said  board  of  supervisors 
that  the  name  of  the  new  town  so  erected  shall  be  

A map  and  survey  showing  the  alteration  of  the  boundaries  of  the  said  towns 

of (or  showing  the  alteration  of  the  boundaries  of  the  town  of 

and  the  boundaries  of  the  proposed  new  town  of  

) , is  attached  hereto  and  made  a part  of  this  application. 

Dated  this day  of 19. . 

(Signed  by  at  least  twelve  freeholders  residing  in  each  of  the 
towns  whose  boundaries  are  to  be  changed.) 

Notice  of  Application. 

To  whom  it  may  concern: 

Take  notice  that  the  above  application  for  the  alteration  of  the  boundary 

lines  of  the  towns  of (or  for  the  division  of  the  town  ot 

and  the  erection  therefrom  of  a new  town  to  be  known  as 


the  town  of ),  will  be  made  to  the  board  of  supervisors  of  the 

county  of  at  the  meeting  of  such  board  of  supervisors  at  its 


annual  session,  beginning  on  the day  of 19. . 


FORM  No.  12. 

Resolution  of  Board  of  Supervisors  Dividing  a Town  and  Erecting  Therefrom: 

a New  Town. 

(County  Law,  § 35,  ante . p.  235.) 

AN  ACT  and  resolution  to  divide  and  alter  the  bounds  of  the  town  of  More- 
house, in  the  county  of  Hamilton,  state  of  New  York,  and  to  erect  a new 
town  therein,  to  be  known  and  named  “ Inlet.” 

Passed  by  the  board  of  supervisors  of  the  county  of  Hamilton,  pursuant 
to  section  35  of  the  County  Law,  on  the  27th  day  of  November,  1901,  all  the 
members  elected  thereto  voting  in  favor  thereof. 

The  board  of  supervisors  of  the  county  of  Hamilton  does  enact  as  follows: 
Section  1.  From  and  after  the  passage  of  this  act  and  resolution,  the 
bounds  of  the  town  of  Morehouse,  in  the  county  of  Hamilton  and  state  of 
New  York,  shall  be  as  follows:  Commencing  at  a point  where  the  boundary 

line  between  the  counties  of  Herkimer  and  Hamilton  intersects  the  middle 
of  the  south  branch  of  the  Moose  river,  and  running  thence  easterly  along 
the  middle  of  the  south  branch  of  the  Moose  river  to  the  boundary  line  between 
the  towns  of  Morehouse  and  Arietta,  as  heretofore  established;  thence  starting 
southerly  and  continuing  along  the  said  line  between  the  said  towns  of  More- 
house and  Arietta  to  the  line  between  the  counties  of  Herkimer  and  Hamilton; 
thence  northwesterly  along  the  line  between  the  town  of  Morehouse  in  the 


FORMS. 


1.121 


county  of  Hamilton,  and  the  towns  of  Salisbury  and  Ohio,  in  the  county 
of  Herkimer,  to  the  easterly  boundary  of  the  town  of  Wilmurt,  in  the 
county  of  Herkimer;  thence  northeasterly  along  the  boundary  line  between  the 
said  town  of  Wilmurt  and  the  said  town  of  Morehouse,  as  previously  established, 
to  the  northeasterly  boundary  line  of  Nobleboro  Patent  and  Arthurboro  Patent; 
thence  northerly  along  the  boundary  line  between  said  town  of  Wilmurt  and 
the  town  of  Morehouse,  as  previously  established,  to  the  place  of  beginning. 

§ 2.  From  and  after  the  passage  of  this  act  and  resolution  a new  town  is 
erected  to  consist  of  that  part  of  the  former  town  of  Morehouse  lying  north- 
erly of  the  middle  of  the  south  branch  of  the  Moose  river,  and  the  bounds 
of  said  town  shall  be  as  follows:  Commencing  at  a point  where  the  middle 

of  the  south  branch  of  the  Moose  river  intersects  the  boundary  line  between 
the  counties  of  Hamilton  and  Herkimer  and  running  thence  northerly  along 
said  boundary  line  to  a point  where  it  intersects  the  southwesterly  boundary 
of  Township  41,  Totten  & Crossfield’s  Purchase;  thence  southeasterly  along 
the  southwesterly  line  of  said  Township  41  to  the  southerly  corner  thereof; 
thence  northeasterly  along  the  southeasterly  boundary  of  said  Township  41 
to  the  easterly  corner  thereof;  thence  southeasterly  on  the  boundary  line 
between  Township  40,  Totten  & Crossfield’s  Purchase,  and  Township  5,  John 
Brown’s  Tract,  to  the  old  or  former  town  line  of  the  towns  of  Arietta  and 
Morehouse  as  the  same  existed  previous  to  an  act  of  the  legislature  of  this 
state,  laws  of  1860,  chapter  200,  passed  April  7,  1860;  thence  southerly  along 
the  boundary  line  between  the  towns  of  Morehouse  and  Arietta,  as  existing 
prior  to  the  passage  thereof,  to  a point  in  the  middle  of  the  south  branch  of 
the  Moose  river;  thence  westerly  along  the  middle  of  the  south  branch  of  the 
Moose  river  to  the  place  of  beginning. 

§ 3.  The  name  of  the  town  erected  by  the  last  preceding  section  shall  be 
“Inlet.” 

§ 4.  This  act  and  resolution  shall  take  effect  immediately. 

In  witness  whereof,  I have  hereunto  subscribed  my  name  and  affixed 
[seal.]  my  official  seal  this  28th  day  of  December,  A.  D.,  1901. 

THOS.  J.  HANDLEY, 

Clerk  of  the  Board  of  Supervisors  of  the  county  of  Hamilton , 
State  of  New  York. 


FORM  No.  13. 

Act  of  Board  of  Supervisors  Providing  for  Altering  the  Botjnoabtes  of  a* 

Town. 


(County  Law,  §§  35-37,  ante,  p.  235.) 


AN  ACT  to  alter  the  boundary  lines  of  the  towns  of  Brandon  and  Santa  Clara, 
in  Franklin  county.  (By  authority  of  sections  35-37  of  the  County  Law.) 


1122 


FORMS. 


Passed  November  23,  1896,  two-thirds  of  all  the  members  of  said  board  and 
the  supervisors  of  Brandon  and  Santa  Clara  being  present  and  voting  in  favor 
thereof.  The  number  of  votes  given  for  the  act  were  17,  the  number  of  votes 
given  against  the  act  were  none. 

Upon  the  application  of  at  least  twelve  freeholders  of  the  towns  of  Bran- 
don and  Santa  Clara,  respectively,  the  board  of  supervisors  of  the  county  of 
Franklin  do  enact  as  follows: 

Section  1.  That  the  division  lines  between  the  towns  of  Brandon  and  Santa 
Clara  be  and  hereby  are  changed  and  altered  as  follows:  By  including  within 

the  town  of  Brandon  the  whole  of  Township  8,  Great  Tract  No.  1,  of  Macomb’s 
Purchase,  and  that  the  town  of  Brandon  consist  of  Township  8,  Great  Tract  No. 
1,  of  Macomb’s  Purchase.  That  the  town  of  Santa  Clara  consist  of  and  that 
there  be  included  within  such  town  of  Santa  Clara  the  following  described  lands: 
Beginning  at  the  southwest  corner  of  Township  No.  8,  Great  Tract  No.  1,  of 
Macomb’s  Purchase,  and  running  thence  southerly  along  the  west  line  of  Town- 
ships Nos.  11,  14,  17,  18  and  23,  to  the  northwest  corner  of  the  town  of  Harriets- 
town;  thence  easterly  along  and  upon  the  north  line  of  said  town  of  Harriets- 
town  to  the  east  line  of  Township  No.  23;  thence  northerly  to  the  northeast 
corner  of  Township  No.  20;  thence  westerly  to  the  southeast  corner  of  Township 
No.  17;  thence  northerly  along  the  east  line  of  Townships  Nos.  17,  14  and  11  to 
the  southeast  corner  of  Township  No.  8;  thence  westerly  along  the  south  bounds 
of  Township  No.  8 to  the  place  of  beginning,  containing  all  the  land  within  said 
bounds.  And  that  such  towns  of  Brandon  and  Santa  Clara  be  and  hereby  are 
respectively  erected  accordingly  to  so  exist,  be  and  be  treated  from  and  after  the 
time  this  act  shall  take  effect. 

§ 2.  This  act  shall  take  effect  on  the  15th  day  of  February,  1897. 

The  foregoing  has  been  compared  with  the  original  act  passed  by  the  board 
of  supervisors  of  Franklin  county  on  the  23d  day  of  November,  1896,  and  is  a 
correct  copy  of  the  same. 


In  testimony  whereof,  we  have  hereto  set  our  hands  and  seal  this  25th 
day  of  November,  1896. 


ALFRED  C.  MORSE, 


[L.  s.] 


Chairman, 
M.  W.  HUTCHINS, 


Cleric. 

I,  Herbert  J.  Wilson,  clerk  of  the  board  of  supervisors  of  the  county  of  Frank- 
lin, do  hereby  certify  that  I have  compared  the  foregoing  with  the  journal  of 
proceedings  of  said  board  for  the  year  1896,  and  that  the  same  is  a correct  trans- 
cript of  a part  of  said  journal  of  proceedings. 

[seal.]  HERBERT  J.  WILSON, 


Clerk  of  the  Board  of  Supervisors  of  Franklin  county,  New  York . 


FORM  No.  14. 


Application  for  Special  Town  Meeting. 

(Town  Law,  § 46,  ante,  p.  253.) 

To  C.  D.,  Town  Clerk  of  the  town  of  in  the  county 

of  

The  undersigned,  taxpayers  of  said  town,  whose  names  appear  on  the  last 
assessment-roll  of  said  town  (or  supervisor,  town  superintendent  of  highways, 
etc.,  as  the  case  may  be),  hereby  make  application  and  require  of  you  to  call  a 
special  town  meeting,  pursuant  to  section  46  of  the  Town  Law,  for  the  purpose 
of  (here  state  the  purpose  for  which  the  special  town  meeting  is  to  be  called). 

Dated  this day  of 19. . 

(Signed  by  at  least  twenty-five  taxpayers  or  by  proper  town  officers.) 


FORM  No.  15. 

Notice  of  Special  Town  Meeting. 

(Town  Law,  § 47,  ante.  p.  255.) 

Notice  is  hereby  given  that,  pursuant  to  an  application  made  therefor  as 
prescribed  by  statute,  a special  town  meeting  of  the  electors  of  the  town 

of county  of will  be  held  at  in 

the  village  of  on  the  day  of 19.., 

at o’clock  in  the noon,  for  the  purpose  of  voting  upon  the  follow- 

ing questions  or  propositons  (stating  them  as  contained  in  Town  Law,  § 46, 
ante),  and  for  the  transaction  of  such  other  business  as  shall  be  lawfully 
brought  before  such  meeting. 

Dated 19.. 

A.  B., 

Town  Clerk. 


FORM  No.  16. 

Application  fob  Submission  of  Proposition  to  be  Voted  Upon  by  Ballot  at 

Town  Meeting. 

(Town  Law,  § 48,  ante , p.  256.) 

To  C.  D.,  Tovm  Clerk  of  the  town  of county  of : 

The  undersigned,  taxpayers  of  the  town  of (or  supervisor, 

commissoner  of  highways,  or  overseer  of  the  poor  of  the  town  of ), 


1124: 


FORMS. 


hereby  make  application  pursuant  to  the  provisions  of  section  48  of  the  Town 
Law,  for  the  submission  of  a proposition  to  be  voted  upon  by  ballot  at  the 
biennial  town  meeting  (or  a special  town  meeting  duly  called  therefor),  to  be 

held  in  the  town  of on  the day  of , 

19..,  for  the  following  purposes  and  in  the  following  form,  to  wit;  (Here 
state  plainly  the  question  desired  to  be  voted  upon.) 

And  such  applicants  hereby  request  that  a vote  be  taken  upon  such  proposi- 
tion at  such  town  meeting. 

Dated  this day  of  , 19 . . 

(Signed  by  the  proper  town  officers  or  taxpayers  entitled  to  demand 
a vote  upon  the  proposition  at  a town  meeting.) 


FORM  No.  17. 

Notice  of  Submission  of  Proposition  to  Town  Meeting. 

(Town  Law,  § 48,  ante,  p.  256.) 

Notice  is  hereby  given  that,  pursuant  to  an  application  made  therefor  as  pre- 
scribed by  section  48  of  the  Town  Law,  which  application  was  filed  in  the  office 

of  the  town  clerk  of  the  town  of on  the day  of 

19. .,  the  following  proposition  will  be  submitted  to  be  voted 

upon  by  ballot  at  the  biennial  town  meeting  (or  at  a special  town  meeting  duly 

called  therefor),  to  be  held  in  the  town  of on  the day 

of  19..,  to  wit;  (state  the  question  to  be  submitted  to  the 

electors  at  the  town  meeting.) 

Dated  this day  of , 19.. 

C.  D., 

Town  Clerk. 


FORM  No.  18. 

Application  for  Holding  Town  Meetings  in  Election  Districts. 


(Town  Law,  § 65,  ante,  p.  267.) 

To  A.  B.,  Town  Clerk  of  the  town  of : 

We,  the  undersigned,  duly  and  legally  qualified  electors  of  the  town  of 

county  of  , do  hereby  respectfully  ask  that  at  the 

town  meeting  to  be  held  on  the  day  of 

19..,  the  question  be  submitted  pursuant  to  law,  as  to  whether,  on  and  after 


FORMS. 


1125 


such  town  meeting,  the  town  meetings  of  the  town  of  be  held  in 

election  districts  (or  [if  it  is  desired  to  return  to  the  former  system  of  holding 
but  one  poll]  that  on  and  after  such  town  meeting,  the  town  meetings  of  such 
town  be  held  at  one  place  as  under  the  former  system),  such  election  districts 
to  be  the  same  as  the  several  election  districts  of  such  town  at  general  elections 
(or  in  two  [or  more]  joint  election  districts  constituted  by  the  town  board  as 
provided  by  law). 

Dated 19. . 

(Signed  by  at  least  twenty-five  electors.) 


FORM  No.  19. 

Certificate  of  Election  of  Justices. 


(Town  Law,  § 94,  ante,  p.  288.) 


County  of  

STATE  OF  NEW  YORK, 


To  F.  G.,  Esq.,  County  Clerk  of County: 

I do  hereby  certify  that  at  the  biennial  town  meeting  of  the  town  of 

held  therein  on  the day  of 19. .,  G.  H.  was 

duly  elected  justice  of  the  peace  for  a full  term. 

Dated  this day  of 19. . 

..  C.  D., 


Town  Clerk. 


FORM  No.  20. 

Bond  or  Undertaking  of  Supervisor,  General. 


(Town  Law,  § 100,  ante,  p.  304.) 

Whereas,  A.  B.,  of  the  town  of in  the  county  of 

was  on  the  day  of  19..,  duly  elected  (or  appointed) 

supervisor  of  the  town  of in  such  county; 

Now,  therefore,  we,  the  said  A.  B.  and  C.  D.,  residing  at and 

E.  F.,  residing  at  do  hereby,  pursuant  to  section  100  of  the 

Town  Law,  and  other  statutes  made  and  provided,  undertake  and  acknowledge 
ourselves,  our  heirs,  administrators  and  executors,  firmly  bound  to  and  with  the 

said  town  of in  the  sum  of dollars,  that  the  said 

A.  B.  will  well  and  faithfully  discharge  his  duties  as  supervisor  of  such  town, 
and  that  he  will  well  and  truly  keep,  pay  over  and  account  for  all  moneys  and 
property,  including  the  local  school  money,  if  any,  belonging  to  his  town  and 


1126 


FORMS. 


coming  into  his  hands  as  such  supervisor,  in  accordance  with  law,  or  in  default 
thereof,  that  we  will  pay  all  damages,  costs  and  expenses  resulting  from  such 
default,  to  the  amount  specified  in  this  undertaking. 

Dated  this day  of , 19.. 

A.  B.,  Supervisor. 

C.  D.,  Surety. 

E.  F.,  Surety. 


STATE  OF  NEW  YORK,  ) 

County  of j ss“ 

On  the day  of in  the  year  19..,  before  me,  the  sub- 

scriber, personally  came  A.  B.,  C.  D.  and  E.  F.,  to  me  known  to  be  the  persons 
described  in  and  who  executed  the  within  instrument,  and  severally  acknowl- 
edged to  me  that  they  executed  the  said  instrument. 

G.  H., 

(Official  title.) 


State  of  New  York, 

County  of 

C.  D.  and  E.  F.,  being  severally  and  duly  sworn,  each  for  himself  deposes  and 
says:  C.  D.,  That  he  is  one  of  the  sureties  named  in  the  foregoing  undertaking; 
that  he  is  a freeholder  (a  house  holder)  within  the  state  of  New  York;  that  he 

is  a by  occupation,  and  resides  in  county  of 

, at  No street  (and  has  his  place  of  business 

at  street,  in  the  city  of );  that  he  is  worth  the 

sum  of dollars  (twice  the  amount  of  the  undertaking),  over  and 

above  all  just  debts  and  liabilities  and  property  exempt  from  execution;  and 
E.  F.,  that  he  is  one  of  the  sureties  named  in  the  foregoing  undertaking;  that 
he  is  a freeholder  (or  house  holder)  within  the  state  of  New  York;  that  he  is 

a by  occupation  and  resides  in county  of 

at  No street,  in  the  city  of ; that  he  is 

worth  the  sum  of dollars ( twice  the  amount  of  the  undertaking), 

over  and  above  all  joint  debts  and  liabilities,  and  property  exempt  from 
execution. 

C.  D., 

E.  F.,  Sureties. 

Subscribed  and  sworn  to  before  me, 

this  day  of 19.. 

J.  K. 

(Official  title.) 

We,  the  undersigned,  members  of  the  town  board  of  the  town  of 

do  hereby  approve  of  the  foregoing  undertaking  as  to  its  form,  manner  of 
execution  and  sufficiency  of  the  sureties  thereon. 

Dated 19. . 

(Signed  by  members  of  town  board.) 


(If  the  approval  is  by  resolution,  as  prescribed  by  Public  Officers  Law,  § 11, 
ante,  a certified  copy  of  the  resolution  should  be  annexed  to  the  undertaking.) 


FORMS. 


1127 


FORM  No.  21. 

Justice’s  Undertaking. 


(Town  Law,  § 106,  ante,  p.  305.) 


Whereas , A.  B.,  of  the  town  of county  of was 

on  the day  of 19..,  duly  elected  (or  appointed) 

justice  of  the  peace  of  the  town  of in  such  county. 

Now , therefore , we,  the  said  A.  B.,  as  principal,  and  C.  D.,  residing  at 

and  E.  F.,  residing  at  do  hereby,  pursuant  to  section 

106  of  the  Town  Law,  and  other  statutes  made  and  provided,  undertake  and 
acknowledge  ourselves,  our  heirs,  administrators  and  executors,  jointly  and 

severally,  firmly  bound  to  and  with  the  said  town  of in  the  sum 

of dollars,  that  the  said  A.  B.  will  pay  over  on  demand,  to  the 

officer,  person  or  persons  entitled  to  the  same,  all  moneys  received  by  him 
by  virtue  of  his  office;  that  he  will  well  and  faithfully  discharge  the  duties  of 
his  office,  or  in  default  thereof  that  we  will  pay  all  damages,  costs  and  expenses 
resulting  from  such  default,  to  the  amount  specified  in  this  undertaking. 

Dated  this day  of 19. . 

A.  B.,  Justice  of  the  Peace. 

C.  D., 

E.  F.,  Sureties. 

(Acknowledgment,  justification  and  approval  as  in  supervisor’s  undertaking 
[Form  No.  20,  ante],  except  that  the  approval  is  by  the  supervisor,  or  town 
clerk,  when  the  justice  is  a supervisor.) 


FORM  No.  22. 

Undertaking  of  Town  Superintendent  of  Highways. 

(Town  Law,  § 111,  ante,  p.  307.) 

Whereas,  A.  B.,  of  the  town  of county  of was 

on  the  day  of  19..,  duly  elected  (or  appointed) 

town  superintendent  of  highways  of  the  town  of in  such  county. 

Now.  therefore,  we,  the  said  A.  B.  and  C.  D.,  residing  at  and 

E.  F.,  residing  at , as  sureties,  do  hereby,  pursuant  to  section  111 

of  the  Town  Law,  and  other  statutes  made  and  provided,  undertake  and  acknowl- 
edge ourselves,  our  heirs,  administrators  and  executors,  jointly  and  severally, 
firmly  bound  to  and  with  the  said  town  of in  the  sum  of 


1128 


FORMS. 


dollars;  that  the  said  A.  B.  will  faithfully  discharge  his  duties 

as  such  town  superintendent  of  highways,  and  within  ten  days  after  the  expira- 
tion of  his  term  of  office,  pay  over  to  his  successor  all  moneys  remaining  in  his 
hands  as  such  superintendent,  and  render  to  such  successor  a true  account  of 
all  moneys  received  and  paid  out  by  him  as  such  superintendent,  in  accordance 
with  law,  or  in  default  thereof,  and  that  we  will  pay  all  damages,  costs  and  ex- 
penses resulting  from  such  default,  not  exceeding  the  sum  specified  in  this 
undertaking. 

Dated  this  day  of  , 19.. 

A.  B.,  Town  Superintendent  of  Highways. 

C.  D., 

E.  F.,  Sureties. 

(Acknowledgment,  justification  and  approval  as  in  supervisor’s  undertaking 
[Form  No.  20,  ante],  except  that  the  approval  is  by  the  supervisor.) 


FORM  No.  23. 

UNDERTAKING  OF  OVERSEER  OF  THE  POOR. 


(Town  Law,  § 113,  ante,  p.  307.) 


' Whereas , B.  F.,  of  the  town  of in  the  county  of 

was  on  the day  of 19. .,  duly  elected  overseer  of  the 

poor  of  said  town; 

Now,  therefore,  we,  the  said  B.  F.,  principal,  and  N.  O.,  of  the  town  of 

his  surety,  do  hereby,  pursuant  to  section  113  of  the  Town  Law,  jointly 

and  severally  undertake  that  the  said  B.  F.  will  well  and  faithfully  discharge 
the  duties  of  his  office,  and  will  pay  according  to  law  all  moneys  which  shall 
come  into  his  hands  as  such  overseer,  or  in  default  thereof  that  we  will  pay  all 
damages,  costs  and  expenses  resulting  from  such  default. 

Dated  this day  of 19.. 

B.  F.f 

Overseer  of  the  Poor. 

N.  0. 

(Acknowledgment,  justification  and  approval  as  in  supervisor’s  undertaking 
[Form  No.  20,  ante],  except  that  the  undertaking  is  to  be  approved  by  the 
supervisor.) 


FORMS. 


1129 


FORM  No.  24. 


Town  Collector’s  Undertaking. 


(Town  Law,  § 114,  ante , p.  307.) 

Whereas , N.  0.,  of  the  town  of  in  the  county  of 

was  on  the day  of 19. duly  elected  (or  appointed) 

collector  of  said  town  and  has  received  (or  will  receive)  the  assessment-roll 
of  said  town  for  the  year  19..,  calling  for  the  collection  of dollars. 

Now,  therefore,  we,  the  said  N.  O.,  principal,  and  R.  S.  and  T.  W.,  of  the 

town  of his  sureties,  do  hereby,  pursuant  to  section  114  of  the 

Town  Law,  jointly  and  severally  undertake  and  acknowledge  ourselves  firmly 

bound  unto  the  said  town  of  pursuant  to  law,  in  the  sum  of 

dollars,  that  the  said  N.  O.  will  well  and  faithfully  execute  his 

duties  as  collector,  and  pay  over  all  moneys  received  by  him  as  such  col- 
lector to  the  officer  or  person  entitled  thereto,  and  account  in  the  manner 
and  within  the  time  provided  by  law  for  all  taxes  upon  the  assessment-roll 
of  his  town,  delivered  to  him  for  the  ensuing  year,  or  in  default  thereof, 
that  we,  the  undersigned,  will  pay  all  damages,  costs  and  expenses  result- 
ing from  such  default. 

Dated  this  day  of 19.. 

N.  O. 

R.  S. 

T.  W. 

(Acknowledgment,  justification  and  approval  as  contained  in  supervisor’s 
undertaking  [Form  No.  20,  ante],  except  that  approval  is  by  supervisor.) 


FORM  No.  25 

Constable’s  Undertaking. 


(Town  Law,  § 116,  a^te,  p.  310.) 


Whereas,  D.  E.,  of  the  town  of in  the  county  of 

was  on  the  day  of  19..,  duly  elected  (or  appointed) 

constable  of  said  town; 

Now,  therefore,  we,  the  said  D.  E.,  principal,  and  N.  O.  and  R.  S.,  of  the 

town  of his  sureties,  do  hereby,  pursuant  to  section  116  of  the 

Town  Law,  jointly  and  severally  undertake  that  said  D.  E.  will  pay  to  each 


1130 


FORMS. 


and  every  person  who  may  be  entitled  thereto,  all  such  sums  of  money  as 
he  may  become  liable  to  pay  on  account  of  any  execution  which  shall  be 
delivered  to  him  for  collection;  and  also  pay  each  and  every  person  for  any 
damages  which  he  may  sustain  from  or  by  any  act  or  thing  done  by  said 
D.  E.  as  such  constable,  by  virtue  of  his  office. 

Dated  this  day  of  19.. 

D.  E. 

N.  O. 

R.  S. 

(Acknowledge,  justify  and  approve  as  in  form  for  supervisor’s  undertak- 
ing [Form  No.  20,  ante],  except  that  the  approval  is  by  the  supervisor  or 
town  clerk.) 


FORM  No.  26. 

Resignation  of  Town  Officers. 

(Town  Law,  § 84,  ante,  p.  316.) 

To  A.  B.,  Town  Cleric  ( or  C.  D.,  E.  F.,  G.  H.  and  J.  K.,  Justices  of  the  Peace ) 
of  the  town  of .* 

I,  M.  O.,  of  the  town  of county  of having 

been  duly  elected  (or  appointed)  to  the  office  of  in  and  for 

the  said  town  of  on  the  day  of  19.., 

and  having  duly  qualified  as  such  officer,  do  hereby  resign  such  office,  to 
take  effect  upon  the  delivery  of  this  resignation. 

Dated ,19..  M.  O. 


FORM  No.  27. 

Appointment  to  Fill  Vacancy  in  Town  Office. 

(Town  Law,  § 130,  ante,  p.  318.) 

Whereas,  a vacancy  exists  in  the  office  of in  the  town  of 

county  of , because  of  the  (resignation,  or  as  the 

case  may  be)  of  M.  N.,  who  was  elected  to  such  office  on 

the  day  of  19 . . ; for  a term  of  two  years  from 

the day  of 18. . ; 


FORMS. 


1131 


Now,  therefore,  in  pursuance  of  the  power  vested  in  us  by  section  130  of  the 
Town  Law,  we,  the  undersigned  members  of  the  town  board  of  such  town, 
do  hereby  appoint  N.  O.  of  said  town  to  fill  the  vacancy  existing  in  such 

office  of  ; the  said  N.  O.  shall  hold  such  office  until  the  next 

biennial  town  meeting  (*)  in  such  town,  and  until  his  successor  is  elected 
or  appointed  and  has  qualified,  as  provided  by  law. 

In  witness  thereof,  we  have  hereunto  set  our  hands  and  seals,  at 

in  said  town,  on  the  day  of  19.. 

B.  F.,  Supervisor.  [l.  s.] 

(Add  other  signatures  of  members  of  the  town  board,  with  designation  of 
office,  and  seals.) 

* If  town  meetings  are  held  at  time  of  general  election,  the  vacancy  should 
be  filled  to  the  first  day  of  January  following  the  election. 


FORM  No.  28. 

Notice  of  Appointment  to  Town  Office. 
(Town  Law,  § 130,  ante,  p.  318.) 


To  N.  O.: 

You  are  hereby  notified  that  you  were  appointed  by  the  town  board  of  the 

town  of county  of as in  and  for 

the  said  town  to  fill  the  vacancy  in  that  office  occasioned  by  the  (resignation 
or  as  the  case  may  be)  of  M.  N.,  the  former  incumbent  of  such  office;  such 
office  is  to  be  held  by  you  until  the  next  biennial  town  meeting  of  such 
town  ([or]  until  and  including  the  31st  day  of  December  succeeding  the  next 
biennial  town  meeting).  Sueh  appointment  was  duly  executed  by  the  mem- 
bers of  said  town  board  and  filed  in  my  office  on  the day  of 

19..,  as  provided  by  law. 

Dated  ,19..  C.  Z., 

Town  Clerk. 


FORM  No.  29. 

Oath  of  Supervisor,  Town  Clerk,  Superintendent  of  Highways  and  Overseer 
of  the  Poor,  Going  out  of  Office,  on  Delivery  of  Books,  Records,  etc. 

(Town  Law,  § 91,  ante,  p.  356.) 

COUNTY  OF ) 

Town  of \ SS” 

X,  M.  N.,  of  the  town  of  being  duly  sworn,  deposes  and  say 


1132 


FORMS. 


that  the  records,  books  and  papers  herewith  delivered,  upon  the  demand  of 

O.  P.,  to  him,  as  my  successor  in  office  as  of  said  town  of 

are  all  the  records,  books  and  papers  in  my  possession,  or 

under  my  control,  belonging  to  the  said  office  of  of  said  town, 

office  is  to  be  held  by  you  until  the  next  biennial  town  meeting  of  such 

delivery,  to  wit,  the  sum  of  dollars  and  cents,  is  all 

the  money  belonging  to  said  town  remaining  in  my  hands. 

M.  N. 

Subscribed  and  sworn  to  before  me, 
this  ....  day  of 19. . 

R.  S., 

(Title  of  office.) 


FORM  No.  30. 

Notice  of  Appeal  to  Board  of  Supervisors  from  Audit  of  Accounts  of  Justices 

and  Constables. 

(Town  Law,  § 177,  ante , p.  382.) 

To  C.  D.,  Town  Cleric  of  the  town  of in  the  county  of 

and  T.  W.,  Clerk  of  the  Board  of  Supervisors  of  said  county: 

Take  notice  that  the  undersigned,  a taxpayer  of  said  town  of 

(or  justice  of  the  peace  or  constable),  hereby  appeals,  pursuant  to  section 
177  of  the  Town  Law,  to  the  board  of  supervisors  of  said  county,  from  the 
auditing  and  allowing  by  the  town  board  of  said  town,  the  amount  claimed  by 
E.  F.,  a justice  of  the  peace  (or  constable)  of  said  town,  for  fees  (or  from 
the  rejection  and  disallowance  by  the  town  board  of  said  town,  of  any  claim 
for  fees)  in  criminal  proceedings,  as  follows:  (Here  state  the  claim  allowed 

or  disallowed.) 

Dated  this day  of ,19.. 

W.  S. 


FORM  No.  31. 

Justice’s  Account  Against  Town  in  Criminal  Matter. 
(Town  Law,  § 107,  ante,  p.  383.) 

The  town  of to  E.  F.,  Justice  of  the  Peace,  residing  at 

in  said  town,  Dr. 

The  People  v.  0.  0. 

January  10,  19..  Name  of  complainant,  P.  P.,  who  resides  at  ., 
in  said  town. 

Offense  charged  was  grand  larceny. 


FORMS. 


1133 


Upon  information  taken  and  filed  I issued  a warrant  for  the  arrest  of 
defendant. 

Warrant  was  delivered  to  N.  N.,  constable  of  said  town. 

January  12,  19..  Defendant  was  arrested  and  brought  before  me.  Defendant 
demanded  an  examination  (or  as  the  case  may  be),  which  was  had,  and  the 
following  witnesses  were  sworn  on  such  examination,  viz.:  (Here  name 

them.) 

Defendant  was  held  to  answer  the  charge  of  grand  larceny  and  admitted 


to  bail  (or  as  the  case  may  be). 

Administering  oath  to  complainant  10  cents. 

Drawing  information 25  cents. 


(In  same  manner  make  itemized  account  of  fees.) 

E.  F. 

Justice  of  the  Peace. 


STATE  OF  NEW  YORK, 

County  of  


E.  F.,  being  duly  sworn,  says  he  is  the  claimant  named  in  the  foregoing 
claim;  that  the  items  of  such  account  as  above  set  forth  are  correct,  and 
that  the  services  charged  therein  have  been  in  fact  made  or  rendered,  and 
that  no  part  thereof  has  been  presented  to  any  preceding  board  of  audit,  for 
audit  and  allowance  and  that  no  part  thereol  has  been  paid  or  satisfied. 

E.  F. 


Subscribed  and  sworn  to  before  me, 
this day  of 19. . 

G.H. 


Justice  of  the  Peace. 


FORM  No.  32. 

Accounts  of  Town  Officers. 


(Town  Law,  § 175,  ante,  p.  386.) 


John  Dooley,  supervisor,  (overseer  of  the  poor)  of  the  town  of 

In  account  with  said  town. 

1910.  Receipts. 

Jan.  28.  Received  of  A.  B.,  town  collector,  for  general  town  purposes.  $275  oO 

Mar.  5.  Received  of  J.  K for  (state  purpose  and  for  what) 125  oO 


1910.  Expenditures. 

June  4.  Paid  to  L.  M.  for  (state  definitely  purpose  for  which 

expenditure  was  made)  $25  00 


1134 


FORMS. 


Verification. 

STATE  OF  NEW  YORK, 

County  of  

John  Dooley,  being  duly  sworn,  deposes  and  says  that  he  is  the  person 
mentioned  as  presenting  the  foregoing  account;  that  the  items  of  such 
account  are  correct;  that  the  amounts  stated  therein  to  have  been  received 

by  him  as  supervisor  (or  other  officer)  of  the  town  of are  all  that 

he  has  received  as  such  officer;  that  the  expenditures  stated  therein  have,  in 
fact,  been  made  for  the  purposes  specified;  that  all  of  such  expenditures  were 
necessary  and  were  made  in  good  faith  and  for  value  received;  and  that  the 

balance  of dollars  is  all  the  money  in  my  hands  belonging  to  said 

town. 

JOHN  DOOLEY. 

Subscribed  and  sworn  to  before  me, 

this day  of 19. . 

L.  M., 

Justice  of  the  Peace . 


FORM  No.  33. 


Certificate  of  Examination  of  Town  Officers’  Accounts. 


(Town  Law,  § 155,  ante,  p.  386.) 


We,  the  undersigned,  members  of  the  town  board  of  the  town  of 

county  of do  hereby  certify,  pursuant  to  section  132  of  the 

Town  Law,  that  we  have  examined  the  annexed  account  of  John  Dooley, 
overseer  of  the  poor  (or  other  officer)  of  such  town,  and  that  the  same  is  just, 
true  and  correct,  and  that  the  balance  now  in  the  hands  of  such  overseer  of  the 
poor  (or  other  officer)  according  to  such  account  is dollars. 

Dated 19.. 


R.  E.,  Supervisor. 

J.  M.,  Justice  of  the  Peace . 
D.  O., 

P.  R., 

F.  G.,  Towi  Clerk. 


FORMS. 


1135 


FORM  No.  34. 

Affidavit  to  be  Annexed  to  Account  Presented  to  Town  Board  for  Audit. 
(Town  Law,  § 175,  ante , p.  386.) 

(Attach  this  affidavit  to  itemized  account.) 


STATE  OF  NEW  YORK, 
County  of  


A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  claimant  mentioned 

in  the  foregoing  account  against  the  town  of  ; that  the  items 

of  such  account  are  correct,  and  that  the  disbursements  or  services  (or 
articles  specified,  as  the  case  may  be)  have  been  in  fact  made  or  rendered 
(or  furnished,  as  the  case  may  be),  (or  are  necessary  to  be  made  or  rendered 
at  that  session  of  the  board),  and  that  no  part  thereof  has  been  paid  or 
satisfied. 


Subscribed  and  sworn  to  before  me, 

this  ....  day  of 19. . 

J.  N., 

Justice  of  the  Peace . 


A.  B. 


FORM  No.  35. 

Abstract  of  Names  of  Persons  Who  Have  Presented  Accounts  for  Audit. 

(Town  Law,  § 155,  ante,  p.  390.) 

To  the  Board  of  Supervisors  of  the  county  of : 

We,  the  undersigned,  town  board  of  the  town  of  pursuant 

to  section  155  of  the  Town  Law,  do  hereby  certify  that  the  following  is  a cor- 
rect abstract  of  the  names  of  all  persons  who  have  presented  to  said  board 
accounts  to  be  audited,  the  amounts  claimed  by  each  of  said  persons,  and 
the  amounts  audited  by  them  respectively: 


NAMES. 

Amount  claimed. 

Amount  audited. 

i 

day  of 19. . 

(Signed  A.  B.,  Supervisor,  and  other  members  of  town  board.) 


Dated  this 


1136 


FORMS. 


FORM  No.  36. 

Appointment  of  Board  of  Auditors  by  Town  Board. 

(Town  Law,  § 152,  ante,  p.  391.) 

We,  the  undersigned,  members  of  the  town  board  of  the  town  of , 

county  of , having  duly  met  at  on  the  

day  of  19..,  at  ....  M.,  do  hereby  appoint  pursuant  to  a vote 

of  the  electors  of  such  town  at  a town  meeting  held  therein  on  the 

day  of  19..,  and  section  152  of  the  Town  Law,  the  following 

named  persons,  to  wit,  A.  B.,  C.  D.  and  E.  F.,  to  be  town  auditors  of  such 
town  until  the  next  biennial  town  meeting  held  in  such  town. 

In  witness  whereof,  we  have  set  our  hands  and  seals  hereto  on  this 

day  of 19. . 

(Signed  A.  B.,  Supervisor,  and  by  other  members  of  town  board.) 


FORM  No.  37. 

Form  of  Application  for  Exemption  of  Pension. 

(Tax  Law,  § 4,  sub.  5,  ante,  p.  477.) 

To  the  Assessors  of  the  town  of : 

The  undersigned  applicant,  a resident  of  the  town  of  and 

the  owner  of  real  property  situated  in  such  town  as  hereinafter  described, 
hereby  makes  this  application  to  you,  and  respectfully  states  as  follows: 

1.  That  such  property  is  situated  in  town  of  and  is  described 

as  follows:  (Describe  generally  the  real  property  sought  to  be  exempted,  by 

street  and  number  or  otherwise.) 

2.  That  the  assessed  valuation  of  such  property  is dollars. 

3.  That  a pension  was  secured  by  the  applicant  (or  by  the  applicant’s  hus- 
band, naming  him)  for  military  (or  naval)  services  rendered  the  United 

States,  and  that,  of  the  proceeds  of  such  pension,  the  sum  of  

dollars  was  used  in  the  purchase  of  such  real  property. 

Wherefore,  he  requests  that  such  property  be  exempted  from  taxation  for 
state,  county  and  general  municipal  taxation,  as  provided  by  subdivision  5 of 
section  4 of  the  Tax  Law. 

(Signature.) 


STATE  OF  NEW  YORK,  ) 

r $$*  * 

County  of ) 

being  duly  sworn,  deposes  and  says  that  he  is  the  applicant 


FORMS. 


1137' 


for  the  above  specified  exemption;  that  he  has  read  the  foregoing  applica- 
tion and  knows  the  contents  thereof;  that  the  facts  stated  therein  are  true- 
to  his  own  knowledge,  except  as  to  the  matters  therein  stated  on  information 
and  belief  and  as  to  those  matter  he  believes  it  to  be  true. 

(Signature.  > 

Subscribed  and  sworn  to  before  me, 

this  ....  day  of  19. . 

(Signature  of  officer.) 


FORM  No.  38. 

Report  of  Bank  to  Local  Assessors. 
(Tax  Law,  § 23,  ante , p.  519.) 


To  the  Assessors  of  the  town  of : 

I,  A.  B.,  cashier  (or  other  chief  fiscal  officer)  of  the  Bank, 

having  its  principal  office  located  in  the  of  


county  of  , N.  Y.,  in  pursuance  of  section  23  of  the  Tax  Law, 

do  hereby  make  the  following  statement  of  the  condition  of  such  bank  on 
the  first  day  of  June,  19..: 

1.  The  amount  of  the  authorized  capital  stock  of  such  bank  is  

thousand  dollars,  divided  into shares  of  the  par  value  of 

hundred  dollars  each. 

2.  The  total  amount  of  the  stock  of  such  bank  which  has  been  paid  in 

is dollars. 

3.  The  amount  of  the  surplus  of  such  bank  is  dollars;  and 

the  amount  of  its  undivided  profits  is dollars. 

The  following  is  a complete  list  of  the  names  and  residences  of  the  stock- 
holders of  such  bank,  and  the  number  of  shares  held  by  each: 

Name  of  stockholder.  Residence.  No.  of  shares. 

Dated  this day  of 19. . 

A.  B., 

Cashier  (or  other  chief  fiscal  officer)  of  hank. 

Verification. 


STATE  OF  NEW  YORK, 

County  of 

A.  B.,  being  duly  sworn,  says  that  he  is  the  cashier  of  the  

Bank;  that  he  subscribed  the  foregoing  statement  as  such  cashier  and  has 
read  the  same  and  knows  the  contents  thereof,  and  that  such  statement  is 
in  all  respects  true. 

Signed  A.  B. 

Subscribed  and  sworn  to  before  me, 

this  ....  day  of , 19. . 

C.  D., 

Notary  Public county. 


1138 


FORMS. 


FORM  No.  39. 

Statement  of  Levy  of  Tax  by  Board  of  Supervisors  upon  Bank  Stock. 

(Tax  Law,  § 24,  ante.  p.  520.) 

To  A.  B.,  Cashier  of  the Bank,  located  in  the  village  of 

county  of , N.  Y.: 

The  board  of  supervisors  of  the  county  of  from  an  inspection 

of  the  assessment-roll  of  the  town  of  have  ascertained  the 

facts  contained  in  the  following  statement  which  is  hereby  submitted  to  you 
pursuant  to  the  provisions  of  section  24  of  the  Tax  Law: 

1.  The  amount  of  the  capital  stock  of  the  Bank,  located  in 

the of is thousand  dollars. 

2.  The  surplus  of  such  bank  is  thousand  dollars;  and  the 

undivided  profits  thereof  amount  to thousand  dollars. 

3.  The  number  of  outstanding  shares  of  such  stock  are  , and 

the  value  of  each  share  of  such  stock,  as  ascertained  in  the  manner  pro- 
vided by  section  24  of  the  Tax  Law,  is dollars. 

4.  The  aggregate  amount  of  tax  to  be  paid  by  the  Bank 

is  dollars,  and  such  amount  has  been  levied  upon  such  bank 

pursuant  to  the  authority  conferred  by  section  24  of  the  Tax  Law. 

The  foregoing  statement  is  made  to  you  in  compliance  with  the  provisions 
of  section  24  of  the  Tax  Law  in  pursuance  of  an  order  of  the  board  of  supervisors 
of  the  county  of 

Dated  this day  of ,19.. 

Signed  D.  E., 

Clerk  of  Board  of  Supervisors  of county. 


FORM  No.  40. 

Warrant  or  Order  to  County  Treasurer  for  Collecting  Bank  Tax. 


(Tax  Law,  § 24,  ante.  p.  520.) 

To  the  County  Treasurer  of county: 

Pursuant  to  the  authority  conferred  by  section  24  of  the  Tax  Law,  the  board  of 

supervisors  of  the  county  of  hereby  orders  and  directs  that 

there  be  collected  by  you  of  the  banks  and  banking  associations  located  in 

the  several  towns,  villages  and  cities  in  the  county  of  the 

amount  of  tax  levied  by  this  board  upon  such  banks  and  banking  associations, 
and  that  such  sums  when  so  collected  be  paid  by  you,  less  your  commission 
of  one  per  centum  to  be  deducted  for  collecting  and  paying  out  such  moneys, 

to  the  proper  officers  in  the  several  tax  districts  of  the  county  of 

The  number  of  shares  of  bank  stock  assessable  in  each  town,  city,  village 


FORMS. 


1139 


and  school  district,  the  assessable  value  of  such  shares,  the  amount  of  taxes 
levied  upon  each  bank  and  banking  association  therein,  the  tax  rate  of 

each  of  such  tax  districts  for  the  year and  the  proportion  of  the 

tax  to  which  each  of  such  tax  districts  is  entitled  under  the  provisions  of 
such  section  24  of  the  Tax  Law,  will  appear  from  the  following  statement: 

Town  of 

No.  of  Assessable  Amount 


Bank:  shares.  value.  of  tax. 

Wilbur  National  Bank 3,000  $450,000  $4,500 


Tax  rate  for  town  of 005 

Tax  rate  for  village  of 01 

Tax  rate  for  school  district  No town  of  005 


Total  tax  rate 02 


There  shall  be  paid  to  the  town  of $1,125  ' 

to  the  village  of  2,250 

to  school  district  No.  11  of  the  town  of 1,125 


(Insert  other  towns  in  same  manner.) 

For  the  payment  of  the  above  sums  to  the  proper  officers  of  such  tax. 
districts  this  shall  be  your  sufficient  warrant. 

Signed  Board  of  Supervisors  of  county. 

D.  E.,  Chairman, 

E.  F.,  Clerk. 


FORM  No.  41. 

Statement  of  Individual  Banker  to  Assessors. 

(Tax  Law,  § 25,  ante,  p.  524.) 

To  the  Assessors  of  the  town  of : 

I,  L.  M.,  individual  banker  doing  business  under  the  laws  of  this  state, 
as  an  individual  banker,  having  my  principal  place  of  business  in  the 

of  county  of  N.  Y.,  do  hereby 

report,  pursuant  to  the  provisions  of  section  25  of  the  Tax  Law;  that  the 
amount  of  capital  invested  by  me  in  such  business  as  an  individual  banker 

in  the  town  of , on  the  first  day  of  June,  19. is  

dollars. 

Dated  this  day  of 19.. 

Signed  L.  M., 
Individual  Banker. 

(Verification  as  in  Form  No.  38.) 


mo 


FORMS. 


FORM  No.  42. 


Notice  to  Bank  of  Assessment. 


(Tax  Law,  § 26,  ante,  p.  524.) 


To  the Bank : 

You  are  hereby  notified,  pursuant  to  section  26  of  the  Tax  Law,  that  the 

shareholders  of  the  Bank  are  assessed  as  such  shareholders,  for 

the  sums  set  opposite  their  names  in  the  following  list: 

John  Doe $2,000 

Richard  Roe  5 qqq 


Dated  this day  of 19.. 

A.  B., 

C.  D., 

E.  F., 

Assessors  of  the  town  of 


FORM  No.  43. 


Statement  of  Corporations  to  Assessors. 


(Tax  Law,  § 27,  ante,  p.  525.) 


I,  A.  B , president  (or  other  proper  officer)  of  the  (name  of  corporation) 
hereby  report,  in  pursuance  of  section  27,  as  follows: 

1.  The  real  property  owned  by  such  corporation  consists  of  (describe  same),. 

situated  in  the  town  of at (or  in  the 

ward  of  the  city  of at ..),  for  which  the  corpora- 
tion paid  the  sum  of dollars. 

2.  The  capital  stock  of  such  corporation  actually  paid  in  is 

dollars;  the  sum  of  dollars  has  been  paid  by  such  corporation 

for  real  property,  and  dollars  of  the  capital  stock  is  held  by 

the  Susquehanna  Valley  Home  for  Orphans,  leaving  a balance  subject  to 
taxation  of dollars. 

3.  The  principal  office  of  such  corporation  is  situated  in  the  town  of 


Dated  this day  of 19.. 

A.  B. 


FORMS. 


1141 


Verification. 


STATE  OF  NEW  YORK, 
County  of 


A.  B.,  being  duly  sworn,  says  that  he  is  the  president  or  the  (name  of 
corporation);  that  he  subscribed  the  foregoing  report  as  such  officer,  and  has 
read  the  same  and  knows  the  contents  thereof,  and  that  such  report  is  in  all 
respects  just  and  true. 

A.  B. 

Subscribed  and  sworn  to  before  me, 
this day  of  19.. 


,C.  D., 

Notary  Public county. 


FORM  No.  44. 

Statement  of  County  Clerk  as  to  Corporations. 


(Tax  Law,  § 29,  ante,  p.  526.) 


To  J.  B.,  Town  Cleric , Town  of 

I.  A.  B.,  county  clerk  of  the  county  of hereby  certify,  pursuant 

to  the  provisions  of  section  29  of  the  Tax  Law,  that  the  records  in  the  office  of 

the  county  clerk  of  the  said  county  of show  that  the  following 

named  corporations  have  filed  certificates  of  incorporation  in  such  office  whose 
principal  business  offices  or  chief  places  of  business  are  deseignated  therein  as 

being  in  the  town  of and  that  names  and  addresses  of  the  directors 

are  as  follows: 


Name  of 
Corporation. 

Place  of 
Business. 

Date  of  Filing. 

Names  and  addresses 
of  Directors. 

The  Smith  Manu- 
facturing Company. 

1 

Smithville. 

i 

Aug.  1,  1910. 

Paul  Smith, 

Smithville. 
John  Smith, 

Smithville. 
Laura  Smith, 

Smithville. 

Dated,  Norwich.  N.  Y.,  June  10,  1910. 


(Signed.) 

A.  B. 

County  Cleric. 


ms 


FORMS. 


FORM  No.  45. 

Statement  of  Agent. 

(Tax  Law,  § 35,  ante;  p.  535.) 

To  the  County  Treasurer  of  the  county  of ; 

I,  A.  B.,  residing  in  the  county  of agent  of Tv. a 

nonresident  creditor,  having  debts  owing  to  him  therein,  hereby  transmit  a 
statement  of  such  debts  owing  on  May  1,  19..,  in  pursuance  of  section  35  of 
the  Tax  Law,  as  follows: 


Name  of  Debtor. 

Residence. 

Amount. 

John  Doe 

Town  of  Afton 

$ 945  75 
1,210  15 

Henry  Smith .... 

City  of  Binghamton,  tenth  ward 

Dated  this 


day  of 19. . 


A.  B. 


STATE  OF  NEW  YORK, 
County  of 


A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  agent  within  the 
county  of of ; that  said is  a non- 

resident of  such  county,  and  has  debts  owing  to  him  therein;  that  he  has 
read  the  foregoing  statement  of  such  debts  subscribed  by  him  and  knows 
the  contents  thereof,  and  that  the  same  is  a true  and  accurate  statement  of 
such  debts. 

A.  B. 


Subscribed  and  sworn  to  before  me, 
this day  of 19. . 


Notary  Public. 


FORM  No.  46. 

Notice  of  Completion  of  Assessment-roll. 

(Tax  Law,  § 36,  ante,  p.  535.) 

Notice  is  hereby  given  that  the  assessors  of  the  town  of 

(or,  of  ward  of  the  city  of  ),  have  completed 

their  assessment-roll  for  the  current  year;  that  a copy  thereof  has  been 


FORMS. 


1143 


left  with  the  undersigned,  A.  B.,  at  his  office  (or,  as  the  case  may  he),  in 

(if  in  a city,  specify  the  street  number),  where  it  may  be  seen 

and  examined  by  any  person  interested  therein  until  the  third  Tuesday  of 

August  next,  and  that  on  such  day,  at  o’clock  in  the  noon, 

said  assessors  will  meet  at  , in  the  said  town  (or  ward),  to 

hear  and  examine  all  complaints  in  relation  to  such  assessments,  on  the 
application  of  any  person  conceiving  himself  aggrieved  thereby. 

Dated  this day  of 19.. 


A.  B., 

C.  D., 

E.  F., 
Assessors. 


FORM  No.  47. 

Affidavit  on  Application  to  Correct  Assessment. 


(Tax  Law,  § 37,  ante,  p.  537.) 

STATE  OF  NEW  YORK, 

County  of 

A.  B.,  being  duly  sworn,  says  that  he  is  assessed  on  the  assessment-roll  of 

the  town  of  for  the  year  19..,  for  dollars; 

that  such  assessment  is  incorrect  and  excessive  for  the  reason  that  just 
debts  owing  by  him  have  not  been  deducted;  that  the  amount  of  such  debts 

is  dollars,  and  that  there  is  not  included  in  such  amount  a*ny 

debts  contracted  or  incurred  in  the  purchase  of  non-taxable  property  or 
securities  owned  by  him  or  held  for  his  benefit,  nor  for  or  on  account  of 
any  indirect  liability  as  surety,  guarantor,  indorser,  or  otherwise,  nor  for  the 
purpose  of  evading  taxation  (or  state  specifically  the  respect  in  which  the 
assessment  complained  of  is  incorrect). 

A.  B. 

Subscribed  and  sworn  to  before  me, 
this  ....  day  of 19. . 

C.  B., 

Notary  Public. 


FORM  No.  48. 

Notice  of  Filing  Completed  Assessment-roll  With  Clerk. 
(Tax  Law,  § 39,  ante , p.  543.) 


Notice  is  hereby  given  that  the  assessment-roll  (or  assessment-rolls),  for 
the  town  (or  city)  of in  the  county  of  for  the 


1144 


FORMS. 


year  19..,  has  been  finally  completed  by  the  undersigned  assessors,  and  a cer- 
tified copy  thereof  was  filed  in  the  office  of  the  town  (or  city)  clerk,  at  the 

of where  the  same  will  remain  open  to 

public  inspection  fo.r  fifteen  days. 

Dated  this day  of 19. . 

A.  B., 

C.  D., 

E.  F., 

Assessors  of  the  town  of 


FORM  No.  49. 


Apportionment  of  Valuation  of  Railroad  &c.  Companies  Between  School 

Districts. 


(Tax  Law,  § 40,  ante , p.  544.) 

STATE  OF  NEW  YORK, 

County  of 

We,  A.  B.,  C.  D.,  and  E.  F.,  the  assessors  of  the  town  of county 

of pursuant  to  the  authority  conferred  upon  us  by  § 40  of  the 

Tax  Law,  do  hereby  apportion  the  assessed  valuation  of  the  property  of  each  of 
the  following  named  corporations  among  the  several  school  districts  in  such 
town,  in  which  such  property  is  situated,  as  follows: 


Name  of  Company. 

Assessed  Valuation. 

Valuation  in  each  School  District. 

The  New  York  Central 

Railroad  Company 

$150,000 

School  Dist.  No.  1, 

50,000 

“ “ 7, 

60,000 

“ “ “ 9, 

40,000 

New  York  Telephone  Co. . 

7,500 

School  Dist.  No.  1. 

2,500 

“ “ 3, 

3,000 

“ “ “ 5, 

2,000 

Dated,  this day  of 19. . 

(Signed) 


A.  B., 

C.  D., 

E.  F., 

Assessors , Town  of  

Note. — This  statement  must  be  filed  with  the  town  clerk,  and  he  must  furnish 
the  trustees  of  the  several  school  districts  with  a statement  of  such  valuations. 


FORMS. 


1145 


FORM  No.  50. 

Certificate  of  Neglect  or  Omission  of  Duty  of  One  of  the  Assessors. 


(Tax  Law,  § 41,  ante,  p.  545.) 


STATE  OF  NEW  YORK, 
County  of 


t 


ss.: 


We,  A.  B.,  and  C.  D.,  two  of  the  assessors  of  the  town  of 

in  the  county  of  , do  hereby  certify  to  the  board  of  super- 

visors of  such  county,  in  pursuance  of  section  41  of  the  Tax  Law,  that  E.  F., 
the  other  assessor  of  such  town,  has  neglected  (or  omitted)  to  verify  the 
foregoing  assessment-roll,  or  (state  other  omission),  the  cause  of  such  neglect 
(or  omission)  being  (state  the  same). 

Dated  this day  of 19. . 

A.  B. 

C.  D. 


FORM  No.  51. 

Petition  of  Town  Assessors  to  Board  of  Supervisors  for  Correction  of 

Assessment-roll. 


(Tax  Law,  § 56,  ante,  p.  562.) 


To  the  Honorable  Board  of  Supervisors  of county: 

Your  petitioners,  A.  B.,  C.  D.  and  E.  F.,  assessors  of  the  town  of 

pursuant  to  the  authority  conferred  by  section  56  of  the  Tax  Law,  do  re- 
spectfully show  to  your  board  that, 

I.  In  the  assessment-roll  delivered  to  L.  M.,  supervisor  of  the  town  of 

as  provided  by  law,  for  the  year  a mistake  was 

made  in  transcribing  so  that  the  property  therein  assessed  to  D.  F.  was 

valued  at dollars;  the  actual  value  of  such  property  as  appears 

upon  the  original  roll  signed  by  the  assessors  for  that  year  was 

dollars. 

II.  In  the  assessment-roll  for  the  year  delivered  to  such  super- 

visor as  provided  by  law,  taxable  property  owned  by  J.  D.  has  been  omitted 
therefrom.  The  description  and  the  valuation  of  such  property  for  the 
preceding  year  is  as  follows:  (describe  property,  giving  name  of  owner,  num- 
ber of  acres,  valuation,  etc.) 

TTI.  Taxable  property  owned  by  A.  L.,  consisting  of  (describe  property) 
has  been  omitted  from  the  assessment-roll  as  prepared  by  your  petitions  s 
for  the  current  year;  that  the  value  of  such  property  is dollars. 


1146 


FORMS. 


Wherefore,  your  petitioners  respectfully  pray  that  the  value  of  the  prop- 
erty assessed  to  D.  F.  in  the  assessment-roll  for  the  year  be 

changed  rrom dollars  to dollars. 

That  the  taxable  property  omitted  from  the  assessment-roll  of  the  year 

belonging  to  the  said  J.  D.  be  included  in  the  assessment-roii  for 

the  current  year  as  described  and  for  the  valuation  fixed  as  above. 

That  there  be  placed  upon  the  assessment-roll  for  the  current  year  the 
taxable  property  omitted  therefrom  belonging  to  A.  L.,  at  a valuation  of 
dollars. 


Signed  A.  B., 

C.  D., 

E.  F., 

Assessors  for  the  town  of 


Verification. 


STATE  OF  NEW  YORK,  | 

County  of ^ ss" 

The  undersigned,  assessors  for  the  town  of , do  severally 

depose  and  swear  that  they  and  each  of  them  have  read  the  foregoing  petition 
and  know  the  contents  thereof;  that  the  same  is  true  to  the  knowledge  of 
the  deponents  except  as  to  the  matters  therein  stated  to  be  alleged  on 
information  and  belief,  and  that  as  to  those  matters  they  believe  it  to  be 
true. 

A.  B. 

C.  D. 

E.  F. 

Subscribed  and  sworn  to  before  me, 

this  ....  day  of 19. . 

N.  0., 

Notary  Public  of  the  county  of  

Notice  of  Presentation  of  Petition. 

To  J.  D.  and  A.  L 

Take  notice.  The  petition  hereto  annexed  will  be  presented  by  the  under- 
signed, assessors  of  the  town  of  to  the  board  of  supervisors 

of  the  county  of , at  its  annual  meeting  to  be  held  in  the  village 

of  county  of  on  the  day  of 

19.. 

A.  B., 

C.  D., 

E.  F., 
Assessors. 


Affidavit  of  Service. 


STATE  OF  NEW  YORK, 

County  of 

A.  B.,  being  duly  sworn,  says  that  he  is  of  the  age  of  more  than  twenty- 


FORMS. 


1147 


one  years,  that  on  the day  of 19. at 

he  personally  served  the  within  petition  and  notice  upon  J.  D.  and  A.  L. 
by  delivering  to  and  leaving  with  them  true  copies  of  the  same. 

He  further  says  that  he  knew  the  persons  so  served  as  aforesaid  to  be  the 
same  persons  mentioned  and  described  in  the  petition  hereto  annexed. 

A.  B. 

Subscribed  and  sworn  to  before  me, 
this day  of 19. . 

N.  O., 

Notary  Public  of county. 


FORM  No.  52. 

Collector’s  Warrant. 

(Tax  Law,  § 59,  ante,  p.  568.) 

STATE  OF  NEW  YORK, 

County  of 

The  People  of  the  State  of  New  York  to  R.  G.,  Collector  of  the  town  of 

of  the  county  of greeting: 

You  are  hereby  commanded  to  receive  and  collect  from  the  several  persons 
named  in  the  assessment-roll  hereunto  annexed,  the  several  sums  named  in 
the  last  column  thereof  opposite  their  respective  names,  on  or  before  the  1st 
day  of  February,  19..;  and  on  all  taxes  paid  within  thirty  days  after  giving 
notice  of  the  reception  of  this  tax-roll  and  warrant,  as  required  by  section  69 
of  the  Tax  Law,  you  are  hereby  directed  to  receive  and  collect,  in  addition 
to  the  taxes  raised  in  said  assessment-roll,  one  cent  on  every  dollar  or  sum 
less  than  a dollar  of  taxes,  as  your  fee  for  collecting  the  same.  (If  the 
aggregate  amount  shall  not  exceed  two  thousand  dollars,  two  cents  on  every 
dollar  or  sum  less  than  a dollar  of  taxes  as  your  fee  for  collecting  the  same. ) 
On  all  taxes  remaining  unpaid  after  the  expiration  of  said  thirty  days,  you 
are  entitled  to  receive  and  collect,  in  addition  to  such  taxes  remaining  un- 
paid, five  cents  on  every  dollar  as  your  fees  for  collecting  the  same. 

You  are  hereby  directed,  out  of  the  money  so  collected,  to  pay  over  on  the 
first  day  of  next: 

1.  To  the  supervisor  of  said  town,  the  sum  of assessed  and 

levied  for  the  support  of  highways  and  bridges  therein,  pursuant  to  the  provis- 
ions of  article  V of  the  Highway  Law. 

2.  To  the  overseer  of  the  poor  of  said  town,  the  sum  of assessed 

and  levied  for  the  support  of  the  poor  therein. 

3.  To  the  supervisors  of  said  town,  the  sum  of  for  the  town 

expenses  and  charges  assessed  and  levied  on  such  town. 


1148 


FORMS. 


4.  To  the  treasurer  of  said  county,  the  residue  of  the  money  collected  by 
you. 

You  will  proceed  to  collect  such  taxes  in  the  manner  provided  by  article  4 
of  the  Tax  Law. 

If  any  person  named  in  such  assessment-roll  shall  neglect  or  refuse  to  pay 
taxes  assessed  therein  to  him  or  the  fees  for  collecting  the  same,  you  are 
hereby  authorized  to  levy  and  collect  such  taxes  by  distress  and  sale  of  the 
goods  and  chattels  of  such  person  within  said  county,  together  with  the 
costs  and  charges  of  such  distress  and  sale,  and  for  so  doing,  this  shall  be 
your  sufficient  warrant. 

Given  under  our  hands  and  the  seal  of  the  county,  on  this  day 

of ,19.. 

M.  F.,  Chairman. 

R.  S.,  Cleric. 


FORM  No.  53. 

Statement  of  Taxes  Upon  Certain  Corporations. 

(Tax  Law,  § 60,  ante,  p.  570.) 

To.  A.  B..  Treasurer  of  the  county  of  : 

I,  C.  D.,  clerk  of  the  board  of  supervisors  of  the  county  of  

in  pursuance  of  section  57  of  the  Tax  Law,  do  hereby  transmit  the  following 
statement : 


Name  of  Corporation. 

Districts  in  which  assessed 

Valuation 
of  property. 

Amount 
of  tax. 

Western  Union  Telegraph  Co. . . 
do 

do  .... 

Ontario  and  Western  Railroad  Co. 
do 

Town  of 

City  of third  ward 

Town  of 

$8,000  00 

7.000  00 

5.000  00 

6.000  00 
8,000  00 

$ 65  16 
55  16 
40  09 
290  00 
275  00 

Town  of 

City  of first  ward 

Dated  this 


day  of 


, 19. . 

C.  D., 

Clerk  of  Board  of  Supervisors. 


FORMS. 


114!) 


FORM  No.  54. 

Abstract  of  Tax-rolls. 


(Tax  Law,  § 62,  ante , p.  571.) 

To  A.  B.,  Treasurer  of  the  county  of : 

I,  C.  D.,  clerk  of  the  board  of  supervisors  of  the  county  of 

in  pursuance  of  section  62  of  the  Tax  Law,  hereby  transmit  an  abstract  of  the 
tax-rolls  of  such  county  as  follows: 


Name  of 
Collector. 

District. 

Amount 
1 to  be 
collected. 

Purpose  of  Taxes. 

J To  whom  to 
| be  paid. 

When  to 
be  paid. 

John  Smith. . . 

Town  of 

$ 9,000  00 
17,000  00 

Highways  and  bridges. 

$1,000 

Support  of  poor. . . . 3,000 

Town  charges 4,000 

State  tax l,000j 

Highways  and  bridges,  bi 
3.000! 

John  Brown 

Feb.  1, 19.. 

Michael  Flood . 

Town  of 

Abram  Moore 

&c,  &c.  &c.  j 

&c. 

FORM  No.  55. 

Notice  by  Collector  of  Receipt  of  Assessment-roll  and  Warrant. 

(Tax  Law,  § 69,  ante , p.  583.) 

'Notice  is  hereby  given  that  I,  the  undersigned,  collector  of  taxes  in  and 

for  the  town  of (or ward  of  the  city  of ), 

have  received  the  tax-roll  and  warrant  for  the  collection  of  taxes  for  the 

present  year,  and  that  I will  attend  at in  said  town  (or  ward) 

on  (naming  three  days,  if  in  a town,  or  five  days,  if  in  a city),  in  each 
week,  for  thirty  days  from  the  date  hereof,  from  9 o’clock  in  the  forenoon 
until  4 o’clock  in  the  afternoon,  for  the  purpose  of  receiving  the  taxes 
assessed  upon  such  roll. 

Dated  this  day  of  19.. 

JOHN  BROWN, 
Collector. 


1150 


FORMS. 


FORM  No.  56. 


Notice  of  Tax  Sale  by  Collector. 


(Tax  Law,  § 71,  ante,  p.  585.) 


By  virtue  of  the  warrant  delivered  to  me,  as  collector  of  the  town  of , 

I have  levied  upon  and  taken  possession  of  the  following  goods 

and  chattels  of  R.  S.  (or  in  the  possession  of  R.  S.),  (describe  in  detail 

property  seized)  and  I shall  sell  the  same  at  public  auction  at  

in  the  town  of  on  the  day  of  next, 

at o’clock  in  the noon  on  that  day. 

Dated  this day  of 19. . 

F.  M.  A., 
Collector. 


FORM  No.  57. 


Affidavit  to  bs  Attached  to  Collector’s  Return  of  Unpaid  Taxes. 


(Tax  Law,  § 82,  ante,  p.  601.) 


STATE  OF  NEW  YORK, 

County  of 

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  collector  of  taxes 

for  the in  the  county  of ; that  the  annexed  is  a 

true  account  of  the  taxes  remaining  unpaid  upon  the  assessment-roll  of  said 
town  for  the  year  19..;  that  the  sums  mentioned  therein  remain  unpaid, 
and  that  he  has  not,  upon  diligent  inquiry,  been  able  to  discover  any  personal 
property,  out  of  which  the  same  might  be  collected  by  levy  and  sale.  (If 
such  tax  is  uncollected  upon  lands  assessed  to  nonresidents,  also  state  the 
reason  why  the  same  was  not  collected.) 

A.  B., 

Subscribed  and  sworn  to  before  me,  Collector. 

this day  of  , 19. . 

(Signature  of  Notary.) 

(Annex  statement.) 

The  form  of  the  return  is  to  be  prescribed  by  the  state  board  of  tax 
commissioners. 


FORMS 


151 


FORM  No.  58. 

Application  of  Supervisor  for  Extension  of  Time  for  Collection  of  Taxes. 

(Tax  Law,  § 85,  ante,  p.  605.) 

To  the  County  Treasurer  of  the  county  of : 

Application  is  hereby  made,  in  pursuance  of  section  85  of  the  Tax  Law,  for 
an  extension  of  time  until  March  1,  19. .,  for  the  collection  of  taxes  in  the  town 

of for  the  reason  that  (state  reason  for  delay). 

Dated  this day  of , 19.. 

A.  B., 

Supervisor  of  the  town  of 


FORM  No.  59. 

Order  of  Treasurer  Granting  Extension. 

(Tax  Law,  § 85,  ante,  p.  605.) 

Upon  application  made  to  me,  in  pursuance  to  section  85  of  the  Tax  Law, 

by  A.  B.,  supervisor  of  the  town  of , for  an  extension  of  time 

for  the  collection  of  taxes  in  such  town,  and  the  reason  stated  in  such  application 
appearing  to  me  sufficient,  and  proof  having  been  made  to  me  that  J.  F.,  the 
collector  of  such  town,  has  paid  over  all  moneys  heretofore  collected  by  him  and 
has  made  a return  of  nonresident  taxes  remaining  unpaid,  and  renewed  his 
bond  in  a penalty  twice  the  amount  of  the  taxes  remaining  uncollected,  a certi- 
fied copy  of  which  has  been  delivered  to  me,  it  is  hereby 

Ordered,  That  the  time  for  the  collection  of  taxes  remaining  unpaid  in  such 
town  is  hereby  extended  until  the  1st  day  of  March,  19.. 

Dated  this day  of 19 . . 

E.  D., 

County  Treasurer  of  the  county  of 


FORM  No.  60. 

Decision  of  Fence  Viewers  When  Transfer  of  Title  has  Been  Made. 
(Town  Law,  § 362,  ante,  p.  639. 

COUNTY  OF I 

> tQC  • 

Town  of \ 

Whereas,  a dispute  has  arisen  between  D.  B.  and  T.  W.,  adjoining  owners  of 
lands  in  the  town  of in  regard  to  the  division  fence  between  said 


1152 


FORMS. 


lands,  caused  by  a transfer  of  title  of  a portion  of  the  adjoining  lands  owned 
by  D.  B.  (or  as  the  case  may  be) ; 

Now,  therefore,  we,  the  undersigned  fence  viewers  of  said  town,  having  been 
duly  chosen  by  the  said  owners  to  hear  and  determine  the  matter,  pursuant  to 
sections  362  and  363  of  the  Town  Law,  and  having  given  due  notice  to  each 
owner  of  the  time  and  place  of  this  meeting,  and  having  viewed  the  premises 
and  heard  the  parties  and  evidence  produced,  do  hereby  determine  and  decide 
that  said  D.  B.  shall  maintain  and  keep  in  repair  that  portion  of  the  fence 
(here  describe  it),  and  that  said  T.  W.  shall  maintain  and  keep  in  repair  that 
portion  of  the  fence  (here  describe  it);  and  we  further  determine  that  the 
value  of  fence  between  said  lands  is  $....,  and  that  the  said  D.  B.  shall  pay 
to  said  T.  W.  $.  . . . as  his  proportion  for  said  fence  (as  the  case  may  be),  and 
that  each  pay  one-half  (or  as  the  case  may  be)  of  the  costs  and  expenses  of  this 
proceeding,  which  are  $.  . . . 

In  witness  whereof,  we  have  hereto  set  our  hands  on  this  day 

of 19. .. 

N.  0., 

P.  R., 

Fence  Viewers . 


FORM  No.  61. 

Notice  to  Choose  Fence  Viewer. 
(Town  Law,  § 363,  ante,  p.  639.) 


T.  D.  B.,  Esq.: 

Pursuant  to  section  363  of  the  Town  Law,  you  are  hereby  required  to  choose, 
within  eight  days  after  service  of  this  notice,  a fence  viewer  to  act  with  N.  0., 
a fence  viewer  I have  chosen,  in  determining  the  dispute  which  has  arisen 
between  us  concerning  the  division  fence  between  our  lands;  and  if  you  fail  so 
to  do,  I shall  choose  both  of  said  fence  viewers,  as  authorized  by  law. 

Dated  this day  of , 19. . 

T.  W. 


FORM  No.  62. 

Certificate  of  Apportionment  of  Division  Fence. 

(Town  Law,  § 363,  ante,  p.  639.) 

COUNTY  OF ) 

V ss. . 

Town  of ) 

Whereas,  a dispute  has  arisen  between  D.  B.  and  T.  W.,  adjoining  owners 


FORMS. 


1153 


of  land  in  said  town,  concerning  the  apportionment  of  the  expenses  of  main- 
taining (or  erecting)  the  division  fence  between  said  lands; 

Now,  therefore,  we,  the  undersigned  fence  viewers  of  said  town,  duly  chosen 
to  hear  and  determine  the  dispute,  pursuant  to  section  363  of  the  Town  Law, 
after  giving  due  notice  to  said  owners  of  the  time  and  place  of  this  meeting, 
and  having  viewed  the  premises,  heard  the  parties  and  the  evidence  produced, 
do  hereby  determine  that  the  said  D.  B.  shall  erect,  maintain  and  keep  in  repair 
all  that  portion  of  the  fence  (here  describe  it),  and  that  T.  W.  shall  erect,  main- 
tain and  keep  in  repair  all  that  portion  of  the  fence  (here  describe  it),  and  that 
each  pay  one-half  (or  as  the  case  may  be)  of  the  costs  and  expenses  of  this 
proceeding,  which  are  $ . . . . 

In  witness  whereof  we  have  set  our  hands  hereto  on  this  day 

of ,19..  N.  0., 

R.  S., 

Fence  Vieioers. 


FORM  No.  63. 


Subpoena  by  Fence  Viewer. 


(Town  Law,  § 364,  ante,  p.  640.) 


STATE  OF  NEW  YORK, 

County  of 

Town  of  


ss.: 


The  People  of  the  State  of  New  York  to  L.  L.  and  0..  0.: 

We,  the  undersigned,  fence  viewers  of  the  town  of  county 

of command  you  and  each  of  you,  business  and  excuses  being 

laid  aside,  to  appear  before  us,  fence  viewers  of  the  said  town,  at  (insert  the 

place)  on  the  day  of  19..,  at  o’clock  in  the 

M.,  to  be  examined  as  a witness  in  regard  to  the  matter  in  difference 

between  D.  B.  and  T.  W.  as  to  a division  fence  between  property  owned  by 
them,  and  all  matters  pertaining  thereto;  and  for  a failure  to  attend  you  will 
be  deemed  guilty  of  contempt,  and  will  be  proceeded  against  as  provided  by  law. 

Dated  this day  of 19. . 


N.  O., 

R.  S., 

Fence  Viewers. 


115-1 


FORMS. 


FORM  No.  64. 


Appraisement  of  Damages  by  Fence  Viewers  for  Neglect  to  Build  or  Repair 

Division  Fence. 


Whereas , D.  B.  and  T.  W.  are  owners  of  adjoining  lands  in  said  town,  and 
each  liable  to  make  and  maintain  a just  proportion  of  the  division  fence  be- 
tween said  lands,  which  said  fence  has  been  apportioned  and  divided  between 
them;  and 

Whereas,  D.  B.  has  neglected  (or  refused)  to  maintain  and  keep  in  repair 
his  portion  of  said  fence,  by  reason  of  which  refusal  or  neglect  his  cattle  (or 

as  the  case  may  be),  entered  the  premises  of  said  T.  W.  on  the  day 

of 19. .,  and  damaged  the  property  of  said  T.  W.; 

Now,  therefore,  we,  the  undersigned,  fence  viewers  of  said  town,  duly 
chosen  by  said  parties  to  appraise  such  damages,  due  notice  of  the  time  and 
place  of  this  meeting  having  been  given,  and  after  viewing  the  premises  and 
hearing  the  parties  and  evidence  produced,  do,  pursuant  to  section  365  (or 
368)  of  the  Town  Law,  hereby  appraise  the  damage  sustained  by  T.  W.  by 
reason  of  the  refusal  (or  neglect)  of  said  D.  B.  to  maintain  or  repair  his 

portion  of  said  division  fence,  at  $ to  be  paid  by  D.  B.  with  the  costs 

and  expenses  of  this  proceeding,  which  are  $ . . . . 

In  witness  whereof,  we  have  hereunto  set  our  hands  oh  this  day 

of ,19..  N.  O., 


To  D.  B.,  Esq.: 

You  are  hereby  notified  and  required,  pursuant  to  section  365  of  the  Town 
Law,  to  build  and  maintain  (or  repair)  your  portion  of  the  division  fence  be- 
tween your  lands  and  the  lands  of  the  undersigned,  beginning  (state  where  fence 
is  to  be  built  or  repaired),  within  one  month  after  receiving  this  notice,  in 
default  of  which  I shall  cause  the  same  to  be  built  (or  repaired)  at  your 
expense. 

Dated  this  day  of ,19.. 


(Town  Law,  § 365,  ante,  p.  640.) 


STATE  OF  NEW  YORK, 

County  of 

Town  of 


R.  S., 

Fence  Viewers. 


FORM  No.  65. 


Notice  to  Build  or  Repair  Division  Fence. 


(Town  Law,  § 365,  ante,  p.  640.) 


T.  W. 


FORMS. 


1155 


FORM  No.  66. 

Notice  to  Build  Fence  Destroyed  by  Accident. 


(Town  Law,  § 366,  ante,  p.  641.) 

To  D.  B.,  Esq.: 

You  are  hereby  notified  and  required,  pursuant  to  section  366  of  the  Town 
Law,  to  build  (or  repair)  your  proportion  of  the  following  fence,  to  wit: 
(here  describe  the  fence)  injured  (or  destroyed)  by  (state  how)  within  ten 
days  after  receiving  this  notice;  in  default  of  which  I shall  cause  the  same 
to  be  built  (or  repaired)  at  your  expense. 

Dated  this day  of ,19.. 

T.  W. 


FORM  No.  67. 


Notice  of  Strays  to  be  Filed  in  Office  of  Town  Clerk. 


(Town  Law,  § 381,  ante , p.  645.) 


To  all  Person  Whom  it  may  Coneern: 

You  are  hereby  notified,  pursuant  to  section  381  of  the  Town  Law,  that  the 

undersigned,  a resident  of  the  town  of  in  the  county  of 

N.  Y.,  has  taken  and  now  has  in  his  possession  a strayed 

horse  (or  other  animal,  as  the  case  may  be),  and  the  following  is  a descrip- 
tion of  the  said  horse  (or  as  the  case  may  be,  giving  age,  color,  etc.,  as  near  as 
may  be);  that  such  horse  (or  other  animal)  was  found  on  premises  belonging 
to  the  undersigned  more  than  five  days  since,  doing  damage  thereon  (or  having 
strayed  thereon);  that  such  horse  (or  other  animal)  did  not  come  upon  such 
premises  because  of  the  refusal  or  neglect  of  the  undersigned  to  make  or  main- 
tain a division  fence  as  required  by  law;  and  that  he  claims  a lien  on  such 
horse  (or  other  animal)  for  his  damages,  charges  and  costs  occasioned  thereby 

Dated  this day  of 19.. 


D.  B. 


1156 


FORMS. 


FORM  No.  68. 


Notice  to  Owners  of  Strays. 


(Town  Law,  § 383,  ante,  p.  646.) 


To  T.  W.,  Esq.: 

You  are  hereby  notified,  pursuant  to  section  383  of  the  Town  Law,  that 

the  undersigned,  a resident  of  the  town  of  in  the  county  of 

has  in  his  possession  upon  his  inclosed  lands  (or  in  pound,  as 

the  case  may  be),  the  following  animals  belonging  to  you  (here  describe  them, 
and  that  the  same  are  being  held  as  strays  (or  beasts  doing  damage,  as  the 
case  may  be). 

Dated  this day  of ,19.. 

D.  B. 


FORM  No.  69. 

Notice  of  Sale  of  Stray  Animals  by  Fence  Viewers. 
(Town  Law,  § 387,  ante,  p.  647.) 


Whereas,  a notice  of  lien  was  duly  delivered  to  the  town  clerk  of  the  town 

of on  the day  of 19. .,  by  J.  F.,  the 

owner  of  land  in  such  town,  upon  certain  animals  belonging  to  A.  B.,  of  the 
same  town,  described  as  follows:  (describe  animals),  which  animals  were 

found  by  the  said  J.  F.  doing  damage  upon  his  lands  (or  strayed  upon  his 
enclosed  land); 

And  whereas,  the  said  A.  B.  has  not  redeemed  such  animals  within  three 
months  from  the  delivery  of  such  notice  as  provided  by  section  386  of  the 
Town  Law; 

And  whereas . application  has  been  duly  made  to  me,  the  undersigned,  a 
fence  viewer  of  such  town  for  the  sale  of  such  animals,  as  provided  by  section 
387  of  the  Town  Law, 

Notice  is  hereby  given,  pursuant  to  such  section  of  the  Town  Law,  that  such 
animals  will  be  sold  to  the  highest  bidder,  unless  redeemed  by  the  owner  at 
(name  place  of  sale),  in  said  town  of  on  the  . day 


of , 19. .,  at  noon. 

Dated  this  ..  day  of 19.. 


L.  M., 

Fence  Viewer. 


FORMS. 


1157 


FORM  No.  70. 

Notice  to  Owners  of  Fence  Viewers’  Meeting. 
(Town  Law,  § 389,  ante,  p.  648.) 


To  T.  W.,  Esq.: 

You  are  hereby  notified,  pursuant  to  section  389  of  the  Town  Law,  that  the 

fence  viewers  of  the  town  of in  the  county  of , 

will  meet  at  my  residence,  in  said  town,  on  the day  of 

19..,  for  the  purpose  of  assessing  the  damages  done  by  your  beasts  on  my 
inclosed  lands  in  said  town,  and  the  charges  and  expenses  for  keeping  the 
same. 

Dated  this day  of ,19.. 

D.  S. 


FORM  No.  71. 

Determination  by  Fence  Viewers  as  to  Damages  by  Stray  Animals. 


(Town  Law,  § 390,  ante,  p.  648.) 


STATE  OF  NEW  YORK, 

County  of 

Town  of 


Whereas , on  the  day  of  19..,  there  strayed  (or 

was  found  doing  damage)  on  the  inclosed  lands  of  D.  B.,  in  said  town,  the 
following  animals  (here  describe  them),  which  said  beasts  belong  to  T.  W., 
(or,  and  the  owner  of  said  animals  is  unknown). 

Now,  therefore,  we,  the  undersigned  fence  viewers  of  said  town,  duly  chosen 
to  determine  the  matter  submitted  to  us,  after  proof  of  due  service  of  a notice 
of  the  time  and  place  of  this  meeting  on  the  owner  of  the  animals  (or  on  proof 
that  the  owner  of  said  beasts  is  unknown),  and  after  viewing  the  premises  and 
hearing  the  parties  (or  after  hearing  the  claimant)  and  all  witnesses  produced, 
do  hereby,  pursuant  to  section  390  of  the  Town  Law,  determine  that  the  said  ani- 
mals entered  on  the  inclosed  lands  of  B.  D..  from  the  premises  of  T.  W.,  over 
that  portion  of  the  division  fence  which  belongs  to  T.  W.,  to  maintain  and  keep 
in  repair;  and  that  the  damages  sustained  by  D.  B.  are  $....,  and  that  the 
charges  for  keeping  said  beasts  are  $....,  and  the  costs  and  expenses  of  this 
proceeding  are  $....  (or  that  the  claimant’s  lien  is  not  enforceable  by  reason 
of;  state  the  reasons). 

Dated  this day  of ,19.. 


N.  O., 

R.  S.. 

Fence  Viewers. 


1158 


FORMS. 


FORM  No.  72. 

Application  to  Fence  Viewers  as  to  Sheep  Killed  or  Injured  by  Dogs. 
(County  Law,  § 118,  ante , p.  655.) 

To  A.  B.  and  C.  D.,  Fence  Viewers  of  the  town  ( village  or  city)  of 

Whereas , on  the  day  of  19..,  sheep  and  lambs 

owned  by  me  were  attacked  by  dogs,  and killed  and injured. 

I hereby  make  application  to  you  to  inquire  into  the  matter,  and  issue  a 
certificate  of  the  damage  I have  sustained  thereby,  in  pursuance  to  section 
118  of  the  County  Law. 

Dated  this day  of 19. . 

A.  B. 


FORM  No.  73. 

Certificate  as  to  Damages. 

(County  Law,  § 118,  ante,  p.  655.) 

COUNTY  OF 
Town  of.  . . 

We,  the  undersigned,  fence  viewers  of  the  town  of  upon 

the  application  of  A.  B.,  residing  in  such  town,  to  inquire  into  the  killing  and 
injury  of  certain  sheep  and  lambs  owned  by  him,  having  inquired  into  the 
matter,  and  examined  witnesses  in  regard  thereto,  do  hereby  certify  that  such 
sheep  and  lambs  were  killed  and  injured  by  dogs,  and  in  no  other  way;  the 

number  of  sheep  and  lambs  killed  was ; the  number  injured  was ; 

the  value  of  such  sheep  and  lambs  killed  or  injured  immediately  previous  to 

such  killing  or  injury  was  $ , and  the  value  of  such  sheep  and  lambs 

after  being  so  killed  or  injured  was  $.  . . . 

We  do  hereby  further  certify  that  our  fees  herein  amount  to  $ 

In  witness  whereof,  we  have  hereunto  set  our  hands  on  this day 

of  ,19.. 

C.  D., 

E.  F., 

Fence  Viewers. 


FORM  No.  74. 

Order  of  the  Overseers  of  a Town  to  Remove  a Poor  Person  to  the  County 

Poor  House. 

(Poor  Law,  § 20,  ante , p.  714.) 


County  of ss.: 

A.  B.,  having  applied  for  relief  to  the  overseers  of  the  poor  of  the  town  of 


FORMS. 


1159 


who  having  inquired  into  the  state  and  circumstances  of  the 

applicant,  and  it  appearing  that  he  (or  she)  is  in  such  circumstances  as  to  re- 
quire permanent  relief  and  support,  and  can  be  safely  removed,  the  undersigned 
overseers  hereby  order  the  said  A.  B.  to  be  removed  to  the  county  alms  house, 
to  be  relieved  and  provided  for,  as  the  necessities  of  such  applicant  may  require, 
at  the  expense  of  the  said  county  (or  town,  if  in  a county  where  the  towns  are 
required  to  support  their  own  poor). 

Given  under  our  hands,  at this day  of 19.. 

A.  B., 

C.  D., 

Overseers  of  the  Poor. 


FORM  No.  75. 

Superintendents’  Order  to  Pay  Expenses  Incurred  by  Overseers  Previous  to 
the  Removal  of  a Poor  Person. 


(Poor  Law,  § 21,  ante , p.  716.) 

To  the  Treasurer  of  the  County  of  : 

Pay  to  A.  B.  and  C.  D.,  overseers  of  the  poor  of  the  town  of , 

in  said  county, dollars,  a sum  which  was  necessarily  paid  out,  or  con- 

tracted to  be  paid,  for  the  relief  or  support  of  E.  F.,  a pauper,  previous  to  his 
removal  to  the  county  poor  house,  and  which  sum  the  undersigned,  super- 
intendents of  the  poor  of  said  county,  judged  was  reasonably  expended  by  the 
said  overseers,  before  the  said  pauper  could  properly  be  removed,  and  charge 

the  same  to  the  county  (or,  if  a town  pauper,  to  the  town  of in 

said  county). 

Given  under  our  hands,  at this day  of 19. . 


Superintendents  of  the  Poor. 


FORM  No.  76. 

Supervisor’s  Order  for  a Poor  Person  who  Requires  Temporary  Relief. 


(Poor  Law,  § 23,  ante.  p.  717.) 


The  overseers  of  the  poor  of  the  town  of  having  applied  to 

the  undersigned,  a supervisor  of  said  town,  relative  to  A.  B.,  a person  applying 
to  them  for  relief,  and  having  examined  into  the  facts  and  circumstances,  and 


1100 


FORMS. 


it  appearing  that  the  said  A.  B.,  so  applying,  requires  only  temporary  relief 
(or,  is  sick,  lame,  or  otherwise  disabled,  so  that  he  or  she  can  not  be  con- 
veniently removed  to  the  county  alms-house),  the  undersigned  hereby  orders  the 

said  overseers  to  apply dollars  per  week  for  the  relief  of  the  said  A.  B., 

until  they  have  expended  the  sum  of  ten  dollars,  or  such  sum  less  than  that 
amount  as  may  be  found  sufficient  for  the  temporary  relief  of  the  said  poor 
person,  A.  B. 

Given  in  said  town,  the day  of ,19.. 

C.  D., 

Supervisor. 


FORM  No.  77. 

Sanction  of  County  Superintendent  for  the  Expenditure  of  a Greater  Sum 

than  Ten  Dollars. 

(Poor  Law,  § 23,  ante,  p.  717.) 

County  of , ss: 

The  undersigned,  one  of  the  superintendents  of  the  poor  of  the  county  of 

having  been  applied  to  by  the  overseers  of  the  poor  of  the  town 

of in  said  county,  to  give  his  sanction  for  the  expenditure  of  a 

greater  sum  than  ten  dollars  for  the  relief  of  A.  B.,  as  authorized  by  the  super- 
visor’s order  hereunto  annexed,  and  having  inquired  into  the  facts  of  the  case, 
and  being  satisfied  that  the  said  A.  B.  cannot  be  properly  removed  to  the  county 
alms-house,  and  that  he  is  in  need  of  further  relief,  hereby  gives  his  sanction 
to  the  continuance  of  the  weekly  allowance  specified  in  said  order,  until  the 

expenditure  amounts  to  dollars  over  and  above  the  sum  of  ten 

dollars  authorized  by  the  supervisor’s  order  in  this  case  and  to  be  charged  to 
the  county  (or  town),  as  specified  in  said  order. 

Given  under  my  hand  at this day  of 19. . 

C.  D., 

Superintendent  of  the  Poor. 


FORM  No.  78. 

Order  for  Supplies  to  Poor  Persons  and  Verification  of  Accounts  for  Audit. 
(Poor  Law,  § 25,  ante,  p.  719.) 

Afton,  N.  Y., 19.  . 

To  * 

Please  furnish  to  the  articles  named  in  the  following 

schedule,  in  the  quantities  and  to  the  amount  therein  specified,  not  exceeding  a 

total  of dollars,  and  charge  the  same  to  the  account  of  the  town 

of  Afton. 


Overseer  of  the  Poor. 


FORMS. 


1161 


Schedule. 


lbs.  of  tea  . 
lbs.  of  sugar 
lbs.  of  flour  . 
etc.,  etc. 


Verification. 


State  of  New  York, 
County  of 


ss 


being  duly  sworn,  deposes  and  says  that 

pursuant  to  the  order  of  the  overseer  of  the  poor  of  the  town  of 

the  articles  named  in  the  foregoing  schedule  were  furnished  to 

the  person  mentioned  in  such  order,  and  that  he  (or  she) 

actually  received  such  articles  in  the  amount  therein  specified,  and  that  the 
prices  charged  therefor  are  reasonable  and  not  above  the  usual  market  rates. 

Subscribed  and  sworn  to  before  me, 
this day  of 19. . 


FORM  No.  79. 

Form  of  Overseer’s  Book  Showing  Statistics  Relating  to  Poor  Persons 

Relieved. 


(Poor  Law,  § 26,  ante , p.  720.) 

(Note. — Section  26  of  the  Poor  Law  contemplates  the  keeping  by  overseers  of 
two  forms  of  books,  the  one  containing  statistics  relating  to  the  poor  persons 
relieved  and  supported,  and  the  other  containing  a statement  of  the  amount 
expended.  This  section  also  provides  that  the  overseer  shall  keep  in  such  books 
a statement  in  regard  to  children  placed  by  them  in  families.  No  form  is 
required  for  this  statement,  nor  need  a separate  book  be  kept.  Such  statement 
can  be  made  in  either’ of  the  books  required  by  this  section.) 


Name  of 
poor  person. 

Age. 

Sex. 

Native  Country. 

Cause  rendering 
relief  necessary. 

Amount  of 
relief  furnished. 

John  Smith. 

65 

Male. 

United  States 

Intemperance 

$ 

1162 


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FORM  No.  81. 

Accounts  of  Overseers  of  the  Poor  to  be  Rendered  to  Town  Boards  or 

Common  Council. 


(Poor  Law,  § 26,  ante,  p.  720.) 


To  the  Town  Board  of  the  town  of 


Account  of  , overseer  of  the  town  of  Afton,  for  amounts 

received  and  expended  for  the  support  and  relief  of  the  poor  during  the  year 
ending  , 19. . 


Receipts. 

June  10.  From  county  treasurer $10  00 

Sept.  15.  From  George  L.  Church,  for  sale  of  property  of  John  Smith, 

who  had  absconded  12  50 


Expenditures. 

June  15.  To  Richard  Brown,  for  groceries $10  00 

Sept.  16.  To  county  treasurer,  pursuant  to  Poor  Law,  § 139  12  50 


Chenango  County,  ss.: 

overseer  of  the  poor  of  the  town  of  Afton,  being 

duly  sworn,  deposes  and  says  that  the  foregoing  account  is  just  and  true;  that 
the  amount  stated  therein  to  have  been  received  for  the  support  and  relief  of 

the  poor  is  all  that  has  been  received  by  him  during  the  year  ending 

, 19. .,  and  that  the  amount  stated  to  have  been  expended  were  actually 

and  necessarily  expended  by  him  for  the  purposes  specified,  during  such  time. 


Subscribed  and  sworn  to  before  me, 
this  ....  day  of 91. . 


Overseer  of  the  Poor. 


Notary  Public. 


FORM  No.  82. 

Report  of  Overseers  o*  the  Poor. 

(Poor  Law,  § 27,  ante,  p.  722.) 

(Note. — The  report  is  to  contain  the  account  prescribed  in  Form  No.  81, 
brought  down  from  the  meeting  of  the  town  board  before  the  annual  town 
meeting,  to  the  second  annual  meeting  of  the  town  board  held  before  the  annual 


1164 


FORMS. 


meeting  of  the  board  of  supervisors;  to  such  account  should  be  added  the  follow- 
ing statement.) 

There  is  in  the  town  poor  fund  of  the  town  of on  this  date, 

the  sum  of dollars  and cents.  (If  a deficiency  exists,  state 

amount.) 

The  sum  of dollars  and cents  is  necessary  for  the  tem- 
porary and  out-door  relief  and  support  of  the  poor  of  the  town  of 

for  the  year  beginning , 19. . 

Such  estimate  is  based  upon  the  following  facts.  (Here  state  items  for  which 
it  will  be  necessary  to  raise  money.) 

Dated  19 . . 

C.  D., 

Overseer  of  the  Poor. 

We  hereby  approve  the  foregoing  account  and  estimate  of  the  sum  required 

for  the  support  and  relief  of  the  poor  of  the  town  of for  the  year 

beginning  ,19.. 

Dated  19.. 

D.  E.,  Supervisor. 

F.  G.,  Justice  of  the  Peace. 
H.  I.,  ” 

J.  K.,  „ 

L.  M.,  „ 

N.  0.,  Town  Clerk. 


FORM  No.  83. 

Repobt  of  Supervisor  of  Town  to  Clerk  of  Board  of  Supervisors  in  Towns 
Where  all  the  Poor  are  not  a County  Charge. 

(Poor  Law,  § 141,  ante . p.  724.) 

The  supervisor  of  the  town  of , in  the  county  of 

reports  to  the  clerk  of  the  board  of  supervisors,  pursuant  to  section  141  of  the 
Poor  Law,  as  follows: 

The  number  of  paupers  relieved  or  supported  in  said  town  during  the 

year  preceding  the day  of 19. .,  as 

appears  from  the  accounts  of  the  overseers  of  the  poor,  was 

Of  the  persons  thus  relieved  the  number  of  county  paupers  was 

The  number  of  town  paupers 

The  whole  expense  of  such  support  was $ 

Allowance  to  overseers  for  support  of  county  paupers 

Allowance  to  overseers  for  support  of  town  paupers 

Allowance  to  overseers  for  their  services 

Allowance  to  overseers  for  transportation  of  paupers 

Allowance  made  to  justices  

Allowance  to  physicians,  for  medicine  and  attendance 


FORMS. 


1165 


Of  the  whole  number  of  paupers  relieved  by  the  overseers  during  the  year, 

they  report  that  there  were foreigners,  idiots,  and  

mutes.  The  number  of  paupers  under  their  charge,  at  the  time  of  auditing 

their  accounts,  is  stated  at of  which were  males  and 

females. 

(If  there  are  any  other  charges  they  should  be  specified.) 

I hereby  certify  that  the  foregoing  is  a correct  abstract  of  the  accounts  of 

the  overseers  of  the  poor  of  the  town  of  for  the  year  ending 

the day  of as  the  same  have  been  settled  by  the  board 

of  town  auditors. 

Dated  this day  of 19. . 

A.  B., 

Supervisor. 


FORM  No.  84. 

Notice  from  One  Town  to  Another  (in  a County  Where  the  Towns  are 
Liable  to  Support  their  Own  Poor),  Requiring  the  Overseers  of  the 
Town  in  Which  the  Poor  Person  Has  a Residence  to  Provide  for  His 
Support. 


(Poor  Law,  § 42,  ante,  p.  732.) 


County  of  ss.: 

To  the  Overseers  of  the  Poor  of  the  town  of in  said  county: 

You  are  hereby  notified  that  A.  B.,  a poor  person,  who  has  gained  a settlement 

in  your  town,  to  which  he  belongs,  is  in  the  town  of , in 

said  county,  and  is  supported  at  the  expense  of  the  said  town  of 

for  which  the  undersigned  are  overseers.  You  are,  therefore,  required  to  pro- 
vide for  the  relief  and  support  of  the  said  poor  person. 

Given  under  our  hands  at this day  of 19,  . 

E.  F., 

C.  D., 

Overseers  of  the  Poor  of  the  town  of 

(This  notice  should  be  served  on  one  of  the  overseers  of  the  poor  of  the  town 
where  the  poor  person  belongs.) 


FORM  No.  85. 

Notice  of  Overseers  of  the  Poor  to  Appear  Before  Superintendent  of  the 
Poor  and  Contest  Alleged  Settlement  of  a Poor  Person. 

(Poor  Law,  § 43,  ante , p.  734.) 

County  of ss.: 

To  the  Overseers  of  the  Poor  of  the  town  of in  said  county: 

Please  take  notice  that  the  undersigned,  overseers  of  the  poor  of  the  town  of 


1166 


FORMS. 


in  said  county,  will  appear  before  the  superintendents  of  the 

poor  of  said  county,  at  the  poor  house  (or,  other  place,  as  may  be  designated), 
on  the day  of at  ten  o’clock  in  the  forenoon,  to  con- 

test the  alleged  settlement  of  A.  B.,  a poor  person,  as  set  forth  in  your  notice 
of  the  19. . 

Dated  19. . 

J.  H., 

I.  J., 

Overseers  of  the  Poor  of  the  town  of 


FORM  No.  86. 

Subpoena  in  Case  of  Dispute  Concerning  Settlement  of  Poor  Persons. 
(Poor  Law,  § 44,  ante,  p.  734.) 


County  of ss.: 

The  People  of  the  State  of  New  York  to  C.  D.,  greeting: 

You  are  hereby  required,  personally,  to  appear  before  the  undersigned, 
superintendents  of  the  poor  of  the  said  county,  at  the  poor  house  (or,  such 

other  place  as  is  designated  in  the  notice),  on  the day  of 

19..,  at  ten  o’clock  in  the  forenoon,  to  testify  in  behalf  of  the  overseers  of 

the  poor  of  the  town  of  in  said  county,  concerning  the  alleged. 

settlement  of  A.  B.,  a poor  person. 

Dated  at this day  of 19. . 


Superintendents  of  the  Poor . 


FORM  No.  87. 

Decision  of  Superintendents  Concerning  the  Settlement  of  Poor  Persons. 
(Poor  Law,  § 44,  ante,  p.  734.) 


County  of ss.: 

The  undersigned,  superintendents  of  the  poor  of  said  county,  having  con- 
vened as  required  by  the  overseers  of  the  poor  of  the  town  of in 

said  county,  pursuant  to  their  notice,  proceeded  to  hear  and  determine  a 


FORMS. 


1167 


controversy  which  had  arisen  between  the  said  overseers  and  the  overseers  of 

the  town  of  , in  said  county,  concerning  the  settlement  of  A.  B., 

a poor  person;  and  upon  such  hearing  of  the  facts,  the  undersigned  hereby 
decide  that  the  legal  settlement  of  the  said  A.  B.  as  such  poor  person,  is  (or, 

is  not)  in  the  said  town  of And  the  undersigned  hereby  award 

to  the  overseers  of  the  poor  of  the  town  of the  prevailing  party, 

the  sum  of  dollars,  costs  of  said  proceeding,  by  them  expended. 

Given  under  our  hands  and  seals  at  this  day  of 

,19.. 


[l.  s.] 

[L.  s.] 

[L.  S.] 

Superintendents  of  the  Poor . 


FORM  No.  88. 

Superintendents’  Notice  that  Poor  Person  Will  Be  Supported  at  the  Expense 
of  a Town  in  a County  Where  the  Towns  Support  Their  Own  Poor. 


(Poor  Law,  § 46,  ante,  p.  736.) 


County  of ss.: 

To  the  Overseers  of  the  Poor  of  the  town  of in  said  county: 

A.  B.,  a poor  person,  having  been  sent  to  the  poor  house  as  a county  poor 
person,  and  the  undersigned,  superintendents  of  the  poor  of  said  county, 
having  inquired  into  the  fact,  and  being  of  the  opinion  that  the  said  poor 

person  has  a legal  settlement  in  the  town  of  in  said  county, 

pursuant  to  the  provisions  of  section  46  of  the  Poor  Law,  you  are  hereby 
notified  that  the  expenses  of  the  support  of  said  poor  person  will  be  charged 

to  the  town  of  unless  you,  the  overseers  of  said  town,  within 

(here  insert  such  time,  not  less  than  twenty  days,  as  the  super- 
intendent shall  appoint),  after  the  service  of  this  notice,  show  that  the  said 

town  of  ought  not  to  be  so  charged. 

Dated  at this day  of 19. . 

A.  B., 

C.  D., 

E.  F., 

Superintendents. 


11(18 


FORMS. 


FORM  No.  89. 


Decision  of  Superintendents  After  Re-Examining  Settlement  of  Poor  Person, 
on  Application  of  Overseers. 


(Poor  Law,  § 46,  ante , p.  736.) 


County  of ss.: 

The  undersigned,  superintendents  of  the  poor  of  the  said  county  having 

on  application  of  the  overseers  of  the  poor  of  the  town  of  on 

whom  the  notice  of  which  the  annexed  is  a copy  was  served,  re-examined 
the  subject-matter  of  the  said  notice  and  taken  testimony  in  relation  thereto, 
do  hereby  decide  that  the  poor  person,  A.  B.,  therein  mentioned,  has  a legal 

settlement  in  the  town  of  to  which,  as  such  poor  person,  he 

belongs  (or,  has  not  a legal  settlement  in  said  town  of ). 

Given  under  our  hands,  at this day  of 

19.. 

A.  B., 

C.  D., 

E.  F., 

Superintendents  of  the  Poor. 


FORM  No.  90. 

Notice  of  Decision  of  Superintendents  as  to  Settlement  of  Poor  Persons. 

(Poor  Law,  § 49,  ante,  p.  737.) 

To Overseer  of  the  Poor  of  the  town  of : 

Take  notice,  that  a decision  of  the  superintendent  as  to  the  legal  settlement 

of  A.  B.,  a poor  person,  of  which  the  annexed  is  a true  copy,  was  on  the 

day  of  made  and  a duplicate  thereof  filed  in  the  office  of  the 

county  clerk  of  county,  on  the  day  of  , 19.. 

C.  D., 

Superintendent  (or,  Overseer,  as  the  case  may  be). 

(There  is  no  express  requirement  that  a notice  of  the  decision  of  the  super- 
intendent should  be  served  on  the  defeated  parties;  but  section  49  of  the 
Poor  Law  (ante.  p.  737),  authorizes  an  appeal  within  thirty  days  after  the 
service  of  a notice  of  the  decision.  The  service  of  a notice  similar  to  the 
above  form  is,  therefore,  required  to  limit  the  time  of  appeal.) 


FORMS. 


11  GJ> 


FORM  No.  91. 

Notice  of  Appeal  to  County  Court  from  Decision  of  Superintendents  of  the 

Poor. 

(Poor  Law,  § 49,  ante , p.  737.) 

COUNTY  COURT— County  of  


In  the  Matter  of  the  Settlement  of 
A.  B.,  a Poor  Person. 

Take  notice  that  the  undersigned,  E.  F.,  overseer  of  the  poor  of  the  town 

of appeals  to  the  County  Court  of county  from 

the  decision  of  C.  D.,  superintendent  of  the  poor  of  such  county,  made  as  to 

the  legal  settlement  of  A.  B.,  a poor  person,  on  the  day  of 

, 19. .,  and  demands  a new  trial  of  the  matters  in  dispute  as  to 

such  settlement  in  the  said  County  Court,  without  a jury. 

Dated  19.. 

E.  F., 

Overseer  of  the  Poor  of  the  town  of  

To  G.  H.,  Overseer  of  the  Poor  of  the  town  of  (or  other  party 

interested  therein). 


FORM  No.  92. 

Notice  of  Improper  Removal  of  Poor  Person  from  a Town,  City  or  County. 
(Poor  Law,  § 51,  ante , p.  738.) 


County  of ss.: 

To  Superintendent  of  the  Poor  of  the  county  of 


(or  Overseer  of  the  Poor  of  the  town  of ) : 

You  are  hereby  notified  that  A.  B.,  a poor  and  indigent  person,  has  been 
improperly  sent  (or,  carried,  transported,  brought  or  removed,  or  enticed  to 

remove,  as  the  case  may  be)  from  the  said  county  (town  or  city)  of 

to  the  county  (town  or  city)  of without  legal  authority, 

and  there  left,  with  intent  to  make  the  said  county  (town  or  city)  of 

to  which  the  said  removal  was  made,  chargeable  with  the  support  of  the  said 
poor  person.  You  are,  therefore,  pursuant  to  the  provisions  of  section  51  of  the 
Poor  Law  of  the  state  of  New  York,  required  forthwith  to  take  charge  of  the 
said  poor  person. 

Given  at in  said  county  of the day 

of ,19.. 


Superintendents  of  the  Poor  of  the  county  of  . 
the  Poor  of  the  town  of ). 


(or,  Overseers  of 


1170 


FORMS. 


FORM  No.  93. 

Notice  of  Denial  of  Removal  of  Poor  Persons. 
(Poor  Law,  § 52,  ante,  p.  740.) 


County  of ss.: 

To  the  Superintendents  of  the  Poor  of county: 

You  are  hereby  notified  that  the  undersigned,  superintendents  of  the  poor 

of  the  county  of  deny  the  allegation  contained  in  your  notice, 

of  the  supposed  improper  removal  of  A.  B.,  as  mentioned  in  your  notice  to  the 
undersigned,  in  the  manner  and  with  the  intent  in  said  notice  alleged. 

Given  under  our  hands,  at this day  of 19. . 


Superintendents  of  the  Poor  of  the  county  of 


FORM  No.  94. 

Accounts  of  Overseers  of  the  Poor  for  Moneys  Received  from  Putative 
Fathers  and  Paid  Out  for  the  Support  of  Bastards. 

(Poor  I^aw,  § 68,  ante . p.  748.) 


To  the  Town  Board  of  the  town  of : 

The  following  is  an  account  of  moneys  received  and  paid  out  by  me  on 


account  of  bastards  during  the  year  ending 19. . 

Receipts. 

Jan.  10.  From  J.  N.,  putative  father  of  R.  0.,  bastard $ 

Jan.  12.  From  J.  A.,  putative  father  of  K.  L .,  bastard 


Expenditures. 

Jan.  15.  To  O.,  for  professional  attendance  and  medicine  to  M.  O., 

Mother  of  R.  R.,  bastard  $ 

Jan.  16.  To  J.  H.,  for  groceries  and  fuel  to  M.  O.,  mother  of  R.  O., 
bastard  


Dated  19. . 

A.  B., 

Overseer  of  the  Poor  of  the  town  of  

County  of ss.: 

A.  B„  overseer  of  the  poor  of  the  town  of  being  duly  sworn, 

deposes  and  says  that  the  foregoing  is  a true  and  just  account  of  all  the 


FORMS. 


1171 


moneys  received  and  expended  by  him  for  the  support  of  bastards  and  the 

maintenance  of  mothers  of  bastards  during  the  year  ending 

19..  That  the  amounts  therein  stated  to  have  been  received  by  him  were 
all  the  amounts  actually  received,  and  that  the  amounts  therein  stated  to 
have  been  expended  were  actually  and  necessarily  expended  by  him  for  the 
purposes  therein  specified. 

A.  B., 

Overseer  of  the  Poor  of  the  town  of  

Subscribed  and  sworn  to  before  me, 
this day  of 19. . 


FORM  No.  95. 

Agreement  Upon  Compromise  with  Putative  Father  of  Bastard. 
fPoor  Law,  § 74,  ante,  p.  752.) 

Know  all  men  by  these  presents . that  whereas,  complaint  was  made  on  the 

day  of 19..,  before , Esq.,  a 

justice  of  the  peace  of  the  county  of by  on 

oath,  charging  with  being  the  reputed  father  of  a child,  of 

’which  the  said  is  now  pregnant,  and  which,  when  born,  will 

lie  a bastard,  and  likely  to  become  (or,  the  father  of  a bastard  child,  of  which 

the  said was  on  the day  of 19. 

delivered,  and  which  said  child  is)  chargeable  to  said  county;  and 

Whereas,  the  said  was  arrested  on  said  charge,  and  brought 

before  and  justices  of  the  peace  of  said  county, 

and the  father  of  said  child  (of  which  the  said 

is  now  pregnant)  (or,  so  born  a bastard),  as  aforesaid; 

Now,  therefore,  of  the  poor  of  said  county,  for  and  in  con- 
sideration of  the  sum  of dollars,  to  paid,  as  such 

superintendent  (or  overseer),  and  by  virtue  of  the  statute  in  such  case  made 
and  provided,  do  hereby  compromise  the  said  charge,  and  release  and  discharge 

the  said  from  all  liability  to  the  or  to  the 

superintendent  of  the  poor  (or  overseer  of  the  poor)  thereof,  by  reason  of  the 

liability  of  the  said  to  support  the  said  

(or  bastard)  child,  or  from  any  other  cause,  by  reason  of  the  birth  of  said 
(or  bastard)  child. 

Given  under hand  and  seal  this day  of 19. . 

Signed,  delivered  and  duly  acknowledeged 
in  the  presence  of  and  before 


Justice  of  the  Peace. 


1172 


FORMS. 


FORM  No.  96. 

Notice  of  Commander  of  Post  of  Grand  Army  of  the  Republic,  as  to  Relief 

of  Poor  Soldiers,  etc. 


(Poor  Law,  §§  80  and  81,  ante , p.  767.) 


To  Superintendent  of  the  Poor  of  the  couniy  of 

(or  Overseer  of  the  Poor  of  the  town  or  city  of  ) : 

Please  take  notice  that  the  post  of  the  Grand  Army  of  the 

Republic  in  the  town  (or  city)  of , county  of 

do  undertake  the  supervision  of  the  relief  of  the  following  named  veterans  of 
the  war  of  the  rebellion,  and  their  families:  


That  the  relief  committee  of  such  post  is  composed  as  follows: 


That  the  officers  of  such  post  are  as  follows: 


Dated 


19.. 

Commander  of  the 


A.  B., 


Post , O.  A.  R. 


FORM  No.  96-a. 

Requests  of  Officers  of  Grand  Army  Posts  for  the  Relief  of  Veterans. 

(Poor  Law,  §§80  and  81,  ante , p.  767.) 

To  Superintendent  of  the  Poor  of  the  county  (or  Overseer  of 

the  Poor  of  the  town ) of : 

Whereas , a veteran  of  the  late  war  of  the  rebellion,  is  (state 

reasons  for  necessity  of  relief;  i.  e.,  disability,  unable  to  work,  etc.),  and  is 
in  need  of  relief; 

Therefore,  in  pursuance  of  section  80  of  the  Poor  Law,  and  the  recommenda- 
tion of  the  relief  committee  of  the  post,  G.  A.  R.,  of  the  town 

(or  city)  of which  is  hereto  annexed,  we  hereby  request  that 

you  grant  the  said  relief  to  the  amount  of  

dollars  per  week. 

Dated  19. . 

A.  B., 

Commander  of Post,  G.  A.  R. 

B.  C. 

Quartermaster. 

(The  recommendation  of  the  relief  committee  of  the  post  is  to  be  attached,, 
and  may  be  in  the  following  form): 


FORMS. 


1173 


Having  examined  the  necessities  of  a veteran  of  the  late 

war  of  the  rebellion,  and  it  appearing  that  the  said  veteran  is,  because  of 
sickness,  unable  to  care  for  himself  and  is  in  actual  need  of  assistance,  we, 


the  undersigned,  members  of  the  relief  committee  of  the post 

of  the  Grand  Army  of  the  Republic  in  the  town  (or  city)  of do 


hereby  respectfully  recommend  that  relief  be  granted  to  the  said 

to  the  amount  of dollars  per  week. 

Dated 19. . 

C.  D., 

D.  E., 

E.  F., 

Relief  Committee  of Post,  G.  A.  R. 


FORM  No.  97. 

Inventory  of  Highway  Machinery,  Tools  and  Implements. 
(Highway  Law,  § 49,  ante,  p.  822.) 


To  Supervisor  of  the  Town  of 

County  of : 

The  following  is  an  inventory  of  the  machinery,  tools  and  implements  belong- 
ing to  the  town  of in  my  control,  indicating  the  value  thereof, 

and  the  estimated  cost  of  repairs  thereto,  which  is  submitted  by  me  pursuant 


to  the  provisions  of  section  49  of  the  Highway  Law: 


DESCRIPTION  OF  ARTICLE. 

.Value. 

Cost  of  repairs. 

Steam  roller  (give  description  of  kind) 

$2,500  00 
450  00 
60  00 

$300  00 
75  00 
5 00 

3 Road  machines 

7 Plows 

I recommend  that  there  should  be  purchased  for  the  use  of  the  town  the 
following  machines,  tools  and  implements,  and  append  thereto  the  probable  cost 


thereof: 

1 road  machine  $250  00 

3 road  scrapers  225  00 

Dated 19. . 


JOHN  SMITH, 


Superintendent  of  Highways. 


1174 


FORMS. 


FORM  No.  98. 

Notice  to  Remove  Obstruction. 


(Highway  Law,  § 52,  ante , p.  824.) 


To  Simon  Brown: 

The  undersigned,  town  superintendent  of  highways  of  the  town  of 

county  of hereby  notifies  you  that  the  highway  in  such  town, 

adjoining  the  premises  owned  (or  occupied)  by  you  is  obstructed  to  the  extent 
and  in  the  manner  following:  (describe  encroachment  or  obstruction),  and  you 
are  hereby  directed  to  remove  such  construction  (or  encroachment)  within 
thirty  days  after  the  service  of  this  notice  upon  you,  and  in  case  of  your  failure 
to  so  remove  such  obstruction,  I shall  cause  the  same  to  be  removed  as  author- 
ized by  section  52  of  the  Highway  Law,  and  shall  assess  the  cost  thereof  against 
you  as  authorized  by  section  55  of  such  law. 

Dated  this day  of 19. . 

JOHN  SMITH, 

Town  Superintendent  of  Highways , Town  of 


FORM  No.  99. 


Notice  to  Occupant  to  Cut  Weeds,  Brush  and  Briers. 


(Highway  Law,  § 54,  ante,  p.  827.) 


To  R.  S..  owner  (or  occupant ) of  ( briefly  describe  the  premises ),  abutting  on 

the  highway,  (describe  highway ),  in  the  town  of county 

of , N.  Y.: 

The  undersigned,  town  superintendent  of  highways  of  the  town  of 

hereby  notifies  and  requires  you  to  cut  all  weeds,  briers  and  brush  growing 
upon  the  above  described  lands  within  the  bounds  of  said  highway  at  some  time 
during  the  month  of  June,  19. or  (in  August,  as  the  case  may  be)  as  required 
by  section  54  of  the  Highway  Law;  and  if  you  fail  to  do  so,  I shall  cause  the 
same  to  be  removed  and  assess  the  cost  thereof  against  you  as  provided  in 
section  55  of  the  Highway  Law. 

Dated  this day  of 19. . 

L.  M., 

Town  Superintendent  of  Highways , Town  of 


FORMS. 


1175 


FORM  No  100. 

Notice  of  Assessment. 

(Highway  Law,  § 55,  ante,  p.  828.) 

To  R.  8.  owner  (or  occupant)  of  ( describe  premises)  abutting  on  the  highway 

( describe  highway)  in  the  town  of county  of : 

You  are  hereby  notified  that,  I,  L.  M.,  town  superintendent  of  highways  of 

the  town  of  will  assess  the  cost  of  removing  the  noxious 

weeds,  briers  and  brush  (or  other  obstructions,  describing  them)  within  the 
bounds  of  the  highway  above  described  abutting  premises  owned  (or  occupied) 

by  you,  on  the day  of 19..,  at  in 

the  village  of  , as  authorized  by  section  55  of  the  Highway  Law, 

and  you  are  hereby  directed  to  attend  at  such  time  and  place,  where  I will 
hear  all  parties  interested  and  make  an  assessment  of  the  cost  of  such  removal 
as  authorized  by  such  section  of  the  Highway  Law. 

Dated  19. . 

L.  M., 

Town  Superintendent  of  Highways,  Town  of 


FORM  No.  101. 

Assessment  of  Cost  of  Removing  Weeds,  Etc. 

(Highway  Law,  § 55,  ante , p.  828.) 

To  A.  8.,  town  clerk  of  the  town  of : 

The  undersigned,  town  superintendent  of  highways  of  the  town  of 

hereby  certifies  that  he  caused  to  be  removed  the  noxious  weeds 

brush  or  briers  (or  other  obstructions,  describing  them),  in  front  of  the  lands 
owned  (or  occupied)  by  the  person  named  in  the  following  list,  as  authorized 
and  required  by  section  54  of  the  Highway  Law;  that  he  caused  due  notice  to 
be  served  upon  each  of  the  persons  named  in  such  list,  a copy  of  which  with  an 
endorsement  of  the  date  and  manner  of  service  is  returned  herewith;  that  at  the 
time  and  place  mentioned  in  such  notice  he  heard  such  owners,  (occupants)  and 
all  others  interested,  and  assessed  the  cost  of  cutting  and  removing  such  noxious 
weeds,  brush  and  briers  (and  of  removing  such  obstructions)  against  the  owner 
(occupant)  whose  duty  it  was,  pursuant  to  section  54  of  the  Highway  Law,  to 
cut  and  remove  the  same;  that  such  completed  assessment  is  as  follows: 


Name  of  owner  or  occupant. 

Premises  described. 

Character  of  work. 

Cost. 

John  Wing. 

Saw  mill 

Removing  lumber 

$10  00 

Allan  Doe 

Farm 

Cutting  weeds,  briers,  etc.. 

4 50 

1176 


The  above  is  a true  statement  of  the  actual  cost  of  the  work  performed  as 
above  described. 

Dated  19.. 

L.  M., 

Town  Superintendent  of  Highways,  Town  of 

To  the  Board  of  Supervisors,  County  of : 

The  foregoing  assessment  has  been  returned  by  L.  M.,  town  superintendent 

of  highways  for  the  town  of to  the  town  clerk  of  such  town 

and  by  him  presented  to  us,  as  provided  in  section  55  of  the  Highway  Law, 
and  we  hereby  certify  such  assessment  to  you  as  required  by  such  section. 

(Signed  by  majority  of  members  of  town  board.) 


FORM  No.  102. 

Application  for  Permit  to  use  Highways 
(Highway  Law,  § 60,  ante,  p.  832.) 

Form  prescribed  by  State  Highway  Commission. 

To  the  Town  Superintendent  of  the  Town  of * 

County  of ; 

The  undersigned  (a)  hereby  makes  application  to 

you  for  permission  (Z>)  , within  the  portion  of  the 

highway  in  said  town  hereinafter  described  pursuant  to  the  provisions  of  Section 
60  of  the  Highway  Law. 

The  portion  of  such  highway  wherein  such  work  is  to  be  performed  is  de- 
scribed as  follows  (c)  

Dated  this  day  of 19.. 


Applicant. 

P.  0.  Address  


Note. — Blank  places  in  the  following  application  for  permit  must  be  filled  in 
as  follows: 

At  the  blank  space  indicated  by  (a)  state  whether  the  applicant  is  a citizen, 
a firm  or  a corporation  and  give  the  residence.  If  a corporation,  state  the 
location  of  the  principal  place  where  office  is  located. 

At  the  blank  space  indicated  by  (&)  describe  the  nature  of  the  work  for  which 
permit  is  asked.  Under  Section  60  permits  may  be  issued  for  drainage,  or 
sewer  and  water  pipes. 

At  the  space  indicated  by  (c)  describe  the  location  of  the  highway  where  the 
work  is  to  be  performed  and  state  whether  or  not  it  is  a road  which  has  been 
improved  by  state  aid  as  a county  road. 

This  application  to  be  attached  to  the  copy  of  Permit  to  be  filed  in  the  Town 
Clerk’s  office. 


FORMS. 


1177 


FORM  No.  103. 


Permit  for  use  of  Highways 


(Highway  Law,  § 60,  ante,  p.  832.) 


The  undersigned,  the  Town  Superintendent  of  Highways,  of  the  town  of 

* , County  of upon  the  written  application  of 

dated  on  the  day  of  19.., 

and  filed  with  him,  as  provided  by  Section  60  of  the  Highway  Law,  hereby 

grants  permission  to  said  applicant  to  

on  the  highway  described  as  follows: : 

This  permit  is  granted  subject  to  the  following  conditions: 

1.  The  work  authorized  by  this  permit  shall  be  performed  in  a manner  satis- 
factory to  the  town  superintendent. 

2.  The  applicant  is  to  keep  in  good  repair  all  pipes,  hydrants  or  appurte- 
nances which  may  be  placed  within  the  bounds  of  the  highway  under  terms  of 
this  permit  and  is  to  save  the  town  harmless  from  all  damages  which  may 
accrue  by  reason  of  their  location  in  the  highway,  and  upon  notice  by  the  town 
superintendent  agrees  to  make  any  repairs  required  for  the  protection  and 
preservation  of  the  highway;  and  further  agrees  that  upon  the  failure  of  the 
applicant  to  make  such  repairs  they  may  be  made  by  the  town  superintendent 
at  the  expense  of  the  applicant  and  such  expense  shall  be  a prior  lien  upon  the 
land  benefited  by  the  use  of  the  highway  for  such  pipes,  hydrants  or  appurte- 
nances. 

3.  If  the  drainage,  sewer  or  water  pipes  or  appurtenances  which  are  laid 
under  this  permit  are  placed  in  a town  road  they  shali  be  so  placed  as  not  to 
interrupt  or  interfere  with  public  travel  upon  the  highway;  and  the  earth  re- 
moved must  be  replaced,  and  the  highway  left  in  all  respects  in  as  good  con- 
dition as  before  the  work  was  performed. 

4.  If  the  work  performed  is  on  a road  which  has  been  improved  by  State 
aid,  such  drainage,  sewer  or  water  pipes  must  be  placed  at  least  four  (4)  feet 
below  and  in  such  a manner  as  in  no  way  to  interfere  with  the  macadam, 
shoulders  or  drainage  ditches  of  the  highway  and  that  portion  of  the  trench 
which  passes  under  the  macadam  shall  be  bored  or  pipe-driven  and  in  no  case 
shall  the  macadam  be  disturbed.  Upon  the  completion  of  the  work  the  highway 
shall  be  left  in  as  good  condition  as  before  the  work  was  performed  and  to  the 
satisfaction  of  the  county  superintendent. 

A 


5.  It  is  agreed  by  the  applicant  that  any  injury  or  disturbance  of  the  maca- 
dam portion  of  the  highway,  its  shoulders  or  drainage  ditches  which  may  occur 
hereafter  by  reason  of  the  laying  of  said  drainage,  sewer  or  water  pipes  and 
their  appurtenances  shall  be  repaired  by  and  at  the  expense  of  the  applicant  to 
the  satisfaction  of  the  county  superintendent. 

6.  The  said  town  superintendent  may,  upon  the  failure  of  the  applicant  to 
comply  with  any  of  the  conditions  contained  herein,  revoke  this  permit  and 
remove  any  pipes,  or  hydrants,  or  other  appurtenances  which  may  have  bor  i 
placed  in  the  highway  under  this  permit. 


1178 


FORMS. 


7.  If  the  road  upon  which  this  permit  is  issued  is  at  the  time  of  issuance  a 
town  highway,  and  should  it  be  thereafter  improved  by  State  aid  as  a State  or 
county  highway,  it  is  agreed  that  the  applicant  shall,  before  its  improvement  at 
the  applicant’s  own  expense  remove  drainage,  sewer  or  water  pipes  or  appur- 
tenances which  may  be  placed  under  this  permit  and  will  relay  the  same  in  con- 
formity with  the  directions  of  the  engineer  in  charge  of  such  improvement  and 
in  accordance  with  the  rules  and  regulations  prescribed  by  the  State  Commis- 
sion of  Highways. 

Dated  this 

day  of  19. . 


Town  Superintendent. 

I hereby  agree  to  conform  to  the  conditions  contained  in  the  foregoing  permit. 


Applicant. 

The  undersigned,  members  of  the  Town  Board  of  the  Town  of 

hereby  consent  to  the  grant  of  the  foregoing  permit. 

Dated  this 

day  of 19. . 

Supervisor. 

Town  Clerks 


Dated  this 

day  of 19.  • 


Justices  of 
the  Peace. 


Approved. 


County  Superintendent. 


FORM  No.  104. 

Order  Authorizing  Planting  of  Trees. 


(Highway  Law,  § 61,  ante , p.  833.) 


STATE  OF  NEW  YORK 
County  of 


This  is  to  certify  that  the  undersigned,  town  superintendent  of  highways  of 

the  town  of county  of has  hereby  authorized 

J.  S.,  an  owner  of  lands  adjoining  the  highway  (give  general  description  of 
highway),  at  his  own  expense,  to  locate  and  plant  trees  along  such  highway 
adjoining  premises  owned  by  him,  in  conformity  with  the  typography  of  such 


FORMS. 


1179 


highway,  and  in  accordance  with  a map  or  diagram  hereto  attached  and  made  a 
part  thereof. 

Dated  this day  of 19.. 


R.  S. 

Town  Superintendent  of  Highways , Town  of 

The  undersigned,  a majority  of  the  members  of  the  town  board  of  the  town 

of  hereby  approve  of  the  foregoing  order. 

( Signatures  of  majority  of  town  hoard.) 


FORM  No.  105. 

Cebtificate  of  Authority  to  Construct  and  Maintain  Watering  Trough. 

(Highway  Law,  § 65,  ante.  p.  836.) 

COUNTY  OF 

Town  of  . 

This  is  to  certify  that  J.  D.,  residing  in  the  town  of  is 

hereby  authorized  to  construct  and  maintain  on  his  own  land  in  such  town  a 
watering  trough,  in  accordance  with  section  65  of  the  Highway  Law,  at  a place 
in  such  highway  described  as  follows  (describe  place)  and  that  if  so  constructed 
and  maintained  he  is  entitled  to  the  sum  of  three  (3)  dollars,  which  amount 
is  payable  each  year  by  the  supervisor  of  such  town  on  the  order  of  the  town 
superintendent  of  highways. 

In  witness  whereof  I have  this  day  of  19...  set 

my  hand. 

(Signed) 

A.  B., 

Town  Superintendent  of  highways. 

Approved  by  the  undersigned  members  of  the  town  board  of  the  town  of 
this day  of 19 . . 

( Signed  hy  members  of  town  hoard.) 


FORM  No.  106. 

Statement  of  Credit  on  Private  Road. 

(Highway  Law,  § 66,  ante,  p.  837.) 

The  undersigned,  town  superintendent  of  highways  of  the  town  ot 

hereby  states  that  J.  D.  is  a resident  and  taxpayer  of  said  town;  that  he 
lives  on  a private  road  (give  location  of  road);  that  the  work  necessary  to  be 


1180 


FORMS. 


done  on  such  private  road  during  the  year  19..  consists  of  (describe  work 

which  the  superintendent  deems  necessary);  that  the  value  thereof  is  $ , 

and  that  the  said  J.  D.  is  entitled  to  an  order  upon  the  supervisor  of  such 
town  for  such  amount  because  of  such  work. 

Dated  this  day  of 19... 

R.  S., 

Town  Superintendent  of  Highways , Town  of  


FORM  No.  107. 

Application  for  Erection  of  Guide-Boards. 

(Highway  Law,  § 68,  ante,  p.  838.) 

To  J.  D.,  Town  Superintendent  of  highieays,  town  of : 

The  undersigned  taxpayers  of  the  town  of  (or  twenty-five 

taxpayers  of  the  county  of ) hereby  make  application  to  you, 

as  authorized  by  § 68  of  the  Highway  Law,  requesting  the  erection  of  guide 
boards  at  the  following  intersections  of  highways  in  such  town,  to  wit:  (de- 
scribe intersections  where  guide  boards  are  requested).  It  is  suggested  that 
such  guide  boards  be  in  the  following  form  (state  inscriptions  to  be  placed 
thereon). 

Dated,  this day  of 19. . 

( Signed  by  taxpayers.) 


FORM  No.  108. 

Complaint  that  Toll-bridge  is  Unsafe. 


(Highway  Law,  § 72,  ante,  p.  840.) 


COUNTY  OF 
Town  of  . 


L.  M.,  being  duly  sworn,  complains  on  oath  to  the  town  superintendent  of 

highways  of  the  town  of  in  the  county  of  

that  he  believes  the  toll-bridge  belonging  to  situated  on  the 

(give  name  of  stream),  at  (describe  place),  has  become  and  is  unsafe  for 
public  use  and  travel;  and  that  the  reasons  for  his  belief  are  as  follows  (set 
forth  reasons). 

L.  M. 

Subscribed  and  sworn  to  before  me, 

this day  of 19. . 

G.  H., 

Justice  of  the  Peace  (or  Notary  Public). 


FORMS. 


1181 


FORM  No.  109. 

Estimate  of  Expenditures  for  Highways  and  Bridges. 

(Highway  Law,  § 90,  ante,  p.  853.) 

Pursuant  to  the  provisions  of  section  90  of  the  Highway  Law,  I,  the  under- 
signed, town  superintendent  of  the  town  of  in  the  county  of 

hereby  make  the  following  estimate  of  the  amount  of  money 

which  should  be  raised  by  tax  for  the  year  beginning  on  the  first  day  of 
November,  19..,  for  the  purposes  herein  set  forth.  The  amount  set  opposite 
each  item  in  the  column  which  bears  the  heading,  “ Estimate  of  Town  Super- 
intendent,” is  the  amount  which  I determine  should  be  raised  by  tax  for  the 
purposes  specified. 


FIRST  ITEM. 


Highway  Fund. 


Estimate  of  Amount 
Town  Super-  approved  by 
intendent.  Town  Board. 


For  the  repair  and  improvement  of  town  highways,  in- 
cluding sluices,  culverts,  and  bridges  having  a span 
of  less  than  five  feet $ $ 


SECOND  ITEM. 


Bridge  Fund. 


For  the  repair  and  construction  of  the  bridge  on  the. . 

road,  crossing  the  stream 

known  as  and  located  on  or 

near  the  property  of  

For  the  repair  and  construction  of  the  bridge  on  the 

road,  crossing  the  stream 

known  as  and  located  on  or 

near  the  property  of  

For  the  repair  and  construction  of  the  bridge  on  the 

road,  crossing  the  stream 

known  as  and  located  on  or 

near  the  property  of  

For  the  repair  and  construction  of  the  bridge  on  the 

road,  crossing  the  stream 

known  as  and  located  on  or 

near  the  property  of  

P'or  the  repair  and  construction  of  the  bridge  on  the 

road,  crossing  the  stream 

known  as  and  located  on  or 

near  the  property  of  

For  the  general  repair  of  all  bridges  having  a span  of 

five  feet  or  more  and  not  included  above 

Total  for  bridges  


$ 


$ 


$ 


$ 

$ 

$ 


% 


$ 


$ 


$ 


$ 

$ 


1182 


FORMS. 


THIRD  ITEM. 


Machinery  Fund. 

For  the  purchase  and  repair  of  machinery,  tools  and 


Estimate  ot 
Town  Super- 
intendent. 


implements 


* 


Amount 
approved  by 
Town  Board. 

$ 


FOURTH  ITEM. 

Miscellaneous  Fund. 

For  removal  of  obstructions  caused  by  snow,  cutting 
weeds  and  brush,  wire  fencing,  allowance  for 
shade  trees,  allowance  for  watering  troughs  and 
other  miscellaneous  purposes $ $ 


Town  Superintendent. 

Dated  19. . 


Approval  of  Town  Board. 

We,  the  undersigned,  constituting  a majority  of  the  members  of  the  town 

board  of  the  town  of  in  the  county  of  

do  hereby  approve  the  foregoing  estimate  and  declare  the  amounts  set  opposite 
each  item  in  the  column  headed,  “ The  amount  approved  by  the  Town  Board,” 
is  the  amount  which  shall  be  raised  by  tax  for  the  specific  purpose  mentioned 
therein. 

The  supervisor  is  hereby  authorized  to  increase  the  amount  of  item  one  of 
this  estimate  to  an  amount  which  shall  comply  with  the  requirements  of 
section  90,  subdivision  1 of  the  Highway  Law. 

( Signed  by  members  of  town  board.) 

Note. — This  form  is  prescribed  by  the  State  Commission  of  Highways,  and 
blanks  may  be  had  on  application. 


FORM  No.  110. 

Application  for  Special  Town  Meeting  to  Vote  an  Additional  Sum  for  High- 
ways and  Bridges. 

(Highway  Law,  § 92,  ante.  p.  856.) 

To  Simon  Smith,  Town  Clerk  of  the  Town  of county  of : 

The  undersigned,  town  superintendent  of  highways  and  members  of  the  town 

board  of  the  town  of hereby  make  application  requesting  that 

you  call  a special  town  meeting  of  the  qualified  voters  of  such  town  in  the 
manner  provided  by  law,  for  the  purpose  of  voting  upon  the  following  proposi- 
tion: 

Resolved,  That  there  be  raised  by  tax  in  the  town  of in  the 

year  19..,  the  sum  of:  $ for  the  repairs  and  improvement  of  high- 


FORMS. 


1183 


ways  (or  state  other  purpose  for  which  the  additional  sum  is  required)  in 
addition  to  the  sum  estimated  for  such  purpose  in  the  statement  presented  to 

the  board  of  supervisors  of  the  county  of  by  the  town  board 

of  such  town,  as  provided  by  section  91  of  the  Highway  Law,  and  that  such 
additional  sum  be  levied  and  collected  in  such  town  in  the  same  manner  as 
amounts  are  levied  and  collected  for  other  highway  and  bridge  purposes. 

Dated  this  day  of  , 19.. 

(Signatures  of  town  superintendent  of  highways  and  members  of  town  board.) 


FORM  No.  111. 

Application  for  Submission  of  Proposition  as  to  Highways. 

(Highway  Law,  § 95,  ante , p.  862.) 

To  Simon  Smith , Town  Clerk , Town  of : 

The  undersigned,  town  superintendent  of  highways  and  members  of  the 

towm  board  of  the  town  of hereby  make  application,  pursuant  to 

section  48  of  the  Town  Law,  for  the  submission  of  a proposition  to  be  voted 
upon  by  ballot  by  the  qualified  voters  of  such  town,  as  provided  in  section  95 
of  the  Highway  Law,  at  the  biennial  town  meeting  (or  at  a special  town 

meeting  duly  called  therefor),  to  be  held  in  the  town  of on  the 

day  of 19. .,  for  the  following  purpose  and  in 

the  following  form; 

(Here  state  the  proposition  desired  to  be  voted  upon.) 

And  such  applicants  hereby  request  that  a vote  be  taken  upon  such  propo- 
sition at  such  town  meeting. 

Dated  this  day  of 19.. 

( Signatures  of  town  superintendent  of  highways  and  members  of  town  board.) 


FORM  No.  112. 

Town  Certificates  of  Indebtedness  in  Anticipation  of  Highway  Tax. 


(Highway  Law,  § 96,  ante , p.  862.) 


Know  all  men  by  these  presents , that  the  town  of  County 

of  is  indebted  unto  and  hereby  agrees  and  promises 

to  pay or  order dollars,  on  the 


1184 


FORMS. 


day  of  nineteen  hundred  and  with 

interest  at  six  per  cent  per  annum  for  


Supervisor. 


Town  Clerk. 

This  certificate  of  indebtedness  is  given  pursuant  to  a resolution  adopted  by 

the  town  board  on  the  day  of  and 

now  on  file  in  the  office  of  the  town  clerk. 


Town  Clerk. 

Note. — This  form  is  prescribed  by  the  State  Highway  Commission. 


FORM  No.  113. 


Application  to  Board  of  Supervisors  for  Authority  to  Issue  Bonds  for  Con- 
struction or  Repair  of  Highways  and  Bridges. 


(Highway  Law,  § 97,  ante,  p.  863.) 


To  the  Board  of  Supervisors  of  the  county  of : 

A proposition  having  been  duly  submitted  at  a special  (or  biennial)  town 

meeting,  held  in  the  town  of on  the day  of 

19.  .,  pursuant  to  the  provisions  of  sections  48,  53,  57  and  60  of  the  Town  Law, 
and  § 97  of  the  Highway  Law,  providing  for  the  construction  (rebuilding,  repair 
or  discontinuance)  of  a highway  in  such  town,  as  hereinafter  described  (or 
for  construction,  rebuilding  or  repair  of  certain  bridges  in  such  town),  and  for 

the  borrowing  of  the  sum  of dollars  and  the  issue  of  town*  bonds 

therefor  for  the  purposes  aforesaid,  and  such  proposition  having  been  adopted  by 
a majority  of  the  electors  of  such  town  voting  at  such  town  meeting,  as  will 
appear  from  the  proceedings  of  such  town  meeting  as  to  such  proposition 
duly  certified  by  the  town  clerk,  annexed  to  this  petition  and  made  a part 
hereto; 

Therefore , pursuant  to  the  authority  conferred  upon  us  by  section  97  of 
the  Highway  Law,  we,  the  undersigned,  members  of  the  town  board  of  the 

town  of  state  of  New  York,  do  respectfully  petition  your 

honorable  board  for  authority  to  construct  (rebuild,  repair  or  discontinue)  a 
highway  in  such  town,  described  as  follows: 

(Insert  a detailed  description  of  the  highway  to  be  constructed,  repaired 
or  discontinued;  if  more  than  one  highway  is  to  be  constructed,  rebuilt, 
repaired  or  discontinued,  describe  each  of  them;  if  authority  is  desired  to 
construct,  rebuild  or  repair  one  or  more  bridges,  give  the  location  of  each.) 


FORMS. 


1185 


We  do  further  respectfully  petition  that  your  honorable  board  authorize 

the  said  town  of  to  borrow  the  sum  of  dollars, 

and  to  issue  its  bonds  therefor,  under  such  terms,  conditions  and  restrictions 
as  your  said  board  may  legally  impose,  which  sum  is  to  be  expended  for  the 
construction  (rebuilding,  repair  or  discontinuance)  of  such  highway  (or  con- 
struction, rebuilding  or  repair  of  such  bridges). 

The  fair  cost  and  expense  of  the  construction  (rebuilding,  repair  or  dis- 
continuance) of  the  highway  proposed  to  be  constructed  (rebuilt,  etc.),  is 
estimated  as  follows: 

(Insert  in  items  the  estimated  cost  of  the  proposed  improvement,  or  if 
bridges  are  to  be  constructed,  rebuilt  or  repaired,  the  estimated  cost  of 
each  bridge  and  all  matters  pertaining  thereto.) 

Dated  this day  of 19. . 

( Signed  by  each  member  of  the  town  board.) 


FORM  No.  114. 


Certified  Proceedings  of  Town  Meeting  in  Respect  to  Such  Proposition. 


(Highway  Law,  § 97,  ante , p.  863.) 


STATE  OF  NEW  YORK, 

County  of  

Town  of 


I,  town  clerk  of  the  town  of  county  of 

state  of  New  York,  do  hereby  certify  that  at  a special  town 

meeting  (or  biennial  town  meeting),  held  in  the  town  of at 

in  the  village  of in  said  town,  on  the 

day  of  19..,  the  following  proposition  was  duly  submitted 

thereat  to  the  electors  of  such  town: 

(Insert  proposition  submitted  verbatim.) 

That  there  were  410  votes  cast  for  and  against  such  proposition.  Upon 
a canvass  of  the  votes  so  cast  the  following  result  appeared  and  was  duly 
declared  and  entered: 


Votes  for  such  proposition 340 

Votes  against  such  proposition 70 


In  witness  whereof , I have  hereunto  set  my  hand  and  affixed  the  seal  of 
Baid  town  of  at  such  town,  this  day  of 19.. 

(Signed  by  town  clerk  with  seal  of  town  affixed,  if  any.) 


1186 


FORMS, 


FORM  No.  115. 

Resolution  of  Board  of  Supervisors  Authorizing  Issue  of  Bonds  fob  Con- 
struction of  Bridges  and  Highways. 


(Highway  Law,  § 97,  ante,  p.  863.) 


AN  ACT  authorizing  the  town  of in  the  county  of 

state  of  New  York,  to  borrow  money  and  issue  its  bonds  therefor,  for  the 
purpose  of  paying  the  cost  of  the  construction  (rebuilding  or  repair)  of  a 
highway  (or  bridge)  in  such  town  (describe  highway  or  bridge). 

Passed  on  the day  of 19..,  two-thirds  of  all  the 

supervisors  elected  to  the  board  of  supervisors  of  such  county  voting  in  favor 
thereof. 

The  board  of  supervisors  of  the  county  of  in  pursuance  of 

authority  conferred  by  section  97  of  the  Highway  Law,  and  the  acts  amendatory 
thereof,  and  in  pursuance  of  the  provisions  of  sections  12  and  14  of  the  County 
Law  and  of  sections  6,  7,  8,  9 and  10  of  the  General  Municipal  Law,  do  enact 
as  follows: 

Whereas,  the  town  board  and  commissioners  of  highways  of  the  town  of 

have  made  application  to  this  board  for  authority  to  borrow 

money  in  the  sum  of dollars  upon  the  credit  of  said  town  and  to 

issue  town  bonds  therefor,  to  construct  (repair,  rebuild  or  discontinue)  a high- 
way (or  for  the  construction,  repair  or  rebuilding  of  a bridge),  which  highway 
(or  bridge)  is  located  as  follows:  (Give  location  of  bridge  or  highway),  and 

Whereas,  it  appears  that  the  said  highways  (or  bridges)  were  destroyed  (or 
damaged)  by  the  elements  to  such  an  extent  as  to  become  unsafe  for  public  use, 
and  that  the  estimated  cost  and  expense  of  such  construction  (repair  or  re- 
building) exceeds  the  sum  of  $500,  and  that  such  town  should  be  authorized  to 

borrow  the  sum  of dollars  upon  the  credit  of  such  town  and  issue 

its  bonds  therefor;  now,  therefore,  be  it 

Resolved,  That  the  town  of in  the  county  of 

state  of  New  York,  be  and  is  hereby  authorized  and  empowered  to  issue  its 
bonds  upon  the  credit  of  such  town  to  an  amount  not  to  exceed  the  sum  of 

dollars,  and  to  sell  or  cause  the  same  to  be  sold  at  not  less  than 

their  par  value  to  the  highest  bidder  at  a rate  not  exceeding  5 per  cent,  per 
annum  for  the  purpose  of  paying  the  cost  and  expenses  of  the  construction 
(repair  or  rebuilding)  of  such  highway  (or  bridge);  and 
Resolved,  That  such  bonds  shall  be  signed  by  the  supervisor  and  the  town 

clerk  of  the  said  town  of and  that  the  supervisor  of  such  town  shall 

negotiate  such  bonds  according  to  law  and  as  above  provided,  and  that  he  shall 
apply  the  proceeds  of  the  sale  thereof  to  the  payment  of  the  cost  and  expense 
of  such  construction  (repair  or  rebuilding).  That  the  said  supervisor  before 
issuing  or  negotiating  any  of  said  bonds  shall  make  and  execute  to  the  town 
clerk  of  such  town  in  behalf  of  and  for  the  benefit  of  such  town,  a good  and 
sufficient  bond  or  obligation  in  the  penal  sum  of  dollars,  con- 

ditioned for  the  faithful  performance  of  his  duties  in  issuing  such  bonds,  and 
the  lawful  application  of  the  funds  which  may  be  realized  by  the  sale  thereof, 
and  of  the  funds  that  may  be  raised  by  tax  or  otherwise  for  the  payment  of  the 
bonds  issued  in  pursuance  of  this  act,  and  the  interest  thereon,  which  may 
come  into  his  hands.  Such  bond  oi  obligation  so  made  by  the  said  supervisor. 


FORMS 


118? 


shall  be  approved  by  the  town  board  of  such  town  and  filed  in  the  office  of  the 
town  clerk;  and  be  it  further 

Resolved , That  such  bonds  shall  be  made  payable  at  the Bank, 

in  the  city  of  , and  that  the  interest  on  such  bonds  shall  be 

payable  at  such  bank,  semi-annuaiiy  on  July  1st  and  January  1st  of  each  year. 
That  one  thousand  dollars  of  the  principal  sum  of  such  bonds  shall  be  made 
payable  on  the  1st  day  of  January  in  the  year  19..,  and  one  thousand  dollars 
thereof  shall  be  made  payable  on  the  1st  day  of  January  of  each  and  every  year 
thereafter  up  to  and  including  the  1st  day  of  January  in  the  year  19..;  be  it 
further 

Resolved,  That  before  any  of  the  bonds  authorized  by  this  act  shall  be  issued, 

the  supervisor  of  the  town  of  shall  advertise  for  sealed 

proposals  for  the  amounts  or  part  thereof,  of  said  bonds  so  authorized  to  be 
issued,  but  in  amounts  not  less  than  five  hundred  dollars  each,  such  advertise- 
ment to  be  published  for  two  consecutive  weeks  prior  to  such  issue,  in  two  news- 
papers published  in  the  state  of  New  York,  at  least  one  of  which  shall  be 
published  in  the  county  of ; and  be  it  further 

Resolved,  That  the  form  of  such  bonds  shall  be  as  follows: 

$1,000. 

No 

Bond  of  the  town  of  county  of  and  state  of 

New  York,  for  constructing  (repairing  or  rebuilding)  roads  and  bridges  in  said 
town. 

Know  all  men  by  these  presents,  that  the  town  of county  of 

and  state  of  New  York,  is  held  and  firmly  bound  unto 

in  the  sum  of  one  thousand  dollars  to  be  paid  to  the  said , 

his  or  their  certain  representatives,  successors  or  assigns,  on  the  1st  day  of 

19..,  for  which  payment  well  and  truly  to  be  made  the  said 

town  of binds  itself  firmly  by  these  presents. 

Dated  the day  of 19.. 

The  condition  of  this  obligation  is  such  that  if  the  above  bounden  town 

of  shall  well  and  truly  pay  or  cause  to  be  paid  to  the  above 

named  his  or  their  certain  representatives,  successors  or  as- 

signs, the  sum  of  one  thousand  dollars,  and  annual  interest  upon  all  sums  un- 
paid thereon  to  be  paid  on  the  1st  day  of  as  the  same  shall 

occur,  at  the  rate  of  four  per  cent.,  from  the  date  of  the  last  payment  thereof, 
then  this  obligation  shall  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

All  payments  of  principal  and  interest  to  be  made  at  the  Bank 

in  the  city  of state  of  New  York. 

This  bond  is  issued  in  pursuance  of  section  97  of  the  Highway  Law,  section  14 
of  the  County  Law,  of  the  provisions  of  the  General  Municipal  Law,  and  a reso- 
lution of  the  board  of  supervisors  of county,  passed 

In  witness  whereof,  the  said  town  has  caused  these  presents  to  be  signed  and 
sealed  by  the  supervisor  and  town  clerk  of  said  town. 


Supervisor  of  town  of 


Town  Clerk  of  town  of 

(Town  seal.) 

There  shall  be  attached  to  each  of  said  bonds  the  proper  number  of  interest 
coupons  made  payable  in  accordance  with  this  act,  and  each  of  such  interest 


1188 


FORMS. 


coupons  shall  be  signed  by  the  said  supervisor  and  the  said  town  clerk;  be  it 
further 

Resolved,  That  the  board  of  supervisors  of  the  said  county  of , 

shall  assess  and  levy  upon  the  taxable  property  of  the  said  town  of 

a sufficient  sum  to  pay  the  principal  and  interest  of  said  bonds  from  year  to 

year  as  the  same  shall  mature,  and  the  supervisor  of  said  town  of 

shall  report  the  amount  of  said  principal  and  interest  to  the  said  board  of  super- 
visors as  required  by  law. 


Certificate  of  Chairman  and  Clerk  of  Board. 


STATE  OF  NEW  YORK,  1 
County  of  j-  ss" 

We,  the  undersigned,  chairman  and  clerk  of  the  board  of  supervisors  of  the 

county  of for  the  year  19. .,  do  hereby  certify  that  the  foregoing 

is  a true  copy  of  an  act  passed  by  the  said  board,  by  a two-thirds  vote  of  all  the 
members  elected  thereto,  on  the day  of  19.. 

(Signed  by  chairman  and  clerk  of  board.) 


FORM  No.  116. 


Statement  as  to  Assessed  Valuations  of  Towns  and  Moneys  Raised  for 

Highways. 


(Highway  Law,  § 100,  ante,  p.  866.) 


To  the  Comptroller  of  the  State  of  New  York,  and  to  the  State  Commission  of 
Highways: 

The  following  is  a statement,  submitted  as  required  by  section  100  of  the 
Highway  Law,  of  the  amount  of  tax  levied  by  the  board  of  supervisors  of  the 


county  of upon  the  several  towns  therein,  at  their  annual  session 

in  the  month  of  19 . . , for  the  repair  and  improvement  of  high- 


ways, including  sluices,  culverts  and  bridges  having  a span  of  less  than  five 
feet,  pursuant  to  sections  90,  91,  92,  93,  94  and  95  of  the  Highway  Law: 


Assessed 

Highway  Tax. 

valuation  of 

Assessed 

Assessed 

Real 

valuation  of 

valuation  of 

Name 

Property  in 

Real 

Personal 

op 

whole 

Property  ex- 

Property ex- 

Ordi- 

Addi- 

Extraor- 

Town. 

town,  in- 

clusive of  all 

clusive  of  all 

nary 

tional 

dinary 

cluding 

incorporated 

incorporated 

H.  L. 

H.  L. 

H.  L. 

incorporated 

villages. 

villages. 

§90. 

§92. 

§93. 

villages. 

EH 

I certify  that  the  preceding  statement  is  correct. 


Chairman,  Board  of  Supervisors . 


Clerk,  of  Board  of  Supervisors. 


FORMS. 


1189 


STATE  OF  NEW  YORK, 

County  of  

being  duly  sworn  deposes  and  says  that  he  is  the  chairman  of 

the  Board  of  Supervisors  of  county,  that  he  has  read  the  fore- 

going statement  and  that  the  same  is  true,  to  his  own  knowledge. 


Subscribed  and  sworn  to 

before  me  this day  of 19.. 


FORM  No.  117. 

Undertaking  of  Supervisor  for  Highway  Moneys. 
(Highway  Law,  § 104,  ante,  p.  869.) 


Know  all  men  by  these  presents,  that  we as  supervisor 

of  the  town  of in  the  county  of and  state 

of  New  York,  as  principal  and by  occupation  a 

of N.  Y.,  and by  occupation  a 

of N.  Y.,  and by  occupation  a 

of  N.  Y.,  as  sureties  are  held  and  firmly  bound  unto  the 

town  of  county  of  and  state  of  New 

York,  in  the  penalty  of dollars  to  be  paid  to  the  said  town 

of  for  which  payment  well  and  truly  to  be  made  we 

bind  ourselves,  our  heirs,  executors,  administrators  and  assigns  jointly  and 
severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  this day  of 19. . 

The  conditions  of  this  obligation  are  such  that  whereas  there  was  raised  by 

tax  in  the  year  19. . upon  the  taxable  property  of  the  said  town  of 

the  sum  of  dollars,  for  the  purpose  specified  in  section  90  of 

the  Highway  Law  of  the  state  of  New  York,  and  whereas  the  amount  of  money 

which  the  above  bounden  as  such  supervisor  will  receive  as 

state  aid  in  accordance  with  the  provisions  of  sections  101  and  103  of  the  said 

Highway  Law  will  aggregate  the  sum  of  dollars,  making  the 

total  amount  to  be  received  by  the  above  bounden  as  such  super- 

visor for  all  purposes  specified  in  section  104  of  said  Highway  Law  the  sum 
of  dollars. 

Now,  Therefore,  if  the  bounden  as  supervisor,  as 

aforesaid,  shall  safely  keep,  faithfully  disburse  and  fully  and  justly  account  for 
and  pay  over  all  highway  moneys  levied  and  collected  as  provided  in  article 
V of  the  Highway  Law  aforesaid,  all  moneys  collected  as  penalties  under  said 
law,  or  received  from  any  other  source  and  available  for  highway,  bridge  and 


1190 


FORMS. 


miscellaneous  purposes  and  all  money  received  from  the  State,  as  provided  in 
section  101  of  said  Highway  Law,  then  this  obligation  to  be  void,  otherwise  to 
remain  in  full  force  and  effect. 


l.  s. 
l.  s. 
l.  s. 
l.  s. 


Ack  nowledgement. 

STATE  OF  NEW  YORK, 

County  of  

Town  of  

On  this  day  of  19..,  before  me  the  subscriber 

personally  appeared  

to  me  personally  known  and  known  to  me  to  be  the  persons  described  in  and 
who  executed  the  within  instrument,  and  they  severally  duly  acknowledged  to 
me  that  they  executed  the  same. 


Justice  of  the  Peace  or  Notary  Public. 
Justification. 


STATE  OF  NEW  YORK,  \ 

County  of  v ss. : 

Town  of  ) 

being  severally  and  duly  sworn  each  for 

himself  deposes  and  says:  That  he  is  one  of  the  sureties  named  in  the  fore- 

going bond  or  undertaking,  that  he  is  a freeholder  or  householder  within  the 
state  of  New  York,  and  is  worth  over  and  above  all  debts  and  liabilities  which 
he  owes  or  has  incurred  and  exclusive  of  property  exempt  from  levy  and  sale 

by  virtue  of  execution.  The  said  that  he  is  worth  the 

sum  of  ; the  said  that  he  is  worth 

the  sum  of ; the  said  that  he  is 

worth  (Signed  by  all  sureties.) 

Subscribed  and  sworn  to  before  me  this day  of 19. . 


Justice  of  the  Peace  or  Notary  Public . 


Approval  of  Town  Board. 

We,  the  undersigned  members  of  the  Town  Board  of  the  town  of 

do  hereby  approve  the  foregoing  bond  or  undertaking  as  to  its  form,  manner 
of  execution  and  sufficiency  of  sureties  therein. 

•Dated  19.. 

(10)  

Town  Clerk 


Justice  of  the  Peace. 


FORMS. 


1191 


Certificate  of  Town  Clerk. 

STATE  OF  NEW  YORK,  \ 

County  of  y ss.: 

Town  of  ^ 

I,  Town  Clerk  of  the  town  of do 

hereby  certify  that  the  foregoing  is  a true  copy  of  a bond  or  undertaking  filed 

in  my  office  on  the  day  of 19..,  and  the 

whole  thereof,  together  with  the  approval  of  the  Town  Board  of  said  town  and 
all  endorsements  thereon. 


Town  Clerk. 

Note. — This  form  is  official.  Blanks  are  obtained  on  application  to  the  State 
Highway  Commission. 


FORM  No.  118. 


Agreement  for  the  Expenditure  of  Highway  Moneys. 

(Highway  Law,  § 105,  ante , p.  869.) 

This  agreement  entered  into  this day  of 

19. .,  by  and  between Town  Superintendent  of  the  town 

of and  the  undersigned  members  of  the  Town  Board  of  the 

Town  of  County  of  constituting  a 

Board  for  the  purpose  of  determining  the  places  where,  and  the  manner  in 
which,  the  moneys  levied  and  collected  in  said  town  and  received  from  the  State 
as  State  Aid  shall  be  expended  for  the  repair  and  improvements  of  highways, 

Witnesseth:  That  the  said  moneys  shall  be  expended  for  the  following  pur- 
poses, and  in  the  following  manner: 

1.  It  is  agreed  that  we  hereby  set  aside  for  the  general  primary  work  upon 

the  highways  in  said  town  an  average  sum  of dollars  per 

mile,  for miles,  which  is  the  total  mileage  of  highways  within 

the  town  as  determined  under  sections  69  and  102  of  the  Highway  Law;  said 
amount  to  be  expended  by  the  town  superintendent  in  cleaning  the  ditches  and 
culverts  and  opening  the  outlets  thereof,  removing  stones  from  the  beaten  track 
of  the  highway,  filling  depressions  and  honing  or  rut  scraping  the  highways  as 
occasion  and  conditions  may  require. 

2.  It  is  agreed  that  we  set  aside  for  the  repair  and  construction  of  sluices, 
culverts  and  bridges,  having  a span  of  less  than  five  feet,  and  for  the  removal 

of  waterbreaks  or  so-called  thank-you-ma’ams,  the  sum  of  

dollars. 

3.  It  is  also  agreed  that  we  set  aside  the  following  sums  for  the  permanent 
improvement  of  highways,  exclusive  of  sluices,  culverts  and  bridges  having  a 
span  of  less  than  five  feet,  but  including  tile  draining  at  such  points  as  may 
be  directed  by  the  county  superintendent  upon  the  following  named  roads: 


11  d2 


FORMS. 


On  the  road  commencing  at  and  leading  to 

. a distance  of miles  there  shall  be  expended 

the  sum  of dollars  for  the  following  kind  of  improve- 

ment (describe  improvement).  (Describe  in  same  manner  other  places  in  town 
where  improvements  are  to  be  made.) 

It  is  understood  that  the  plans  and  specifications  prepared  or  approved  or 
directions  given  by  the  county  superintendent  shall  be  in  accordance  with  the 
provisions  of  the  highway  law  and  the  rules  and  regulations  of  the  Commission, 
and  that  in  case  of  any  question  or  questions  which  may  arise  pertaining  to 
such  plans  or  specifications  or  directions  furnished  or  given  by  the  county  super- 
intendent, that  such  questions  may  be  submitted  to  the  Commission  for  ad- 
justment. 

It  is  understood  and  agreed  that  permanent  improvement  of  highways  shall 
mean  the  widening  of  the  public  highways  to  twenty-four  feet  when  practicable, 
the  establishment  of  new  ditches,  fall  or  early  spring  plowing,  shaping  and 
crowning  roads  by  the  use  of  the  road  machine,  the  reduction  of  grades,  cutting 
and  filling,  blasting  rock,  eliminating  sharp  curves,  tile  draining,  and  such 
other  class  of  improvement  as  may  be  performed  in  accordance  with  the  plans 
and  specifications  furnished  or  approved  by  the  county  superintendent  or 
directions  as  he  may  see  fit  to  give;  and 

It  is  also  understood  and  agreed,  that  in  the  shaping  and  crowning  of  the 
highways  by  the  use  of  road  machines  for  grading  and  scraping,  all  wrork  of  that 
character  performed  shall  be  completed  prior  to  the  first  day  of  June  excepting 
that  a special  permit  is  granted  for  certain  pieces  of  work  by  the  Commission 
upon  the  recommendation  of  the  county  superintendent. 

In  order  that  the  district  or  county  superintendent  may,  under  the  rules  and 
regulations  prescribed  by  the  Commission,  exercise  the  supervision  required  by 
Section  33  of  the  Highway  Law,  it  is  understood  and  agreed  that  no  moneys 
set  aside  for  permanent  improvements  as  hereinbefore  specified  shall  be  ex- 
pended nor  shall  any  work  be  undertaken  until  the  town  superintendent  has 
received  a written  permit  from  the  district  or  county  superintendent  approving 
thereof  and  a copy  of  the  same  filed  with  the  supervisor. 

4.  It  is  also  agreed  that  there  be  reserved  in  the  hands  of  the  supervisor  the 

sum  of  $ (This  amount  must  not  be  less  than  ten  per  cent  of 

the  amount  of  money  raised  by  tax,  together  with  the  amount  of  money  paid  as 
State  Aid)  as  a contingent  fund,  to  be  paid  out  upon  the  order  of  the  town 
superintendent  in  accordance  with  written  directions  of  the  county  superin- 
tendent, a copy  of  which  must  be  filed  with  the  supervisor.  This  fund  is  for 
contingencies  arising  subsequent  to  October  31st,  and  to  meet  deficiencies  which 
may  occur  in  numbers  1,  2 and  3. 

Signed  on  this day  of , 19.. 


Supervisor. 
Town  Clerk. 


J 


Justices 
of  the 
Peace. 


Town  Superintendent. 


FORMS. 


1193 


The  foregoing  agreement  is  hereby  approved. 

State  Commission  of  Highways. 

By  

County  Superintendent  Deputy  Commissioner. 

Note. — In  making  up  this  agreement  the  following  amounts  must  be  included, 
and  the  items  of  receipts  and  expenditures  must  balance. 

RECEIPTS. 


Balance,  highway  fund,  from  previous  year $ 

Town  highway  tax  levied  $ 

State  aid  to  be  received $ 

Total  % 


EXPENDITURES  (as  agreed  upon). 

1 —  Average  per  mile,  $ for miles  $ 

2 —  For  repair  and  construction  of  culverts,  sluices, 

and  bridges  having  a span  of  less  than  five 

feet  and  removal  of  waterbreaks $ 

3 —  Total  special  appropriations $ 

4 —  Reserve  fund  $ 

Total  $ % 

Note. — This  form  is  official.  Blanks  are  obtained  on  application  to  the  State 
Highway  Commission. 


FORM  No.  119. 

Report  of  Supervisor  as  to  Highway  Moneys. 

(Highway  Law,  § 107,  ante,  p.  871.) 

To  the  Town  Board  of  the  Town  of : 

I,  supervisor  of  the  town  of  hereby  sub- 

mit the  following  report  of  highway  moneys,  as  required  by  § 107  of  the  High- 
way Law,  for  the  year  ending  October  31,  19. . 

HIGHWAY  FUND. 


Receipts. 


Balance  on  hand  from  previous  year $ 

Highway  tax,  collected  pursuant  to  sections  90  and 

91  

Received  from  State  as  State  aid  pursuant  to  sec- 
tion 101  

Received  from  certificates  of  indebtedness  under 
section  92  


1194 


FORMS. 


Received  from  certificates  of  indebtedness  under 

section  93  

Received  from  certificates  of  indebtedness  under 

section  95  

Received  from  certificates  of  indebtedness  under 

section  96  

Received  from  the  sale  of  bonds  under  sections  97 


and  98  

Received  from  penalties  recovered  

Received  by  transfer  from fund 

Received  from  other  sources  not  mentioned  above. 
Describe  source  

Total  receipts  $ 


Expenditures. 

For  labor  and  team  work  for  the  repair  and  im- 
provement of  highways  $ 

For  rental  of  machinery,  pursuant  to  section  50.. 
For  materials  for  highways  and  bridges  having  a 
span  of  less  than  5 feet 


Total  expenditures  for  the  repair  and  im- 
provement of  highways  $ 

Balance  unexpended  October  31,  19 

BRIDGE  FUND. 

Receipts. 

Balance  on  hand  from  previous  year $ 

Tax  received  from  collector  pursuant  to  sections 

90  and  91  

Received  from  certificates  of  indebtedness  pur- 
suant to  section  92  

Received  from  certificates  of  indebtedness  pur- 
suant to  section  93  

Received  from  certificates  of  indebtedness  pur- 
suant to  section  95  

Received  from  certificates  of  indebtedness  pur- 
suant to  section  96  

Received  from  sale  of  bonds  under  sections  97 

and  98  

Received  by  transfer  from fund 

Received  from  other  sources  not  mentioned  above. 
Describe  source  


Total  receipts  for  repair  and  construction 
of  bridges  $ 


FORMS. 


1195 


Expenditures. 

Labor  and  team  work  for  repair  and  maintenance 

of  bridges  

Materials  for  repair  and  maintenance  of  bridges 

Construction  of  new  bridges 

Transferred  to  fund  


Total  expenditures  for  repair  and  mainte- 
nance of  bridges  $ 

Balance  unexpended,  October  31,  19 $ 


MACHINERY  FUND. 

Receipts. 

Balance  on  hand  from  previous  year $ 

Tax  received  from  collector  pursuant  to  sections 

90  and  91  

Received  from  certificates  of  indebtedness  under 

section  92  

Received  from  certificates  of  indebtedness  under 

section  95  

Received  from  certificates  of  indebtedness  under 

section  96  

Received  by  transfer  from  fund 

Received  from  other  sources  not  mentioned  above. 
Describe  source  


Total  receipts  $ 

Expenditures. 

For  purchase  of  machinery,  tools  and  implements.  $ 

For  repair  of  machinery,  tools  and  implements 

For  storage  of  machinery,  tools  and  implements 


Transferred  to  fund  

Total  expenditures  $ 

Balance  unexpended,  October  31,  19 $ 


SNOW  AND  MISCELLANEOUS  FUND. 


Receipts. 


Balance  on  hand  from  previous  year $ 

Tax  collected  pursuant  to  sections  90  and  91 

Received  from  certificates  of  indebtedness  under 
section  92  


1196 


FORMS. 


Received  from  certificates  of  indebtedness  under 

section  93  

Received  from  certificates  of  indebtedness  under 

section  95  

Received  from  certificates  of  indebtedness  under 

section  96  

Received  from  sale  of  bonds  under  sections  97  and 

93  

Received  from  assessments  for  cutting  and  remov- 


ing weeds  and  brush  

Received  by  transfer  from fund 

Received  from  other  sources  not  mentioned  above. 
Describe  source  

Total  receipts  $ 


Expenditures. 

For  removing  obstructions  caused  by  snow $ 

For  cutting  and  removing  noxious  weeds  and  brush 

For  wire  for  fencing  

For  allowances  for  shade  trees  

For  allowances  for  watering  troughs  

For  other  miscellaneous  purposes.  Describe  the 

purpose  

Transferred  to  fund  $ 


Total  expenditures  $ 


Balance  unexpended,  October  31,  19 $ 

Compensation  to  Town  Superintendent  and  Deputy  Town  Superintendent. 

days  at  $ per  day  equals  $ 

Amount  allowed  for  expenses  $ 

Deputy  Town  Superintendent. 

days  at  $ per  day  equals $ 

Amount  allowed  for  expenses  $ 

Supervisor  and  Town  Clerk’s  Allowance. 

How  much  is  allowed  the  supervisor  pursuant  to  section  110  of 

the  Highway  Law?  $ 

How  much  is  allowed  the  town  clerk  pursuant  to  section  110  of 

the  Highway  Law?  $ 

Laying  Out.  Altering  or  Discontinuing  Highways. 

How  much  was  expended  during  the  past  year  for  the  purpose 

of  laying  out,  altering  and  discontinuing  highways? $ 

How  was  this  money  obtained? 


FORMS. 


119 


STATE  OF  NEW  YORK, 
County  of  


supervisor  of  the  town  of  

being  duly  sworn  deposes  and  says  that  he  is  the  person  mentioned  as  sub- 
mitting the  foregoing  report;  that  the  amounts  stated  therein  to  have  been 
received  by  him  as  supervisor  of  such  town  are  all  that  he  has  received  as  such 
officer  for  the  purposes  therein  stated;  that  the  expenditures  specified  therein 
have  in  fact  been  made  for  the  purposes  and  to  the  persons  indicated;  that  all 
of  such  expenditures  were  made  in  good  faith,  for  value  received  and  in  the 
manner  required  by  the  Highway  Law;  that  the  balances  therein  specified  are 
all  the  moneys  remaining  in  his  hands  of  the  moneys  received  by  him  as  pro- 
vided by  law  on  account  of  the  highways  and  bridges  of  such  town. 


Subscribed  and  sworn  to  before  me,  this 
day  of 19. . 


Justice  of  the  Peace. 

Note. — This  form  is  official.  Blanks  are  obtained  upon  application  to  the 
State  Highway  Commission. 


FORM  No.  120. 

Order  Laying  Out  Highway  on  Release  from  Owners. 


(Highway  Law,  § 191,  ante , p.  908.) 

Application  having  been  made  to  me,  town  Superintendent  of  highways  of  the 

town  of  by  L.  M.,  a person  liable  to  be  assessed  for  highway 

taxes  in  said  town,  and  a release  from  the  owners  of  the  land  through  which 
the  highway  is  proposed  to  be  opened,  having  been  given. 

It  is  hereby  ordered  and  determined  that  a highway  shall  be,  and  the  same 
is  hereby  laid  out  in  said  town  as  follows:  Beginning  (here  insert  the  survey 

bill),  and  the  line  of  survey  shall  be  the  center  of  the  highway,  which  shall 
be  rods  in  width. 

Dated  this day  of 19. . 


A.  B., 


Town  Superintendent  of  Highumys. 


1198 


FORMS. 


FORM  No.  121. 

Dedication  of  Land  and  Release  of  Damages. 

(Highway  Law,  § 191,  ante,  p.  908.) 

Know  all  men  by  these  presents,  that  I,  R.  S.,  of  the  town  of 

in  the  county  of  , N.  Y.,  for  value  received,  hereby  dedicate  to 

the  town  of  , aforesaid,  a strip  of  land  across  my  premises  in 

said  town,  for  the  purpose  of  a highway,  described  as  follows:  (Here  de- 
scribe premises  dedicated.)  And  I also  hereby  release  said  town  from  all 
damages  by  reason  of  the  laying  out  and  opening  of  said  highway. 

In  witness  whereof,  I have  hereunto  set  my  hand  and  seal,  this 

[seal]  day  of 19. . 

R.  S. 


FORM  No.  122. 

Order  Laying  Out  or  Altering  a Highway  With  the  Consent  of  Town  Board. 

(Highway  Law,  § 191,  ante , p.  908.) 

Written  application  having  been  made  to  me,  town  Superintendent  of  high- 
ways for  the  town  of  by  L.  M.,  a person  liable  to  be  assessed  for 

highway  taxes  in  said  town,  &nd  the  written  consent  of  the  town  hoard  of 
said  town  having  been  given  as  prescribed  by  law,  and  releases  from  damages 
having  been  executed  by  the  owners  of  the  land  through  which  the  proposed 
highway  is  to  be  opened,  copies  of  which  are  hereto  annexed,  the  consideration 
paid  to  any  one  claimant  for  such  damages,  not  exceeding  $100,  and  of  all  the 
claimants  not  exceeding  $500; 

It  is  hereby  ordered  and  determined  that  a highway  shall  be,  and  the  same 
is  hereby  laid  out  in  said  town  as  follows:  (Here  insert  survey  bill.)  And 

the  line  of  survey  shall  be  the  center  of  the  highway,  which  shall  be 

rods  in  width. 

Dated  this day  of 19. . 

A.  B., 


Toion  Superintendent  of  Highways , 
Town  of 


FORMS. 


1199 


FORM  No.  123. 

Release  of  Damages  by  Owners  of  the  Land. 


(Highway  Law,  § 191,  ante , p.  908.) 


Know  all  men  by  these  presents,  that  I,  R.  S.,  of  the  town  of 

county  of N.  Y.,  for  and  in  consideration  of  the  sum  of 

(not  exceeding  $100),  hereby  consent  that  a highway  be  laid  out  and  opened 

(or  altered)  across  my  premises  in  the  town  of  county  of 

N.  Y.,  pursuant  to  the  application  of  L.  M.,  dated  the 

day  of  19..,  and  release  said  town  from  all  damages  by 

reason  of  laying  out  and  opening  (or  altering)  such  highway  through  my 
premises. 

In  witness  whereof,  I have  set  my  hand  hereunto,  on  this  day  of 


STATE  OF  NEW  YORK, 
County  of  


On  this  day  of 19..,  before  me,  the  subscriber, 

personally  appeared  R.  S.,  to  me  known  to  be  the  person  described  in,  and 
who  executed  the  foregoing  agreement.  G.  H., 

Justice  of  the  Peace. 


FORM  No.  124. 

Consent  of  Town  Board  to  Lay  Out  or  Alter  a Highway. 


(Highway  Law,  § 191,  ante,  p.  908.) 

The  undersigned,  the  town  board  of  the  town  of  in  the 

county  of  hereby  consent  that  the  town  superintendent  of 

highways  of  said  town  make  an  order  laying  out  (or  altering)  the  proposed 
highway  described  in  the  application  of  L.  M.,  pursuant  to  section  191  of  the 
Highway  Law. 

In  witness  whereof,  we  have  hereunto  set  our  hands  on  day  of 

19.. 


i Signed  by  each  member  of  town  board.) 


1^00 


FORMS. 


FORM  No.  125. 

Application  to  Lay  Out  a Highway. 
(Highway  Law,  § 193,  ante,  p.  912.) 


To  the  Town  Superintendent  of  Highways  of  the  town  of in  the 

county  of : 

The  undersigned,  an  inhabitant  of  said  town  of  liable  to  be 


assessed  for  highway  taxes  therein,  hereby  applies  to  you  to  lay  out  a high* 
way  in  said  town,  commencing  (describe  the  proposed  highway),  which  pro- 
posed highway  will  pass  through  the  lands  of  R.  S.  and  T.  W.  (who  consent 
to  the  laying  out  of  the  highway,  or  as  the  case  may  be). 

Dated  this  day  of 19. . 

L.  M. 


FORM  No.  126. 

Application  to  Alter  a Highway. 
(Highway  Law,  § 193,  ante , p.  912.) 


To  the  Town  Superintendent  of  Highways  of  the  town  of in  the 

county  of : 

The  undersigned,  an  inhabitant  of  said  town  of  liable  to 


be  assessed  for  highway  taxes  therein,  hereby  applies  to  you  to  alter  the 

highway  leading  from  to  in  said  town  as  follows: 

(Insert  particular  description  of  the  proposed  alteration  by  courses  and 
distances.)  The  proposed  alteration  passes  through  the  lands  of  R.  S.  and 
T.  W.  (who  consent  to  the  proposed  alteration,  or  as  the  case  may  be). 

Dated  this day  of 19.. 

L.  M. 


FORM  No.  127. 

Application  to  Discontinue  a Highway. 
(Highway  Law,  § 193,  ante,  p.  912.) 


To  the  Town  Superintendent  of  Highways  of  the  town  of in  the 

county  of  .* 

The  undersigned,  an  inhabitant  of  said  town  of  liable  to  be 


assessed  for  highway  taxes  therein,  hereby  applies  to  you  to  discontinue  the 
old  highway  beginning  (insert  description),  on  the  ground  that  said  highway 
has  been  abandoned. 

Dated  this day  of 19. . 


L.  M. 


FORMS. 


1201 


FORM  No.  128. 


Application  for  Appointment  of  Commissioners. 
(Highway  Law,  § 193,  ante,  p.  912.) 
COUNTY  COURT— County  of 


In  the  Matter 
of  the 

Application  of  L.  M.  to  lay  out  (alter  / 
or  discontinue)  a highway  in  the  f 

town  of  and  the 

assessment  of  damages  therefor. 


The  petition  of  L.  M.,  of  the  town  of in  said  county,  respect- 

fully shows  that  your  petitioner  is  a person  liable  to  be  assessed  for  highway 

taxes  in  the  town  of said  county;  that  on  the day 

of  19..,  he  presented  an  application  in  writing  to  the  com- 
missioners of  highways  of  said  town  as  follows:  (Insert  copy  of  application 

to  the  commissioners.)  That  said  application  was  in  good  faith  made;  that 
the  commissioners  of  highways  have  not  laid  out  (altered  or  discontinued) 
said  highway  pursuant  to  section  191  of  the  Highway  Law;  that  the  lands 
have  not  been  dedicated  for  the  purpose  of  such  highway  by  the  owners 
thereof,  nor  have  such  lands  been  released  by  such  owners  for  such  purpose. 

Wherefore , your  petitioner  prays  that  three  commissioners  be  appointed 
pursuant  to  section  194  of  the  Highway  Law,  to  determine  upon  the  necessity 
of  the  proposed  highway  (or  altering  or  discontinuing  the  said  highway),  and 
to  assess  the  damages  by  reason  of  laying  out  and  opening  (or  altering  or 
discontinuing)  such  highway. 

Dated  this  day  of 19.. 

L.  M. 

STATE  OF  NEW  YORK, 

County  of  

L.  M.,  being  duly  sworn,  says  he  has  read  the  foregoing  petition  by  him 
subscribed,  and  that  the  same  is  true  to  the  knowledge  of  deponent,  except 
as  to  the  matters  therein  stated  to  be  alleged  on  information  and  belief,  and 
as  to  those  matters  he  believes  it  to  be  true. 

L.  M. 

Subscribed  and  sworn  to  before  me, 
this day  of , 19.. 

G.  H., 

Justice  of  the  Peace. 


[Application  to  be  accompanied  by  the  written  undertaking  of  the  petitioner 
securing  payment  of  compensation  of  commissioners  and  costs,  if  unsuccessful.] 


1202 


FORMS. 


FORM  No.  129. 

Order  Appointing  Commissioners. 

(Highway  Law,  § 194,  ante,  p.  915.) 

At  a term  of  the  County  Court  of  the  county  of 

held  at  in  the  in  and  for  said  county. 

Present — Hon.  E.  E.,  County  Judge. 

(Title  as  in  Form  No.  128.) 

On  reading  and  filing  the  petition  of  L.  M.,  of  the  town  of in 

said  county,  dated  the ....  day  of  19..,  praying  for  three 

commissioners  to  be  appointed,  pursuant  to  section  194  of  the  Highway  Law, 
to  certify  as  to  the  necessity  of  laying  out  and  opening  (altering  or  discon- 
tinuing) a highway  beginning  (insert  the  description)  and  to  assess  the 
damages  by  reason  of  laying  out  (altering  or  discontinuing)  such  highway. 

It  is  hereby  ordered  that  S.  S.,  G.  G.  and  J.  J.,  of  the  town  of , 

said  county,  be,  and  they  are  hereby  appointed  as  such  commissioners. 


FORM  No.  130. 

Notice  to  Commissioners  of  Their  Appointment. 

(Highway  I.awr,  § 194,  ante,  p.  915.) 

To  8 . 8.,  G.  G.  and  J.  J.: 

Take  notice,  that  you  and  each  of  you  have  been  duly  appointed  com- 
missioners, by  an  order  of  the  County  Court,  a copy  of  which  is  hereto  an- 
nexed, and  you  are  hereby  required  to  fix  a time  and  place  at  which  you  will 

all  meet  to  hear  the  town  superintendent  of  highways  of  the  town  of 

and  all  other  persons  interested  in  the  highway  mentioned  in  the  said 

order. 

Dated  this  day  of  19.. 

L.  M. 


FORM  No.  131. 

Notice  of  Meeting  of  Commissioners. 

(Highway  Law,  § 195,  ante,  p.  917.) 

Notice  is  hereby  given  that  the  undersigned  has  made  application  to  the 

town  superintendent  of  highways  of  the  town  of in  the  county  of 

for  the  laying  out  (altering  or  discontinuing)  of  a highway  in 

said  town,  commencing  (here  insert  description  as  in  application),  which 


FORMS. 


1203 


proposed  (or  altered)  highway  will  pass  through  the  lands  of  (describe  who), 

and  by  an  order  of  the  County  Court  dated  the day  of , 

19..,  S.  S.,  G.  G.  and  J.  J.  were  appointed  commissioners  to  examine  as  to 
the  necessity  of  said  proposed  highway  (alteration  or  discontinuance),  and  to 
assess  the  damages  by  reason  of  the  laying  out  and  opening  (alteration  or 
discontinuance)  of  such  highway;  and  that  said  commissioners  will  all  meet 

at  in  said  town,  on  the  day  of  19.., 

at  ....,  o’clock  in  the  noon,  to  examine  the  proposed  highway  (or 

the  highway)  and  hear  the  town  superintendent  of  highways  of  the  town  of 

and  all  others  interested  therein,  and  to  assess  the  damages  if 

such  highway  be  determined  to  be  necessary  (or  is  altered  or  discontinued). 

Dated  this  day  of  , 19.. 

L.  M. 


FORM  No.  132. 

Affidavit  of  Posting  and  Service  of  Notice. 

(Highway  Law,  § 195,  ante,  p.  917.) 

STATE  OF  NEW  YORK,  > 

r SS  * 

County  of j 

L.  M.,  being  duly  sworn,  says  that  he  caused  notices  in  writing,  of  which 

the  within  is  a copy,  to  be  posted  up  at  at  and 

three  public  places  in  the  town  of  said  county, 

on  the  day  of  19..,  and  that  he  served  a like  notice 

on  (name  all  the  owners  and  occupants  of  the  lands  through  which  the  high- 
way is  proposed  to  be  laid  out,  altered  or  discontinued)  on  the  day 

of 19. .,  by  (state  how  served),  and  that  said  notices  were  posted 

at  the  respective  places,  and  served  on  the  respective  persons  herein  named, 
at  least  eight  days  before  the  time  specified  therein  for  the  meeting  of  said 
commissioners. 

L.  M. 

Subscribed  and  sworn  to  before  me, 
this day  of 19. . 

G.  H., 

Justice  of  the  Peace. 


FORM  No.  133. 

Certificate  of  Commissioners  in  Favor  of  Applicant. 

(Highway  Law,  § 196,  ante , p.  917.) 

(Title  as  in  Form  No.  128,  ante.) 

The  undersigned,  by  an  order  of  the  County  Court  of  county, 

dated  the  day  of  , 19..,  on  the  application  of  L.  M.„ 


1204 


FORMS. 


having  been  appointed  commissioners  to  determine  as  to  the  necessity  of 
laying  out  and  opening  (altering  or  discontinuing)  a highway  in  the  town  of 
in  said  county,  beginning  (describe  highway  as  in  the  appli- 
cation) which  proposed  highway  (or  highways)  crosses  the  lands  of  (name 
the  persons)  and  to  assess  and  damages  to  be  caused  thereby; 

Now  therefore , we,  the  said  commissioners,  having  given  due  notice  of  the 

time  and  place  at  which  we  would  meet,  and  all  having  met  at  

in  said  town  on  the  day  of  19..,  pursuant  to  such 

notice,  and  having  taken  the  constitutional  oath  of  office,  and  on  proof  of 
the  service  and  posting  of  the  notices  by  the  applicant,  pursuant  to  section 
195  of  the  Highway  Law,  having  viewed  the  proposed  highway  (or  highway 
proposed  to  be  discontinued  or  altered)  and  the  lands  through  which  it  is 
proposed  to  be  laid  out  and  opened  (altered  or  discontinued)  and  having 

heard  the  town  superintendent  of  highways  of  the  town  of  and 

the  parties  interested  therein,  and  the  evidence  of  all  the  witnesses  produced; 

Now,  therefore,  we  do  hereby  determine,  and  certify,  that  in  our  opinion 
it  is  necessary  and  proper  that  the  highway  be  laid  out  and  opened  (altered 

or  discontinued)  pursuant  to  the  said  application  of  L.  M.,  dated  the  

day  of  , 19..;  and  we  have  assessed  the  damages  required  to  be 

assessed  by  reason  of  laying  out  and  opening  (altering  or  discontinuing)  such 
highway,  as  follows: 

The  damages  of  N.  N.  at  $ ; the  damages  of  W.  W.  at  $ 

Dated  this  day  of  19.. 

S.  S., 

G.  G., 

J.  J., 

Commissioners. 


FORM  No.  134. 

Certificate  Denying  Application. 

(Highway  Law,  § 198,  ante,  p.  919.) 

(Title  as  in  Form  No.  128,  ante.) 

The  undersigned,  by  an  order  of  the  County  Court  of  county, 

dated  the  day  of  19..,  on  the  application  of  L.  M., 

having  been  appointed  commissioners  to  certify  as  to  the  necessity  of  laying 
out  and  opening  (altering  or  discontinuing)  a highway  in  the  town  of 
in  said  county,  beginning  (describe  highway  as  in  the  appli- 
cation) which  proposed  highway  (or  highways)  crosses  the  lands  of  (name 
the  persons)  and  to  assess  the  damages  to  be  caused  thereby; 

Now,  therefore,  we,  the  said  commissioners,  having  given  due  notice  of  the 

time  and  place  at  which  we  would  meet,  and  all  having  met  at 

in  said  town,  on  the  day  of  19..,  pursuant  to  such 

notice,  and  having  taken  the  constitutional  oath  of  office,  and  on  proof  of 


FORMS. 


1205 


the  service  and  posting  of  the  notices  by  the  applicant,  pursuant  to  section 
195  of  the  Highway  Law,  having  viewed  the  proposed  highway  (or  alteration 
or  highway  proposed  to  be  discontinued)  and  the  lands  through  which  it  is 
proposed  to  be  laid  out  and  opened  (altered  or  discontinued),  and  having 
heard  all  the  allegations  of  the  town  superintendent  of  highways  and  the  parties 
interested  therein,  and  the  evidence  of  all  the  witnesses  produced; 

Now,  tnerefore,  we  do  hereby  determine  and  certify  that  in  our  opinion 
such  highway,  or  alteration  or  discontinuance,  is  unnecessary  and  improper 
and  should  not  be  laid  out  (or  should  not  be  made,  or  such  highway  should 
not  be  discontinued). 

Dated  this day  of 19.. 

S.  S., 

G.  G., 

J.  J., 

Commissioners. 


FORM  No.  135. 

Notice  of  Motion  to  Confirm,  Vacate  or  Modify  Decision. 

(Highway  Law,  § 199,  ante,  p.  919.) 

(Title  as  in  Form  No.  128.) 

To  N.  M.  and  W.  W.: 

Take  notice  that  an  application  will  be  made  to  this  court  at  a 

term  thereof,  to  be  held  at  the  in  the  of  

on  the  day  of  19..,  for  an  order  confirming  (vacating 

or  modifying,  stating  in  what  particulars)  the  decision  of  the  commissioners  in 

the  above  entitled  matter,  which  decision  is  dated  the  day  of 

19..,  and  for  such  other  and  further  relief  as  to  the  court  may 

seem  proper;  that  said  application  will  be  made  upon  said  decision  and  upon 
the  affidavits  and  papers,  with  copies  of  which  you  are  herewith  served. 

Dated  this day  of 19.. 

L.  M. 


FORM  No.  136. 

Order  Confirming  Decision  of  Commissioners. 

(Highway  Law,  § 199,  ante,  p.  919.) 

At  a term  of  the  County  Court,  held  at  the  in 

the of on  the day  of 19.  . 

Present — Hon.  E.  E.,  County  Judge. 

(Title  as  in  Form  No.  128.) 

On  reading  and  filing  the  decision  of  the  commissioners,  S.  S.,  G.  G.  and 
J.  J.,  in  the  above  entitled  matter,  dated  the day  of 


120G 


FORMS. 


19..,  by  which  it  appears  (state  substance  of  decision),  with  proof  of  due 
service  upon  N.  N.  and  W.  W.  of  notice  of  this  application  and  (state  other 
papers),  and  on  motion  of  A.  D.,  counsel  for  L.  M.,  after  hearing  B.  B., 
counsel  for  N.  N.  and  W.  W.,  opposed,  and  on  reading  (name  the  papers) ; 

It  is  hereby  ordered  that  the  said  decision  be  and  the  same  is  hereby  con- 
firmed (or  vacated,  or  modified  or  corrected  as  follows:  state  how),  with 

costs  amounting  to  $ in  favor  of  and  against  

E.  E., 

County  Judge. 


FORM  No.  137. 

Commissioners’  Certificate  to  the  County  Court  to  Lay  Out  a Highway 
Through  an  Orchard. 

(Highway  Law,  § 200,  ante,  p.  921.) 

(Title  as  in  Form  No.  128.) 

The  undersigned,  town  superintendent  of  highways  of  the  town  of , 

in  said  county,  hereby  certifies  that  on  the day  of 19. 

L.  M.,  who  is  liable  to  be  assessed  for  highway  taxes  in  said  town,  made  a 
written  application  to  me  as  such  superintendent  to  lay  out  a highway  in  said 
town,  passing  through  an  orchard  of  T.  W.,  of  the  growth  of  four  years  or 
more,  pursuant  to  section  200  of  the  Highway  Law,  as  follows:  (Insert  a copy 
of  the  application).  And  that  the  said  T.  W.  does  not  consent  thereto;  that 
the  following  proceedings  were  had  upon  such  application:  (Insert  a history 

of  the  proceedings  up  to  and  including  the  decision  of  the  commissioners  ap- 
pointed by  the  courts.)  We  further  certify  that  the  public  interest  will  be 
greatly  promoted  by  the  laying  out  and  opening  of  such  highway  through 
said  orchard;  and  commissioners  appointed  by  this  court  have  certified  that 
such  highway  is  necessary  and  proper,  and  have  assessed  the  damages  of 
T.  W.  by  reason  thereof,  at  $ 

Dated  this day  of ,19.. 

A.  B., 

Town  Superintendent  of  Highways. 


FORM  No.  138. 

Order  of  County  Court  to  Lay  Out  Highway. 

(Highway  Law,  § 200,  ante,  p.  921.) 

At  a term  of  the County  Court,  held  at in  the 

of , on  the day  of 19. . 

Present — Hon.  E.  E.,  County  Judge. 

(Title  as  in  Form  No.  128.) 


FORMS. 


1207 


Upon  reading  and  filing  the  certificate  of  A.  B.,  town  superintendent  of  high- 
ways of  the  town  of  , in  the  county  of , dated 

the  day  of  19..,  stating  (here  state  the  sub- 

stance of  the  facts  in  the  certificate)  with  proof  of  due  service  of  notice  of 
this  motion,  and  upon  reading  the  (state  what  papers),  and  after  hearing  A.  D., 
of  counsel  for  the  applicant,  and  B.  B.,  of  counsel  for  T.  W.,  opposed; 

It  is  hereby  ordered  that  said  highway  be  laid  out  and  opened  pursuant  to 
section  200  of  the  Highway  Law,  with  ten  dollars  costs  of  this  motion. 

E.  E., 

County  Judge. 


FORM  No.  139. 

Order  of  the  Appellate  Division. 

(Highway  Law,  § 200,  ante , p.  921.) 

In  the  Appellate  Division  of  the  Supreme  Court,  in  the  depart- 
ment, held  at  the  court  house,  in  the  city  of on  the 

day  of  19. . 

Present — Hon.  H.  R.,  P.  J.;  Hon.  B.  D.,  Hon.  C.  E.,  Hon.  F.  G.,  and  Hon. 

A.  J.,  Justices  of  the  Supreme  Court. 

(Title  as  in  Form  No.  128.) 

A.  B.,  as  town  superintendent  of  highways  of  the  town  of  

in  the  county  of  having  presented  to  us  the  order  of  the 

County  Court  of county,  dated  the day  of 

19..,  that  a highway  be  laid  out  in  said  town,  passing  through  the  orchard 
of  T.  W.,  of  the  growth  of  four  years  or  more,  pursuant  to  section  200  of  the 
Highway  Law,  the  said  T.  W.,  not  consenting  thereto,  with  the  certificate  and 
proofs  upon  which  the  said  order  was  granted,  duly  certified  by  such  court,  with 
proof  of  due  service  of  notice  of  this  motion  on  the  said  T.  W.,  and  after  hearing 

B.  B.,  of  counsel  for  the  applicant,  on  the  motion,  and  X.  B.,  of  counsel  for  T.  W., 
opposed; 

It  is  hereby  ordered  that  the  said  order  of  such  County  Court  be,  and  the 
same  is  hereby  confirmed,  with  $ costs  of  this  motion. 


FORM  No.  140. 

Application  for  a Private  Road. 

(Highway  Law,  § 211,  ante , p.  931.) 

To  the  Town  Superintendent  of  Highways  of  the  town  of in  the 

county  of : 

The  undersigned,  an  inhabitant  of  said  town  and  liable  to  be  assessed  for 
highway  taxes  therein,  hereby  makes  application  to  you  to  lay  out  a private 


1208 


FORMS. 


road  for  his  use  and  benefit,  beginning  (insert  description,  giving  its  width 
and  location,  courses  and  distance)  and  said  proposed  road  will  run  through 
the  land  of  T.  W.,  occupied  by  R.  S. 

Dated  this day  of , 19.. 

L.  M. 


FORM  No.  141. 

Description  of  Highway  Abandoned. 

(Highway  Law,  § 234,  ante , p.  938.) 

I,  the  undersigned,  town  superintendent  of  highways  of  the  town  of 

in  the  county  of  hereby  certify  that  the  highway 

(here  describe  it),  has  been  abandoned  by  the  public,  and  is  no  longer  used  as 
a public  highway;  and  pursuant  to  section  234  of  the  Highway  Law,  the  same 
is  discontinued. 

Dated  this day  of ...,  19.. 

A.  B., 

Town  Superintendent  of  Highways. 


FORM  No.  142. 

Statement  to  the  Supervisor  of  Expenses  Incurred  in  Repair  of  Bridges. 
(Highway  Law,  § 251 ante,  p.  947.) 


I,  A.  B.,  supervisor  of  the  town  of  in  the  county  of 

pursuant  to  section  251  of  the  Highway  Law,  hereby  render  to 

the  board  of  supervisors  of  said  county  a statement  of  the  expenses  incurred  by 
us  in  the  erection  and  repair  of  the  free  public  bridges  of  said  town  as  follows: 
(Here  give  an  itemized  account  of  the  expenses  incurred  on  each  of  the  bridges.) 

Dated  this day  of 19. . 

A.  B., 


STATE  OF  NEW  YORK, 
County  of 


Supervisor,  town  of 


A.  B.,  supervisor  of  said  town,  being  duly  sworn,  says  the  foregoing  statement, 
which  is  subscribed  by  him,  is  true. 

A.  B. 

Subscribed  and  sworn  to  before  me, 

this  day  of  19.. 

G.  H„ 

Justice  of  the  Peace . 


FORMS. 


1209 


FORM  No.  143. 

Notice  to  Town  Board  of  Adjoining  Towns  to  Repair  Bridge. 

(Highway  Law,  § 255,  ante,  p.  949.) 

To  the  Town  Board  of  the  toion  of in  the  county  of : 

Whereas,  the  bridge  (here  describe  it)  has  become,  and  is,  unsafe  for  public 
use  and  travel  (state  in  what  respect),  you  are  hereby  notified  and  required 
to  direct  the  town  superintendent  of  highways  of  your  town  to  join  with  the 

town  superintendent  of  highways  of  the  town  of in  the  county 

of in  rebuilding  (or  repairing)  said  bridge,  and  to  give  your 

consent  in  writing  to  the  same  within  twenty  days  after  the  service  of  this 
notice,  pursuant  to  section  255  of  the  Highway  Law. 

Dated  this day  of 19.. 

[Signed  by  members  of  town  board .] 


FORM  No.  144. 

Consent  to  Rebuild  or  Repair  Bridge. 

(Highway  Law,  § 255,  ante,  p.  949.) 

To  the  Town  Board  of  the  town  of in  the  county  of : 

Pursuant  to  your  notice  served  on  us,  dated  the day  of 

19. .,  and  to  section  255  of  the  Highway  Law,  we,  the  undersigned  members  of 

the  town  board  of  the  town  of in  the  county  of 

hereby  consent  to  join  with  you  in  rebuilding  (or  repairng)  the  (designate  the 
bridge)  it  being  the  same  bridge  mentioned  in  your  said  notice,  and  have  di- 
rected, J.  D.,  the  town  superintendent  of  this  town,  to  join  with  the  town  super- 
intendent of  your  town  in  rebuilding  (or  repairing)  the  said  bridge. 

Dated  this day  of 19. . 

[Signatures  of  members  of  town  board.] 


FORM  No.  145. 

Petition  of  Freeholders  to  Commissioners  of  Adjoining  Towns. 
(Highway  Law,  § 256,  ante , p.  950.) 

To  the  Town  Board  of  the  town  of  in  the  county  of 

and  the  Town  Board  of  the  town  of in  the  county  of : 

We,  the  undersigned,  L.  M.,  N.  O.  and  R.  S.,  do  respectfully,  pursuant  to 
section  256  of  the  Highway  Law,  petition  and  apply  to  you,  and  show  that  we  are 
each  of  us  freeholders  of  the  said  town  of and  that  the  high- 

way bridge  known  as  the  (here  designate  the  bridge)  which  crosses  the  (name 


1210  FORMS. 

the  stream),  a stream  forming  the  boundary  line  between  said  towns  of 

and  has  become  and  is  out  of  repair  and  is  unsafe 


for  public  use  and  travel  (state  in  what  respects),  that  said  bridge  has  been 
repaired  and  maintained  at  the  joint  expense  of  said  towns,  and  said  towns  are 
jointly  liable  to  make  and  maintain  a bridge  at  said  point. 

And  we  hereby  petition  and  apply  to  you,  the  said  town  boards,  to  cause  the 
said  bridge  to  be  rebuilt  (or  repaired)  at  said  point. 

Dated  this day  of 19. . 

L.  M. 

N.  O. 

R.  S. 


FORM  No.  146. 

Notice  of  Motion  for  Order  Compelling  Construction  or  Repair  of  Bridge. 

(Highway  Law,  § 256,  ante,  p.  950.) 

SUPREME  COURT — County  of 


In  the  Matter 
of  the 

Application  of  L.  M.,  N.  O.  and  R.  S.  for 
an  order  requiring  the  commissioners  f 

of  highways  of  the  towns  of 

and  to  rebuild  the 

bridge  known  as 


To  the  Town  Board  of  the  town  of in  the  county  of 

and  the  Town  Board  of  the  town  of in  the  county  of * 

Take  notice  that  an  application  will  be  made  to  this  court  at  a special  term 

thereof,  to  be  held  at  the  court  house,  in  the  of 

on  the day  of 19. .,  at  the  opening  of  the  court  on 

that  day  or  as  soon  thereafter  as  the  parties  may  be  heard,  for  an  order  re- 
quiring you,  the  said  commissioners,  to  rebuild  (or  repair)  the  bridge  men- 
tioned in  the  affidavit  hereto  attached,  and  requiring  money  to  be  appropriated 
or  raised  therefor,  and  for  such  other  and  further  relief  as  to  the  court  may 
seem  just  and  proper.  The  application  will  be  made  on  affidavit  and  papers, 
copies  of  which  are  herewith  served  on  you. 

Dated  this day  of 19. . 


L.  M. 
N.  O. 
R.  S. 


FORMS. 


1211 


FORM  No.  147. 

Affidavit  on  Motion  for  an  Order  to  Build  a Bridge. 

(Highway  Law,  § 256,  ante , p.  950.) 

(Title  as  in  preceding  Form.) 

STATE  OF  NEW  YORK,  ) 

- ss  * 

County  of ^ 

L.  M.,  N.  O.  and  R.  S.,  being  severally  and  duly  sworn,  say  that  they  are 

freeholders  of  the  town  of  said  county,  and  that  said  town 

joins  the  town  of , in  the  county  of and  the 

(name  the  stream)  forms  the  boundary  line  between  said  towns;  that  at  (de- 
scribe where)  a free  public  bridge  has  been  maintained  at  the  joint  expense  of 
said  towns,  and  said  towns  are  jointly  liable  for  the  building,  rebuilding,  re- 
pair and  maintenance  of  such  bridge  at  such  point;  that  such  bridge  is  (describe 
the  kind  of  bridge  fully)  and  has  become  unsafe  and  unfit  for  public  use  and 
travel  (describe  fully  the  condition  the  bridge  is  in),  and  that  in  our  opinion 
it  would  be  more  for  the  interests  of  the  said  towns  to  rebuild  than  to  repair 

said  bridge  (or  as  the  case  may  be);  that  on  the day  of 

19..,  the  above-named  affiants  united  in  a petition  to  the  town  board  of  said 

town  of , and  the  town  board  of  the  said  town  of , 

pursuant  to  section  256  of  the  Highway  Law,  which  petition  was  duly  served 
on  the  supervisor  of  each  of  said  towns,  and  which  requested  them  to  rebuild 

(or  repair)  said  bridge  at  said  point;  that  thereafter  and  on  the  

day  of 19. .,  said  town  boards  served  on  us  a written  refusal 

as  follows:  (Here  set  forth  the  refusal);  that  in  our  opinion  an  (iron)  bridge 

should  be  built,  and  that  the  expense  should  be  between  $ and  $ 

(approximate  the  expense  as  nearly  as  possible  and  insert  any  other  facts 
deemed  necessary). 

L.  M. 

N.  O. 

R.  S. 

Subscribed  and  sworn  to  before  me, 

this  ....  day  of 19. . 

G.  H., 

Notary  Public. 


FORM  No.  148. 

Order  of  Court  to  Rebuild  Bridge. 

(Highway  Law,  § 257,  ante.  p.  951.) 

At  a Special  Term  of  the  Supreme  Court,  held  at  the  court  house,  in  the. 

of on  the day  of 19  • 

Present — Hon Justice. 

(Title  of  case  as  in  Form  No.  146.) 


1212 


FORMS. 


On  reading  and  filing  the  affidavit  of  L.  M.,  N.  0.  and  R.  S.,  dated  the 

day  of , 19. .,  setting  forth  that  (here  set  forth  the  substantial 

facts  of  the  affidavit),  with  proof  of  due  service  of  a copy  of  said  affidavit  and 

notice  of  motion  upon  the  supervisor  of  each  of  the  towns  of  

and  after  hearing  J.  D.,  of  counsel  for  said  applicants,  in  favor  of  said  motion, 
and  D.  B.,  of  counsel  (or  no  one  appearing)  for  the  said  town  boards  in  opposi- 
tion thereto, 

It  is  hereby  ordered , pursuant  to  section  257  of  the  Highway  Law,  that  said 
town  boards  cause  to  be  built  (or  repaired)  a (here  describe  the  kind  of  bridge) 
at  (here  describe  the  place),  at  the  joint  expense  of  said  towns,  not  to  exceed 
dollars,  and  that  one-half  of  the  said  expense  shall  be  charge- 
able to  each  of  said  towns,  to  be  assessed,  levied  and  collected  thereon,  as 
other  town  charges  are  assessed,  levied  and  collected. 


FORM  No.  149. 

Application  to  Board  of  Supervisors  for  Laying  out,  etc.,  Highway. 

(County  Law,  § 61,  ante , p.  980.) 

To  the  Board  of  Supervisors  of  the  county  of : 

We,  the  undersigned,  being  twenty-five  resident  taxpayers  of  the  county  of 

hereby  make  application,  in  pursuance  of  section  61  of  the 

County  Law,  for  the  laying  out  (opening,  alteration  or  discontinuance)  of  a 

county  highway  of  the  width  of  ( or  the  construction,  repair 

or  discontinuance  of  a bridge),  describe  as  follows: 

(Insert  a definite  description  of  the  proposed  highway,  or  the  location  of 
the  proposed  bridge.) 

Dated  this day  of ,19.. 

A.  B., 

C.  D.,  etc. 


FORM  No.  150. 

Notice  of  such  Application. 

(County  Law,  § 61,  ante , p.  980.) 

To  the  Town  Superintendents  of  the  several  towns  in  the  county  of .* 

Notice  is  hereby  given  that  on  the day  of 19 . . , the 

foregoing  application  will  be  presented  to  the  board  of  supervisors  of  the 

county  of 

Dated  this day  of ,19.. 

A.  B., 

C.  D.,  etc. 


FORMS. 


1213 


FORM  No.  151. 

Proof  of  Service  of  Application  and  Notice. 

(County  Law,  § 61,  ante,  p.  980.) 

STATE  OF  NEW  YORK, 

County  of 

C.  C.,  being  duly  sworn,  says  that  he  is  a resident  of N.  Y., 

and  that  he  served  the  application  and  notice  annexed  hereto,  personally,  on 
each  of  the  following  town  superintendents  of  highways  at  the  times  and  places 
set  opposite  their  names,  respectively: 

B.  C.  at N.  Y.,  May  9,  19.  .,  at o’clock  in  the noon. 

C.  D.  at N.  Y.,  May  10,  19.  .,  at o’clock  in  the noon. 

By  delivering  to  and  leaving  with  each  of  them  true  copies  thereof;  and 

he  further  says  that  he  knew  the  persons  so  served  to  be  the  town  superintend- 
ents of  highways  of  the  towns  of respectively. 

(Signed)  C.  C. 

Subscribed  and  sworn  to  before  me, 

this day  of , 19. . 

G.  H., 

Notary  Public. 


FORM  No.  152. 

Resolution  of  Board  Laying  Out,  etc..  Highway. 

(County  Law,  § 61,  ante,  p.  980.) 

Resolution  for  the  laying  out  of  a highway  (or  construction  of  a bridge)  in 

the  town  of between  (describe  generally  location  of  highway 

or  bridge),  pursuant  to  section  61  of  the  County  Law. 

At  a meeting  of  the  board  of  supervisors  of  the  county  of held 

at on  the day  of , 19. . 

Whereas,  application  has  been  made  for  the  laying  out  (altering  or  discon- 
tinuing) of  a highway  (or  the  construction,  repair  or  discontinuance  of  a 
bridge)  in  said  county;  and  thereas,  satisfactory  proof  has  been  made  to  us 
of  the  service  of  a copy  of  such  application,  together  with  a notice  of  intention 
to  make  the  same,  upon  the  town  superintendent  of  highways  of  each  town  in 
said  county;  and  that  it  seems  to  us  that  there  is  a necessity  for  the  laying 
out(  alteration  or  discontinuance)  of  such  highway  (or  the  construction,  repair 
or  discontinuance  of  such  bridge) ; 

Resolved,  That  a highway  of  the  width  of  be  laid  out  in 

accordance  with  such  application,  the  center  of  which  is  to  commence  at  .... 
and  run  thence  (insert  survey). 


1214: 


FORMS. 


[Or,  that  a bridge  be  constructed  over  (state  location),  to  be  of  the  follow- 
ing description  (state  kind  of  bridge),  the  cost  thereof  not  to  exceed  the  sum 
of  $ ] 

it.  S.,  Chairman. 
D.,  Cleric. 

Adopted. 

Ayes  

Noes 


FORM  No.  153. 

Bond  of  Supervisor  on  Account  of  School  Moneys. 
(Education  Law,  § 363,  ante , p.  1008.) 


Know  all  men  by  these  presents,  that  we,  A.  B.,  supervisor  of  the  town  of 

in  the  county  of  and  state  of  New  York,  as 

principal,  and  C.  D.  and  D.  E.,  as  sureties,  of  the  same  town,  are  held  and 

firmly  bound  unto  E.  F.,  as  treasurer  of  the  county  of in  the 

penalty  of  dollars  (a  sum  at  least  double  the  amount  of  school 

moneys  set  apart  or  apportioned  to  the  town),  to  be  paid  to  the  said  E.  F., 
as  treasurer  of  said  county,  his  successor  in  office,  attorney  or  assigns,  for 
which  payment  well  and  truly  to  be  made  we  bind  ourselves,  our  heirs,  execu- 
tors, administrators  and  assigns  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the day  of 19. . 

The  condition  of  this  obligation  is  such  that  if  the  above  bounden  A.  B.,  as 
supervisor,  as  aforesaid,  shall  safely  keep,  faithfully  disburse  and  fully  and 
justly  account  for  and  pay  over  all  the  school  moneys  set  apart  or  apportioned 

to  said  town  of  and  all  other  moneys  that  may  come  into  his 

hands  as  such  supervisor  from  any  other  source,  then  this  obligation  to  be  void, 
otherwise  to  remain  in  full  force  and  effect. 


( Acknowledgment  and  justification  as  in  Form  No. 


A. 

B. 

[ls 

S.] 

C. 

D. 

[l. 

s.] 

D. 

E. 

[l. 

s.] 

, ante.) 


Approval  of  County  Treasurer. 


•County  of , ss.: 

I hereby  approve  of  the  above  (or  within)  bond  as  to  its  form  and  manner 
of  execution,  and  of  the  sufficiency  of  the  sureties  therein. 

Dated 19.  • E.  F., 


Treasurer  of 


county. 


FORMS. 


1215 


FORM  No.  154. 

Report  of  School  Moneys  on  Hand. 
(Education  Law,  § 365,  ante , p.  1013.) 


To  Hon.  J.  K.  Grant,  County  Treasurer  of county: 

I,  the  undersigned,  supervisor  of  the  town  of in  the  county 


of hereby  return,  as  required  by  section  365  of  the  Education 

Law,  that  the  amounts  of  school  moneys  in  my  hands  not  paid  out  on  the 
orders  of  trustees  for  teachers’  wages,  not  drawn  by  them  for  library  purposes, 
and  the  districts  to  which  they  stand  accredited  is  as  follows: 


District  No.  1 $100  00 

District  No.  2 75  00 

District  No.  3 50  00 


Total  in  my  hands 


$225  00 


Dated 19. . 


GEO.  H.  HAGAN, 

Supervisor. 


FORM  No.  155. 

Annual  Report  of  Town  Indebtedness. 

(Town  Law,  §§  190,  191,  ante,  p.  1080.) 

To  the  Board  of  Supervisors  of county: 

The  undersigned,  supervisor  of  the  town  of in  said  county, 

pursuant  to  sections  190  and  191  of  the  Town  Law,  hereby  reports  the  amount 
of  public  indebtedness  of  said  town,  as  follows: 


Bonds 
issued  or 
debts  con- 
tracted in 
aid  of. 

Rate  of 
interest. 

Act  under 
which 
bonds  were 
issued. 

Amount 
unpaid  at 
time  of 
election  of 
supervisor. 

Amount  of 
indebtedness 
paid 

at  this  date. 

Amount 
coming  due 
during  my 
term  of  office. 

1 

Dated  this 


day  of 


19 


A.  B., 

Supervisor. 


. 


V 


S* 


PART  XIII 


Time  Table  lor  Town  and  Connty  Officers. 


This  table  shows  the  times  when  town  and  county  officers  are  to 
perform  the  duties  imposed  upon  them  by  law.  The  text  of  the  laws 
referred  to  may  be  found  in  the  preceding  chapters.  For  the  pages 
where  found,  see  Table  of  Laws,  ante,  p.  XIII. 


ALMS  HOUSES. 

See  Board  of  Charities;  Superintendent  of  State  and  Alien  Poor; 

Keeper  of  Alms  House. 

ASSESSORS. 

Annually  at  the  time  of  the  completion  of  their  assessment  rolls, 
shall  make  a list  of  persons  liable  to  pay  a dog  registration  fee. 
(County  L.,  § 130.) 

Annually,  until  railroad  aid  bonds  of  a town,  a portion  of  which  has 
been  annexed,  have  been  paid,  shall  make  separate  list  of  taxable  in- 
habitants and  lands  in  territory  so  annexed.  (Gen.  Mun.  L.,  § 222.) 

Between  May  first  and  July  first,  in  certain  towns,  shall  ascertain 
all  the  property  and  the  names  of  all  the  persons  taxable.  (Tax  L., 
§ 20.) 

Between  April  15th  and  July  first,  in  towns  containing  a village  of 
more  than  ten  thousand  inhabitants,  shall  ascertain  the  taxable  prop- 
erty and  the  names  of  persons  taxable.  (Tax  L.,  § 20.) 

On  or  about  May  15th,  the  comptroller  shall  transmit  to  the  asses- 
sors a statement  of  state  lands.  (Tax  L.,  § 20.) 

Before  June  15th,  individual  bankers  shall  report  to  the  assessors  the 
amount  of  capital  stock.  (Tax  L.,  § 25.) 

Within  ten  days  after  the  assessment  of  bank  stock,  shall  give  writ- 
ten notice  thereof  to  the  bank.  (Tax  L.,  § 26.) 

Within  twenty  days  after  June  15th,  may  compel  a bank  to  make  a 
proper  report  relative  to  its  capital  stock.  (Tax  L.,  § 27.) 

First  Monday  of  July,  every  three  years,  the  assessors,  supervisor 
and  town  clerk  of  each  town  must  meet  to  make  list  of  trial  jurors. 
(Jud.  L.,  § 500.) 


(1217) 


1218 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


On  or  before  August  first,  assessors  of  towns  containing  wild  or 
forest  land  within  the  forest  preserve  shall  file  in  the  office  of  the 
comptroller  and  of  the  conservation  commission  a copy  of  the  assess- 
ment roll  of  the  town.  (Tax  L.,  § 22.) 

On  or  before  August  first  the  board  of  assessors  shall  furnish  to  the 
clerk  of  the  board  of  supervisors  a list  of  property  exempt  from  taxa- 
tion. (Tax  L.,  § 15.) 

On  or  before  August  first,  shall  complete  the  assessment  roll,  and, 

Forthwith  shall  cause  a notice  to  be  posted  in  three  places  stating 
that  they  have  completed  the  assessment  roll  and  that  the  same  may 
be  examined,  etc.,  and, 

On  the  third  Tuesday  of  August,  shall  meet  to  review  their  asses- 
ment.  (Tax  L.,  § 36.) 

Between  August  1st  and  5th,  shall  mail  to  corporations  and  non- 
residents who  have  filed  a written  demand  thereof,  a notice  concern- 
ing assessment  to  such  corporation  or  non-residents,  and, 

Subsequent  to  the  third  Tuesday  in  August,  but  not  later  than  Au- 
gust 31st,  shall  fix  the  time  for  a review  of  an  assessment  against 
corporations  or  non-residents.  (Tax  L.,  § 36.) 

On  the  third  Tuesday  in  August,  shall  meet  and  apportion  the  valua- 
tion of  special  franchises  between  the  town  and  a village,  in  case  part 
of  such  special  franchise  shall  be  assessed  in  a village  and  part  in  a 
town  outside  a village  (Tax  L.,  § 43.) 

Between  September  first  and  July  first,  in  the  year  following,  the 
assessors  of  Nassau  county  shall  proceed  to  ascertain  the  names  of 
the  taxable  inhabitants,  etc.  (Town  L.,  § 108.) 

On  or  before  September  15th,  shall  file  in  the  town  clerk’s  office  a 
copy  of  the  assessment  roll,  and, 

Forthwith  upon  such  filing,  shall  post  notices  that  such  assessment 
roll  has  been  completed  and  copy  thereof  filed,  and, 

On  or  before  October  first,  the  assessment  roll  shall  be  delivered  by 
the  assessors  to  the  supervisors.  (Tax  L„  § 39.) 

Within  fifteen  days  after  the  completion  of  the  assessment  roll,  shall 
apportion  the  assessable  valuation  of  railroads,  telegraph,  telephone 
and  pipe  line  companies  among  school  districts,  and, 

Within  five  days  thereafter  such  apportionment  shall  be  filed  with 
the  town  clerk.  (Tax  L.,  § 40.) 

Within  the  time  in  which  to  complete  the  assesment  roll,  shall  enter 
the  names  of  non-resident  creditors  pursuant  to  a statement  from  the 
county  clerk.  (Tax  L.,  § 35.) 

ASSISTANT  DISTRICT  ATTORNEY. 

When  authorized  by  the  board  of  supervisors,  the  district  attorney 
in  certain  counties  may  appoint  an  assistant  district  attorney. 
(County  L.,  § 202.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1219 


ATTORNEY. 

See  County  Attorney. 

BIRTH. 

Thirty-six  hours  after  the  birth  of  a child,  certificate  thereof  shall 
be  returned  to  the  local  board  of  health.  (Pub.  Health  L.,  § 22.) 

BOARD  OF  ASSESSORS. 

See  Assessors. 

BOARD  OF  ELECTIONS. 

See  Commissioners  of  Election;  Custodian  of  Primary  Records. 
Within  twenty-four  hours  after  the  adjournment  of  a meeting  of  the 
board  of  elections,  a record  of  its  proceedings  shall  be  transcribed. 
(Election  L.,  § 208.) 

For  not  more  than  six  months,  shall  be  required  to  preserve  attached 
stubs  and  unvoted  ballots.  (Elec.  L.,  § 377*) 

Five  days  before  election,  sample  ballots  shall  be  provided,  and 
Four  days  before  election,  official  ballots  shall  be  provided.  (Elec. 
L.  § 342-) 

At  least  six  days  before  election,  shall  cause  a list  of  nominations  to 
be  publshed.  (Elec.  L.,  § 130.) 

At  least  six  days  before  election,  shall  send  to  the  town  clerk  of 
each  town  and  to  the  alderman  of  each  ward  a list  of  the  candidates. 
(Elec.  L.,  § 131.) 

Not  less  than  six  days  before  election,  shall  print  registry  lists. 
(Elec.  L.,  § 157.) 

In  the  month  of  December,  shall  make  an  annual  report  to  the  board 
of  supervisors.  (Elec.  L.,  § 192.) 

On  or  before  December  15th,  shall  certify  to  the  clerk  of  the  board 
of  supervisors  the  amount  of  the  expenses  of  the  board.  (Elec.  L., 
§ 200.) 

Between  December  15th  and  February  15th,  shall  cause  to  be  pub- 
lished a transcript  of  the  enrollment  books  of  each  election  district. 
(Elec.  L.,  § 22  ' 


BOARD  OF  HEALTH. 

Thirty-six  hours  after  the  birth  of  a child,  certificate  thereof  shall 
be  returned  to  the  local  board  of  health.  (Pub.  H.  L.,  § 22.) 

Twenty-four  hours  after  the  death  of  any  person,  the  physician  last 
in  attendance  shall  deliver  certificate  of  death  to  local  registrar  of  vital 
statistics.  (Pub.  H.  L.,  § 22.) 

Between  the  first  and  tenth  of  each  month,  the  board  or  department 
of  health  or  health  commissioner  of  a city,  village  or  town,  shall  trans- 


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TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


mit  to  the  commissioner  of  labor  a list  of  the  names  of  children  to 
whom  employment  certificates  have  been  issued.  (Labor  L.,  § 75.) 

BOARD  OF  MANAGERS. 

Of  County  Tuberculsis  Hospital. 

Five  years  is  term  of  office  of  members.  (County  L.,  § 46.) 
Annually  shall  make  a detailed  report  to  the  board  of  supervisors. 
(County  L.,  § 47.) 

BOARD  OF  SUPERVISORS. 

See  County  Board  of  Canvassers ; Fire  District ; Change  of  Location 
of  a County  Building;  see,  also,  Supervisors. 

Annually,  shall  meet  at  such  time  and  place  as  they  may  fix. 
(County  L.,  § io.) 

At  the  annual  meeting,  shall  choose  a chairman  for  the  ensuing  year. 
(County  L.,  § io.) 

Within  six  weeks  of  the  close  of  each  session  all  acts  or  resolutions 
shall  be  published.  (County  L.,  § 17.) 

At  its  annual  meeting,  shall  examine  mortgages,  books  of  accounts, 
etc.,  of  the  loan  commissioners.  (State  Finance  L.,  § 96.) 

Abolishment  of  Distinction  Between  Town  and  County  Poor. 

At  an  annual  or  a special  meeting  called  for  that  purpose  may 
abolish  the  distinction  between  town  and  county  poor.  (Poor  L., 

§ 138.) 

Within  thirty  days  after  such  determination  the  clerk  of  the  board 
shall  serve  a copy  of  the  resolution  upon  the  clerk  of  each  town,  vil- 
lage or  city  and  upon  the  superintendents  and  overseers  of  the  poor. 
(Poor  L.,  § 138.) 

Alteration  of  Bounds  of  Town. 

Four  weeks  preceding  the  presentation  of  an  application  to  alter 
the  bounds  of  a town,  notice  of  the  application  shall  be  published. 
(County  L.,  § 35.) 

Six  weeks  preceding  the  meeting  of  the  board,  such  notice  shall  be 
published.  (County  L.,  § 35.) 

Fourteen  days’  notice  of  the  first  election  in  a new  town  shall  be 
posted.  (County  L.,  36.) 

Change  of  Location  of  County  Building. 

At  least  once  a week  for  six  weeks  preceding  a meeting  of  the  board 
of  supervisors,  petition  for  change  of  location  of  a county  building 
shall  be  published.  (County  L.,  § 31.) 

Clerk  of  the  Board;  Duties. 

Immediately  after  passage  by  the  board  of  supervisors  of  a resolu- 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1221 


tion  determining  that  the  offices  of  surrogate  and  county  judge  shall 
he  separate,  the  clerk  shall  deliver  the  resolution  to  the  county  clerk. 
(County  L.,  § 231.) 

Annually  within  twenty  days  after  the  proceedings  of  the  board  are 
published,  shall  transmit  a copy  thereof  to  the  librarian  of  the  state 
library  at  Albany.  (County  L.,  § 50.) 

Within  five  days  after  the  issuance  of  the  annual  tax  warrant  by  the 
board,  the  clerk  shall  deliver  to  the  county  treasurer  a statement  con- 
cerning the  taxes  of  railroad,  telegraph,  telephone  and  electric  light 
lines.  (County  L.,  § 53.) 

Within  five  days  after  the  completion  of  the  tax  warrant,  shall  de- 
liver to  the  county  treasurer  a statement  concerning  the  taxes  on  rail- 
roads, telegraph,  telephone  and  electric  light  companies.  (Tax  L., 
§60.) 

On  or  before  December  20th,  shall  transmit  to  the  county  treasurer 
an  abstract  of  the  tax  rolls  stating  the  names  of  the  collectors,  etc. 
(Tax  Law,  § 62.) 

Within  thirty  days  after  the  adoption  by  the  board  of  a resolution 
abolishing  the  distinction  between  town  and  county  poor,  the  clerk 
shall  serve  a copy  of  the  resoluton  upon  the  clerk  of  each  town,  vil- 
lage or  city  in  the  county  and  upon  the  superintendents  and  overseers 
of  th^  poor.  (Poor  L.,  § 138.) 

Fifteen  days  after  the  accounts  of  the  overseers  of  the  poor  have 
been  settled  by  the  town  board,  the  supervisor  shall  report  to  the 
clerk  of  the  board  an  abstract  thereof.  (Poor  L.,  § 141.) 

Within  ten  days  after  the  passage  of  a resolution  by  the  board  stat- 
ing that  the  public  interest  demands  the  improvement  of  a highwy, 
shall  transmit  a certified  copy  thereof  to  the  highway  commission. 
(Highway  L„  § 123.) 

On  the  second  day  of  the  annual  meeting  of  the  board  next  after  the 
receipt  of  an  account  by  a state  charitable  institution  against  the 
county,  shall  present  the  same  to  the  board.  (State  Charities  Law, 

§ 452.) 

As  soon  as  the  designation  of  a newspaper  to  publish  the  session 
laws  is  made,  the  clerk  shall  forward  to  the  secretary  of  state  a notice 
thereof.  (County  L.,  § 20.) 

Before  the  first  day  of  January  the  clerk  in  a county  in  which  but  one 
newspaper  is  published,  shall  forward  to  the  secretary  of  state  a notice 
stating  the  name  and  address  of  such  newspaper.  (County  L.,  § 20.) 

On  or  before  January  first,  shall  transmit  to  the  comptroller  a state- 
ment of  the  amount  appropriated  by  the  board  of  supervisors  for  the 
maintenance  of  certain  county  roads  during  the  preceding  year. 
(Highway  L.,  § 178.) 


1222 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


On  or  before  January  first,  shall  transmit  to  the  comptroller  and  to 

the  highway  commission  statements  relative  to  the  assessed  valuations 
of  property  in  towns,  etc.  (Highway  L.,  § ioo.) 

On  or  before  January  first,  shall  cause  to  be  published  a statement 
of  the  county  claims,  the  compensation  audited  by  the  board  to  mem- 
bers and  the  number  of  days  the  board  was  in  session  and  the  distance 
travelled  by  each  member  in  attending  the  same.  (County  L.,  § 51.) 

July  first,  if  the  board  have  resolved  to  appoint  commissioners  of 
equlization  and  have  been  unable  to  agree  upon  the  commissioners, 
the  clerk  shall  apply  to  the  county  judge  to  appoint  such  commission- 
ers. (Tax  L.,  § 51.) 

On  or  before  September  first,  shall  transmit  list  of  property  exempt 
from  taxation  to  the  state  board  of  tax  commissioners.  (Tax  L.,  § 15.) 

On  or  before  November  fifth,  county  officers  shall  file  report  of 
moneys  received.  (County  L.,  § 243.) 

,On  or  before  the  second  Monday  in  December,  or  at  such  other 
date  not  later  than  the  third  Monday  in  January  thereafter  as  the 
board  of  supervisors  shall  determine,  the  clerk  shall  transmit  to  the 
comptroller  a statement  of  the  indebtedness  of  the  county  and  muni- 
cipal divisions  therein  with  other  matters.  (County  L.,  § 52.) 

On  or  before  December  tenth,  shall  file  grand  jury  list  in  the  county 
clerk’s  office.  (Code  Crim.  Pro.,  § 22gd.) 

On  or  before  the  second  Monday  in  December,  shall  transmit  to  the 
state  board  of  tax  commissioners  a certificate  or  return  of  the  valua- 
tion of  property  in  each  tax  distrct.  (Tax  L.,  § 61.) 

Compensation  for  Conveyance  of  Juvenile  Delinquents. 

Annully,  shall  fix  compensation  to  be  allowed  to  officers  for  the  con- 
veyance of  juvenile  delinquents  to  the  houses  of  refuge  and  state  in- 
dustrial schools.  (County  L.,  § 12,  subd.  20.) 

Division  of  Counties  into  Assembly  Districts. 

Second  Tuesday  of  June,  1895,  and  at  such  times  as  legislature  shall 
prescribe,  divide  counties  into  assembly  districts.  (N.  Y.  Const.,  Art. 

HI,  § 5-) 

Dog  Registration. 

Six  successive  weeks,  a resolution  of  the  board  adopting  dog  regis- 
tration shall  be  published.  (County  L.,  § 128.) 

Three  successive  weeks,  change  of  registration  fee  shall  be  pub- 
lished. (County  L.,  § 128.) 

Establishment  of  Disputed  Town  Line. 

Four  consecutive  weeks  preceding  a meeting  of  the  board  of  super- 
visors, notice  of  intention  to  apply  to  the  board  to  establish  a town 
boundary  line  shall  be  published.  (County  L.,  § 37.) 


time  table  for  town  and  county  officers. 


1223 


Fifteen  days  before  the  meeting  of  the  board,  such  notice  shall  be 
served  on  the  supervisor  and  town  clerk  of  each  town  to  be  affected. 
(County  L.,  § 37.) 

Thirty  days  after  the  adoption  by  the  board  of  the  resolution  con- 
cerning such  line,  a copy  of  the  resolution  shall  be  filed  in  the  office  of 
the  secretary  of  state.  (County  L.,  § 37.) 

Highways  and  Bridges. 

Twelve  days  prior  to  application  to  the  board  of  supervisors  to  lay 
out  or  discontinue  a county  highway  or  to  construct,  repair  or 
abandon  a county  bridge,  notice  of  the  application  shall  be  served  on 
a commissioner  of  highways  of  each  town.  (County  L.,  § 61.) 

Payment  of  Fines  and  Penalties  Collected  by  Justices. 

On  the  first  Monday  in  each  month,  shall  have  power  to  direct  the 
payment  by  justices  of  the  peace  of  all  fines  and  penalties  imposed 
received  by  them.  (County  L.,  § 12,  subd.  21.) 

And  on  the  Tuesday  preceding  the  annual  town  meeting  to  make  a 
verified  report  thereof  to  the  board  of  town  auditors.  (County  L.,  § 
12,  subd.  21.) 


Reports  to  Board. 

County  officers  shall,  on  or  before  November  fifth,  file  with  the  clerk 
a report  of  moneys  received.  (County  L.,  § 243.) 

On  the  day  of  the  annual  meeting  of  the  board,  the  county  clerk 
shall  present  a statement  of  the  fees  received  and  the  sums  disbursed 
for  various  matters.  (Counv  L.,  § 164.) 

The  county  sealer  shall  report  to  the  board  annually.  (Gen.  Bus. 

L-,  § 13O 

The  county  treasurer  shall  exhibit  to  the  board  at  the  annual  meet- 
ing all  his  books  and  accounts  and  vouchers  relating  thereto.  (County 
L.,  § 142.) 

The  superintendents  of  the  poor  shall  present  to  the  board  at  its 
annual  meeting  an  estimate  of  the  sum  necessary  for  the  support  of 
the  county  poor  during  the  ensuing  year.  (Poor  L.,  § 11.) 

The  keeper  of  the  county  jail  shall  annually  account  to  the  board  for 
the  proceeds  of  the  labor  at  which  prisoners  in  the  county  jail  are  em- 
ployed. (County  L.,  § 93.) 

The  board  of  managers  of  a county  tuberculosis  hospital  shall  an- 
nually make  a detailed  report  to  the  board  of  supervisors.  (County 
L > § 47-) 

The  comptroller  shall  on  or  before  October  10th,  transmit  to  the 
board  a statement  of  the  account  between  his  office  and  the  county 
treasurer.  (Tax  L.,  § 92.) 


1224 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Supervisors  shall,  on  the  first  day  of  the  annual  meeting  lay  before 

the  board  a certificate  of  the  town  board  approving  the  statement  and 
estimate  of  the  overseers  of  the  poor.  (Poor  L.,  § 27.) 

Taxation. 

Annually,  shall  levy  an  assessment  upon  the  taxabe  property  of 
towns  such  sums  of  money  as  may  be  necessary  to  make  the  pay- 
ments on  bonds  issued  for  local  improvements.  (Town  L.,  § 437.) 

Annually,  shall  direct  the  raising  of  sums  necessary  to  defray  ac- 
counts and  charges  against  the  county.  (County  L.,  § 12.) 

Annually,  shall  direct  the  raising  of  such  sums  in  each  town  as  shall 
be  necessary  to  pay  its  town  charges.  (County  L.,  § 12.) 

At  its  annual  meeting,  shall  review  the  taxes  for  the  county.  (Tax 

L..  § 58.) 

At  its  annual  meeting,  shall  examine  the  assessment  rolls  of  the  tax 
districts  in  the  county  for  the  purpose  of  equalization.  (Tax  L.,  § 50.) 

At  its  annual  meeting,  shall  examine  the  assessment  rolls  of  the 
several  tax  districts  and  make  necessary  changes  in  the  description  of 
real  property.  (Tax  L.,  § 54.) 

On  or  before  December  15th,  or  such  other  date  as  may  be  desig- 
nated in  certain  counties,  not  later  than  April  15th,  shall  annex  to  the 
tax  roll  a warrant  for  the  collection  of  the  taxes.  (Tax  L.,  § 59.) 

On  or  before  December  15th,  shall  ascertain  from  the  statement  filed 
with  their  clerk  the  location  of  mortgaged  property  with  respect  to 
the  several  tax  districts,  etc.  (Tax  L.,  § 261.) 

On  or  before  December  15th,  shall  determine  the  respective  sums 
of  the  mortgage  tax  receipts  applicable  to  the  payment  of  state, 
county,  city,  town  and  school  expenses.  (Tax  L.,  § 261.) 

On  or  before  December  15th,  shall  issue  warrant  to  the  county  treas- 
urer far  the  collection  of  tax  on  bank  stock.  (Tax  L.,  § 24.) 

On  or  before  December  15th,  shall  ascertain  the  number  of  taxable 
shares  of  bank  stock,  etc.  (Tax  L.,  § 24.) 

BOARD  OF  TOWN  AUDITORS. 

See  Town  Auditors. 

BUILDINGS. 

See  County  Buildings. 

CERTIFICATE  OF  DEATH. 

Twenty-four  hours  after  the  death  of  any  person,  the  physician  last 
in  attendance  shall  deliver  certificate  of  death  to  local  registrar  of  vital 
statistics.  (Pub.  H.  L.,  § 22.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1225 


CHAUTAUQUA  COUNTY  SHERIFF. 

Once  a month  shall  pay  fees  and  perquisites  collected  to  the  county 
treasurer.  (County  L.,  § 12,  subd.  17.) 

CHILDREN. 

Thirty-six  hours  after  the  birth  of  a child,  certificate  thereof  shall 
be  returned  to  the  local  board  of  health.  (Pub.  H.  L.,  § 22.) 

Between  the  first  and  tenth  of  each  month,  the  board  or  department 
of  health  or  health  commissioner  of  a city,  village  or  town,  shall  trans- 
mit to  the  commissioner  of  labor  a list  of  names  of  children  to  whom 
employment  certificates  have  been  issued.  (Labor  L.,  § 75.) 

CLERK  OF  BOARD  OF  SUPERVISORS. 

See  Board  of  Supervisors. 

CLERK  OF  TOWN  MEETING. 

Before  entering  upon  his  duties,  shall  take  the  constitutional  oath 
of  office.  (Town  L.,  § 50.) 

COLLECTOR. 

Two  years  is  term  of  office  of.  (Town  L.,  § 82.) 

Within  eight  days  after  receiving  notice  of  the  amount  of  taxes  to 
be  collected  by  him,  and  before  entering  upon  the  duties  of  his  office, 
shall  execute  an  undertaking.  (Town  L.,  § 114.) 

Upon  receiving  the  tax  roll  and  warrant,  shall  forthwith  cause  no- 
tices of  the  reception  thereof  to  be  posted,  specifying  the  times  and 
places  where  he  will  attend  for  the  collection  of  taxes.  (Tax  L.,  § 69.) 

Within  five  days  after  receiving  from  the  town  clerk  transcripts  of 
notices  filed  by  non-residents,  shall  mail  to  such  non-residents  state- 
ments concerning  the  taxes  against  such  non-residents.  (Tax  L.  § 70.) 

Ten  days  after  the  delivery  to  the  collector  of  the  tax  roll  and  war- 
rant, banks  shall  pay  as  much  of  a dividend  as  may  be  necessary  to 
pay  any  unpaid  taxes  assessed  on  the  bank  stock  on  which  such  divi- 
dend is  declared.  (Tax  L.,  § 72.) 

Within  one  week  after  the  time  prescribed  in  his  warrant  for  pay- 
ment of  the  moneys  directed  therein  to  be  paid,  shall  pay  to  the  per- 
sons specified  therein  the  sums  thereby  required  to  be  paid.  (Tax  L., 

§84.) 

At  least  six  days  prior  to  sale  of  personal  property  levied  upon  for 
payment  of  taxes,  public  notice  thereof  shall  be  given  by  posting  the 
same  in  three  places.  (Tax  L.,  § 71.) 


1226 


TIME  TABLE  FOIt  TOWN  AND  COUNTY  OFFICERS. 


Five  days  after  demand  for  the  payment  of  a dog  tax,  if  the  person 
assesed  therefor  refuses  or  neglects  to  pay  the  tax,  the  collector  shall 
kill  the  dog.  (County  L.,  § 113.) 

COMMISSIONERS  OF  ALMS  HOUSE. 

See  Keeper  of  Alms  House. 

In  Newburg  and  Poughkeepsie. 

Annually  on  December  first,  shall  report  to  the  superintendents  of 
the  poor'statistics  concerning  poor.  (Poor  L.,  § 145.) 

COMMISSIONERS  OF  DEEDS. 

Two  years  shall  be  the  term  of  office  of.  (Executive  L.,  § 106.) 

Immediately  after  appointment  of  city  clerk,  in  cities  situate  in 
county  of  a population  between  300,000  and  500,000,  shall  file  certi- 
ficate thereof  with  county  clerk.  (Executive  L.,  § 106.) 

Ten  days  after  receiving  notice  of  appointment  in  cities  situate  in 
a county  of  a population  between  300,000  and  550,000,  commissioner 
must  take  oath  of  office.  (Executive  L.,  § 106.) 

November  in  every  even  numbered  year  the  common  council  in 
cities  situate  in  county  of  a population  between  300,000  and  550,000, 
shall  determine  the  number  of  commissioners  to  be  appointed.  (Ex- 
ecutive L.,  § 106.) 

Thirty-first  of  December  of  the  even  numbered' year  next  after  ap- 
pointment, the  term  of  office  of,  in  cities  situate  in  a county  of  a popu- 
lation between  300,000  and  550,000,  shall  expire.  (Executive  L.,  § 
106.) 

COMMISSIONERS  OF  ELECTION. 

See  Board  of  Elections. 

Two  years  is  term  of  office  of.  (Elec.  L.,  § 191.) 

On  January  first,  1913,  the  term  of  office  of  commissioners  appointed 
in  1911  expires.  (Elec.  L.,  § 191.) 

At  their  first  meeting,  shall  organize  as  a board  by  electing  one  of 
their  number  as  president  and  one  as  secretary.  (Elec.  L.,  § 192.) 

COMMISSIONERS  OF  EQUALIZATION. 

Three  years  is  the  term  of  office  of.  (Tax  L.,  § 51.) 

On  July  first,  if  the  board  of  supervisors  have  resolved  to  appoint 
commissioners  of  equalization,  but  have  been  unable  to  agree  upon 
the  commissioners  to  be  appointed,  the  clerk  of  the  board  shall  apply 
to  the  county  judge  to  appoint  such  commissioners.  (Tax  L.,  § 51.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1227 


Between  September  first  and  the  time  of  the  annual  meeting  of  the 
board  of  supervisors,  shall  examine  the  assessment  roll  of  the  several 
towns,  etc.  (Tax  L.,  § 52.) 

On  the  fourth  day  of  the  annual  meeting  of  the  board,  shall  file  with 
the  clerk  their  report  of  the  equalized  valuation.  (Tax  L.,  § 53.) 

COMMISSIONERS  OF  FIRE  DISTRICT. 

See  Fire  District. 

COMMISSIONER  OF  JURORS. 

See  Jurors  in  Kings  County. 

COMMISSIONERS  OF  LOCAL  IMPROVEMENTS. 

See  Town  Commissioners  of  Local  Improvements. 

COUNTY  COMPTROLLER. 

Three  years  is  term  of  office  of.  (County  L.,  § 234.) 

Before  entering  upon  his  duties,  shall  take  the  constitutional  oath 
of  office  and  execute  a bond.  (County  L.,  § 234.) 

At  each  regular  meeting  of  the  board  of  supervisors,  shall  report  to 
the  board  the  balance  of  the  appropriation  to  each  department  remain- 
ing unexpended.  (County  L.,  § 235.) 

For  not  exceeding  ninety  days,  may  employ  expert  accountant  in 
opening  the  proper  books  in  his  office,  etc.  (County  L.,  § 235.) 

CONSTABLE. 

See  Peace  Officer. 

Within  ten  days  after  notification  of  his  election  or  appointment, 
and  before  entering  upon  the  duties  of  his  office,  shall  execute  an  un- 
dertaking. (Town  L.,  § 1 16.) 

At  any  time  of  day  or  night,  may  arrest  a person  charged  with  a 
felony.  (Code  Crim.  Pro.,  § 170.) 

On  Sunday,  or  at  night,  cannot  arrest  a person  charged  with  a mis- 
demeanor, unless  directed  by  the  magistrate.  (Code  Crim.  Pro.,  § 
170.) 

At  night,  may  arrest,  without  a warrant,  any  person  whom  he  has 
reasonable  cause  for  believing  to  have  committed  a felony.  (Code 
Crim.  Pro.,  § T79.) 

At  any  time,  may  retake  an  escaped  prisoner.  (Code  Crim.  Pro., 

§ 1 86.) 


1228 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Within  ten  days  after  date  of  a search  warrant,  it  shall  be  returned 
to  the  magistrate  issuing  it.  (Code  Crim.  Pro.,  § 802.) 

At  least  three  days  before  the  return  day,  shall  notify  the  jurors  to 
attend.  (Code  Crim.  Pro.,  § 2993.) 

Six  days  before  return  day,  summons  shall  be  served.  (Code  Crim. 
Pro.,  § 2878.) 

Six  days  before  the  return  day  of  the  summons,  shall  execute  a war- 
rant of  attachment.  (Code  Civ.  Pro.,  §§  2907,  2909.) 

Immediately  upon  taking  property  under  an  execution,  shall  post 
notices  of  sale.  (Code  Civ.  Pro.,  § 3029.) 

Not  less  than  six  days  after  such  posting,  the  sale  shall  be  held. 
(Code  Civ.  Pro.,  § 3029.) 


CORONER. 

See  Sheriff. 

Three  years  is  the  term  of  office  of.  (County  L.,  § 180.) 

Within  six  days  after  receiving  designation  to  act  as  sheriff,  coroner 
shall  execute  an  undertaking.  (County  L.,  § 187.) 

Within  thirty  days  after  an  inquest,  shall  deliver  to  the  county  treas- 
urer money  and  property  found  upon  the  body.  (Code  Crim.  Pro., 

§ 785-) 

On  or  before  the  third  day  of  the  annual  session  of  the  board  of  su- 
pervisors, shall  report  the  names  of  the  coroner’s  jurors.  Code  Crim. 
Pro-  § 774-) 

COUNTY  ATTORNEY. 

Two  years  is  term  of  office  of.  (County  L.,  § 210.) 

COUNTY  BOARD  OF  CANVASSERS. 

On  Tuesday  after  election,  shall  meet.  (Elec.  L.,  § 430.) 

From  day  to  day  not  exceeding  three  days  in  all,  may  adjourn  for 
the  purpose  of  obtaining  and  receiving  corrected  statements.  (Elec. 
L->  § 432.) 

On  the  seventh  Thursday  after  election  day,  shall  convene  for  the 
purpose  of  canvassing  statements  and  returns  of  soldiers’  and  sailors’ 
elections.  (Elec.  L.,  § 5 15*) 


COUNTY  BOARD  OF  SUPERVISORS. 

See  Board  of  Supervisors. 


TIME  TABLE  FOB  TOWN  AND  COUNTY  OFFICERS. 


1229 


COUNTY  BUILDINGS,  CHANGE  OF  LOCATION. 

Any  County  Building. 

Once  a week  for  six  weeks  preceding  meeting  of  board  of  super- 
visors, petition  for  shall  be  published.  (County  L.,  § 31.) 

Once  a week  for  six  weeks  immediately  preceding  general  election, 
notice  of  submission  to  electors  of  the  question  of  removal  shall  be 
published.  (County  L.,  § 32.) 

Site  of  Poor  House  After  Destruction. 

Three  months,  if  annual  meeting  of  board  of  supervisors  is  not  to 
be  held  within  three  months  after  presentation  of  petition  for  change 
of  site  of  poor  house,  special  meeting  shall  be  convened.  (County  L., 

§34.) 

Three  days  before  time  of  special  meeting,  notice  thereof  may  be 
personally  served  on  supervisor.  (County  L.,  § 34.) 

Ten  days  before  such  time  notice  may  be  served  by  mail.  (County 

L.,  §34.) 

Within  thirty  days  from  presentation  of  petition,  special  meeting 
to  be  called.  (County  L.,  § 34.) 

At  least  one  full  week  preceding  town  meeting  shall  be  publshed 
resolution  concerning  election  for  change  of  site.  (County  L.,  § 34.) 

Ten  days  before  town  meeting  in  each  town  notice  of  such  election 
shall  be  posted.  (County  L.,  § 34.) 

Four  weeks  publication  of  notice  of  special  town  meeting  shall  be 
made.  (County  L.,  § 34.) 

Within  twenty-four  hours  after  statements  of  votes  have  been  filed 
with  county  clerk,  he  shall  canvass  and  compile  a statement  of  vote. 
(County  L.,  § 34.) 

Within  twenty-four  hours  after  making  a certificate  of  result,  county 
clerk  shall  cause  a certified  copy  thereof  to  be  delivered  to  chairman 
of  the  board  of  supervisors.  (County  L.,  § 34.) 

Upon  receipt  of  certificate  from  the  county  clerk,  chairman  shall 
call  a special  meeting  of  the  board  of  supervisors.  (County  L.,  § 34.) 

Not  more  than  thirty  days  thereafter  such  meeting  shall  be  held. 
(County  L.,  § 34.) 

Ten  days’  notice  of  such  meeting  shall  be  given.  (County  L.,  § 34.) 

COUNTY  CLERK. 

Three  years,  is  term  of  office,  except  in  certain  counties.  (N.  Y. 
Const.,  Art.  X,  § 1 ; County  L.,  § t6o.) 


1230 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Before  entering  upon  his  duties,  shall  execute  an  undertaking. 

(County  L.,  § 160.) 

Within  fifteen  days  after  notice  of  his  appointment,  if  appointed, 
shall  execute  an  undertaking.  (County  L.,  § 160.) 

Within  ten  days  after  entering  upon  the  duties  of  his  office,  shall 
appoint  a deputy  clerk.  (County  L.,  § 162.) 

On  the  first  day  of  each  month,  shall  pay  to  the  county  treasurer 
mortgage  taxes.  (Tax  L.,  § 261.) 

At  end  of  each  month,  shall  forward  to  commissioner  of  excise,  a 
report  of  all  orders  or  judgments  entered  in  his  office  during  such 
month  in  favor  of  or  against  the  state  commissioner  of  excise.  (Liq. 
Tax  L.,  § 39.) 

Quarterly  shall  transmit  to  the  secretary  of  state  a statement  of 
persons  convicted  of  crime.  (Code  Crim.  Pro.,  § 943.) 

On  the  first  day  of  the  annual  meeting  of  the  board  of  supervisors, 
the  county  clerk  shall  present  to  the  board  a statement  of  the  fees 
received  and  sums  disbursed  for  various  matters.  (County  L.,  § 164.) 

On  the  first  days  of  January,  April,  July  and  October,  shall  make  re- 
ports to  the  state  comptroller  of  conveyances  which  may  be  subject 
to  the  transfer  tax.  (Tax  L.,  § 239.) 

During  the  first  twenty  days  of  January,  April,  July  and  October 
of  each  year,  the  county  clerk  shall  transmit  to  the  state  department 
of  health  copies  of  papers  relating  to  marriages.  (Dom.  Rel.  L.,  § 19.) 

On  or  before  January  1st  of  each  year,  shall  notify  the  secretary  of 
state  of  number  of  towns,  villages  and  cities  within  the  county,  and 

As  soon  as  practicable  after  the  receipt  of  session  law  slips,  the 
secretary  of  state  shall  send  the  county  clerk  a sufficient  number  for 
distribution  to  county  and  municipalities,  and 

As  soon  as  practicable  after  receipt  thereof,  county  clerk  shall  send 
slips  to  such  municipalities.  (Dom.  Rel.  L.,  § 19.) 

On  or  before  January  first  report  to  the  secretary  of  state  the  names 
of  all  corporations  whose  certificates  of  incorporation  have  been  filed 
in  his  office  during  the  previous  year.  (County  L.,  § 161.) 

On  or  before  January  fifteenth  notify  the  governor  of  the  names  of 
all  persons  elected  or  appointed  to  a county  office  in  his  county  during 
the  preceding  year.  (County  L.,  § 161.) 

Not  later  than  April  first  of  the  year  when  a state  census  is  taken, 
shall  mail  a notice  to  each  member  of  certain  town  boards  requiring 
such  members  to  attend  a meeting  for  the  purpose  of  sending  the 
county  clerk  a description  of  town  and  election  districts,  and 

Not  less  than  three  nor  more  than  five  days  after  mailing  such  no- 
tices such  meetings  shall  be  held,  and 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1231 


Immediately  upon  receipt  of  the  copies  of  such  descriptions,  shall 
transmit  two  copies  to  the  secretary  of  state.  (State  L.,  § 142.) 

Between  June  1st  and  15th,  county  clerk  in  certain  counties  shall 
furnish  data  respecting  corporations  to  each  of  the  town  clerks  in  the 
county.  (Tax  L.,  § 29.) 

Within  ten  days  after  July  first  the  county  treasurer  shall  file  a 
special  report  covering  moneys  or  securities  invested  for  infants  and 
other  persons.  (County  L.,  § 142.) 

Prior  to  November  first,  shall  cause  to  be  prepared  a list  containing 
a description  of  all  mortgages  upon  which  taxes  have  been  paid,  etc. 
(Tax  L.,  § 261.) 

On  or  before  November  fifth,  shall  file  with  the  clerk  of  the  board 
of  supervisors  a report  of  moneys  received.  (County  L.,  § 243.) 

Annually  in  December  report  to  the  various  state  departments  the 
changes  in  the  names  of  persons  and  corporations  made  in  pursuance 
to  orders  filed  in  his  office  during  the  past  year.  (County  L.,  § 161.) 

Appeal. 

Within  two  days  after  the  service  of  a notice  of  appeal  by  a defend- 
ant convicted  of  a crime,  not  punishable  by  death,  shall  notify  the 
stenographer  that  an  appeal  has  been  taken.  (Code  Crim.  Pro.,  § 456.) 

Ten  days  after  a notice  of  appeal  is  filed  in  criminal  cases,  shall 
transmit  a copy  of  the  notice  and  of  the  judgment  roll  to  the  appellate 
court.  (Code  Crim.  Pro.,  § 532.) 

Changing  Site  of  Poor  House. 

Within  twenty-four  hours  after  statements  of  the  vote  in  towns 
upon  the  question  of  changing  the  site  of  the  poor  house  after  the 
destruction  thereof,  the  county  clerk  shall  canvass  and  compile  a state- 
ment of  the  vote  for  the  entire  county.  (Couny  L.,  § 34.) 

Within  twenty-four  hours  after  making  a certificate  of  the  result 
thereof,  he  shall  cause  a certified  copy  to  be  delivered  to  the  chairman 
of  the  board  of  supervisors.  (County  L.,  § 34.) 

County  Judge  and  Surrogate. 

Immediately  after  the  passage  by  the  board  of  supervisors  of  a reso- 
lution determining  that  the  offices  of  surrogate  and  county  judge 
shall  be  separate,  the  clerk  of  the  board  shall  deliver  such  resolution 
to  the  county  clerk,  and 

Within  ten  days  thereafter  the  county  clerk  shall  transmit  a copy 
of  the  resolution  to  the  secretary  of  state.  (County  L.,  § 231.) 


1232 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Court  Calendars. 

Five  days  before  the  commencement  of  a trial  term,  must  have  the 
necessary  copies  of  the  court  calendar  ready  for  distribution.  (Code 
Civ.  Pro.,  § 977.) 

Election. 

Five  days  before  the  first  day  of  registration,  shall  deliver  registra- 
tion books,  etc.,  to  the  town  clerks.  (Elec.  L.,  § 182.) 

Within  twenty  days  after  the  general  election  and  within  ten  days 
after  a special  election,  shall  transmit  to  the  secretary  of  state  the 
names  and  residences  of  persons  elected  to  certain  offices.  (Elec.  L., 
§ 439-) 

On  or  before  December  15th,  shall  transmit  to  the  secretary  of 
state  a tabulated  statement  of  the  canvass  at  the  last  preceding  gen- 
eral election.  (Elec.  L.,  § 439.) 

At  least  three  days  before  election,  shall  mail  to  each  voter  a sample 
ballot  showing  arrangement  of  voting  machines,  or  shall  publish  a 
copy  of  such  sample  ballot.  (Elec.  L.,  § 398.) 

Execution  Against  Violation  of  Liquor  Tax  Law. 

Five  days  after  conviction  and  imposition  of  fine  for  violation  of 
liquor  tax  law,  if  not  paid,  county  clerk  shall  issue  an  execution 
against  debtor.  (Liq.  Tax  L.,  § 39.) 

Firemen. 

Within  ninety  days  after  a voluntary  fire  company  has  been  dis- 
banded by  the  organization  of  a paid  department,  a list  of  the  exempt 
volunteer  firemen  shall  be  filed  with  the  county  clerk.  (Gen.  Mun.  L., 
§ 203.) 

Insurance. 

Within  thirty  days  after  a certificate  of  authority  is  issued  to  an  in- 
surance agent  a copy  thereof  shall  be  filed  in  the  office  of  the  county 
clerk.  (Ins.  L.,  § 91.) 

Before  doing  business  in  this  state  a foreign  insurance  company  must 
file  a certified  copy  of  the  suprintendent’s  authority  to  do  business. 
(Ins.  L.,  § 31.) 

Jail  Liberties. 

One  week  after  a resolution  of  the  board  of  supervisors  establish- 
ing or  altering  jail  liberties  has  been  filed  in  his  office,  shall  deliver  an 
exemplified  copy  thereof  to  the  keeper  of  the  jail.  (Prison  L.,  § 360.) 


TIME  1A23LE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1233 


Jury. 

Not  less  than  fourteen  nor  more  than  twenty-one  days  before  the 
trial  term,  must  draw  jury.  (Jud.  L.,  § 513.) 

At  the  time  of  drawing  trial  jurors,  shall,  in  the  presence  of  other 
county  officials,  draw  the  grand  jurors.  (Code  Crim.  Pro.,  § 229-h.) 

Six  days,  at  least,  before  drawing  a jury,  county  clerk  must  publish 
notice  thereof  in  county  newspaper;  if  there  is  none,  notice  must  be 
affixed  to  outer  door  of  building  where  drawing  is  to  be  held,  also 

Three  d.ays,  at  least,  before  such  drawing,  he  shall  serve  notice 
thereof  upon  the  sheriff  and  county  judge.  (Jud.  L.,  § 514.) 

First  Monday  of  August,  after  jury  lists  have  been  transmitted  to 
him,  the  county  clerk  must  prepare  suitable  ballots.  (Jud.  L.,  § 508.) 

Immediately  after  first  Monday  of  August,  if  list  of  jurors  is  not 
received  or  is  lost,  the  county  clerk  shall  notify  the  town  clerk.  (Jud. 

L.,  §§  510,  51 1-) 

Notary  Public. 

Promptly  shall  pay  notaries’  qualification  fees  to  state  treasurer. 
(Executive  L.,  § 53.) 

Within  ten  days  after  the  end  of  each  month,  the  county  clerk  shall 
pay  to  the  state  treasurer  all  fees  received  from  notaries  public  dur- 
ing said  month.  (Executive  L.,  § 104.) 

Forthwith,  upon  the  receipt  of  the  commission  of  a person  ap- 
pointed notary  public,  the  county  clerk  shall  mail  to  such  person  a 
notice  of  his  appointment.  (Executive  L.,  § 103.) 

Sale  of  Lands  by  Comptroller. 

At  least  one  month  before  the  sale  of  lands  by  the  comptroller  for 
unpaid  taxes  shall  transmit  to  the  comptroller  a certified  list  of  all 
lands  the  conveyances  of  which  are  on  record  in  his  office,  then  owned 
by  such  county,  and  liable  to  be  sold  at  such  sale.  (Tax  L.,  § 121.) 

COUNTY  COURT. 

See  County  Judge. 

From  time  to  time  county  judge  must  appoint  times  and  places  for 
holding  terms  of  his  court.  (Jud.  L.,  § 190.) 

From  time  to  time  county  court  may  require  clerk  to  prepare  and 
cause  to  be  printed  copies  of  calendar,  except  in  New  York  county. 
(Jud.  L.,  § 193.) 

From  time  to  time  county  judge  may  adjourn  a term  to  any  place 
within  the  county.  (Jud.  L.,  § 191.) 


1234 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Immediately  or  before  a term  is  held,  appointment  thereof  must  be 
filed  in  the  county  clerk’s  office,  and 

Once  each  week  for  three  successive  weeks,  at  least,  before  a term  is 
held  appointment  thereof  shall  be  published  in  the  state  paper.  (Jud. 
L.,  § 192.) 

COUNTY  DEPOSITORY. 

See  County  Treasurer. 

COUNTY  JAIL. 

See  Jail. 

COUNTY  OFFICERS. 

See  Board  of  Supervisors,  County  Treasurer,  County  Clerk,  Sheriff, 
Coroner,  District  Attorney,  County  Attorney,  County  Sealer,  Su- 
perintendent of  the  Poor,  County  Judge,  Surrogate,  Special  County 
Judge,  Special  Surrogate,  County  Treasurer,  County  Superintend- 
ent of  Highways. 

COUNTY  JUDGE. 

See  Surrogate ; County  Court. 

Six  years  is  term  of  office  of.  (County  L.,  § 230;  N.  Y.  Const.,  Art 

VI,  § 14.) 

Quarterly,  shall  be  paid  salary  by  the  county  treasurer  except  in 
counties  of  Kings  and  Broome.  (County  L.,  § 233.) 

Monthly,  shall  be  paid  salary  in  Broome  County.  (County  L.,  § 

233) 

On  January  first,  if  school  directors  have  failed  to  elect  a district 
superintendent,  may  appoint  such  superintendent.  (Elec.  L.,  § 383.) 

On  or  before  November  fifth,  shall  file  with  the  clerk  of  the  board  of 
supervisors  a report  of  moneys  received.  (County  L.,  § 243.) 

At  the  time  of  drawing  trial  jurors,  shall  assist  in  the  drawing  of 
grand  jurors.  (Code  Crim.  Pro.,  § 229-h.) 

COUNTY  SEALER. 

Forthwith  on  his  appointment,  shall  give  a bond.  (Gen.  Bus.  L., 
§ i3- 

Annually,  shall  report  to  the  board  of  supervisors.  (Id.) 

At  least  twice  in  each  year,  and  as  much  oftener  as  he  may  deem 
necessary,  shall  see  that  weights,  etc.,  used  in  the  county  are  correct, 
(id.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1235 


Not  later  than  the  first  of  December,  shall  make  an  annual  report 
to  the  state  superintendent  of  weights  and  measures.  (Id.) 

COUNTY  SUPERINTENDENT  OF  HIGHWAYS. 

Four  years  is  term  of  office  of.  (Highway  L.  § 30.) 

At  least  five  days’  notice  shall  be  given  of  a hearing  upon  charges 
for  removal.  (Highway  L.,  § 32.) 

At  least  once  in  each  year,  shall  visit  and  inspect  the  highways  and 
bridges  in  each  town.  (Highway  L.,  § 33.) 

On  November  15th,  shall  report  to  the  highway  commission  in  re- 
lation to  highways  and  bridges  in  his  county.  (Highway  L.  § 33.) 

On  or  before  December  first  in  each  year  shall  submit  to  the  board 
of  supervisors  a statement  of  the  amount  necessary  to  be  raised  for 
the  construction,  improvements  and  maintenance  of  county  roads  for 
the  ensuing  year.  (Highway  L.,  § 33.) 

COUNTY  SUPERINTENDENT  OF  THE  POOR. 

See  Superintendent  of  the  Poor. 

COUNTY  TREASURER. 

Two  years  from  January  first  is  the  term  ot  office,  but, 

Three  years  from  the  first  Tuesday  in  October  in  Monroe  County  is 
the  term  of  office.  (County  L.,  § 140.) 

Before  entering  upon  the  duties  of  his  office,  shall  give  an  undertak- 
ing, and, 

Fifteen  days  after  notice  of  appointment,  shall  give  an  undertaking, 
and, 

Twenty  days  after  notice  to  renew  the  undertaking  if  he  fails  to  do 
so,  his  office  becomes  vacant.  (County  L.,  § 140.) 

Within  twenty  days  after  entering  upon  the  duties  of  his  office,  in 
certain  counties,  shall  designate  banks  of  deposit.  (County  L.,  § 144.) 

Monthly,  shall  report  to  the  highway  commission  the  amount  re- 
ceived by  him  on  account  of  the  maintenance  and  repair  of  county 
highways.  (Highway  L.,  § 174.) 

At  least  once  a week,  shall  deposit  moneys  received  in  the  county 
depository,  and 

Daily  in  counties  containing  a city  of  over  ten  thousand  population, 
deposit  such  rhoneys  in  the  depository,  and 

As  often  as  once  in  six  months  the  depository  shall  credit  the  ac- 
crued interest  to  the  account  of  the  county  treasurer.  (County  L., 
§ I44-) 


1236 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Quarterly,  shall  pay  the  salaries  of  the  county  judge  and  surrogate 
except  in  Kings  and  Broome  counties,  and. 

Monthly,  shall  pay  the  salary  of  the  county  judge  in  Broome  County. 
(County  L.,  § 233.) 

Annually,  and  at  such  other  times  as  the  board  of  supervisors  shall 
make  a statement  of  his  accounts.  (County  L.,  § 142.) 

Annually,  shall  report  to  the  comptroller  relative  to  court  funds. 
(Code  Civ.  Pro.,  § 753.) 

On  the  first  days  of  January,  April,  July  and  October,  in  counties 
in  which  the  office  of  appraiser  is  not  salaried,  shall  make  a report  to 
the  comptroller  of  transfer  taxes  and  shall  pay  such  taxes  to  the 
state  treasurer.  (Tax  L.,  § 240.) 

On  the  first  days  of  January,  April,  July  and  October,  shall  pay  ta 
the  state  treasurer  the  state  portion  of  mortgage  tax.  (Tax  L.,  § 261.) 

On  February  first,  shall  file  with  Adjutant-General  a report  of 
amount  paid  on  account  of  each  armory.  (Military  L.,  § 182.) 

On  or  before  February  15th,  shall  pay  one-third  of  the  state  tax  ex- 
clusive of  state  tax  for  schools  to  the  state  treasurer,  and, 

On  or  before  April  15th,  shall  pay  a second  third  to  the  state  treas- 
urer. (Tax  L.,  § 91.) 

Six  months  from  the  first  day  of  February  after  the  levy  of  a tax,  if 
it  remains  unpaid,  shall  cause  to  be  published  a list  of  lands  liable  to 
be  sold  for  taxes,  and, 

Six  weeks  publication  of  such  list  shall  be  had.  (Tax  L.,  § 151.) 

On  or  before  March  first,  shall  transmit  to  the  comptroller  a state- 
ment of  all  moneys  received  by  him  during  the  preceding  year  for 
panalties  belonging  to  the  people  of  the  state,  and 

On  or  before  March  first,  shall  pay  the  state  treasurer  collected 
penalties  belonging  to  the  people  of  the  state.  (County  L.,  § 142.) 

On  or  before  March  15th,  shall  pay  the  excess  of  the  state  tax  for 
schools  to  the  state  treasurer.  (Tax  L.,  § 91.) 

On  or  before  April  fifteenth  pay  to  the  state  treasurer  one-half  of 
the  state  tax,  and 

On  or  before  May  fifteenth  pay  to  the  state  treasurer  the  other  half 
of  the  state  tax.  (County  L.,  § 142.) 

Before  May  first,  in  certain  counties  embracing  a portion  of  forest 
preserves,  shall  transmit  an  account  of  unpaid  taxes  on  real  property 
and  on  corporations,  etc.,  to  the  comptroller,  and, 

One  month  after  the  return  of  such  account  to  the  county  treasurer 
for  correction,  he  shall  return  the  same  to  the  comptroller.  (Tax  L., 
§ 100.) 

To  a day  not  later  than  May  first,  may  extend  time  for  the  collec- 
tion of  unpaid  taxes.  (Tax  L.,  § 85.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1237 


Before  May  15th,  shall  pay  the  balance  of  the  state  tax  to  the  state 
treasurer.  (Tax  L.,  § 91.) 

June  first  the  comptroller  shall  state  the  tax  account  of  each  county 
treasurer  and  transmit  to  the  county  treasurer  a copy  thereof,  and 

Within  thirty  days,  if  the  tax  is  not  paid,  the  comptroller  shall  de- 
liver such  account  to  the  attorney-general  for  collection.  (Tax  L., 

§ 92-) 

On  or  before  June  first  agents  of  non-resident  creditors  having  debts 
owing  to  them  taxable  in  the  county  shall  furnish  a statement  thereof, 

and, 

Immediately,  upon  receipt  of  such  statement,  shall  send  to  the  asses- 
sors of  every  tax  district  in  the  county  in  which  such  debtor  resides  a 
copy  of  such  statement.  (Tax  L.,  § 35.) 

Within  ten  days  after  July  first,  shall  file  in  the  county  clerk’s  office 
a special  report  concerning  moneys  or  securities  invested  for  infants  or 
other  persons.  (County  L.,  § 142.) 

On  or  about  September  first,  the  comptroller  shall  transmit  to  each 
county  treasurer  a transcript  of  the  taxes  of  the  preceding  year  in  any 
tax  district  of  his  county  which  shall  have  been  rejected  for  any  cause, 
and  the  grounds  of  such  rejection.  (Tax  L.,  § 101.) 

September  15th,  excise  taxes  to  be  paid.  (Liq.  Tax  L.,  § 9.) 

Within  ten  days  after  receipt  of  excise  taxes,  one-half  thereof  to  be 
paid  to  state  treasurer  and  other  half  to  supervisor  or  treasurer  or 
fiscal  officer  of  city.  (Liq.  Tax  L.,  § 10.) 

October  first,  and  at  such  other  times  as  the  commissioner  of  educa- 
tion may  require,  shall  report  to  the  commissioner  concerning  school 
moneys,  etc.  (Educ.  L.,  § 495.) 

On  or  before  the  first  Tuesday  in  October,  the  district  attorney  shall 
file  in  the  county  treasurer’s  office  an  account  of  all  moneys  received. 
(County  L.,  § 201.) 

At  the  same  time  the  district  attorney  shall  pay  any  balance  to  the 
treasurer.  (County  L.,  § 201.) 

On  or  before  November  fifth,  shall  file  with  the  clerk  of  the  board 
of  supervisors  a report  of  moneys  received.  (County  L.,  § 243.) 

On  or  before  December  31st,  banks  pay  tax  on  bank  stock.  (Tax 
L„  § 24.) 

Exhibit  of  Accounts  to  Board  of  Supervisors. 

At  the  annual  meeting  of  the  board  of  supervisors,  shall  exhibit  to 
the  board  all  his  books  and  accounts  and  vouchers  relating  thereto. 
(County  L.,  § 142;  Poor  L.,  § 10.) 


1238 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Highways;  Payment  of  Damages  for  Lands  Taken. 

Within  six  months  after  the  report  of  commissioners  for  the  appro- 
priation of  lands  to  be  acquired  for  highway  purposes  is  confirmed, 
the  county  treasurer  shall  pay  to  the  persons  named  therein  the 
amount  awarded  for  damages  with  interest.  (Highway  L.,  § 153.) 

Sale  of  Property  Received  from  Coroner. 

Within  thirty  days  after  receipt  from  a coroner  of  property  found 
upon  a dead  body,  shall  sell  the  same  at  public  auction.  (Code  Crim. 
Pro.,  § 786.) 

Within  six  years,  if  the  money  is  demanded  by  the  legal  representa- 
tives of  the  deceased,  it  must  be  paid  to  them,  afterwards,  upon  order 
of  the  board  of  supervisors,  it  may  be  so  paid.  (Code  Crim.  Pro.,  § 
787.) 

Tax  Sales. 

Two  months  prior  to  a tax  sale,  the  county  treasurer  of  a county 
not  embracing  a portion  of  the  forest  preserves,  shall  transmit  to  the 
comptroller  a list  of  all  lands  in  such  county  to  be  sold.  (Tax  L., 
§ 157) 

At  least  two  weeks  prior  to  such  tax  sale,  the  state  comptroller  shall 
transmit  to  such  county  treasurer  a list  of  all  lands  to  be  sold  at  such 
sale  which  the  state  owns  or  upon  which  it  has  a lien.  (Tax  L.,  § 157.) 

Within  ten  days  after  the  receipt  by  the  comptroller  of  a statement 
made  by  the  county  treasurer  showing  the  amount  bid  for  such  lands, 
the  comptroller  shall  draw  his  warrant  on  the  state  treasurer  for  the 
amount  thereof,  etc.  (Tax  L.,  § 157.) 

At  least  eighteen  weeks  before  the  commencement  of  a sale  of  lands 
by  the  comptroller  for  unpaid  taxes,  the  comptroller  shall  send  to  the 
county  treasurer  a list  of  such  lands  in  the  county.  (Tax  L.,  § 120.) 

On  receiving  such  list  and  at  least  one  month  before  the  sale,  the 
treasurer  shall  send  to  the  comptroller  a certified  list  of  all  lands  bid 
in  at  any  tax  sale  in  the  name  of  such  county,  etc.  (Tax  L.,  § 121.) 

One  year  after  the  last  date  of  sale  of  lands  for  unpaid  taxes,  said 
lands  may  be  redeemed.  (Tax  L.,  § 152.) 

Within  twenty  days  after  the  time  for  redemption  from  a tax  sale 
has  expired,  the  county  treasurer  of  the  counties  of  St.  Lawrence, 
Lewis,  Clinton  and  Oneida  shall  file  with  the  comptroller  a statement 
of  lands  in  the  forest  preserve  which  have  been  bid  in  by  the  county 
and  not  redeemed,  etc.,  and, 

Six  months  after  the  filing  of  such  statement  the  county  treasurer 
is  authorized  to  convey  the  lands  not  conveyed  to  the  state.  (Tax  L., 

§ 151) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1239 


Taxes;  Payment  by  Railroad,  etc.,  Companies. 

Within  five  days  after  the  issuance  of  the  annual  tax  warrant  by  the 
board  of  supervisors,  the  clerk  shall  deliver  to  the  county  treasurer  a 
statement  concerning  the  taxes  of  railroad,  telegraph,  telephone,  and 
electric  light  lines.  (County  L.,  § 53.) 

Within  thirty  days  after  the  receipt  by  the  county  treasurer  of  a 
notice  from  the  clerk  of  the  board  of  supervisors  concerning  taxes  of 
railroads,  telegraph,  telephone  and  electric  light  companies,  such  com- 
panies shall  pay  such  taxes.  (Tax  L.,  § 73.) 

Immediately  after  the  receipt  from  a school  collector  of  a statement 
of  the  assessment  and  tax  against  a railroad  company,  shall  notify 
the  ticket  agent  of  such  railroad  company  of  the  fact  that  such  state- 
ment has  been  filed,  etc.  (Educ.  L.,  § 427.) 

Taxes,  Return  of  Unpaid. 

Immediately  after  the  return  of  taxes  on  resident  real  property,  as 
unpaid,  shall  deliver  a transcript  thereof  to  the  supervisor.  (Tax  L., 

§ 89.) 

Within  twenty  days  after  the  return  of  a collector  by  which  it  ap- 
pears that  any  taxes  imposed  upon  a debt  owing  to  a person  residing 
out  of  the  United  States  remain  unpaid,  county  treasurer  shall  issue 
a warrant  to  the  sheriff  for  the  collection  of  such  tax.  (Tax  L.,  § 76.) 

COUNTY  TUBERCULOSIS  HOSPITAL. 

See  Superintendent ; Board  of  Managers. 

CUSTODIAN  OF  PRIMARY  RECORDS. 

Before  the  first  day  of  registration,  shall  cause  booths  to  be  erected, 
furnish  in  each  voting  booth  the  articles  required  to  be  placed  therein 
for  a general  election,  provide  enrollment  books,  etc.  (Elec.  L.,  8 6.) 

Within  forty-eight  hours  after  the  close  of  general  election,  inspec- 
tors shall  deliver  in  a sealed  envelope  the  enrollment  books  a-.id  records 
pertaining  thereto,  and, 

Until  the  following  Tuesday,  such  envelope  shall  remain  sealed. 
(Elec.  L.,  § 13.) 

Forthwith  upon  receiving  from  the  inspectors  statements  of  re- 
sult, shall  proceed  to  canvass  the  same,  and, 

Within  one  hundred  and  twenty  hours  from  midnight  of  the  primary 
election  day,  shall  complete  such  canvass,  and  file  the  required  certi- 
ficate with  the  secretary  of  state.  (Elec.  L.,  § 89.) 


1240 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


For  a period  of  not  more  than  three  years,  shall  retain  on  file  the 

enrollment  books  and  other  papers  required  to  be  filed  with  him, 
unless  otherwise  directed  by  the  district  attorney  or  a judge  or  justice 
of  a court  of  record.  (Elec.  L.,  § 88.) 

On  the  seventh  Tuesday  before  the  general  election,  an  official  pri- 
mary election  shall  be  held,  and, 

On  the  last  Tuesday  in  March,  in  each  presidential  year,  an  addi- 
tional official  primary  election  shall  be  held.  (Elec.  L.,  § 70.) 

At  least  thirty-five  days  before  each  official  primary  day,  the  chair- 
man of  the  general  committee  of  each  party  shall  certify  and  deliver 
to  the  custodian  a statement  of  the  time  and  place  of  holding  conven- 
tions, and  of  other  matters,  and, 

Not  more  than  thirty-five  days  nor  less  than  thirty  days  prior  to  such 

primary  election  shall  publish  a notice  thereof.  (Elec.  L.,  § 75.) 

Thirty  days  before  each  official  primary  day,  shall  divide  cities  and 
villages  of  five  thousand,  or  more,  into  primary  districts.  (Elec.  L., 
§ 74-) 

At  least  thirty  days  prior  to  the  official  primary,  shall  prepare  new 
enrollment  books,  when  an  election  district  is  created  or  the  bound- 
ries  thereof  changed.  (Elec.  L.,  § 20.) 

Annually  shall  provide  true  copies  of  the  enrollment  books  for  the 
parties,  and, 

In  February  of  each  year  deliver  copy  to  the  chairman  of  the  proper 
general  committee  of  each  party.  (Elec.  L.,  § 16.) 

Within  twenty-four  hours  after  the  close  of  the  last  day  of  regis- 
tration, the  sealed  envelope  enclosing  the  enrollment  books  and  rec- 
ords pertaining  thereto  shall  be  delivered  to  the  custodian,  and, 

Until  the  following  Tuesday,  such  envelopes  shall  remain  sealed. 
(Elec.  L.,  §§  12,  13.) 

At  the  time  of  the  final  delivery  of  the  enrollment  books,  the  inspec- 
tors shall  deliver  the  enrollment  box  to  the  custodian.  (Elec.  L.,  § 14.) 

Until  the  Tuesday  following  the  general  election,  the  enrollment 
boxes  shall  not  be  opened  nor  shall  the  enrollment  envelopes  be  opened 
or  removed  therefrom.  (Elec.  L.,  § 15.) 

On  or  before  September  15th,  shall  cause  to  be  prepared  two  original 
enrollment  books  for  each  election  district,  and, 

Immediately  before  the  first  day  of  registration,  such  enrollment 
books  shall  be  delivered  to  the  inspectors  of  the  respective  election  dis- 
tricts, and, 

At  least  twenty-four  hours  before  the  first  day  of  registration,  in 

election  districts  wholly  outside  of  a city  or  village  of  five  thousand  or 
more,  shall  deliver  such  enrollment  books  to  the  town  clerk.  (Elec. 

§ 4*) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1241 


On  Tuesday  following  the  general  election,  the  enrollment  boxes 
and  envelopes  shall  be  opened  by  the  custodian.  (Elec.  L.,  § 14.) 

Before  February  15th,  shall  complete  the  enrollment.  (Id.) 

At  all  times  except  at  the  hours  of  enrollment,  the  enrollment  boxes 
shall  be  in  the  charge  and  keeping  of  the  custodian.  (Elec.  L.,  §11.) 

At  the  time  of  filing  designations  of  candidates  by  party  committees, 
the  time  of  such  filing  shall  be  stamped  or  endorsed  thereon.  (Elec. 
L.,  § 49-) 

DEATH. 

Twenty-four  hours  after  the  death  of  any  person,  the  physician  last 
in  attendance  shall  deliver  certificate  of  death  to  local  registrar  of  vital 
statistics.  (Pub.  H.  L.,  § 22.) 

DEPUTY  COUNTY  CLERK. 

See  Special  Deputy  County  Clerk. 

Within  ten  days  after  entering  upon  his  duties  the  county  clerk 
shall  appoint  a deputy.  (County  L.,  § 162.) 

Before  entering  upon  his  duties,  shall  take  the  constitutional  oath 
of  office.  (County  L.,  § 162.) 

DISTRICT  ATTORNEY. 

Three  years,  term  of  office  is  except  in  certain  counties.  (N.  Y. 
Const.,  Art.  X,  § 1 ; County  L.,  § 200.) 

Before  entering  upon  the  duties  of  his  office,  shall  execute  an  un- 
dertaking, and 

Within  fifteen  days,  after  notice  of  appointment,  if  appointed,  shall 
execute  an  undertaking.  (County  L.,  § 200.) 

When  authorized  by  the  board  of  supervisors,  the  district  attorney 
in  certain  counties  may  appoint  an  assistant.  (County  L.,  § 202.) 

Annually,  shall  make  a report  to  the  board  of  supervisors  concern- 
ing fines  and  penalties  in  school  matters.  (Educ.  L.,  § 851.) 

On  or  before  November  fifth,  shall  file  with  the  clerk  of  the  board  of 
supervisors  a report  of  moneys  received.  (County  L.,  § 243.) 

At  least  twenty  days  before  a trial  term  of  the  supreme  court,  shall 
issue  a precept  to  the  sheriff.  (Code  Crim.  Pro.,  8 222a.) 

Within  five  days  after  the  discharge  of  the  grand  jury,  shall  file  in 
the  county  clerk’s  office  certified  statement  concerning  persons  charged 
with  violation  of  the  liquor  tax  law.  (Liq.  Tax  L.,  § 40.) 

Within  ten  days  after  the  adjournment  of  a criminal  court  of  record, 
shall  furnish  the  county  clerk  a statement  concerning  convicted  per- 
sons. (Code  Crim.  Pro.,  § 941.) 


1242 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


On  or  before  the  first  Tuesday  in  October,  shall  file  in  the  county 

treasurer’s  office  an  account  of  all  moneys  received  by  him,  and, 

At  the  same  time  shall  pay  over  any  balance  to  the  county  treasurer. 
(County  L.,  § 201.) 

On  receiving  report  of  sheriff  as  to  trespass  committed  upon  Indian 
lands  or  State  lands,  shall  prosecute  actions  for  such  trespass.  (Pub. 
Lands  L.,  § 8.) 

Forthwith,  when  requested  by  attorney-general,  shall  report  prose- 
cution of  crimes  against  elective  franchise.  (Executive  L.,  § 67.) 

Upon  request  of  the  governor  and  without  delay,  shall  furnish  to 
the  governor  a statement  of  the  facts  proved  on  the  trial  of  a person 
making  application  for  a pardon.  (Prison  L.,  § 260.) 

DOGS. 

Thirty  days  after  the  date  specified  in  a resolution  of  the  board  of 
supervisors  adopting  dog  registration,  each  constable  of  a town  or 
policeman  or  peace  officer  of  a village  shall  seize  unregistered  dogs. 

and, 

Seventy-two  hours  after  the  seizure  of  a dog  such  officer  shall  kill 
the  same  unless  the  registration  fee  is  paid,  etc.,  but, 

Forty-eight  hours  before  killing  such  dog,  he  shall  serve  a notice 
on  the  owner.  (County  L„  § 133.) 

DRAINAGE  COMMISSIONERS. 

Before  entering  upon  the  duties  of  their  office,  shall  file  an  oath. 
(Drainage  L.,  § 6.) 

As  soon  as  practicable  or  whenever  ordered  by  the  court,  the  com- 
missioners shall  file  a statement  of  moneys  received  and  disbursed. 
(Drainage  L.,  § 37.) 

Within  ten  days  after  the  last  publication  of  the  notice  of  the  filing 
of  their  determination  whether  drainage  is  necessary,  an  appeal  may  be 
taken,  and, 

Ten  days’  notice  shall  be  given  of  a hearing  upon  the  appeal. 
(Drainage  L.,  § 11.) 

Within  ten  days  of  the  service  of  notice  of  filing  the  statement  of 
assessments  for  drainage,  an  appeal  may  be  taken  from  the  determina- 
tion of  the  commissioners.  (Drainage  L.,  §§  33,  46.) 

Within  thirty  days  after  the  filing  of  such  statement,  in  case  the 
same  is  not  appealed  from,  the  assessments  shall  be  levied.  (Drainage 
L..  § 33  ) 


TIME  TABLE  FOB  TOWN  AND  COUNTY  OFFICERS. 


1243 

Within  thirty  days  after  notice  of  the  final  determination  of  the  ap- 
pellate court,  in  case  an  appeal  is  taken,  the  assessments  shall  be  levied. 
(Drainage  L..  § 33.) 

Within  thirty  days  after  the  decision  of  the  court  is  filed,  an  appeal 
may  be  taken  to  the  Appellate  Division.  (Drainage  L.,  § 39.) 

Eight  days’  notice  shall  be  given  of  an  application  to  apportion 
among  two  or  more  towns,  the  amount  to  be  raised  for  drainage  by 
issuing  bonds,  and, 

Ten  days’  notice  of  the  sale  of  the  bonds  shall  be  given.  (Drain- 
age  L.,  § 16.) 

Ten  days’  notice  shall  be  given  of  sale  of  bonds  to  pay  drainage  as- 
sessments. (Drainage  L.,  § 37.) 

Thirty  days  after  demand  for  the  payment  of  an  assessment,  the 
commissioners  shall,  if  payment  is  not  made,  cause  the  assessment  and 
description  of  the  premises  to  be  published,  and, 

Six  weeks’  publication  is  required,  and, 

Not  less  than  six  weeks  from  first  publication,  premises  shall  be  sold.  • 
(Drainage  L.,  § 40.) 

Fifteen  months  after  the  sale  of  the  premises,  they  may  be  redeemed. 
(Drainage  L.,  § 42.) 

ELECTION. 

See  Board  of  Election;  Commissioners  of  Elections;  Custodian  of 

Primary  Records. 

ELECTION  COMMISSIONERS. 

See  Commissioners  of  Election  and  Board  of  Elections;  Custodian  of 

Primary  Records. 

FIRE  COMMISSIONERS. 

See  Fire  District. 

FIRE  DISTRICT. 

Outside  of  Incorporated  Village. 

Five  years  is  the  term  of  office  of  the  fire  commissioners.  (County 
L.,  § 38,  subd.  2.) 

Three  years  is  the  term  of  office  of  the  treasurer.  (Id.) 

Before  entering  on  the  duties  of  his  office,  the  treasurer  shall  give 
security.  (Id.) 

Within  thirty  days  after  the  establishment  of  a fire  district,  election 
shall  be  called  by  town  clerk.  (Id.) 

Not  less  than  thirty  days  prior  to  the  expiration  of  terms  of  office, 
subsequent  elections  shall  be  called.  (Id.) 


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TIME  TABLE  FOR  TOW X AND  COUNTY  OFFICERS. 


Within  thirty  days  after  a vacancy  in  office  occurs,  a special  elec- 
tion to  fill  the  vacancy  shall  be  called.  (Id.) 

For  a period  not  to  exceed  five  years  the  commissioners  may  con- 
tract for  a supply  of  water  for  fire  purposes.  (County  L.,  § 38,  subd.  4.) 

Ten  days  before  the  holding  of  a meeting  for  the  appropriation  of 
money,  notice  thereof  shall  be  posted.  (County  L.,  § 38,  sub.  5.) 

Before  the  annual  meeting  of  the  board  of  supervisors,  the  commis- 
sioners shall  present  to  the  supervisor  a statement  of  the  amount  ex- 
pended. (County  L.,  § 38,  subd.  6.) 

Thirty  days  prior  to  the  sale  of  property  belonging  to  a discon- 
tinued district,  notice  of  such  sale  shall  be  published.  (County  L., 
§ 38,  subd.  8.) 

On  Friday  preceding  the  annual  meeting  of  the  board  of  supervisors, 

the  town  board  and  board  of  fire  commissioners  of  certain  fire  districts 
shall  meet.  (County  L.,  § 38,  subd.  8.) 

GRAND  JURY. 

At  least  twenty  days  before  a term  for  which  a grand  jury  is  or- 
dered, a copy  of  the  order  must  be  filed  with  the  county  clerk.  (Code 
Crim.  Pro.,  § 227.) 

HEALTH  OFFICERS. 

See  Board  of  Health. 

JAIL. 

At  least  once  each  Sunday,  if  practicable,  the  keeper  shall  cause 
divine  service  to  be  conducted  for  the  benefit  of  the  prisoners.  (County 
L.,  § 94-) 

Annually,  the  keeper  shall  account  to  the  board  of  supervisors  for 
the  proceeds  of  the  labor  at  which  prisoners  in  the  county  jail  are 
employed.  (County  L.,  § 93.) 

JURORS. 

See  Sheriff. 

Every  three  years  on  the  first  Monday  of  July,  the  supervisor,  town 
clerk,  and  assessors  of  each  town  must  meet  to  make  list  of  trial  jurors. 
(Jud.  L.,  § 500.) 

Within  ten  days  after  making  the  jury  lists,  one  copy  must  be  filed 
with  the  county  clerk  and  another  with  the  town  clerk.  (Jud.  L.,  § 
505.) 

Three  years  trial  jurors  shall  serve.  (Jud.  L.,  § 506.) 

First  Monday  of  August,  after  jury  lists  have  been  transmitted  to 
him,  the  county  clerk  must  prepare  suitable  ballots.  (Jud.  L.,  § 508.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1245 


Immediately  after  first  Monday  of  August,  if  list  of  jurors  is  not 

received  or  is  lost,  the  county  clerk  shall  notify  the  town  clerk.  (Jud. 

L-,  §§  5io,  511.) 

Six  days,  at  least,  before  drawing  a jury  county  clerk  must  publish 
notice  thereof  in  county  newspaper,  if  there  is  none,  notice  must  be 
affixed  to  outer  door  of  building  where  drawing  is  to  be  held,  also, 

Three  days,  at  least,  before  such  drawing  he  shall  serve  notice 
thereof  upon  the  sheriff  and  county  judge.  (Jud.  L.,  § 514.) 

Twenty  days,  at  least,  before  the  day  appointed  for  the  term,  an 
order  for  drawing  additional  jurors  before  the  term  must  be  delivered 
to  the  county  clerk.  (Jud.  L.,  § 529.) 

On  particular  days,  jurors  drawn  for  terms  of  court  in  Albany  and 
Queens  counties  may  be  directed  to  attend.  (Jud.  L.,  § 543.) 

Within  thirty  days  after  service  of  notice  upon  a delinquent  juror 
in  a special  proceeding,  if  the  fine  has  not  been  remitted  by  the  officer 
imposing  it  he  must  make  a special  return  to  the  next  term  of  county 
court.  (Jud.  L.,  § 562.) 

JURORS  IN  KINGS  COUNTS. 

Between  May  first  and  July  first,  the  commissioner  must  select  from 
the  persons  residing  in  the  county  suitable  persons  to  serve  as  trial 
jurors.  (Jud.  L.,  § 692.) 

Between  May  first  and  July  first,  the  assessors  in  the  borough  of 
Brooklyn  must  make  a return  to  the  commissioner  of  all  persons  liable 
to  serve  as  trial  jurors.  (Jud.  L.,  § 691.) 

Two  days  after  service  of  subpoena  is  the  minimum  period  within 
which  a juror  may  be  compelled  by  the  commissioner  to  report  for 
examination  as  to  his  qualifications.  (Jud.  L.,  § 690.) 

First  Monday  of  August  in  each  year,  or  earlier,  the  commissioner 
must  prepare  a list  of  persons  liable  to  serve  as  trial  jurors.  (Jud.  L., 
§ 695),  and. 

From  time  to  time  supplemental  lists  may  be  made.  (Jud.  L.,  696.) 

Ten  days,  at  least,  notice  that  the  list  of  trial  jurors  for  the  year  is- 
ready  for  examination  must  be  published  in  at  least  six  daily  news- 
papers. (Jud.  L.,  § 693.) 

Second  Monday  of  August,  in  each  year,  the  commissioner  must  de- 
posit the  jury  ballots  in  the  box  kept  by  him  for  that  purpose.  (Jud. 
L,  § 69 7.) 

Fourteen  to  twenty  days,  before  the  day  appointed  for  holding  a 
term  of  a court  of  record  in  the  county,  the  commissioner  must  rea- 
sonably notify  justices  of  the  supreme  court  and  the  county  judges 
to  attend  the  drawing.  (Jud.  L.,  § 700.) 

Immediately  after  each  drawing  of  trial  jurors,  the  commissioner  or 


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his  chief  clerk  must  transmit  a panel  of  the  jurors  drawn  to  the  sheriff. 
(Jud.  L.,  § 706.) 

Any  time  during  the  term,  the  court  may  direct  an  additional  num- 
ber of  trial  jurors  to  be  drawn  for  that  term.  (Jud.  L.,  § 707.) 

Before  commencement  of  term,  commissioner  must  make  return  of 
jurors  notified.  (Jud.  L.,  § 71 1.) 

First  six  days  of  the  term,  the  jurors  first  notified  must  attend,  then 
next  drawn  shall  be  present  the  next  six  days  of  the  term.  (Jud.  L., 
§ 7io.) 

Six  days  is  the  maximum  period  for  which  a juror  may  be  required 
to  serve  in  any  one  term,  unless  the  court  otherwise  directs.  (Jud. 
L-,  § 715  ) 

Within  one  week  after  the  close  of  each  term  for  which  trial  jurors 
have  been  drawn,  the  county  clerk  must  return  to  the  commissioner 
of  trial  jurors  the  panel  of  trial  jurors,  with  information  as  to  each 
juror.  (Jud.  L.,  § 718.) 

Three  days  after  service  of  notice  upon  him  a juror  who  has  been 
fined  must  appear  and  show  cause  why  the  fine  should  be  remitted. 
(Jud.  L.,  § 727.) 

Ten  days  after  the  final  disposition  of  a case  the  commissioner  must 
file  in  the  office  of  the  clerk  of  the  court,  a return  containing  the  name 
of  each  juror  fined  and  the  amount  remaining  unpaid,  then  the  clerk 
must  issue  a precept  commanding  the  commissioner  to  collect  the 
fines,  and, 

Within  ninety  days  after  the  receipt  thereof,  the  commissioner  must 
return  the  precept,  with  his  doings  thereupon.  (Jud.  L.,  § 731.) 

Once  in  each  three  months,  at  least,  the  commissioner  of  jurors  must 
pay  to  the  county  treasurer  all  moneys  which  he  has  received  as  com- 
missioner. (Jud.  L.,  § 684.) 

Annually,  the  commissioner  of  jurors  must  report  to  the  board  of 
supervisors.  (Jud.  L.,  § 685.) 

JURORS  IN  NEW  YORK  COUNTY 

October  first  the  jury  year  commences.  (Jud.  L.,  § 641.) 

Annually  in  May,  the  commissioner  of  jurors  must  commence  the 
preparation  of  .lists  of  trial  jurors.  (Jud.  L.,  § 597.) 

Three  days,  at  least,  before  the  drawing  the  commissioner  of  jurors 
must  cause  written  notice  thereof  to  be  served  upon  the  county  clerk 
or  his  deputy  and  at  least  three  judges  of  courts  of  record  residing  in 
the  county.  (Jud.  L.,  § 61 1.) 

Within  twenty-four  hours  after  service  of  notice  by  commissioner, 
juror  must  attend  and  testify  as  to  liability  to  serve.  (Jud.  L.,  § 603.) 

Three  months  a person  liable  to  serve  as  a trial  juror  may  be  ex- 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1247 


cused  during  a jury  year,  when  sufficient  cause  is  shown.  (Jud.  L., 

§ 631.) 

Three  days  a juror  may  be  temporarily  excused  during  a term.  (Jud. 
L.,  § 630.) 

Six  days,  at  least,  before  the  term  the  commissioner  must  notify  each 
trial  juror  drawn.  (Jud.  L.,  § 624.) 

Within  ten  days  after  the  close  of  each  term,  the  clerk  of  each  court 
of  record  must  make  a return  to  the  commissioner  of  jurors.  (Jud. 
L-.  § 1 34-) 

Twelve  days’  service  within  one  jury  year  entitles  a juror  to  a dis- 
charge for  the  remainder  of  that  year  and  for  the  following  year;  ex- 
cept that  he  shall  not  be  discharged  until  the  close  of  the  trial  in  which 
he  is  serving  when  the  twelve  days  expire.  (Jud.  L.,  §§  641,  642.) 

On  or  before  October  first,  in  each  year,  the  commissioner  of  jurors 
must  return  to  the  clerk  of  New  York  county  certified  copies  of  the 
lists  prepared  by  him.  (Jud.  L.,  § 604.) 

Once  every  three  months  the  corporation  counsel  of  New  York  city 
shall  report  to  the  mayor  as  to  fines  of  delinquent  jurors  and  enforce- 
ment thereof.  (Jud.  L.,  § 666)  ; and, 

Within  ten  days  after  such  report  is  received  the  mayor  must  cause 
the  same  to  be  published  in  the  city  record.  (Jud.  L.,  § 667.) 

JUSTICE  OF  THE  PEACE. 

See  Town  Board. 

For  term  of  four  years,  commencing  on  January  first  succeeding  his 
election,  shall  hold  office.  (N.  Y.  Const.,  Art.  VI,  § 17;  Town  L.,  § 

103) 

Before  entering  upon  the  duties  of  office,  shall  give  a bond,  and, 

On  or  before  January  15th  succeeding  election,  shall  file  with  the 
county  clerk  a certificate  of  the  town  clerk  that  he  has  filed  such  bond, 

and, 

Within  fifteen  days  after  notice  of  his  election  or  appointment,  if 
elected  or  appointed  to  fill  a vacancy,  he  shall  file  such  undertaking 
and  certificate,  etc.  (Town  L.,  § 106.) 

At  annual  town  meeting  or  at  such  other  time  as  legislature  may  di- 
rect, electors  shall  elect  justices  of  the  peace.  (N.  Y.  Const..  Art.  VI, 
§ l7-) 

Forthwith,  after  moving  from  town  wherein  he  was  elected,  shall 
deposit  his  docket  book  with  the  town  clerk.  (Code  Civ.  Pro.,  § 3144.) 

At  the  expiration  of  term  of  office,  shall  file  his  criminal  docket  in 
the  town  clerk’s  office.  (Code  Crim.  Pro.,  § 220.) 

At  least  once  a year  at  the  last  audit  day  of  the  town,  shall  exhibit 
his  docket  to  the  auditing  board.  (Code  Crim.  Pro.,  § 220.) 


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TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


On  the  first  Monday  in  each  month,  the  board  of  supervisors  shall 

have  power  to  direct  the  payment  by  justices  of  the  peace  of  all  fines 
and  penalties  imposed  and  received  by  them,  and, 

On  the  Tuesday  preceding  the  annual  town  meeting  to  make  a veri- 
fied report  thereof  to  the  board  of  town  auditors.  (County  L.,  § 12, 
subd.  21.) 

Within  ten  days  after  a conviction  for  contempt  of  court,  shall  file 
in  the  county  clerk’s  office  a record  thereof.  (Code  Civ.  Pro.,  § 2873.) 

Forthwith,  after  accepting  the  resignation  of  a town  officer,  shall 
give  notice  thereof  to  the  town  clerk.  (Town  L.,  § 84.) 

Recanvass  of  Votes  for  Town  Meeting. 

On  the  day  next  following  the  town  meeting  at  ten  o’clock  in  the 
forenoon,  the  justices  shall  meet  with  the  town  clerk  and  recanvass 
the  votes  of  town  meeting  held  by  election  districts.  (Town  L.,  § 
65),  and, 

On  the  Thursday  succeeding  a town  meeting,  held  at  the  time  of  the 
general  election  the  votes  shall  be  recanvassed.  (Town  L.,  § 67.) 

Summons. 

Not  less  than  six  nor  more  than  twelve  days  after  issuance  of  a sum- 
mons, the  same  shall  be  returnable,  and, 

Immediately  upon  the  arrest  of  a defendant,  summons  accompany- 
ing order  of  arrest  shall  be  returnable.  (Code  Civ.  Pro.,  § 28 77.) 

Six  days  before  return  day,  summons  shall  be  served.  (Code  Civ. 
Pro.,  § 2878.) 

Within  twenty  days  after  the  issuance  of  a summons  returned  un- 
satisfied a subsequent  summons  may  be  issued.  (Code  Civ.  Pro.,  § 
2883.) 

Joinder  of  Issue. 

Within  one  hour  after  the  time  specified  in  the  summons  for  the  re- 
turn thereof,  issue  shall  be  joined.  (Code  Civ.  Pro.,  § 2934.) 

Within  twelve  hours  after  a defendant  is  brought  before  the  justice 
under  an  order  of  arrest,  issue  shall  be  joined.  (Code  Civ.  Pro,,  § 

2934-) 

Commission. 

Six  days’  notice  shall  be  given  of  an  application  for  a commission 
when  made  after  the  joinder  of  issue.  (Code  Civ.  Pro.,  § 2982.) 

Adjournment. 

Not  more  than  eight  days’  adjournment  shall  be  granted  without  the 
consent  of  certain  parties.  (Code  Civ.  Pro.,  §§  2959,  2960.) 


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1249 


Not  exceeding  five  days’  adjournment  may  be  granted  where  an  at* 
tachment  for  a witness  is  issued.  (Code  Civ.  Pro.,  § 2967.) 

Not  to  exceed  ninety  days’  adjournment  shall  be  granted  wihout 
the  consent  of  both  parties,  except  in  certain  cases.  (Code  Civ.  Pro., 
§ 2968.) 

Not  exceeding  thirty  days,  upon  the  application  of  the  defendant, 
may  adjourn  bastardy  proceedings.  (Code  Crim.  Pro.,  § 849.) 

Jury ; Failure  to  Agree. 

Within  forty-eight  hours  after  jurors  fail  to  agree,  a new  venue  shall 
be  returnable.  (Code  Civ.  Pro.,  § 3008.) 

Judgment. 

Within  four  days  after  the  final  submission  of  a cause,  shall  render 
judgment  and  enter  it  in  his  docket  book.  (Code  Civ.  Pro.,  § 3015.) 

Execution. 

Within  five  years  after  the  entry  of  judgment,  execution  may  be  is- 
sued thereof.  (Code  Civ.  Pro.,  § 3024.) 

Within  five  years  after  a judgment  is  rendered,  may  issue  a new 
execution  or  renew  a former  one.  (Code  Civ.  Pro.,  § 30 27.) 

Within  sixty  days  after  its  date,  an  execution  must  be  made  re- 
turnable. (Code  Civ.  Pro.,  § 3025.) 

Appeal. 

Within  twenty  days  after  the  entry  of  a judgment,  an  appeal  may 
be  taken.  (Code  Civ.  Pro.,  § 3046.) 

Eight  days’  notice  shall  be  given  of  a hearing  upon  an  appeal  where 
a new  trial  is  not  had  in  the  appellate  court.  (Code  Civ.  Pro.,  § 3062.) 

After  ten  and  within  thirty  days  from  the  service  of  a notice  of  ap- 
peal, shall  make  his  return.  (Code  Civ.  Pro.,  § 3053.) 

Six  days’  notice  shall  be  given  of  an  application  for  restitution  upon 
the  reversal  of  a judgment  of  justice’s  court.  (Code  Civ.  Pro.,  § 

3058.) 

Order  of  Discharge. 

On  two  days’  notice  a defendant  arrested  may  apply  for  a order  of 
discharge.  (Code  Civ.  Pro.,  § 2901.) 

Examination  of  Person  Charged  with  Grand  Jury  Offense. 

A reasonable  time  is  allowed  a person  charged  with  a grand  jury 
offense  in  which  to  provide  counsel.  (Code  Crim.  Pro.,  § 189.) 

At  one  session,  unless  for  good  cause,  examination  must  be  com- 
pleted. (Code  Crim.  Pro.,  § T91 .) 


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TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Not  more  than  two  days’  adjournment  shall  be  had  without  the  de- 
fendant’s consent.  (Code  Crim.  Pro.,  § 191.) 

Within  five  days  after  the  examination,  shall  return  to  the  county 
clerk  the  depositions,  etc.,  and  to  the  district  attorney  a statement 
concerning  the  defendant,  the  witnesses,  etc.  (Code  Crim.  Pro.,  § 221.) 

Within  five  days  after  the  filing  with  him  of  a certificate  that  a crimi- 
nal charge  pending  before  him  shall  be  prosecuted  by  indictment,  jus- 
tice shall  make  a return  to  the  district  attorney  of  the  proceeding  had 
before  him,  etc.  (Code  Crim.  Pro.,  § 57.) 

Not  less  than  five  nor  more  than  ten  days’  adjournment  shall  be 
granted  to  enable  the  accused  to  secure  such  a certificate.  (Code 
Crim.  Pro.,  § 58.) 

JUVENILE  DELINQUENTS. 

Annually  the  board  of  supervisors  shall  fix  the  compensation  to  be 
allowed  to  officers  for  the  conveyance  of  juvenile  delinquents  to  the 
houses  of  refuge  and  state  industrial  schools.  (County  L.,  § 12,  subd. 
20.) 


KEEPER  OF  ALMS  HOUSE. 

On  the  first  day  of  each  month,  shall  send  copies  of  the  records  con- 
cerning the  inmates  of  alms  houses  to  the  state  board  of  charities. 
(Poor  L.,  § 142.) 

Three  days  after  the  admission  of  a state  poor  person,  he  shall  trans- 
mit the  name  of  and  particulars  concernng  such  person  to  the  super- 
intendent of  state  and  alien  poor.  (Poor  L.,  § 95.) 

KINGS  COUNTY. 

See  Jurors  in  Kings  County. 

LOAN  COMMISSIONERS. 

On  the  first  Tuesday  of  January  shall  report  to  the  comptroller. 

(State  Finance  L.,  § 93.) 

At  the  annual  meeting  of  the  board  of  supervisors,  shall  exhibit 

mortgages,  etc.  (State  Finance  L.,  § 96.) 

MONROE  COUNTY. 

Three  years  from  the  first  Tuesday  in  October  is  the  term  of  office 
of  the  county  treasurer.  (County  L.,  § 140.) 


NEW  YORK  COUNTY. 

See  Jurors  in  New  York  County. 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1251 


NOTARY  PUBLIC. 

Two  years  from  the  thirtieth  day  of  March  of  the  year  in  which  the 

appointment  is  made  shall  be  the  term  of  office.  (Executive  L.,  § ioi.) 

Fifteen  days  after  notice  of  his  appointment  is  mailed,  a notary  must 
file  his  oath  of  office.  (Executive  L.,  § 103.) 

Forthwith,  upon  the  receipt  of  the  commission  of  a person  appointed 
notary  public,  the  county  clerk  shall  mail  to  such  person  a notice  of 
his  appointment.  (Executive  L.,  § 103.) 

OVERSEER  OF  THE  POOR. 

See  Superintendent  of  the  Poor. 

Two  years  is  term  of  office  of.  (Town  L.,  § 82.) 

Within  ten  days  after  notification  of  his  election,  shall  take  oath  oi 
office.  (Town  L.,  § 83.) 

Within  ten  days  after  notification  of  his  election  or  appointment, 
shall  execute  au  undertaking  for  the  faithful  discharge  of  his  duties. 
(Town  L.,  § IJ3.) 

Four  years  after  payment  of  usurious  interest,  if  action  has  not  been 
brought  by  the  party  within  one  year,  the  overseer  of  the  poor  may 
bring  such  action,  and, 

One  year  after  neglect,  discontinuance  or  delay  of  party  to  sue, 
such  action  may  be  commenced.  (Gen.  Bus.  L.,  § 381.) 

At  least  once  each  month  shall  examine  into  the  condition  and  neces- 
sities of  each  person  supported  by  the  town  or  city  out  of  the  county 
alms  house.  (Poor  L.,  § 25.) 

On  or  before  the  tenth  day  of  each  month  shall  report  to  the  state 
board  of  charities  concerning  dependent  children  placed  out.  (Poor 
L.,  § 146.) 

Within  ten  days  after  the  appointment  or  commitment  of  a person 
to  a state  charitable  institution,  shall  make  a written  report  thereof 
to  the  clerk  of  the  board  of  supervisors.  (State  Charities  L.,  § 450.) 

At  its  first  annual  meeting  in  each  year,  overseer  of  the  poor  shall 
lay  his  books  of  account  before  the  board  of  town  auditors  or  the  com- 
mon council  of  a city,  and, 

Upon  ten  days’  notice  being  given  shall  present  such  books  at  an 
adjourned  meeting,  and, 

At  its  second  annual  meeting  in  each  year  the  overseers  shall  make 
a written  report  to  the  town  board.  (Poor  L.,  § 26.) 

Annually,  shall  account  to  the  town  auditors  or  the  auditing  board 
of  a city  for  sums  received  from  a putative  father  for  the  support  of  a 
bastard.  (Poor  L.,  § 68.) 

Within  fifteen  days  after  the  collection  of  moneys  ordered  to  be  paid 


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by  the  putative  father  of  a bastard  chargeable  to  a county,  such  moneys 
will  be  paid  into  the  county  treasury.  (Poor  L.,  § 69.) 

Before  confinement  or  at  any  time  after  two  months  of  delivery, 
the  overseers  of  the  town  or  city  to  which  the  mother  of  a bastard 
belongs  may  take  and  support  such  mother  and  child.  (Poor  L., 

§ 70.) 

At  the  beginning  of  the  fiscal  year  of  a city,  if  such  time  be  fixed, 
otherwise  on  January  first,  the  overseer  of  the  poor  of  a city  shall 
report  to  the  auditing  board  of  such  city.  (Poor  L.,  § 29.) 

Within  ten  days  after  granting  relief  in  a proceeding  to  determine 
who  are  county  poor,  the  overseer  shall  give  notice  to  the  superintend- 
ent that  the  person  is  not  a charge  against  his  town,  and, 

Eight  days’  notice  shall  be  given  to  the  overseer  by  superintendent 
before  annulling  a certificate  that  such  poor  person  is  a county  charge. 
(Poor  L.,  § 47.) 

Within  ten  days  after  application  for  relief  by  a person  with  a set- 
tlement in  another  town  in  the  same  county,  the  overseer  shall  notify 
the  overseer  of  the  town  to  which  he  belongs,  requiring  him  to  pro- 
vide for  the  support  and  relief  of  such  poor  person,  and, 

Within  ten  days  after  service  of  such  notice,  the  overseer  to  whom 
it  is  directed  must  contest  the  settlement  of  such  poor  person  or  be 
precluded  from  denying  it,  and, 

Between  ten  and  thirty  days  of  the  service  of  such  notice  appearance 
may  be  made  before  the  county  superintendent  pursuant  to  the  service 
of  a notice  of  the  contest  of  such  settlement.  (Poor  L.,  § 42.) 

Five  days’  notice  to  be  given  of  a subsequent  meeting  before  the  su- 
perintendent, where  he  fails  to  appear  at  the  time  and  place  appointed 
for  the  first  meeting.  (Poor  L.,  § 42.) 

Within  ten  days  after  granting  relief  to  a person  having  no  legal 
settlement  in  the  county,  the  overseer  shall  notify  the  superintendent 
of  the  poor.  (Poor  L.,  § 24.) 

Thirty  days  after  receiving  person  into  the  alms-house  who  has  a 

settlement  in  a town  of  the  county,  the  superintendent  shall  give  notice 
to  the  overseer  of  such  towm,  that  the  expenses  will  be  charged  against 
it,  and, 

Not  less  than  twenty  days  thereafter  the  overseer  may  show  that 
such  town  ought  not  to  be  so  charged.  (Poor  L.,  § 46.) 

Within  ten  days  after  acquiring  knowledge  of  the  improper  removal 
of  a poor  person,  the  superintendent  shall  notify  the  overseer  of  the 
poor  of  the  town  or  city  from  which  such  poor  person  came.  (Poor 

L-,  § 51.) 

Within  thirty  days  after  receiving  such  notice,  the  improper  removal 
may  be  contested  by  serving  notice  of  denial  thereof.  (Poor  L.,  § 52.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1253 


Within  three  months  after  the  service  of  the  latter  notice,  an  action 
must  be  brought  for  the  support  of  such  poor  person  or  the  superin- 
tendent will  be  precluded  from  any  claim  against  the  city,  town  or 
county  from  which  such  poor  person  came.  (Poor  L.,  § 54.) 

One  year’s  residence  of  a poor  person  in  a town  or  city  may  give 
him  a settlement  therein.  (Poor  L.,  § 40.) 

On  the  first  day  of  the  annual  meeting  of  the  board  of  supervisors, 
the  supervisor  shall  lay  before  the  board  a certificate  of  the  town  board 
approving  the  statement  and  estimate  of  the  overseers  of  the  poor. 
(Poor  L.,  § 27.) 

Within  thirty  days  after  the  adoption  by  the  board  of  supervisors  of 
a resolution  abolishing  the  distinction  between  town  and  county  poor, 

the  clerk  of  the  board  shall  serve  a copy  of  the  resolution  on  the  over- 
seers of  the  poor.  (Poor  L.,  § 138).  and, 

Within  three  months  after  the  service  of  such  notice,  the  overseers 
shall  pay  over  to  the  county  treasurer  moneys,  and, 

Within  three  months  after  receiving  moneys  subsequently,  they  shall 
be  paid  over.  (Poor  L.,  § 139.) 

Within  twenty  days  after  an  Indian  has  sold,  exchanged  or  pawned 
articles  for  intoxicating  drinks,  if  he  has  not  received  them,  the  over- 
seer of  the  poor  may  commence  an  action  therefor.  (Indian  L.,  § 4.) 

PEACE  OFFICES. 

See  Constable. 

Thirty  days  after  the  date  specified  in  a resolution  of  the  board  of 
supervisors  adopting  dog  registration,  each  constable  of  a town  or 
policeman  or  peace  officer  of  a village  shall  seize  unregistered  dogs, 

and, 

Seventy-two  hours  after  the  seizure  of  a dog,  such  officer  shall  kill 
the  same  unless  the  registration  fee  is  paid,  etc.,  but, 

Forty-eight  hours  before  killing  such  dog,  he  shall  serve  a notice 
on  the  owner.  (County  L.,  § 133.) 

Annually  the  board  of  supervisors  shall  fix  the  compensation  to  be 
allowed  to  officer  for  the  conveyance  of  juvenile  delinquents  to  the 
houses  of  refuge  and  state  industrial  schools.  (County  L.,  § 12,  subd. 
20.) 

POOR. 

See  Superintendent  of  the  Poor ; Settlement ; Overseer  of  the  Poor. 

POOR  HOUSE,  CHANGE  OF  SITE. 

See  County  Buildings,  Change  of  Location. 


1254 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


PROBATION  OFFICER. 

Monthly  to  report  to  the  court  of  the  conduct  and  condition  of  pro- 
bationers, and  to  make  returns  of  moneys  collected  from  such  proba- 
tioners. (Code  Crim.  Pro.,  § n-a,  subd.  2.) 

PUBLIC  ADMINISTRATOR. 

Five  years,  is  term  of  office  of.  (L.  1900,  ch.  501,  § 1.) 

Before  entering  upon  the  duties  of  his  office,  shall  take  oath  of  office 

and  execute  a bond.  (Id.,  § 2.) 

PUBLIC  ADMINISTRATOR  OF  NEW  YORK  COUNTY. 

Before  entering  upon  the  duties  of  his  office,  shall  execute  a bond 
to  the  city  of  New  York.  (L.  1898,  ch.  230,  § 2.) 

Monthly  shall  pay  to  the  city  treasurer  all  commissions  and  costs 
received.  (Id.,  § 3.) 

Immediately  after  taking  perishable  property  into  his  charge,  shall 
sell  the  same.  (Id.,  § 11.) 

Three  months  after  the  delivery  of  property,  the  proceeds  thereof 
shall  be  paid  into  the  treasury  of  New  York  city.  (Id.,  § 18.) 

Three  days’  notice  shall  be  given  of  a sale  at  public  auction  of  per- 
sonal property  of  the  deceased.  (Id.,  § 24.) 

Two  months  after  letters  of  administration,  shall  sell  securities, 
(id.,  § 24.) 

Twelve  weeks’  notice  by  publication  shall  be  made  requiring  credi- 
tors to  present  claims  and  parties  to  claim  legacies  or  distributive 
shares.  (Id.,  § 24,  subd.  6.) 

Twelve  weeks  from  the  date  of  such  notice  such  persons  shall  pre- 
sent their  claims.  (Id.,  § 24,  subd.  6.) 

Six  months  after  becoming  vested  with  the  right  of  administration, 
shall  account  for  assets.  (Id.,  § 24,  subds.  9 and  10.) 

Within  two  days  after  the  receipt  of  moneys  collected  and  received,, 
shall  deposit  same  in  the  depositories.  (Id.,  § 25.) 

At  any  time  may  advance  to  any  relative  of  the  deceased,  portion 
of  the  estate  not  exceeding  $50,  as  may  be  necessary  for  the  support 
of  such  relative.  (Id.,  § 26.) 

On  January  first  or  within  14  days  thereafter  shall  exhibit  to  the 
municipal  assembly  of  the  city  of  New  York  a statement  of  receipts 
and  expenditures,  etc.  (Id.,  § 27.) 

Three  times  each  week  for  three  weeks  such  statement  shall  be  pub- 
lished in  the  city  record.  (Id.,  § 27.) 

Once  in  three  months  and  at  such  other  times  as  the  mayor  may 
direct,  make  reports  which  shall  be  published  in  the  city  record.  (Id.,. 

§ 27.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1255 


Monthly  shall  report  .to  the  municipal  assembly  transcripts  of  ac- 
counts closed  or  finally  settled,  and  all  those  on  which  any  money  has 
been  received  by  him  as  part  of  the  proceeds  of  any  estate  on  which 
he  has  administered.  (Id.,  § 30.) 

PUBLIC  ADMINISTRATOR  OF  RICHMOND  COUNTY. 

Five  years,  is  the  term  of  office  of.  (L.  1899,  ch.  486,  §1.) 

Before  entering  upon  the  duties  of  his  office,  shall  file  oath  of  office 
and  execute  a bond.  (Id.) 


REGISTER. 

See  County  Clerk. 

Three  years,  is  term  of  office  except  in  certain  counties.  (N.  Y. 
Const.,  Art.  X,  § 1.)  , 

On  the  first  days  of  January,  April,  July  and  October,  shall  make 
reports  to  the  state  comptroller  of  conveyances  which  may  be  sub- 
ject to  the  transfer  tax.  (Tax  L.,  § 239.) 

On  the  first  day  of  each  month,  shall  pay  to  the  county  treasurer 
mortgage  taxes.  (Tax  L.,  § 261.) 

Prior  to  November  first,  shall  cause  to  be  prepared  a list  containing 
a description  of  all  mortgages  upon  which  taxes  have  been  paid,  etc. 
(Tax  L.,  § 261.) 

SCHOOL  DIRECTOR. 

Before  entering  upon  the  duties  of  his  office  and  within  thirty  days 
after  his  election,  shall  take  the  oath  of  office.  (Educ.  L.,  § 382.) 

On  the  third  Tuesday  in  May  following  election,  shall  meet  for  or- 
ganization. (Educ.  L.,  § 383.) 

On  the  third  Tuesday  in  January,  on  every  fifth  year  after  1911, 
shall  meet  for  the  purpose  of  electing  a district  superintendent  of 
schools.  (Educ.  L.,  § 383.) 

On  January  first,  if  the  school  directors  have  failed  to  elect  a district 
superintendent  of  schools,  the  county  judge  may  appoint  such  super- 
intendent. (Educ.  L.,  § 383.) 

SETTLEMENT. 

See  Overseer  of  Poor. 

SEWERS  COMMISSIONER. 

Before  entering  upon  the  duties  of  his  office,  shall  take  the  consti- 
tutional oath  of  office  and  file  an  undertaking,  and, 

At  any  time  may  be  required  by  the  town  board  to  give  a new  un- 
dertaking. (Town  L.,  § 232.) 


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TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


In  July  of  each  year,  the  town  board  shall  notify  the  commissioners 
of  the  amount  to  become  due  for  principal  and  interest  during  the  en- 
suing year  on  bonds  issued  for  the  construction  of  sewer  system,  and, 

Forthwith,  upon  such  notification,  commissioners  shall  proceed  to 
assess  the  lands  within  the  sewer  district,  and, 

Six  days  before  a hearing  to  consder  and  review  such  assessment, 
notice  thereof  must  be  served  on  the  land  owners,  and, 

Forthwith  upon  the  completion  and  correction  of  the  apportionment 
shall  file  the  same  in  the  office  of  the  town  clerk.  (Town  L.,  § 237.) 

Within  fifteen  days  after  the  filing  of  an  apportionment  of  a local 
assessment  for  sewer  purposes,  an  appeal  may  be  taken  by  any  per- 
son aggrieved  thereby.  (Town  L.,  § 238.) 

Not  less  than  ten,  nor  more  than  twenty  days’  notice  shall  be  given 
to  bring  on  the  appeal.  (Town  L.,  § 239.) 

In  July  of  each  year,  shall  present  to  the  town  board  an  estimate  of 
the  amount  of  money  required  for  maintaining  a sewer  system  for  the 
ensuing  year.  (Town  L.,  § 243.) 

In  December  of  each  year,  shall  file  in  the  office  of  the  town  clerk 
a statement  of  moneys  received  and  paid.  (Town  L.,  § 244.) 

SHERIFF. 

See  Coroner. 

Three  years,  is  term  of  office  except  in  certain  counties.  (N.  Y. 
Const.,  Art.  X,  § 1 ; County  L.,  § 180.) 

Before  entering  upon  the  duties  of  his  office,  shall  execute  an  un- 
dertaking, and, 

Fifteen  days  after  notice  of  appointment,  if  appointed,  shall  execute 
an  undertaking,  and, 

Within  twenty  days  after  the  first  Monday  of  January  in  subsequent 
years,  such  security  shall  be  renewed.  (County  L.,  § 180.) 

On  or  before  November  fifth  shall  file  with  the  clerk  of  the  board  of 
supervisors  a report  of  moneys  received.  (County  L.,  § 243.) 

Within  twenty  days  after  the  delivery  of  a chattel  replevied,  shall 
file  his  return  with  the  clerk.  (Code  Civ.  Pro.,  § 1715.) 

With  reasonable  diligence,  after  service  of  a summons,  must  return 
it,  with  proof  of  service.  (Code  Civ.  Pro.  § 425.) 

Within  four  days  after  receiving  a deposit  in  lieu  of  bail,  must  pay 
the  same  into  court.  (Code  Civ.  Pro.,  § 583.) 

Immediately  upon  receipt  of  a precept  from  the  district  attorney, 
shall  cause  a proclamation  to  be  published.  (Code  Crim.  Pro.,  § 222-c.) 

Forthwith  upon  receiving  execution  for  the  collection  of  a fine  im- 
posed against  a person  violating  the  excise  law,  sheriff  shall  proceed 
to  collect  same.  (Liq.  Tax  L.,  § 39.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1257 


Within  fifteen  days  after  the  collection  of  moneys  ordered  to  be 
paid  by  the  putative  father  of  a bastard  chargeable  to  a county,  such 
moneys  shall  be  paid  into  the  county  treasury.  (Poor  L.,  § 69.) 

Within  ten  days  after  the  issuing  of  a warrant  for  the  execution  of 
a convict,  shall  deliver  the  convict  and  the  warrant  to  the  warden  of 
the  state  prison.  (Code  Crim.  Pro.,  § 491.) 

Within  ten  days  after  the  receipt  of  a warrant  commanding  him  to 
remove  the  occupant  of  resold  public  lands,  sheriff  shall  remove  such 
person.  (Pub.  Lands  L.,  § 39.) 

Within  ten  days  after  a sale  of  real  property  under  an  execution, 
shall  file  one  of  the  duplicate  certificates  of  sale  in  the  county  clerk’s 
office.  (Code  Civ.  Pro.,  § 1439.) 

At  any  time  before  a sale  of  personal  property  levied  upon  under 
an  execution,  shall  permit  the  creditor  to  make  an  examination  of 
such  property.  (Code  Civ.  Pro.,  § 1384.) 

Arrest;  When  May  Make. 

At  any  time  of  day  or  night,  may  arrest  a person  charged  with  a 
felony,  but, 

On  Sunday,  or  at  night,  cannot  arrest  a person  charged  with  a mis- 
demeanor, unless  directed  by  the  magistrate.  (Code  Crim.  Pro.,  § 
170.) 

At  night,  may  arrest,  without  a warrant,  any  person  whom  he  has 
reasonable  cause  for  believing  to  have  committed  a felony.  (Code 
Crim.  Pro.,  § 179.) 

At  any  time,  may  retake  an  escaped  prisoner.  (Code  Crim  Pro.,  § 
186.) 

Assessment  of  Damages. 

Immediately  after  the  delivery  to  him  of  a writ  of  assessment  of 
damages,  shall  give  notice  of  the  time  and  place  of  the  execution 
thereof.  (Code  Civ.  Pro.,  § 2108.) 

Immediately  after  the  signing  of  the  inquisition,  shall  file  the  in- 
quisition and  writ.  (Code  Civ.  Pro.,  § 21 11.) 

Attachment. 

Immediately,  shall  execute  a warrant  of  attachment,  and, 

From  time  to  time,  and  as  often  as  may  be  necessary,  may  levy  un- 
der a warrant  of  attachment.  (Code  Civ.  Pro.,  § 644.) 

Immediately,  after  levying  under  a warrant  of  attachment,  shall 
make  an  inventory,  and, 

Within  five  days  after  the  levy,  must  file  the  inventory  in  the  county 
clerk’s  office.  (Code  Civ.  Pro.,  § 654.) 


1258 


TIME  TABLE  FOR  TOWN  AXD  COUNTY  OFFICERS. 


Chautauqua  County. 

Once  a month  shall  pay  fees  and  perquisites  collected  to  the  county 
treasurer.  (County  L.,  § 12,  subd.  17.) 

Deputy  Sheriff. 

Before  entering  upon  the  duties  of  his  office,  a deputy  sheriff  shall 
take  the  constitutional  oath  of  office.  (County  L.,  § 181.) 

Jurors. 

At  the  time  of  drawing  trial  jurors,  shall  assist  in  the  drawing  of 
the  grand  jurors.  (Code  Civ.  Pro.,  § 229-h.) 

At  least  six  days  previous  to  the  sitting  of  the  court,  shall  summon 
the  grand  jurors.  (Code  Civ.  Pro.,  § 229-j.) 

At  the  opening  of  court,  shall  return  the  list  of  grand  jurors.  (Code 
Crim.  Pro.,  § 229-j.) 

UNDER-SHERIFF. 

Within  ten  days  after  entering  upon  the  duties  of  his  office,  the 
sheriff  shall  appoint  an  under-sheriff,  and, 

Before  entering  upon  the  duties  of  his  office,  the  under-sheriff  shall 
take  the  constitutional  oath  of  office.  (County  L.,  § 181.) 

SPECIAL  DEPUTY  COUNTY  CLERK. 

See  County  Clerk. 

Before  entering  upon  the  duties  of  his  office,  shall  file  an  oath  of 

office.  (County  L.,  § 169.) 

SUPERINTENDENT  OF  ALMS  HOUSE. 

See  Keeper  of  Alms  House ; Superintendent  of  the  Poor ; Board  of 

Charities. 

SUPERINTENDENT  OF  COUNTY  TUBERCULOSIS  HOS- 
PITAL. 

Before  entering  upon  the  discharge  of  his  duties  shall  give  a bond. 
(County  L.,  § 48.) 

SUPERINTENDENT  OF  HIGHWAYS. 

See  County  Superintendent  of  Highways. 

SUPERINTENDENT  OF  THE  POOR. 

See  Overseer  of  the  Poor. 

Three  years  is  term  of  office  of.  (County  L.,  § 220.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1259 


Before  entering  upon  the  duties  of  his  office  shall  execute  an  un- 
dertaking. and, 

Within  fifteen  days  after  notice  of  appointment,  if  appointed,  shall 
execute  an  undertaking.  (County  L.,  § 221.) 

On  the  first  day  of  each  month  copies  of  the  records  concerning  the 
inmates  of  alms  houses  shall  be  sent  to  the  state  board  of  charities. 
(Poor  L.,  § 142.) 

On  or  before  the  tenth  of  each  month  shall  report  to  the  state  board 
of  charities  concerning  dependent  children  placed  out.  (Poor  L.,  § 
146.) 

On  or  before  November  fifth  shall  file  with  the  clerk  of  the  board  of 
supervisors  a report  of  moneys  received.  (County  L.,  § 243.) 

Annually  shall  present  to  the  board  of  supervisors  at  their  annual 
meeting  an  estimate  of  the  sum  necessary  for  the  support  of  the- 
county  poor  during  the  ensuing  year.  (Poor  L.,  § 11.) 

Annually  during  the  week  preceding  the  annual  meeting  of  the 
board  of  supervisors,  in  counties  having  an  alms  house  and  where 
there  are  town  poor,  the  superintendent  shall  apportion  expenses. 
(Poor  L„  § 9.) 

Annually  on  or  before  December  first,  the  town  board  shall  certify 
to  the  county  superintendent  the  name,  age,  sex  and  native  country  of 
every  poor  person  relieved  and  supported  by  the  overseers  of  the 
poor  together  with  other  matters.  (Poor  L.,  § 27.) 

On  or  before  the  first  day  of  December  shall  make  reports  to  the 
state  board  of  charities.  (Poor  L.,  § 12.) 

Within  thirty  days  after  abolishing  the  distinction  between  town 
and  county  poor  by  the  board  of  supervisors,  the  clerk  of  the  board 
shall  serve  a copy  of  the  resolution  on  the  superintendent  of  the  poor. 
(Poor  L.,  § 138.) 

Within  fifteen  days  after  the  collection  of  moneys  ordered  to  bei 
paid  by  the  putative  father  of  a bastard,  chargeable  to  a county,  such 
moneys  shall  be  paid  into  the  county  treasury.  (Poor  L.,  § 69.) 

Three  days  after  the  admission  of  a state  poor  person  in  a county 
alms  house,  his  name  and  particulars  concerning  him  shall  be  trans- 
mitted to  the  superintendent  of  state  and  alien  poor.  (Poor  L.,  § 95.) 

Immediately  upon  the  removal  of  an  Indian  who  is  a poor  person 
to  the  alms  house,  the  testimony  taken  and  all  facts  relating  thereto 
with  a statement  of  the  expenses  of  removal,  shall  be  transmitted  to 
the  state  board  of  charities.  (Poor  L.,  § 101.) 

Within  ten  days  after  granting  relief  to  a person  having  no  legal 
settlement  in  the  county,  the  overseer  shall  notify  the  superintendent 
thereof.  (Poor  L.,  § 24.) 

Fifteen  days  after  expiration  of  his  office,  the  superintendent  shall 


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TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


pay  over  to  the  county  treasurer  all  moneys  remaining  in  his  hands* 
(Poor  L.,  § 3.) 

Thirty  days  after  a decision  is  made  by  a superintendent  of  the  poor, 
it  shall  be  filed  in  office  of  the  county  clerk.  (Poor  L.,  §§  3,  48.) 

Within  thirty  days  after  notice  of  a decision  by  a superintendent 
relating  to  the  settlement  of  poor  persons,  an  appeal  may  be  taken  to 
the  county  court,  and, 

Fourteen  days’  notice  shall  be  given  of  the  hearing  before  the  county 
court.  (Poor  L.,  § 49.) 

Within  ten  days  after  the  appointment  or  commitment  of  a person 
to  a state  charitable  institution,  shall  make  a written  report  thereof 
to  the  clerk  of  the  board  of  supervisors.  (State  Charities  L.,  § 450.) 

Within  ten  days  after  acquiring  knowledge  of  the  improper  removal 
of  a poor  person,  the  superintendent  shall  notify  the  overseer  of  the 
poor  of  the  town  or  city  from  which  such  poor  person  came.  (Poor 
L-,  § 5i-) 

Within  thirty  days  after  receiving  such  notice,  the  improper  removal 
may  be  contested  by  serving  a notice  of  denial  thereof.  (Poor  L.,  § 

52.) . 

Within  three  months  after  service  of  latter  notice,  an  action  for  the 
support  of  such  poor  person  must  be  brought  or  the  superintendent 
will  be  precluded  from  any  claim  against  the  city,  town  or  county  from 
which  such  poor  person  came.  (Poor  L.,  § 54.) 

Proceedings  to  Determine  Who  Are  County  Poor. 

Thirty  days  after  receiving  into  the  alms  house  a person  who  has  a 
settlement  in  a town  of  the  county,  the  superintendent  shall  give  notice 
to  the  overseer  of  such  town  that  the  expenses  will  be  charged  against 
it.  (Poor  L.,  § 46.) 

Not  less  than  twenty  days  thereafter  the  overseer  may  show  that 
such  town  ought  not  to  be  so  charged.  (Poor  L.,  § 46.) 

Determining  Who  Are  County  Poor;  No  Alms  House. 

Within  ten  days  after  granting  relief,  the  overseer  shall  give  notice 
to  the  superintendents  that  the  person  is  not  a charge  against  his 
town.  (Poor  L.,  § 47.) 

Eight  days’  notice  to  the  overseer  shall  be  given  by  the  superintend- 
ents before  annuling  a certificate  that  such  poor  person  is  a county 
charge.  (Poor  L.,  § 47.) 


SUPERVISORS. 

See  Board  of  Supervisors;  Town  Board. 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1261 


Two  years  is  term  of  office  of.  (Town  L.,  § 82;  Second  Class  Cities 

L-.  § 13  ) 

Annually,  shall  meet  at  such  time  and  place  as  they  may  fix,  and, 

At  the  annual  meeting,  shall  choose  a chairman  for  the  ensuing  year. 
(County  L.,  § 10.) 

At  the  end  of  each  calendar  month,  the  town  clerk  shall  pay  to  the 
supervisor  all  fees  received  by  him  during  such  month  for  the  regis- 
tration of  dogs.  (County  L.,  § 135*) 

At  least  twice  in  each  year,  shall  remove  grass  and  weeds  from  the 
town  burial  ground.  (Town  L.,  § 332.) 

On  the  first  Tuesday  of  February,  shall  piake  a return  to  the  county 
treasurer  showing  the  amount  of  school  moneys  in  his  hands,  etc. 
(Educ.  L.,  § 365.) 

On  or  before  the  first  Tuesday  of  March,  the  treasurer  of  the  school 
district  shall  report  to  the  supervisor  concerning  school  moneys. 
(Educ.  L.,  § 255.) 

First  Monday  of  July,  every  three  years,  the  supervisor,  town  clerk, 
and  assessors  of  each  town  must  meet  to  make  list  of  trial  jurors. 
(Jud.  L.,  § 500.) 

On  the  Tuesday  preceding  biennial  town  meeting,  and  on  the  cor- 
responding date  in  each  alternate  year,  account  with  the  town  board 
for  the  distribution  of  moneys  received  by  him,  and, 

On  the  third  Tuesday  of  December,  if  the  biennial  town  meeting  is 
held  at  the  time  of  the  general  election,  such  account  shall  be  rendered. 
(Town  L.,  § 98.) 

On  the  last  Tuesday  of  December,  in  Rockland,  Orange,  Oneida  and 
Sullivan  counties,  shall  account  with  the  justices  of  the  peace  and 
town  clerk  for  moneys  received  by  him.  (Town  L.,  §§  544,  585.) 

Before  the  annual  meeting  of  the  board  of  supervisors  the  commis- 
sioners of  a fire  district  outside  of  an  incorporated  village  shall  present 
to  the  supervisor  a statement  of  the  amount  expended.  (County  L., 
§ 38,  subd.  6.) 

Fifteen  days  before  the  meeting  of  the  board  of  supervisors,  a copy 
of  the  notice  of  intention  to  apply  to  the  board  to  establish  a town 
boundary  line  shall  be  served  on  the  supervisor  of  each  town  to  be 
affected.  (County  L.,  § 37.) 

At  every  annual  session  of  the  board  of  supervisors,  shall  make  a 
report  to  the  board  concerning  the  debt  of  the  town.  (Town  L.,  § 
190.) 

At  the  expiration  of  his  term  of  office,  at  the  biennial  town  meeting, 
shall  present  a duplicate  copy  of  such  report.  (Town  L.,  § 193  ) 

At  the  annual  meeting  of  the  board  of  supervisors,  shall  present  to 
the  board  a certified  statement  relative  to  certificates  of  indebtedness 
issued  to  borrow  money  for  an  appropriation.  (Town  L.,  § 138.) 


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TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


At  the  annual  session  of  the  board  of  supervisors,  shall  present  to 

the  board  a statement  specifying  the  amount  paid  during  the  preced- 
ing year  for  the  construction,  etc.,  of  certain  public  bridges.  (High- 
way  L.,  § 251.) 

On  the  first  day  of  the  annual  meeting  of  the  board  of  supervisors, 

supervisor  shall  lay  before  the  board  a certificate  of  the  town  board 
approving  the  statement  and  estimate  of  the  overseers  of  the  poor. 
(Poor  L.,  § 27.) 

Fifteen  days  after  the  accounts  of  the  overseers  of  the  poor  have? 
been  settled  by  the  town  board,  the  supervisor  shall  report  to  the  clerk 
of  the  board  of  supervisors,  an  abstract  thereof.  (Poor  L.,  § 141.) 

Three  days  after  presentation  of  supervisor’s  report  concerning  cer- 
tain highway  moneys,  the  same  shall  be  filed  in  the  town  clerk’s  of- 
fice. (Highway  L.,  § 107.) 

Thirty  days  after  a vacancy  in  a town  board  of  health,  supervisor 
shall  fill  the  same.  (Pub.  Health  L.,  § 20.) 

Ten  days’  notice  of  an  investigation  into  the  financial  affairs  of  a 
town,  shall  be  given  to  the  supervisor.  (Gen.  Mun.  L.,  § 4.) 

Within  thirty  days  after  the  receipt  of  a license  fee  for  public  hacks 
or  entertainments,  the  same  shall  be  paid  to  the  supervisor.  (Town 
L,.  § 215.) 

For  a period  not  exceeding  twenty-one  years,  may  lease  gospel  and 

school  lots.  (Educ.  L.,  § 360.) 

Within  ten  days  after  the  appointment  or  commitment  of  a person 
to  a state  charitable  institution,  shall  make  a written  report  thereof 
to  the  clerk  of  the  board  of  supervisors.  (State  Charities  L.,  § 450.) 

Agriculture. 

Within  thirty  days  after  request  by  commissioner  of  agriculture, 
shall  furnish  information  concerning  agriculture  in  town  or  ward. 
(Agri.  L.,  § 281.) 

Bond  of  Supervisor. 

Before  receiving  highway  moneys,  shall  give  an  undertaking  to  the 
town.  (Highway  L.,  § 104.) 

Within  twenty  days  after  the  passage  of  a resolution  transferring 
the  duties  of  railroad  commissioners  to  the  supervisor,  said  super- 
visor shall  give  bonds.  (Gen.  Mun.  L.,  § 227.) 

Within  ten  days  after  the  passage  of  such  resolution  the  board  of 
town  auditors  shall  meet  for  the  purpose  of  fixing  the  penalty  of  the 
bond  of  said  supervisor.  (Gen.  Mun.  L.,  § 229.) 

Filing  Undertakings. 

Ten  days  after  the  execution  by  a constable  of  his  undertaking. 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1263 


shall  cause  the  same  to  be  filed  in  the  town  clerk’s  office.  (Town  L., 

§ n6.) 

Within  ten  days  after  the  delivery  by  the  town  superintendent  of 
the  undertaking  for  the  faithful  discharge  of  his  duties,  shall  file  the 
same  in  the  office  of  the  town  clerk.  (Town  L.,  § hi.) 

Within  ten  days  after  the  delivery  by  an  overseer  of  the  poor  of  an 
undertaking  for  the  faithful  discharge  of  his  duties,  shall  file  the  same 
in  the  office  of  the  town  clerk.  (Town  L.,  § 1 1 3.) 

Within  six  days  after  the  delivery  by  a collector  of  an  undertaking, 
shall  file  such  undertaking  in  the  county  clerk’s  office.  (Town  L.,  § 

ns.) 

Incorporation  of  Village. 

Within  ten  days  after  the  receipt  of  a proposition  for  the  incorpora- 
tion of  a village,  shall  cause  to  be  posted  a notice  that  a hearing  will 
be  had  upon  such  proposition,  and, 

Not  less  than  ten  nor  more  than  twenty  days  after  the  date  of  post- 
ing such  notice,  such  hearing  shall  be  held.  (Vill.  L.,  § 4.) 

Within  ten  days  after  such  hearing  is  completed,  shall  determine 
whether  the  proposition,  etc.,  comply  with  the  village  law  and  shall 
file  his  decision  in  the  town  clerk’s  office,  and, 

Within  ten  days  from  the  filing  of  such  decision,  if  no  appeal  is 
taken  therefrom,  it  shall  be  final.  (Vill.  L.,  § 6.) 

Within  ten  days  after  the  filing  of  the  decision,  notice  of  an  appeal 
from  the  decision  of  the  supervisor  must  be  served.  (Vill.  L.,  § 7.) 

Not  less  than  ten  nor  more  than  twenty  days’  notice  is  required  to 
bring  the  appeal  on  before  the  county  court.  (Vill.  L.,  § 8.) 

Within  ten  days  after  the  date  fixed  in  the  notice  of  argument,  the 
county  court  shall  make  and  file  an  order  affirming  or  reversing  the 
supervisor’s  decision.  (Vill.  L.,  § 8.) 

Taxation. 

On  or  before  October  first,  the  assessment  roll  shall  be  delivered  by 
the  assessors  to  the  supervisor.  (Tax  L.,  § 39.) 

For  a period  not  exceeding  thirty  days,  in  certain  cases,  if  he  deems 
it  necessary,  may  extend  the  time  for  the  collection  of  taxes,  and, 

Forthwith,  shall  give  notice  of  such  extension  to  the  county  treas- 
urer. (Tax  L.,  § 86.) 

Not  less  than  five  nor  more  than  twenty  days  before  a tax  upon  a 
special  franchise  is  payable,  shall  make  and  deliver  to  the  collector  or 
receiver  of  taxes  a certificate  showing  the  amounts  which  have  been 
paid  during  the  year.  (Tax  L.,  § 48.) 

Within  thirty  days  after  the  delivery  of  a transcript  by  the  county 
treasurer  of  a tax  on  resident  real  property  returned  as  unpaid,  shall 


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TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


cause  an  accurate  description  of  such  property  to  be  returned  to  said 
treasurer,  etc.  (Tax  L.,  § 89.) 

Water  Works;  Petition  for  Purchase. 

At  the  town  meeting  after  the  submission  of  a petition  of  taxpayers 
for  the  purchase  of  water  works  by  the  town,  shall  submit  the  question 
whether  such  works  shall  be  purchased.  (Town  L.,  § 271.) 

For  at  least  four  weeks  immediately  preceding  election,  notice  that 
such  question  will  be  submitted  shall  be  published  once  a week. 
(Town  L.,  § 272.) 

SUPERVISORS  IN  CITIES. 

Two  years  shall  be  term  of  office.  (Gen.  City  L.,  § 2.) 

SURROGATE. 

See  Couny  Judge. 

Six  years,  is  term  of  office,  except  in  New  York  County.  (N.  Y. 
Const.,  Art.  VI,  § 15;  County  L.,  § 230.) 

Fourteen  years  is  term  of  office  in  New  York  county.  (N.  Y.  Const., 
Art.  VI,  § 15.) 

Before  entering  upon  the  duties  of  his  office,  shall  execute  an  un- 
dertaking, and, 

Within  fifteen  days  of  notice  of  his  appointment,  if  appointed,  shall 
execute  an  undertaking.  (County  L.,  § 231.) 

Quarterly  shall  be  paid  salary  by  the  county  treasurer  except  in 
Kings  and  Broome  counties.  (County  L.,  § 233.) 

On  the  first  day  of  each  annual  meeting  of  the  board  of  supervisors, 
shall  make  a report  of  all  fees  received  or  charged  by  him  and  of  all 
disbursements.  (Code  Civ.  Pro.,  § 2501.) 

On  the  first  days  of  January,  April,  July  and  October,  shall  make  a 
report  to  the  state  comptroller  concerning  taxable  transfers.  (Tax  L., 

§ 239- ) 

Within  ten  days  after  admitting  to  probate  the  will  of  a non-resi- 
dent or  granting  original  or  ancillary  letters  upon  the  estate  of  such 
a person,  shall  transmit  to  the  secretary  of  state  a certified  copy  of  the 
will  or  letters.  (Code  Civ.  Pro.,  § 2503.) 

Immediately  after  the  passage  by  the  board  of  supervisors  of  a reso- 
lution determining  that  the  officers  of  surrogate  and  county  judge 
shall  be  separate,  the  clerk  shall  deliver  such  resolution  to  the  county 
clerk,  and, 

Within  ten  days  thereafter,  the  county  clerk  shall  transmit  a copy 
of  the  resolution  to  the  secretary  of  state.  (County  L.,  § 231.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1265 


TAXATION. 

See  Board  of  Supervisors;  Collector;  County  Treasurer;  Register; 

Supervisor. 

TOWNS. 

See  Under  Various  Town  Officers. 

Alteration  of  Boundaries. 

Four  weeks  preceding  the  presentation  of  an  application  to  alter 
bounds  of  a town,  notice  of  the  application  shall  be  published.  (County 
L-.  § 35-) 

Six  weeks  preceding  the  meeting  of  the  board,  such  notice  shall  be 
published.  (County  L.,  § 35.) 

Fourteen  days’  notice  of  first  election  in  a new  town  shall  be  posted.' 
(County  L.,  § 36.) 

Establishment  of  Disputed  Town  Line. 

Four  consecutive  weeks  preceding  a meeting  of  the  board  of  super- 
visors, notice  of  intention  to  apply  to  the  board  to  establish  a boundary 
line  shall  be  published,  and, 

Fifteen  days  before  the  meeting  of  the  board,  such  notice  shall  be 
served  on  the  supervisor  and  town  clerk  of  each  town  to  be  affected, 

and, 

Thirty  days  after  adoption  by  the  board  of  the  resolution  concern- 
ing such  line,  a copy  of  the  resolution  shall  be  filed  in  the  office  of  the 
secretary  of  state.  (County  L.,  § 37.) 

Investigation. 

Ten  days’  notice  shall  be  given  to  the  supervisor  or  to  the  officers 
of  a town  or  village  of  an  investigation  into  the  financial  affairs, 
thereof.  (Gen.  Mun.  L.,  § 4.) 

TOWN  ASSESSORS. 

See  Assessors. 

TOWN  AUDITORS. 

See  Town  Board. 

At  any  biennial  town  meeting,  the  electors  may  determine  by  ballot 
whether  a board  of  town  auditors  shall  be  elected.  (Town  L.,  § 150.) 

At  the  biennial  town  meeing  held  thereafter,  town  auditors  shall  be 
elected.  (Town  L.,  § 151.) 

Within  sixty  days  after  the  town  meeting,  when  it  is  determined 
to  elect  a board  of  town  auditors,  the  town  board  shall  appoint  such 
auditors.  (Town  L.,  § 152.) 


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TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Within  ten  days  after  receiving  notice  of  appointment,  shall  file  oath 

of  office.  (Town  L.,  § 152.) 

Annually,  shall  make  abstract  concerning  accounts  presented  for 
audit.  (Town  L.,  § 155.) 

Within  ten  days  after  the  town  meeting  at  which  the  power  and 
duties  of  railroad  commissioner  have  been  transfered  to  the  super- 
visor, the  board  of  town  auditors  shall  meet  for  the  purpose  of  fixing 
the  penalty  of  the  bond  of  said  supervisor.  (Gen.  Mun.  L.,  § 229.) 

TOWN  BOARD. 

See  Town  Auditors;  Overseer  of  the  Poor. 

In  July  of  each  year,  shall  notify  the  sewer  commissioners  of  the 
amount  to  become  due  for  principal  and  interest  during  the  ensuing 
year  on  bonds  issued  for  the  construction  of  sewer  system.  (Town  L., 

§ 237.) 

On  or  before  July  first,  may  divide  the  town  into  election  districts. 
(Elec.  L.,  §§  296,  29 7.) 

On  or  before  September,  shall  appoint  inspectors  for  created  or 
altered  districts.  (Elec.  L.,  §§  296,  297.) 

At  any  time  between  the  general  election  and  on  or  before  Au- 
gust fifteenth  following,  election  districts  for  the  use  of  voting  ma- 
chines may  be  created.  (Elec.  L.,  § 419),  and. 

On  or  before  September  first,  shall  appoint  inspectors  of  election  for 
such  districts.  (Elec.  L.,  § 419.) 

On  the  first  Tuesday  of  September,  shall  designate  the  places  for 
registry  and  voting.  (Elec.  L.,  § 299.) 

Annually  on  or  before  December  first,  shall  certify  to  the  county 
superintendents  of  poor,  the  name,  age,  sex  and  native  country  of 
every  poor  person  relieved  and  supported  by  the  overseers  of  the  poor, 
together  with  other  matters.  (Poor  L.,  § 27.) 

On  the  last  Tuesday  of  December,  in  the  counties  of  Rockland,  Or- 
ange and  Sullivan,  shall  meet  for  the  purpose  of  receiving  the  accounts 
of  town  officers.  (Town  L.,  § 585.) 

On  December  28th,  town  officers  of  Onondaga  county,  shall  account 
to  the  town  board  for  moneys  received,  etc.,  and. 

Within  three  days,  thereafter,  such  board  shall  file  a statement  of 
such  accounts  with  the  town  clerk.  (Town  L.,  § 534  ) 

On  the  Tuesday  preceding  the  annual  meeting  of  the  board  of  su- 
pervisors, shall  hold  a meeting  for  the  purpose  of  auditing  accounts 
against  the  town.  (Town  L.,  § 133.) 

On  the  Friday  preceding  the  annual  meeting  of  the  board  of  super- 
visors, town  board  and  the  commissioners  of  certain  fire  districts  shall 
meet.  (County  L.,  § 39.) 


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1267 


At  the  annual  meeting  of  the  board  of  supervisors,  shall  present  to 
the  board  a statement  of  the  apportionment  of  amount  due  for  the 
construction  of  a sewer  system.  (Town  L.,  § 237.) 

Ten  days  previous  to  the  annual  town  meeting,  shall  cancel  bonds 
and  coupons  paid.  (Town  L.,  § 194.) 

On  the  Tuesday  preceding  the  biennial  town  meeting,  and  on  the 
corresponding  date  in  each  alternate  year,  town  board  shall  meet  at 
the  office  of  the  town  clerk.  (Town  L.,  § 131.) 

On  December  28th,  in  towns  where  the  biennial  town  meetings  are 
held  at  the  time  of  the  general  election,  town  boards  shall  meet  at  the 
office  of  the  town  clerk.  (Town  L.  § 131.) 

Upon  the  Thursday  next  preceding  the  annual  meeting  of  the  board 
of  supervisors,  the  town  board  shall  meet  at  the  office  of  the  town 
clerk.  (Town  L.,  § 131.) 

Two  days’  notice  shall  be  given  of  a special  meeting  of  the  town 
board.  (Town  L.,  § 131.) 

On  the  Tuesday  preceding  the  biennial  town  meeting,  and  on  the 

corresponding  date  in  each  alternate  year,  or  on  December  28th,  all 
town  officers  receiving  or  disbursing  moneys  of  the  town  shall  account 
to  the  board,  and, 

Within  three  days  thereafter  the  board  shall  file  with  the  town  clerk 
a statement  of  such  accounts,  etc.  (Town  L.,  § 132.) 

At  its  annual  meeting  on  the  first  Tuesday  after  general  election, 
may  adopt  the  labor  system  for  removing  snow.  (Highway  L.,  § 78.) 

At  its  meeting  held  on  the  Thursday  succeeding  general  election  day, 
shall  consider  the  estimates  contained  in  the  written  statement  fur- 
nished by  the  town  superintendent.  (Highway  L.,  § 91.) 

At  any  regular  or  special  meeting,  may  vote  certain  sums  of  money 
for  the  purpose  of  defraying  the  expenses  of  the  proper  observance  of 
Memorial  Day.  (Town  L.,  § 136.) 

Within  sixty  days  after  the  town  meeting,  when  it  was  determined 
to  elect  town  auditors,  shall  appoint  auditors,  and, 

Immediately,  shall  cause  such  appointments  to  be  filed  with  the 
town  clerk.  (Town  L.,  § 152.) 

Six  months  after  town  meetings  concerning  the  disposition  to  be 
made  of  town  property  upon  the  alteration  of  town  boundaries,  if  no 
agreement  is  made,  the  town  property  shall  be  sold.  (Town  L.,  § 30.) 

At  least  three  days’  notice  to  members  of  town  boards  shall  be 
given  of  meetings  relative  to  the  alteration  of  the  town  boundaries. 
(Town  L.,  § 32.) 

Thirty  days  from  the  time  an  assessment  for  sidewalk  improvement 
is  finally  made,  shall  issue  bonds  for  the  amount  of  assessment  remain- 
ing unpaid,  and, 


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Annually,  at  its  annual  meeting,  shall  report  to  the  board  of  su- 
pervisors and  submit  a statement  showing  the  amount  due  on  cer- 
tain bonds  issued  for  sidewalk  improvement.  (Town  L.,  § 253.) 

From  time  to  time  may  lease,  for  certain  purposes,  buildings  or 
parts  of  buildings  of  a town  in  a county  adjoining  or  containing  a city 
of  the  first  or  second  class.  (Town  L.,  § 135.) 

Within  thirty  days  before  an  election  for  town  officers,  shall  appoint 
inspectors  of  election.  (Elec.  L.,  § 31 1.) 

For  a term  not  exceeding  five  years,  may  lease  a lockup.  (Town  L., 

§ 351) 

For  a period  not  exceeding  ten  years,  may  contract  for  the  lighting 
of  streets,  etc.,  of  a lighting  district.  (Town  L.,  § 260.) 

Not  less  than  ten  nor  more  than  twenty  days  after  the  filing  of  a 
petition  for  the  establishment  of  a water  supply  district,  the  town 
board  will  meet  and  consider  the  petition.  (Town  L.,  § 285.) 

TOWN  CLERK. 

See  Dogs. 

Two  years  is  term  of  office  of.  (Town  L.,  § 82.) 

At  the  end  of  each  calendar  month  shall  pay  to  the  supervisor  all 
fees  received  by  him  during  such  month  for  the  registration  of  dogs. 
(County  L.,  § 135.) 

First  Monday  of  July,  every  three  years,  the  town  clerk,  supervisor, 
and  assessors  of  each  town  must  meet  to  make  list  of  trial  jurors. 
(Jud.  L„  § 500.) 

Within  30  days  next  preceding  July  first,  a statement  of  the  value  of 
special  franchises  shall  be  filed  with  the  town  clerk,  and, 

Within  5 days  after  the  receipt  of  a statement  of  assessment  of  a 
special  franchise,  town  clerk  shall  deliver  a copy  thereof  to  the  asses- 
sors.  (Tax  L.,  § 43.) 

Annually  between  November  15th  and  December  15th,  shall  trans- 
mit to  the  highway  commission  information  concerning  certain  town 
officials.  (Highway  L.,  § 109.) 

Fifteen  days  before  the  meeting  of  the  board  of  supervisors,  a copy 
of  the  notice  of  intention  to  apply  to  the  board  to  establish  a town 
boundary  line,  shall  be  served  on  the  clerk  of  the  town  to  be  affected. 
(County  L.,  § 37.) 

On  the  Thursday  preceding  the  annual  meeting  of  the  board  of  su- 
pervisors, the  town  clerk  shall  present  to  the  town  board  the  assess- 
ments made  by  the  town  superintendent  of  highways  against  owners 
for  the  cost  of  removing  weeds,  etc.,  from  the  bounds  of  the  highway. 
(Highway  L.,  § 55.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1269 


Before  the  annual  meeting  of  the  board  of  supervisors,  shall  deliver 
to  the  supervisor  certified  copies  of  all  entries  of  votes  raising  money, 
made  since  the  last  meeting  of  the  board  of  supervisors  and  recorded 
in  the  town  book.  (Town  L.,  § 92.) 

At  least  twenty  days’  notice  of  a special  town  meeting,  shall  be 
posted  in  four  places,  and, 

Once  a week  for  two  consecutive  weeks,  such  notice  shall  be  pub- 
lished. (Town  L.,  § 47.) 

Within  twenty  days  of  the  holding  of  any  town  meeting,  shall  cer- 
tify to  the  county  clerk  the  names  of  the  persons  elected  to  office,  etc. 
(Town  L.,  § 92.) 

Within  two  days  after  the  town  meeting,  the  poll-list  and  minutes 
of  the  proceedings  thereof  shall  be  filed  in  the  office  of  the  town  cierk. 
(Towm  L.,  § 62.) 

At  least  one  day  before  a town  meeting,  held  at  a time  other  than  the 
day  of  the  general  election,  shall  post  a notice  of  the  nominations. 
(Elec.  L.,  § 132.) 

At  every  annual  town  meeting  the  town  clerk  shall  produce  the  ac- 
count of  the  overseer  of  the  poor  for  the  preceding  year.  (Poor  L., 
§26.) 

On  the  day  following  the  town  meeting,  at  ten  o’clock  in  the  fore- 
noon, shall  meet  with  the  justices  of  the  peace  and  recanvass  the 
votes,  when  the  town  meeting  has  been  held  by  election  districts. 
(Town  L.,  § 65.) 

On  the  Thursday  succeeding  a town  meeting,  held  at  the  time  of  the 
general  election,  the  votes  shall  be  recanvassed.  (Town  L.,  § 67.) 

Within  ten  days  after  the  town  meeting,  shall  transmit  to  any  per- 
son elected  to  a town  office  whose  name  was  not  on  the  poll-list  as  a 
voter,  notice  of  his  election.  (Town  L.,  § 64.) 

Immediately  after  final  adjournment  of  the  annual  meeting  of  the 
board  of  town  auditors,  shall  prepare  a list  of  all  accounts,  etc.  (Town 
L-,  § 1 33-) 

Within  ten  days  after  the  adoption  of  a proposition  to  change  date 
of  town  meeting  to  the  general  election  day,  a certificate  to  that  effect 
shall  be  filed  in  the  office  of  the  county  clerk  and  also  with  the  clerk  of 
the  board  of  supervisors.  (Town  L.,  § 41.) 

Within  ten  days  after  the  election  of  a justice  of  the  peace  has  been 
declared,  shall  transmit  to  the  county  clerk  a certificate  of  the  result 
of  such  election.  (Town  L.,  § 94.) 

Immediately  after  the  qualification  of  any  constable,  elected  or  ap- 
pointed in  the  town,  shall  return  to  the  county  clerk  the  name  of  such 
constable.  (Town  L.,  § 92.) 


1270 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


Within  ten  days  after  the  execution  by  a constable  of  his  undertak- 
ing, shall  file  the  same  in  his  office.  (Town  L.,  § 116.) 

For  a term  not  longer  than  one  year  nor  shorter  than  three  months, 
may  issue  licenses  for  hawking  and  peddling.  (Town  L.,  § 21 1.) 

Within  ten  days  after  the  filing  of  a jury  list,  shall  give  a certified 
copy  thereof  to  the  justices.  (Code  Civ.  Pro.,  § 2990.) 

Elections. 

At  the  opening  of  the  first  meeting  for  registration,  shall  deliver  to 
the  inspectors  copy  of  register  and  poll  book  of  preceding  election. 
(Elec.  L.,  § 183.) 

At  least  three  months  before  each  general  election,  shall  transmit 
to  the  custodian  of  primary  records  a notice  of  the  town  officials  to  be 
voted  for  at  such  election.  (Elec.  L.,  § 293.) 

Three  days  before  election,  shall  post  lists  of  nominations.  (Elec. 

L-,  § 131-) 

At  least  one  day  before  an  election  held,  not  at  the  time  of  the  gen- 
eral election,  official  ballots  shall  be  provided,  and, 

At  least  two  days  before  such  election,  sample  ballots  shall  be  pro- 
vided. (Elec.  L.,  § 342.) 

One  half  hour  before  the  opening  of  the  polls,  shall  cause  ballots 
and  stationary  to  be  delivered  to  the  inspectors.  (Elec.  L.,  § 343.) 

Fire  District. 

Within  thirty  days  after  the  establishment  of  a fire  district,  an  elec- 
tion for  commissioners  and  treasurer  thereof  shall  be  called  by  the 
town  clerk,  and, 

Not  less  than  thirty  days  prior  to  expiration  of  terms  of  office,  subse- 
quent elections  shall  be  called,  and, 

Within  thirty  days  after  a vacancy  in  such  offices  occurs  a special 
election  to  fill  the  vacancy  shall  be  called.  (County  L.,  § 38,  subd.  2.) 

Ten  days  before  the  holding  of  a meeting  of  the  taxpayers  of  a fire 
district,  for  the  appropriation  of  money,  notice  thereof  shall  be  posted. 
(County  L.,  § 38,  subd.  5.) 

Improvements. 

Within  ten  days  after  the  filing  of  a certificate  by  town  commission- 
ers of  local  improvements  relative  to  improvements  to  be  made,  shall 
give  notice  of  a special  election  upon  the  question  of  spending  money 
for  such  improvements,  and, 

Not  less  than  ten  nor  more  than  twenty  days  prior  to  such  election, 
twelve  printed  notices  thereof  shall  be  posted  in  conspicuous  places 
in  the  town.  (Town  L.,  § 433.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1271 


Incorporation  of  Village. 

Within  five  days,  shall  give  notice  of  an  election  to  determine  the 
question  of  incorporating  a village,  and, 

Not  less  than  fifteen  nor  more  than  twenty-five  days  from  the  post- 
ing of  such  notice  the  election  shall  be  held.  (Village  L.,  § io.) 

At  least  ten  days  before  the  date  fixed  for  an  election  to  determine 
the  question  of  incorporating  a village,  shall  serve  a notice  thereof 
on  the  supervisor  and  town  clerk  of  each  town  in  which  any  part  of 
the  proposed  village  is  situated.  (Vill.  L.,  § n.) 

Within  five  days  after  the  service  of  a notice  of  appeal  from  an  elec- 
tion upon  the  question  of  the  incorporation  of  a village,  shall  trans- 
mit to  the  county  judge  a certified  copy  of  the  notice  of  appeal  and  of 
the  certificate  of  election.  (Vill.  L.,  §§  7,  16.) 

After  ten  and  within  fifteen  days  from  the  filing  of  the  certificate 
of  an  election  upon  the  incorporation  of  a village,  shall  deliver  a cer- 
tified copy  thereof  to  the  secretary  of  state  and  to  the  county  clerk. 
(Vill.  L„  § 22.) 

Within  five  days  after  the  right  to  an  election  of  officers  is  com- 
pleted in  a village  newly  incorporated,  the  town  clerk  shall  appoint 
a village  clerk  and  inspectors  of  election.  (Vill.  L.,  § 27.) 

Local  Option. 

Twenty  days  before  town  meeting,  petition  for  local  option  election 
may  be  filed,  and, 

Within  five  days  after  such  filing,  town  clerk  shall  file  in  office  of 
county  clerk,  certified  copy  of  such  petition,  and, 

At  least  ten  days  before  town  meeting,  notices  of  local  option  elec- 
tion shall  be  posted  in  four  places,  and, 

At  least  five  days  before  town  meeting,  such  notice  shall  be  pub- 
lished, and, 

Within  five  days  after  filing  petition  and  order  for  special  local  op- 
tion election,  town  clerk  shall  call  such  election,  and, 

Not  less  than  twenty  nor  more  than  thirty  days  after  filing  such 
petition  and  order,  such  special  local  option  election  shall  be  held,  and, 

Immediately  after  submission  of  local  option  questions,  a certfied 
copy  of  result  shall  be  filed  with  commissioner  of  excise  and  with 
county  treasurer.  (Liq.  Tax  L.,  § 13.) 

Marriages. 

On  or  before  the  fifteenth  day  of  each  month,  the  town  clerk  shall 
file  in  the  county  clerk’s  office  each  affidavit,  statement,  license  and 
certificate  which  have  been  filed  with  or  made  before  him  during  the 
preceding  month.  (Dorn.  Rel.  L.,  § 19.) 


1272 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


On  or  before  the  tenth  day  of  the  month  succeeding  the  date  of  a 

marriage,  the  person  solemnizing  the  same  shall  return  the  marriage 
license  to  the  town  or  city  clerk.  (Dom.  Rel.  L.,  § 14.) 

Taxes. 

Within  five  days  after  the  delivery  of  the  warrants  for  the  collection 
of  taxes,  shall  furnish  to  the  collectors  transcripts  of  notices  filed  by 
non-residents.  (Tax  L.,  § 70.) 

Within  five  days,  after  the  receipt  of  the  statement  of  the  equalized 
valuation  of  special  franchises,  shall  deliver  copies  thereof  to  certain 
officials.  (Tax  L.,  § 45-a.) 

Forthwith  upon  receiving  from  the  county  clerk  data  concerning 
corporations,  shall  file  the  same  in  his  office  and  mail  a notice  of  such 
filing  to  each  of  the  assessors.  (Tax  L.,  § 29.) 

Water  Works. 

One  week’s  notice  of  the  filing  of  a petition  for  the  establishment 
of  a water  supply  district  shall  be  published.  (Town  L.,  § 285.) 

For  at  least  four  weeks  preceding  an  election  upon  the  question 
whether  the  town  shall  purchase  water  works,  notice  of  such  election 
shall  be  published  once  a week,  and, 

At  least  thirty  days  prior  to  election,  notice  thereof  shall  be  posted 
conspicuously  in  the  office  of  the  town  clerk.  (Town  L.,  § 272.) 

TOWN  COMMISSIONERS  OF  LOCAL  IMPROVEMENTS. 

One  year  is  term  of  office  of.  (Town  L.,  § 432.) 

Within  twenty  days  after  notification  of  appointment,  shall  execute 
a bond.  (Town  L.,  § 432.) 

Within  thirty  days  after  appointment,  shall  meet  and  organize. 
(Town  L.,  § 432.) 

Within  three  months  after  appointment  and  at  any  time  thereafter 
not  to  exceed  twice  a year,  shall  certify  the  nature  of  improvements 
to  be  made  and  file  such  certificate  in  the  town  clerk’s  office,  and, 

Within  ten  days  after  the  filing  of  such  certificate,  the  town  clerk 
shall  give  notice  of  a special  election  to  vote  upon  the  question  of 
spending  money  for  such  improvement,  and, 

Not  less  than  ten  nor  more  than  twenty  days  prior  to  such  election, 
notice  thereof  shall  be  posted.  (Town  L.,  § 433.) 

Annually,  shall  deliver  to  the  town  auditors  an  account  of  moneys 
received  by  them  from  the  sale  of  bonds  for  local  improvements. 
(Town  L.,  § 438.) 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS.  1273 

Upon  the  completion  of  their  work,  or  the  expiration  of  their  term 
of  office,  shall  deliver  a final  account  of  moneys  received,  etc.  (Town 
L.,  § 438.) 

TOWN  MEETING. 

On  the  second  Tuesday  of  February  shall  be  held,  but  the  board  of 
supervisors  may  fix  a time  for  the  biennial  town  meeting  either  be- 
tween February  first  and  May  first  or  on  the  first  Tuesday  after  the 
first  Monday  in  November  of  an  odd  numbered  year.  (Town  L.,  § 40.) 

Before  entering  upon  his  duties,  the  clerk  of  a town  meeting  shall 
take  the  constitutional  oath  of  office.  (Town  L.,  § 50.) 

TOWN  SUPERINTENDENT  OF  HIGHWAYS. 

Two  years  is  term  of  office  of.  (Town  L.,  §§  42,  82.) 

On  the  Thursday  succeeding  his  election,  if  he  is  elected  at  a town 
meeting  held  at  the  time  of  the  general  election,  his  term  of  office  shall 
begin,  but, 

On  November  first,  if  he  is  elected  at  a town  meeting  held  at  some 
other  time,  his  term  of  office  shall  begin.  (Highway  L.,  § 42.) 

Within  ten  days  after  notice  of  his  election  or  appointment,  shall 
execute  an  undertaking.  (Town  L.,  § 111.) 

Within  ten  days  after  the  execution  of  contracts  for  the  construc- 
tion of  highways,  shall  file  such  contracts  with  the  town  clerk.  (High- 
way L.,  § 48.) 

Annually  shall  make  a written  inventory  of  road  machinery,  tools 
and  implements,  etc.  (Highway  L.,  § 49),  and, 

On  or  before  October  31st,  shall  deliver  such  inventory  to  the  su- 
pervisor. (Highway  L.,  § 49.) 

Annually,  on  or  before  October  31st,  shall  make  a written  state- 
ment in  respect  to  the  amount  of  money  which  should  be  raised  by 
tax  in  a town  for  the  ensuing  year.  (Highway  L.,  § 90.) 

Annually  on  or  before  November  15th,  in  towns  adopting  the  labor 
system  for  removing  snow,  shall  divide  the  town  into  a convenient 
number  of  districts  and  file  a description  thereof  in  the  town  clerk’s 
office.  (Highway  L.,  § 79.) 

Immediately  after  the  division  of  the  town  into  such  districts,  shall 
appoint  a foreman  in  each  district.  (Highway  L.,  § 81.) 

On  or  before  May  first,  the  district  lists  shall  be  returned  by  the 
district  foreman  to  the  town  superintendent.  (Highway  L.,  § 81.) 

Whenever  the  highways  are  obstructed  by  snow,  the  town  super- 
intendent shall  immediately  call  upon  the  persons  and  corporations  in 
such  district  assessed  for  labor  to  assist  in  removing  such  obstruction, 
and, 


11374 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


On  or  before  September  first,  shall  make  out  a list  of  persons,  cor- 
porations, etc.,  who  failed  to  work  out  their  labor  assessment,  etc.,  and, 

On  or  before  October  31st,  shall  file  with  the  highway  commission 
a statement  showing  the  number  of  days'  labor  assessed,  and, 

On  or  before  June  first,  shall  file  with  the  highway  commission  a 
statement  showing  the  number  of  days’  labor  performed  or  commuted 
for,  etc.  (Highway  L.,  § 82.) 

During  the  months  of  April  and  October  of  each  year,  or  at  such 
other  time  as  the  district  or  county  superintendent  shall  prescribe, 
shall  inspect  the  highways  and  bridges  within  the  town,  and, 

Between  April  first  and  December  first,  shall  cause  loose  stones  ly- 
ing in  the  beaten  track  of  the  highways  to  be  removed  at  least  three 
times,  and, 

Once  between  the  first  and  thirtieth  of  July,  and  once  between  the 
first  and  thirtieth  of  September,  shall  cause  noxious  weeds  growing 
within  the  bounds  of  the  highway  to  be  cut  and  removed,  and, 

Once  between  the  first  and  thirtieth  of  September,  shall  cause  the 
briers  and  brush  within  the  bounds  of  the  highways  to  be  cut  and 
removed,  and, 

Annually  on  such  date  as  may  be  prescribed  by  the  highway  com- 
missioner, prior  to  November  15th,  shall  report  to  the  district  or 
county  superintendent  in  relation  to  the  highways  and  bridges.  (High- 
way  L.,  § 4 7.) 

Once  in  June  and  once  in  August,  the  owner  or  occupant  of  lands 
situated  along  the  highway  shall  remove  noxious  weeds,  and, 

In  August,  such  owner  or  occupant  shall  remove  briers  and  brush, 
and, 

Before  November  first,  such  owner  or  occupant  shall  remove  brush, 
shrubbery  and  other  obstructions  within  the  bounds  of  the  highway. 
(Highway  L.,  § 54.) 

Eight  days  prior  to  an  assessment  of  the  cost  of  removing  weeds 

from  the  highways,  notice  of  the  time  and  place  of  such  assessment 
must  be  served  on  the  owner,  etc.  (Highway  L.,  § 55.) 

Within  ten  days  after  the  making  of  an  order  authorizing  the  own- 
ers of  property  to  plant  trees  and  construct  sidewalks  along  the  high- 
ways, such  order  shall  be  filed  in  the  office  of  the  town  clerk.  (High- 
way L.,  § 61.) 

Within  sixty  days  after  the  service  of  the  decision  of,  as  to  improve- 
ment of  highways  on  Indian  reservation  contained  therein,  appeal  may 
be  taken  to  the  county  judge.  (Indian  L.,  § 12.) 


TREASURER  OF  COUNTY. 

See  County  Treasurer. 


TIME  TABLE  FOR  TOWN  AND  COUNTY  OFFICERS. 


1275 


TREASURER  OF  FIRE  DISTRICT. 

See  Fire  District. 

TRUSTEES  OF  BURIAL  GROUNDS. 

Two  years  is  term  of  office  of.  (Town  L.,  § 330.) 

Within  one  year  after  the  conveyance  of  grounds,  shall  lay  the  same 
out  into  burial  lots.  (Town  L.,  § 331.) 

TUBERCULOSIS  HOSPITAL. 

See  Board  of  Managers ; Superintendent. 

VILLAGE  TREASURER. 

Monthly  the  village  clerk  shall  pay  over  the  fees  and  penalties  col- 
lected under  the  dog  registration  statutes.  (County  L.,  § 135.) 

WATER  COMMISSIONER. 

Before  entering  upon  the  duties  of  his  office,  shall  take  the  oath  of 
office  and  file  an  undertaking,  and, 

At  any  time  may  be  required  by  the  town  board  to  file  a new  un- 
dertaking. (Town  L.,  § 286.) 

Once  in  each  of  two  successive  weeks,  an  advertisement  for  pro- 
posals for  the  construction  of  a water  system  shall  be  published. 
(Town  L.,  § 287.) 

Annually,  shall  apportion  the  amount  to  be  raised  for  the  payment 
of  the  principal  and  interest  of  certain  bonds  for  water  purposes. 
(Town  L.,  § 289.) 

On  the  Thursday  preceding  the  annual  meeting  of  the  board  of  su- 
pervisors, shall  present  a statement  thereof  to  the  town  board.  (Town 
L.,  § 289.) 

Ditches,  Repair  or  Enlargement. 

Two  weeks’  publication  is  required  of  a notice  by  a water  commis- 
sioner that  he  will  examine  a ditch  which  is  the  subject  of  a petition 
for  repair  or  enlargement,  and, 

Fifteen  days  before  such  hearing,  first  publication  of  the  notice  shall 
be  made,  and, 

Within  ten  days  after  receipt  of  such  a petition,  it  is  the  duty  of 
the  commissioner  to  make  a personal  examination  of  the  ditch.  (Drain- 
age L.,  § 62.) 

Two  successive  weeks’  advertisement  is  required  for  bids  or  pro- 
posals for  repairing  or  enlarging  a ditch.  (Drainage  L.,  § 65.) 

Thirty  days  after  mailing  of  notice  of  assessment  for  repairing  or 
enlarging  a ditch,  the  same  shall  be  paid.  (Drainage  L.,  § 70.) 


' 

’ 


INDEX 


[Time  Table  of  Town  and  County  Officers  is  arranged*  alphabetically,  and  refer- 
ence should  be  made  to  the  proper  heading  in  such  table.  See  pp.  1217  to  1275.] 


A 

Abatement—  Page. 

of  highway  tax  for  planting  shade  trees 835 

on  account  of  watering  trough 836 

Abandonment — 

of  wives  and  children,  by  husbands 759 

seizure  of  property  for  support 760 

warrant  of  seizure 762 

sale  of  property  seized 762 

application  of  proceeds  for  support  of  children 763 

redemption  by  superintendent 765 

Abstract— 

of  county  accounts  to  be  published. 96 

of  town  accounts 390 

Accounts— 

against  county,  to  be  itemized 27 

verification 27 

sufficiency  of  presentation 34 

fraudulent  presentation  of 37 

additional  requirements,  supervisor  may  make 35 

duties  of  county  comptroller  as  to 119 

against  town,  of  town  officers 376 

meeting  of  town  board  for  audit 377 

audit  by  town  board 377-382 

certificate  of  rejection  and  allowance 378 

effect 377 

audit,  how  made 378 

of  justices  of  the  peace  and  constables 383 

what  to  contain 384 

fees  in  criminal  proceedings 384 

form 386 

verification 386 

town  charges  388 

audit  by  town  auditors 391 

by  board  of  supervisors 26-50 

by  town  board 377-393 

by  county  auditor: 124 


See  Audit;  Board  of  Supervisors;  Town  Auditors ; Town  Board. 

(1277) 


1278 


INDEX. 


Actions—  Page. 

in  name  of  county . 2 

by  and  against  a county 3 

on  claim  against  county,  necessity  of  audit 5 

against  county,  for  injuries  caused  by  defective  highway 7 

special  town  meeting  to  raise  money  to  prosecute  or  defend 253 

prosecution  or  defense,  town  meeting  to  direct 248 

power  to  borrow  money  for 248 

for  penalties,  to  be  prosecuted  by  supervisors 323 

by  and  against  town,  in  name  of  town. . . 393 

for  trespass  on  town  lands 396 

against  officers  to  prevent  illegal  acts 1044-1054 

in  official  capacities 1054 

for  malfeasance  in  executing  municipal  bonds 1053 

Agricultural  Society — 

real  property  exempt  from  taxation 483 

Agriculture- 

improvement,  board  of  supervisors  may  appropriate  for 65 

Albany  Post  Hoad — 

railroad  tracks  not  to  be  constructed  on 973 

Alms-Houses — See  Poor  Persons ; Superintendents  of  Poor. 

erection,  alteration,  and  acquisition  of  lands  for 58 

contagious  diseases  in 452 

acquisition  of  site  and  erection  of  buildings 71 

superintendent  of  poor  to  control 672 

to  make  rules  as  to 672 

to  appoint  keeper 672 

to  purchase  supplies,  etc 672 

to  prescribe  allowance  for  bringing  poor  persons 673 

keeper,  when  superintendent  to  act  as 675 

pestilence  in,  inmates  to  be  removed , 677 

statement  of  amount  expended  for  town  poor 677 

register,  what  to  contain 680 

children  not  to  be  sent  to 682 

not  to  be  committed  as  vagrants 682 

relief  of  poor  persons;  removal  to 714 

expense  of  removal 716 

support  of  poor  persons 716 

state  board  of  charities,  duties  as  to 685 

visitation  and  inspection 685 

treatment  of  inmates ; investigation 686 

approval  of  plans 686 

attorney-general  and  district  attorneys  to  aid  in  investigation 687 

state  poor  in,  inspection  to  ascertain 687 

visitation  by  state  charities  aid  association 687 

removal  of  bastard  and'  mother  to 751 

state  poor  maintained  in 773 

expense  paid  by  state 774 

visitation  and  inspection 775 

Indian  poor,  maintained  in 776 


INDEX. 


1279 


Amusements—  Page. 

licenses  required;  regulation 405 

Angora  Goats — 

killed  by  dogs;  damages 655 

Animals,  Noxious- 

bounties  for  destruction  of,  a county  charge 43 

board  of  supervisors  may  make  regulations  as  to  destruction  of 56 

towa  meetings  to  provide  for  destruction 249 

Animals,  Strayed- 

lien  upon,  when  doing  damage 644 

notice  to  be  filed 64 o 

fees  for  recording 645 

impounding 646. 

notice  to  owner 646 

charge  for  notice 646 

damages,  fence  viewers  to  determine 646 

fees  of  fence  viewers 647 

proceedings 648 

foreclosure  of  lien 647 

by  action 649 

sale  by  fence  viewers 647 

proceeds,  disposition  647 

surplus,  when  unclaimed’ 649 

pound  masters,  duties  and  fees 649 

villages  and  cities  deemed  towns 650 

Appellate  Division- 

sheriff  or  deputy  to  attend  terms 167 

rooms,  care  and  maintenance 167 

Assessment- 

ascertainment  of  facts  for 512 

time  of  513 

of  state  lands  in  forest  preserve 521 

copy  of  assessment-roll  to  be  filed  in  offices  of  comptroller  and  for- 
estry board  521 

of  bank  shares 522a-524 

of  individual  banker 524 

notice  of,  to  bank  or  banking  association 524 

of  corporations,  how  made 525-527 

county  clerk  to  furnish  data  respecting 527 

of  agent,  trustee,  guardian,  executor  or  administrator 532 

of  property  omitted  in  preceding  year 533 

of  debts  owing  to  nonresidents  of  United  States 535 

of  special  franchises,  see  Special  Franchises 549-555 

equalization  by  board  of  supervisors 558 

See  Equalization  of  Assessments. 

rents  reserved,  review  by  board  of  supervisors 561 


1280 


INDEX. 


Assessment — Continued.  Page. 

illegal,  re-assessment  by  board  of  supervisors 366 

re-assessment  by  tax  commission 577 

procedure  before  commission 577 

unpaid  taxes,  re-assessment  on  resident  real  property 608 

imperfectly  described  property,  re-assessment 608 

of  highway  tax,  see  Highways 853-855 

Assessment-Roll— See  Assessors;  Taxes ; Taxation,  etc. 

extension  of,  allowance  to  supervisors 20b 

preparation  of,  by  assessors 513 

form,  to  be  prescribed  by  tax  commission 513,  517 

names  of  taxpayers  to  be  included. 514 

real  and  personal  property  separated 515 

description  of  lands 516 

name  of  village  and  number  of  school  district 517 

exempt  property  to  be  separated 519 

designation  of  real  property  of  nonresidents  in 527 

to  contain  assessment  of  property  omitted  in  preceding  year 533 

completion  of 535 

notice;  contents  of  notice 536 

notice  to  nonresidents 537 

verification  of  541 

sufficiency 542 

when  completed  to  be  open  to  inspection 543 

notice  that  it  is  open  to  inspection 544 

to  be  filed  in  office  of  town  clerk 544 

to  be  delivered  to  supervisor 544 

descriptions  of  nonresident  real  property  changed  by  board  of  supervisors.  561 

correction  of  errors  in,  by  board  of  supervisors 561 

correction  of  manifest  errors 563 

correction  of  errors  as  to  nonresident  real  property 566 

to  contain  names  of  owners  of  dogs 653 

Assessors — See  Exemptions ; Taxes;  Taxation;  Town  Officers. 

election 281 

term  of  office 282 

compensation 352 

town  board  may  fix;  limit 353 

in  certain  counties 353 

attending  conference  with  state  tax  commissioners 21 

Erie  and  Nassau  counties 355 

clerks;  salaries  355 

offices,  to  be  kept  open 355 

fence  viewers  of  town 356 

additional  clerks  and  assistants 358 

powers  as  to  exemptions 473 

report  of  exempt  property  by 506 

may  divide  tax  district 512 

ascertaining  facts  for  assessment 512 

majority  of,  must  act 512 

time  of  making  assessment 513 


INDEX. 


1281 


Assessors — Continued.  Page. 

assessment-roll,  preparation  of 513-519 

assessment  of  state  lands  in  forest  preserve 521 

• m 

to  file  assessment-roll  in  offices  of  comptroller  and  forestry  board..  521 

report  of  banks  to 522a 

statements  of  corporations  to 525 

penalty  for  omission  to  make 526 

effect  of  526 

county  clerk  to  furnish  data  respecting  corporations 527 

assessment  of  corporations,  how  made 525-527 

to  include  in  assessment-roll  assessment  of  debts  due  to  nonresidents 535 

assessment-roll,  completion  of 535 

to  give  notice 536 

notice  to  nonresidents 537 

grievance  day,  to  hear  complaints  on 537 

necessity  of  complaint 538 

statement  of  complainants 538- 

sufficiency  of  538 

examination  of  claimant 539 

failure  to  appear 540 

notice  to,  of  application  to  County  Court  for  apportionment  of  taxes 541 

oath  verifying  assessment-roll 541 

to  post  notice  that  assessment-roll  may  be  inspected 544 

valuation  of  railroad,  telegraph,  telephone  or  pipe  line  companies  appor- 
tioned- between  school  districts 544 

forms  prescribed  by  tax  commissioners 545 

neglect  or  omission  of  duty 546 

duties  of,  as  to  special  franchise  assessment 551 

petition  board  of  supervisors  for  correction  of  errors  in  assessment-roll.  . 562 

state  tax  commissioners  to  meet  with 576 

compensation  while  attending  meetings 21 

conferences  may  be  called 575 

Attorney,  County — 

board  of  supervisors  may  appoint 82,  144 

Audit — See  Accounts;  Board  of  Supervisors ; Town  Board. 

effect  of,  authorizing  action  against  county 5 

of  county  accounts,  what  constitutes 26 

jurisdiction  of  board  of  supervisors  as  to 26 

-board  acts  judicially 27 

when  board  may  use  discretion 28 

power  not  to  be  delegated 28 

•how  far  conclusive 31 

hearing  evidence  as  to  claims 31 

affidavit  of  value  of  services 30,31 

manner  of  making 29 

compelling,  by  mandamus 38 

review  by  certiorari 32 

clerk  to  designate  items  allowed  or  disallowed 96 

publication  of  abstracts 96 

duties  of  county  comptroller 119 

by  county  auditor 124 


1282 


INDEX. 


Audit — Continued.  Page; 

of  town  accounts,  meeting  of  town  'board 377 

power  of  town  board) 377 

how  to  be  made ^ 378 

certificate,  contents  378 

duplicate,  one  to  be  filed 378 

one  to  be  delivered  to  supervisor 378 

effect 379 

when  claim  has  been  rejected 380 

compelling,  by  mandamus 380 

reviewable  by  certiorari 381 

concurrent  jurisdiction  of  board  of  supervisors 381 

of  justices  of  the  peace  and  constables,  appeal 382 

accounts,  what  to  contain 383 

fees,  in  criminal  proceedings 384 

salary  of  justice,  in  lieu  of 384 

when  town  or  county  charges 384 

tramps  or  vagrants,  when  fixed  by  town  board 385 

vagrants  defined  385 

form  of  accounts 386 

verification  by  affidavit 386 

town  charges  388 

traveling  fees  for  subpoenaing  witnesses 390 

abstract  of  names  of  claimants 390 

« 

town  auditors,  when  elected 391 

number  and  terms 391 

temporary  appointment 392 

credit  of  accounts  by 392 

meetings  quarterly  in  towns 393 

compensation,  fixed  by  town  board 393 

vacancy,  supervisor  to  fill 393 

discontinuance  by  vote  of  town  meeting 393 

of  illegal  claim,  action  to  restrain 1052 

Auditors,  Town— See  Audit ; Town  Auditors. 

B 

Bacteriologist,  County — 

appointment  by  board  of  supervisors 81 

Ballot  Clerks — 

designation,  number,  qualifications 293 

in  towns,  appointment 294 

Banks — 

stockholders  taxable  on  shares 503 

reports  to  assessors  for  purposes  of  taxation 522a 

contents 519 

penalty  for  neglect  to  make 519 

assessment  of  shares 522a 

complaints  as  to  valuation 522b 


INDEX. 


1283 


Banks— Continued.  Page. 

notice  to  bank  by  assessors 522b,  525 

rate  of  tax 522c 

levy  of  tax  by  board  of  supervisors 522c 

collection  of  tax 522e 

distribution  of  tax  by  board  of  supervisors 523 

individual,  how  assessed 525 

shares  of  stock  excluded  for  purpose  of  equalization 559 

collection  of  taxes  against 589 

levy  on  stock 589 

Barbed  Wire- 

use  of,  for  division  fences 643 

Bastards— See  Poor  Persons. 

removal  of  mother,  penalty 744 

proceedings 744 

support  of  mother 745 

definition  745 

who  liable  for  support 745 

mother  and  child  poor  persons 745 

to  be  supported  as  poor  persons 746 

not  to  be  removed  without  mother’s  consent 746 

overseers  to  notify  superintendent 747 

superintendent  to  provide  for  mother  and  child* 747 

overseers  to  support,  until  superintendent  takes  charge 747 

whether  chargeable  or  not 747 

to  apply  money  received  from  father 748 

compelling  father  to  support 748 

collection  and  disposition  of  money  for  support : 749 

settlement,  disputes  750 

proceedings  when  chargeable  to  another  town 750 

order  of  supervisor  for  support  of 751 

removal  of  mother  and  child)  to  alms-house 751 

compromise  with  father 752 

Births— 

registration;  fees  a town  charge 448 

duties  of  certain  officers  as  to 462a 

certificates  of,  form 462h 

Blind- 

institutions  to  which  admitted 705 

maintenance  in  New  York  institution 706 

board  of  supervisors  to  furnish  with  clothing 706 

State  School  at  Batavia,  admission 707 

clothing  and  traveling  expenses 708 

itemized  accounts  against  counties 70S 


Board  of  Supervisors — See  Audit;  County  Officers;  Highways ; Poor  Per- 


sons; Taxes,  etc. 

constitutional  requirement  10 

in  Nassau  county,  constitutionality  of  special  act 10 


1284 


INDEX. 


Board  of  Supervisors — Continued.  Page. 

meetings  and  organizations 11 

election  of  chairman 12 

of  clerk  13 

quarterly,  may  be  held 15 

regular,  in  Ontario  county 16 

majority,  a quorum 12 

power  as  to  qualifications  of  its  members 11 

rules  of  conduct  of  proceedings 13 

committees,  appointment  13 

members , penalty  for  failure  to  perform  duties 17 

liability  for  neglect  of  duty 17 

compensation 18 

annual  salary  in  lieu  of  per  diem  compensation 19 

in  certain  counties 19 

special  acts  relating  to 19 

allowance  for  copying  assessment-roll 20 

for  services  on  committees 19 

for  attending  tax  meetings 21 

acts  and  resolutions,  form  and  contents 21 

passage 21 

title 21a 

to  be  numbered  and  certified 21a 

validity 21a 

publication 21b 

may  be  read>  in  evidence 21c 

proceedings  to  be  printed 21b 

publication;  contract  21b 

contents 21b 

certified  copy,  constitutes  county  record 21d 

county  records,  custody 21 A 

copies  may  be  made;  payment  of  cost 22 

untnesses,  examination  22 

subpoena 22 

administering  oath  22 

powers  of  committees  as  to  hearings 23 

adjournment  of  hearing  or  examination 23 

discharge,  when  arrested  for  failure  to  appear 23 

undertaking;  enforcement 23 

audit  of  county  accounts,  power  of  board 26,  54 

what  constitutes 26 

jurisdiction  as  to 26 

acts  judicially  27 

when  discretion  may  be  used1 28 

power  may  not  be  delegated 28 

how  far  conclusive 31 

claims  for  services 30 

hearing  evidence  as  to  claims 31 

affidavit  of  value  of  services 31 

manner  of  making 29 

compelling,  by  mandamus 33 

review  by  certiorari 32 

presentation  of  accounts  in  Albany  and  Rensselaer 34 

accounts  to  be  itemized 27 


INDEX-  1285 

Board  of  Supervisors — Continued.  Page. 

verification 28 

sufficiency  of  presentation 34 

additional  requirements  as  to 35 

publication  by  clerk  of  board* 96 

unlawful,  a felony 36 

falsely  making,  and  payment 36 

fraudulent  presentation  of  accounts 37 

of  county  charges,  see  County  Charges 37-50 

levy  of  taxes  for  payment 50 

duties  of  county  comptroller 119 

county  auditor  to  examine,  etc 124 

general  powers 53 

as  to  county  property 53 

to  direct  raising  of  money  for  town  charges 54 

levy  of  taxes 54 

to  fix  salaries  of  county  officers 54 

salaries  not  to  be  increased  or  diminished  during  term 54 

amount  of  undertakings  of  county  clerk,  district  attorney  and' 

superintendent  of  the  poor 55 

to  borrow"  money  for  county  buildings  and  other  purposes 55 

to  authorize  towns  to  borrow  money 55 

to  provide  for  destruction  of  w^eeds  and  animals 56 

to  provide  for  protection  and  preservation  of  fish  and*  game 56 

to  divide  school  commissioners’  districts 57 

to  regulate  opening  of  county  offices 57 

to  make  contracts  with  penitentiary 57 

to  sue  on  undertakings 58 

as  to  county  buildings,  and  the  acquisition  of  lands  therefor 58 

heating,  lighting  and  maintenance,  advance  payment 65a 

as  to  jury  districts 59 

in  Chautauqua  county,  to  make  office  of  sheriff  salaried 59 

to  raise  money  to  enforce  game  law 59 

to  sell  or  assign  judgment  against  state 62 

to  fix  compensation  for  conveyance  of  juvenile  delinquents 63 

to  direct  justices  of  peace  to  pay  fines  to  supervisors 63 

to  contract  for  board  of  civil  prisoners  in  jails 63 

to  provide  for  maintenance  of  law  library 63 

to  provide  for  stenographer  for  county  court 63 

payment  of  salaries  and  fees  of  stenographer 63 

to  appropriate  money  for  home  defense 63 

to  authorize  towrn,  city,  village  or  district  to  borrow  money  for  streets 

and  highways  64 

may  raise  money  for  construction  of  side  paths 65b 

to  appropriate  money  to  aid  society  for  prevention  of  cruelty  to 

children 64 

society  for  prevention  of  cruelty  to  animals 65b 

farm  bureaus  and  improvement  of  agricultural  conditions 65 

to  purchase  supplies  for  superintendent  of  schools 65d 

to  appoint  commissdon  to  investigate  as  to  form  of  government 65c 

may  legalize  informal  acts  of  town  meeting  or  village  election 66 

designation  of  newspapers  for  publication  of  session  laws 66a 

to  levy  tax  for  expense  of  publishing  local  laws 68 

designation  of  newspapers  for  publishing  election  notices 69 


INDEX. 


1286 

Board  of  Supervisors— Continued.  Page* 

appropriations  for  improvement  of  agriculture 65a 

claims  against  towns  and  cities  for  inmates  of  state  charitable  insti- 
tutions   65b 

advance  payment  of  expenses  of  prosecution  of  criminal  actions 65b 

telephone  service,  contracts  for 65c 

contract  with  undertakers  in  Erie  county 65c 

support  of  veterans,  county  charge 65d 

plans  for  streets,  avenues,  etc.,  in  certain  counties- 65d 

deputy  county  treasurer,  authorized 66 

payment  for  supplies  in  advance  of  audit,  Ontario  county . 66 

change  of  location  of  county  buildings CD 

petition  for 70 

action  upon  presentation  of  petition 70 

submission  of  question  to  vote  of  people 71 

of  poor  house,,  after  destruction  of  building 71 

establishment  of  fire  district  outside  of  village 74 

discontinuance  of  fire  district 78 

effect  of  incorporation  of  village  within  limits  of  fire  district 79,80 

annexation  of  territory  to  fire  district 79 

appropriation  of  money  for  erection  of  soldiers’  monument 80 

temporary  loans;  obligations  therefor 81 

county  laboratories,  establishment  81 

county  attorney,  appointment  82 

duties  as  board  of  county  canvassers,  see  Canvassers , County  Board  of  84-93 

clerk,  appointment  of 94 

general  duties 94,  95 

publish  statement  of  accounts 96 

report  of  indebtedness  of  county,  town,  etc.,  to  comptroller 97 

statement  as  to  taxes  on  certain  corporations 97 

failure  or  neglect  to  make  report 98 

assistant  district  attorney,  may  authorize  appointment  of 140 

appointment  of  person  to  act  as  surrogate 147 

to  create  office  of  surrogate  in  certain  counties 146 

coroners,  may  fix  salaries  of 163 

jails,  may  employ  convicts  in 180 

may  establish  houses  of  detention 183 

work  houses  184 

loan  office  mortgages,  powers  as  to 215 

tuberculosis,  hospital,  establishment 216 

See  Tuberculosis,  County  Hospital. 

child  welfare,  local  boards 223a 

allowances  for  widowed  mothers,  appropriation 223a 

See  Child  Welfare,  Local  Boards. 

reports  of  county  officers 224 

official  seal  225 

towns,  proceedings  for  erection  or  alteration 235 

disputed  boundary  lines,  establishment 237 

town  meetings,  biennial,  may  fix  time 245 

direct  payment  of  fines,  etc.,  collected  by  justice 349 

banks  levy  of  tax  upon 522c 

distribution  of  tax  collected 523 

equalization  of  valuations 558 

examination  of  assessment-rolls 558 


INDEX. 


1287 


Board  of  Supervisors— -Continued.  Page. 

appointment  of  commissioners  of  equalization 550 

report  of  commissioners 560 

taxation,  duties  as  to  generally 561-571 

may  change  description  of  nonresident  real  property 561 

review  of  assessment  against  nonresident  owners  of  rents  reserved.  . . 561 

correction  of  errors 562 

petition  by  assessors 562 

refund  of  tax  erroneously  paid 563 

correction  of  manifest  errors 563 

moneys  illegally  collected  to  be  refunded 565 

errors  as  to  assessment  of  nonresident  real  estate 566 

re-assessment  of  property  illegally  assessed 566 

levy  of  taxes 567 

collector’s  warrant  to  be  attached  to  tax  roll 568 

contents 569 

clerk  to  render  statement  of  taxes  upon  certain  corporations  to 

county  treasurer  570 

statement  of  equalized  valuation  to  be  forwarded  to  comptroller 570 

abstract  of  tax  rolls  to  be  furnished  to  county  treasurer 571 

duties  as  to  distribution  of  tax  on  mortgages 630 

dogs,  may  impose  tax  on 651 

rate  of  tax  when  not  fixed  by 652 

registration,  may  provide  for 660 

superintendents  of  the  poor,  to  determine  number 669 

rules  and  regulations  as  to  relief  of  poor 680 

blind,  maintained  at  institution,  to  furnish  clothing 706 

at  state  school  at  Batavia,  clothing  and  traveling  expenses 708 

itemized  accounts  against  counties 708 

deaf  and  dumb,  when  expense  chargeable  against  county 710 

clothing  charge  upon  county 710 

soldiers , sailors  and  marines,  to  provide  for  burial 770 

to  provide  for  headstones  for  graves  of 771 

abolish  or  revise  distinction  between  town  and  county  poor 779 

county  system  of  roads,  construction 963-963b 

highways  and  bridges,  may  lay  out  and  construct 979 

bridges,  may  change  location 981 

destroyed  by  elements,  may  provide  for  construction 982 

intersected  by  county  or  town  lines,  apportionment  of  expense 983 

county’s  share  of  expense,  how  raised 984 

may  authorize  construction  outside  of  boundary 984 

over  county  line,  to  provide  for  maintenance 985 

survey  of  highway,  may  authorize  commissioners  to  make 988 

toll  rates  regulated  by 988 

highways  in  counties  containing  300.000  acres  of  improved  lands 989 

apportionment  of  nonresident  highway  taxes 989 

alteration  of  state  roads 989 

laws  and  regulations  as  to  highways  and  bridges 990 

as  to  use  of  wide  tired  vehicles 990 

use  of  abandoned  turnpike  and  plank  roads 990 

farm  schools,  establishment 1025a 

grand  jury  Kst,  preparation 1029,  1030 


1288 


INDEX. 


Board  of  Supervisors — Continued.  Page. 

allowance  to  grand  and  trial  jurors 1042 

resolution  authorizing  issue  of  bonds 1069 

office  of  railroad  commissioner,  may  abolish 1071 

county  sealer  of  weights  and  measures,  appointment 1089 


Boads — 

of  county,  board  of  supervisors  may  borrow  money  on 

issue  and  sale  by  county  comptroller 

of  town,  board  of  supervisors  may  authorize  issuance. 

application  of  surplus  money  in  payment 

for  erection  of  town  house 

for  highway  purposes  and  support  of  poor 

for  suppression  of  forest  fires 

for  other  emergencies 

for  payment  of  charges  against  town 

judgments  against  town 

for  bridge  and  highway  purposes 

issue  and  sale 

of  municipalities,  power  to  issue 

issued  for  specific  object 

how  paid  

retirement  by  new  issue 

how  issued  

registration 

coupon  may  be  converted  into  registered 

limitation  of  amount 

constitutional  provisions  respecting 

resolution  of  board  authorizing  issue 

legalization  of  issue,  procedure 

maximum  rate  of  interest 

exemption  from  taxation 

actions  for  malfeasance  of  officers  in  issuing 

railroad,  payment  

reissue  of  lost  or  destroyed 

Borrow  Money — 

power  of  municipalities 1058 

Boundaries— 

of  county,  effect  of  alteration  on  debts. . 

of  towns,  disputed,  establishment 

proceedings,  disposition  of  property 
alteration  by  board  of  supervisors. . 


Bribery— 

of  executive  officer 1082 

Bridges — See  Highways ; Highways,  Town  Superintendent  of. 

special  town  meeting  to  raise  money 200 

supervision  of  state  commission 795 

plans  and  specifications,  commission  to  cause  to  be  made 795 

state  commission  to  condemn  unsafe 798 


4 

237 

233 

236 


55 

120 

55 

355 

360 

396 

397 

397 

398 
399a 

864 

865 

1058 

1059 

1060 
1061 
1062 

1063 

1064 

1065 

1066 
1069 
1081 

1081c 

478 

1069 

1074 

1075 


INDEX. 


1289 


Bridges— Continued.  Page. 

liability  of  county  for  defective 7 

duties  of  district  or  county  superintendent 803 

town  superintendent,  duties  of  in  respect  to 810 

estimate  of  expenditures 853 

approval  of  modification  by  town  board 855 

contracts  for  repair  or  rebuilding 861 

for  construction,  award 821 

limitation  of  amount  to  be  raised 861 

■borrowing  money  in  anticipation  of  taxes 862 

for  construction  or  repair 864 

towns  to  construct  and  maintain 945 

when  over  boundary  lines 945 

when  over  county  line,  county  to  aid 946 

expense  of  maintaining,  statement  of  supervisor 947 

delivery  of  statement  to  board  of  supervisors 947 

levy  by  board  of  supervisors 947 

fast  driving  or  riding,  penalty 947 

joint  liability  of  towns  and  joint  contracts 948 

over  boundary  line,  liability  of  towns 948 

refusal  of  town  to  rebuild  or  repair 949 

proceedings  in  court  upon  refusal 950 

supervisors  to  institute  proceedings 951 

order  to  be  served  on  town  superintendent 95] 

compliance  with  order  by  town  superintendent 951 

report  of  town  superintendent  as  to  expenditures 952 

appeals  from  orders  952 

cost  of  proceedings' 952 

repair  by  any  person  or  corporation 952 

cost  to  be  refunded 953 

waters  between  towns  and  cities  of  over  1,500,000  inhabitants 953 

construction  or  improvement  by  county  and  town 953 

unsafe,  excessive  loads  upon 967a 

toll,  acquisition,  see  Toll  Bridges  954-957 

constituting  part  of  state  route 957a 

board  of  supervisors,  powers  as  to 071) 

may  authorize  change  of  location 981 

may  provide  for  construction,  when  destroyed 982 

apportionment  of  expense,  when  intersected  by  town  or  county  lines.  . 983 

county’s  share  of  expense,  how  raised 984 

may  authorize  construction  outside  boundary 984 

over  county  lines,  maintenance 985 

defective,  liability  of  county 3,  985 

laws  and  regulations  respecting 990 

Burial- 

permits  by  board  of  health 450 

Burial  Grounds,  Town — 

trustees,  election  by  town  meeting. 362 

term  of  office • ••  362 

powers 362 

to  lay  out  grounds 363 

lots;  free,  and  sale  of 363 

when  belong  to  town 363 

in  district  annexed  to  city 364 

trustees,  appointment,  term  of  office 364 


1290 


INDEX. 


Burial  Grounds— Continued.  Page. 

soldiers’  plots,  purchase  and  care  by  town 365 

transfer  of  bodies  of  soldiers 365 

maintenance  in  Broome  county 365 

Burying  Grounds — 

laying  out  highways  through 924 

C 

Canal  Bridges — 

approaches  maintained  by  state 902 

Canvass— 

of  votes  at  town  meetings,  see  Toivn  Meetings 265 

Canvassers,  County  Board  of — 

board  of  supervisors  to  act  as 84 

county  clerk  to  be  secretary  of 84 

meetings  of  84 

tatement  of  canvass  to  be  delivered  to 85 

correction  of  clerical  errors  in  statements  of  inspectors 85 

in  statement  of  state  or  county  board 86 

statements  of  canvass  by 88 

decision  as  to  persons  elected 90 

transmission  of  statements  to  -secretary  of  state 92 

Carriages— 

use  of  highways  by 967 

term  defined  964 

Cemeteries— 

exemption  from  taxation 479 

of  municipal  corporations 475 

duties  of  county  treasurers  as  to  cemetery  trusts 112 

Charitable  Institutions— 

board  of  supervisors  may  audit  claims  against  towns  and  cities  for  sup- 
port of  inmates 65a 

money  raised  by  towns  and  counties  for  support  of  inmates 782 

reports  of  commitments  to 783 

by  officers  of  institutions 783 

accounts  against  municipalities  to  be  verified 784 

superintendents,  reports  to  clerks  of  board  of  supervisors 783 

payments  to,  by 'municipalities 782 

reports  with  relation  to  children  placed  in  family  homes 782 

Charities  Aid  Association,  State — 

visit  of  almshouses ’ 687 

Charities,  State  Board — 

powers  and  duties  as  to  almshouses,  see  Almshouses 685-688 

duties  as  to  state  poor 772-778 


INDEX. 


1291 


Chattel  Mortgages — Page. 

filing  in  town  clerk’s  office 339 

fees 341 

discharge  of 340 

refiling 340 

Chautauqua  County — 

board  of  supervisors  to  fix  salary  of  sheriff . 59 

Child  Welfare,  Local  Boards — 

establishment  in  each  county 223a 

members;  appointment  223a 

appointment  in  cities 223b 

serve  without  compensation 223b 

general  powers  and  duties 223b 

allowances  to  endowed  mothers 223d 

board  of  supervisors  to  appropriate  money 223e' 

penalties  for  unlawfully  obtaining 223e 

Churches — 

dwelling  houses  and  real  property  of,  exempt  from  taxation 482 

Civil  Prisioners — 

when  arrested  189 

how  long  imprisoned 189 

within  jail  liberties 190 

support  of  191 

contracts  for 59 

sheriff  not  to  charge  for 191 

not  to  receive  compensation  for  rent  of  room  in  jail 191 

in  house  other  than  jail 191 

privileges 191 

conveyed  through  other  counties 192 

under  United  States  process 192 

when  sick,  may  be  removed 192 

jail  liberties  193 

boundaries;  how  designated 194 

when  entitled  to 194 

undertaking 194 

execution  and  justification 195 

effect 195 

when  insufficient  196 

surrender  by  sureties 196 

escape,  what  constitutes 196 

liability  of  sheriff 197 

indicted,  when  sheriff  to  produce 198 

committed  for  contempt 198 

Clerk  of  Board  of  Supervisors — 

to  forward  to  secretary  of  state  names  of  newspapers  for  publication  of 

session  laws  66c 


1292 


INDEX. 


Clerk  of  Board  of  Supervisors — Continued.  Page. 

appointment  of  13.  94 

general  duties 94,  95 

to  publish  statement  of  accounts  audited  by  board 96 

report  of  county,  town  and  village  indebtedness  to  comptroller 97 

statement  of  taxes  on  railroad,  telegraph,  etc.,  companies 97 

penalty  for  failure  to  make  statement  of  report 98 

statement  of  taxes  upon  certain  corporations  to  be  delivered  to  county 

treasurer 570 

statement  of  equalized  valuation  to  be  forwarded  to  state  comptroller.  ...  570 

abstract  of  tax  rolls  to  be  furnished  county  treasurer 571 

reports  of  commitments  to  benevolent  institutions 783 

by  superintendents  of  charitable  institutions 783 

Collector — See  Taxes ; Town  Officers. 

election 281 

term  of  office _ 282 

undertaking,  form  and  condition 307 

recorded  in  county  clerk’s  office 308- 

lien  on  property  of  collector  and  sureties 30S 

continuation  and  enforcement 308 

to  give  notice  of  receipt  of  tax  roll 583 

notice  to  nonresidents- 584 

demand  payment  of  tax  after  thirty  days 585 

levy  on  personal  property 586 

sale,  disposition  of  proceeds 588 

surplus  of  sale,  conflicting  claims 589 

on  stock  of  banks 589 

credit  for  taxes  paid  by  railroad,  telephone,  etc.,  companies 590 

return  unpaid  taxes  on  debts  due  nonresidents 596 

fees 601 

return  of  unpaid  taxes 601 

form  and  contents 601 

payments  by,  to  proper  officers 603 

receipts  to  be  given 603 

failure  to  make,  liability 604 

undertaking,  supervisor  to  prosecute 604,  605 

new,  when  time  for  collection  of  tax  is  extended 605 

vacancy  in  office,  town  board  to  fill 606 

failure  to  execute  bond,  sheriff  to  collect  tax 606 

undertaking,  satisfaction  by  county  treasurer 607 

losses  by  default,  chargeable  to  town 611 

receipts  to  be  given  to  person  paying  tax 611 

dog  tax,  collection  and  payment 654 

fees  for  collection 654 

Commissioner  of  Jurors — 

appointment,  etc.,  see  Jurors 1036-1041 

Commutation — See  Highway  Labor. 

for  performance  of  highway  labor,  rate,  payment 866 


INDEX.  1293 

Compensation — Page. 

of  supervisor  as  member  of  board 

special  acts  relating  to 19 

attending  conference  with  state  tax  commissioners 21 

as  town  officer 352 

of  assessors,  attending  conference  of  state  tax  commissioners 21 

of  county  officers,  county  charge 38 

court  criers,  county  charge 39 

board  of  supervisors  may  fix 54 

not  to  be  increased  or  diminished  during  term • 54 

of  county  comptroller,  supervisors  may  fix 119 

of  county  judges  and  surrogates 147-158 

how  paid  151 

of  coroner,  board  of  supervisors  may  fix 163 

of  town  officers 352 

board  of  supervisors  may  fix  at  different  rate 353 

per  diem  allowances 352,  354b- 

in  certain  towns 354b 

of  health  officers  in  towns  and  villages 443d,  444 

payment  of  salaries  monthly 354b 

Condemnation — 

of  real  property  by  municipality 1078 

Constables— See  Town  Officers. 

attending  courts,  fees  county  charges 40 

services  in  certain  criminal  matters 40 

convej’ance  of  prisoners 40 

sheriff  to  notify  to  attend  courts 159 

election 281 

term  of  office 282 

number,  town  meeting  to  determine 248 

undertaking,  form  and  condition 310 

approval  and  sufficiency 310 

effect  and  liability  for  breach 310 

town  clerk  to  certify  names  of,  to  county  clerk 336 

special,  supervisor  and  two  justices  may  appoint 292 

badge,  supervisor  to  furnish 292 

powers  and  duties 292 

instituting  actions  a misdemeanor 348 

fees  in  criminal  proceedings,  when  town  or  county  charge 384 

neglect  of  town  clerk  to  return  names 1087 

Consumption — See  Tuberculosis. 

cases,  report  of  health  officer 451 

Contempt — 

prisoners  confined  for 198 

^Contracts— 

in  name  of  county 2 

by  town  officers,  in  name  of  town 395 

highways  and  bridges,  repair 861 

construction,  award 821 


1294 


INDEX. 


Contracts—  Continued.  Page. 

officers  not  to  be  interested  in 1086 

separate  specifications  for  certain  work 108 Id 

municipal,  retained  percentages  may  be  withdrawn 1081d 

provision  as  to  workman’s  compensation 1081d 

Convention  Expenses— 

of  municipal  officers  and  employees 43T 

Conveyances— 

by  or  in  behalf  of  county 3 

Convicts— 

use  of,  in  construction  of  highways 88f> 

in  construction  of  county  system 963 

Coroners — See  County  Officers. 

fees  for  services  of,  a county  charge 43 

when  to  act  as  sheriff 161 

county  judge  to  designate 161 

to  execute  duties  until  vacancy  is  filled 163 

salaries,  board  of  supervisors  to  fix 163 

fees  allowed  for  services  or  inquests 163 

inquest,  see  Coroner’s  Inquest 199-203 

property  found  on  deceased,  disposition 202 

statement  to  board  of  supervisors 203 

fees  as  witness 203 

may  employ  surgeon  and  stenographer 164 

report  to  board  of  supervisors 203 

justices  of  the  peace  to  hold  inquest 203 

Coroner’s  Inquest — 

employment  of  surgeon  and  stenographer 164 

fees  allowed  for  services 163 

when  jury  may  be  summoned 199 

coroner  disqualified  200 

witnesses,  subpoena 200 

verdict  of  jury 200 

testimony  in  writing 201 

to  be  delivered  to  magistrate 201 

warrant,  when  issued 201,  202 

form 201 

execution 202 

proceedings  on  examination  of  defendant 202 

disposition  of  property  found  on  deceased 202 

statement  to  board  of  supervisors 203 

employment  of  surgeon 164 

compensation  for  services  of  coroner 203 

coroner  as  witness 203 

fees  of  jurors 203 

justices  of  the  peace,  when  to  hold 203 

Corporations — 

names  of,  county  clerk  to  report  to  secretary  of  state 128 

changes  in,  to  be  reported 128 


INDEX.  1295 

Corporations — Continued.  Page. 

place  of  taxation ' 499 

personal  property  taxed  where  principal  office  is  located 499 

taxation  of  corporate  stock 500 

of  railroad  corporations 501 

valuation  of,  how  ascertained 501 

statement  of,  to  assessors 525 

contents 525 

penalty  for  omission  to  make 526 

effect  of  526 

county  clerks  to  furnish  data  respecting 527 

how  assessed  on  assessment-roll 529-532 

failure  to  pay  taxes,  sequestration 595 

supplementary  proceedings  for  collection  of  tax 598 

dismissal  of  suit  or  proceeding 599 

County — 

a municipal  corporation ’ 1 

effect  of  declaring 2 

actions  and  contracts  in  name  of 2 

actions  by  and  against 3 

boundaries,  effect  of  alteration  on  debts 4 

division;  disposition  of  property  4 

judgments  of  county  court;  executions 5 

on  property  of  county 4 

liability  for  injuries  caused  by  defective  highway 7 

official  seals  225 

kept  by  county  clerk 225 

temporary  loans  81,  1058 

power  to  borrow  money 1058 

funded  debt,  contracted  for  specific  purpose 1059 

new  bonds  for  retirement  of  old* 1061 

bonds,  how  issued 1062 

registration  1063 

coupon  converted  into  registered.  1064 

not  invalidated  by  certain  defects 1064 

limitation  of  indebtedness 1065 

credit  not  to  be  loaned* 1066 

liability  for  injuries  from  mobs  and  riots 1076 

County  Attorney- 

board  of  supervisors  may  appoint 82,  144 

term  and  salary,  how  fixed 144 

ities  may  include  services  for  town 144 

County  Auditors — 

appointment  by  board  of  supervisors 124 

duties  in  respect  to  county  claims 124 

County  Bacteriologist — 

appointment  by  board  of  supervisors 81 


1290 


INDEX. 


County  Buildings — PAGE. 

erection,  alteration  and'  acquisition  of  lands  for 5$ 

change  of  site  by  board  of  supervisors 69 

petition  of  freeholders 70 

action  of  board  upon  presentation  of  petition 70 

submission  of  question  to  vote  of  people 71 

legislature  cannot  change  location 71 

lighting,  heating  and.  payment,  advance  payment 65a 

County  Charges — 

generally 37 

expenses  in  criminal  actions 37 

accounts  of  district  attorneys 37 

expert  witnesses  38 

compensation  of  county  officers 38 

court  criers  39 

sheriff,  as  to  criminals  and  summoning  constables 39 

constables,  for  attending  courts  of  recrod 40 

services  in  certain  criminal  matters 40 

conveyance  of  prisoners 40 

support  of  prisoners  in  jails 41 

witnesses’  fees  in  criminal  actions 41 

necessary  expenditures  by  county  officers 42 

printing  calendars  for  courts 43 

services  of  coroners  43 

election  expenses  43 

bounties  for  destruction  of  noxious  weeds  and  animals 43 

compensation  of  supervisors  43 

fees  of  justices  of  the  peace 43 

contingent  expenses  44 

court  rooms  and  furniture 45 

court  expenses  45 

costs  in  proceedings  for  removal  of  county  officers 45 

judgments  against  county 46 

damages  against  county  officer 46 

costs  and  expenses  of  litigation 46 

county  detective  47 

.stenographers’  fees  48 

supreme  court ; apportionment  48 

counsel  in  murder  oases 47 

civil  prisoners,  support  47 

notices  of  appointment  of  terms  of  county  court 50 

fees  of  county  clerk,  for  certifying  records  for  state  comptroller 50 

levy  of  taxes  for  payment 50 

publication  of  local  laws  passed  by  legislature 68 

County  Clerk — See  County  Officers ; Fees. 

duties  of,  relating  to  session  law  slips 68 

secretary  of  county  board  of  canvassers 84 

to  transmit  statements  of  canvassers  to  secretary  of  state 92 

election  126 

governor  to  fill  vacancy 126 


INDEX. 


1297 


County  Clerk— Continued.  Page. 

undertaking  126 

amount,  supervisors  to  fix  55 

general  powers  and  duties 127 

custody  of  books,  etc 127 

to  provide  books  at  expense  of  county 128 

to  notify  persons  elected  to  office 128 

to  notify  governor  of  vacancy 128 

report  of  names  or  corporations 128 

changes  in  names  of  persons  and  corporations,  to  report 128 

fees;  to  keep  book  containing  record  of 128 

when  to  account  for 129 

search  of  records  129 

clerk  of  county  court 129 

deputy,  appointment  of 129 

term  of  office 130 

duties  of  130 

special,  to  attend  upon  courts;  duties 131 

assistant  clerk,  duties,  compensation 130 

one  designated  as  calendar  clerk 130 

statement  of  receipts  and  expenses  to  board  of  supervisors 131 

business  hours  in  office  of 132 

records  of  predecessors;  completion 133 

deposit  of  certain  papers  for  safe  keeping 133 

register  of  moneys  paid  into  court 134 

marriage  records,  papers  filed  and  indexed 135 

transmission  to  state  department  of  health 135 

false  certificates  135 

false  statements  in  certificates 135 

filing  instrument  without  proof  or  acknowledgment 135 

failure  to  publish  statements  135 

to  report  omissions  of  town  officers  to  district  attorney 318 

to  furnish  data  respecting  corporations 527 

duties  on  taxation  of  mortgages,  see  Mortgages , Taxation  of 621-634 

County  Comptroller — 

petition  for  creation  of  office 118 

submission  of  proposition  for  creation  of  office 119 

qualifications;  term  of  office 119 

supervisor  not  eligible 119 

oath  and  undertaking 119 

salary  fixed  by  board  of  supervisors 119 

removal  by  governor 119 

fiscal  affairs  of  county  superintended  by 119 

warrants  issued  by 120 

accounts  and  claims,  examination 120 

report  to  board  of  supervisors 120 

■audit  of,  when  rejected 120 

filing  and  verification 122 

books,  records  and  reports 120 

bonds  of  county,  duties  as-  to 121 

payment  of  county  employes 121 

purchase  of  supplies  for  county  officers 122 

estimates  submitted  by  county  officers 123 

accounts  with  county  treasurer 123 


1208 


INDEX. 


County  Court — Page. 

judgments,  where  county  is  divided 5 

notices  of  terms,  printing,  county  charge 50 

county  clerk  as  clerk  of 129 

County  Engineers — See  Highways.  District  or  county  Superintendent  of. 

continuance  in  office 975 

Oouny  Funds — 

duties  of  county  treasurer  as  to 104 

deposit  of,  in  banks 108 

depositary  to  give  undertaking  upon  receipt  of 109 

how  drawn  110 

county  treasurer  to  deliver  to  successor 110 

misappropriation  by  county  treasurer 114 

County  Highways— See  Highways,  County. 

County  Judge — 

election  and  term 145 

governor  to  fill  vacancy 145 

constitutional  provisions  as  to 145 

compensation  of  147-151 

how  paid  151 

County  laboratory — 

establishment  81 

County  Officers — 

necessary  expenditures  a county  charge 42 

costs  in  proceedings  for  removal,  a county  charge 45 

salaries  to  be  fixed  by  board  of  supervisors 55 

clerks,  assistants  and  employes 55 

board  of  supervisors  may  regulate  hours  of 57 

undertakings,  acts  before  executing 58 

county  comptroller,  pay  rolls  to  be  certified  to 121 

claims  presented  to,  approval 122 

supplies ; purchase  122 

estimates  to  be  submitted  to 129 

county  clerk  to  notify  persons  elected 128 

notice  of  vacancy  to  governor 128 

reports  to  board  of  supervisors 224 

penalty  for  failure  to  make 225 

to  be  filed  with  clerk  of  board 225 

moneys  in  hands,  district  attorney  to  recover 225 

official  seals  225 

oaths  of  office  226 

failure  to  take 227 

bonds  and  undertakings 227 

effect  228 

approval  228 

to  be  recorded 228 

sureties  228 


INDEX. 


1299 


County  Officers— Continued.  Page. 

expense  of,  when  executed  by  surety  company,  a charge  against  county.  . 313 

removal  by  governor 229 

evidence  in  proceedings 229 

order,  how  made,  where  filed 230 

for  seditious  or  treasonable  utterances 231 

expenses  a county  charge 45 

action  to  prevent  illegal  acts 1045 

object  of  statute 1047 

when  maintained  1049 

to  restrain  award  of  contract 1051 

audit  of  illegal  claim 1052 

to  prevent  waste 1048 

by  and  against,  in  official  capacities 1054-1056 

for  malfeasance  in  executing  town  bonds 1053 

acting  without  having  qualified 1082 

bribery  1082- 

prevention  from  performance  of  duties 1083 

taking  unlawful  fees 1083 

illegal  acts  as  to  appointments 1084 

wrongful  intrusion  1085 

neglect  1085 

misappropriation  of  public  funds 1085 

not  to  be  interested  in  contracts- 1086 

County  Poor — 

superintendent  may  direct  overseers  to  care  for 676 

County  Roads — See  Highways ; Highway , County. 

what  constitute  789 

system,  establishment  and  construction 963-963b 

County  Superintendent  of  Highways — See  Highways ; District  or  County 
Superintendent  of. 

continuance  in  office 975 

County  Treasurer — See  County  Officers;  Taxation;  Schools. 

deputy,  board  of  supervisors  may  authorize '66 

to  keep  record  of  session  laws 66tl 

election  of  100 

appointment  to  fill  vacancy 101 

undertaking  101,  102 

additional  may  be  required 102 

acts  of  deputy,  covered  by 103 

deputy  county  treasurer  in  certain  counties 103 

compensation  paid  out  of  fees 103 

undertaking  103 

general  powers  and  duties 104-108 

to  receive  county  moneys 104 

to  keep  accounts  104 

to  render  statements  to  board  of  supervisors 106 

to  render  to  comptroller  statements  of  penalties 106 

receipt  and  payment  of  state  tax 106 

special  report  as  to  investment  of  trust  moneys 107,  108 

to  exhibit  books  and  accounts  to  boards  of  supervisors 108 

extension  of  time  for  making  reports 108 


1300 


INDEX. 


County  Treasurer — Continued.  Page. 

banks  of  deposit,  designation  by 108 

interest  on  deposits 101) 

undertaking  of  depositary 100 

designation  does  not  affect  liability  of 109 

drafts  upon,  how  drawn 110 

books  and  funds  to  be  delivered  to  successor 110 

penalty  for  neglect  to  make  report  of  statement Ill 

recovery  of  moneys  after  expiration  of  term Ill 

misappropriation  of  moneys  and  securities 114 

duties  in  respect  to  cemetery  trusts 112 

failure  to  pay  on  order  of  court 113 

duties  under  Liquor  Tax  Law 114 

fees  for  collection  of  liquor  tax 116 

transfer  tax,  collection  of 116 

receipt  upon  payment 116 

fees  for  collection 116 

report  of  amount  received  to  comptroller 116 

accounts  with,  county  comptroller  to  keep 123 

official  seal  225 

not  to  be  supervisor 300 

collection  of  tax  on  banks 523,  524 

payment  of  tax  to,  by  railroad,  telegraph,  telephone  and  electric  light 

companies  590 

of  school  tax  by  railroad  corporation 591 

by  railroad,,  wThere  town  was  bonded 592 

duties  as  to 592 

to  issue  warrant  for  collection  of  tax  on  debts  due  nonresidents 596 

supplementary  proceedings  for  collection  of  tax 598 

dismissal  of  suits  or  proceedings 599 

return  of  unpaid  taxes  to 601 

collector’s  failure  to  pay  over  taxes,  duties 604 

extension  of  time  for  collection  of  tax 605 

satisfaction  of  collector’s  bond 607 

payments  to  creditors  of  county 609 

state  tax,  comptroller  to  charge 609 

payment,  how  made 609 

fees 609 

accounts  to  be  stated  by  comptroller 610 

losses  by  default,  chargeable  to  county 611 

sales  by,  for  unpaid  taxes 613-620 

in  counties  embracing  no  part  of  forest  preserve 614 

list  of  property  and  notice  to  be  published 615 

how  conducted  615 

sales  by,  redemption  616 

redemption  of  real  property  stricken  from  tax  rolls 617 

conveyance  to  purchaser 617 

effect  618 

purchase  money,  when  refunded 618 

list  of  lands  sold,  transmitted  to  comptroller 618 

expense  of  publishing,  lien  on  premises 619 

duties  as  to  taxation  of  mortgages,  see  Mortgages , Taxation  of 621-633* 

as  to  school  moneys,  see  School  Taxes ; School  Moneys. 


INDEX. 


1301 

Court  Criers — Page. 

compensation  county  charge 39 

Court  Expenses — 

a county  charge 44 

Court  Houses— 

erection,  alteration  and.  acquisition  of  lands  for 58 

Courts— 

calendars,  cost  of  printing,  county  charge 43 

deputy  county  clerks  to  attend  terms 131 

furniture  and  supplies,  county  charge 43 

moneys  paid  into,  record  to  be  kept  by  county  clerk 134 

sheriffs  to  attend  upon  terms 167 

duties  as  to  rooms  of  appellate  division 167 

Craig  Colony  for  Epileptics— 

admission  of  patients 701 

proceedings  on  commitment 702a 

support;  clothing  a county  charge 702b 

apportionment  of  patients  among  counties 703 

Criminal  Proceedings — 

expenses,  when  county  charge 37 

accounts  of  district  attorney 37 

advance  payment,  supervisors  may  provide  for 65a 

fees  of  justices  and  constables,  when  town  or  county  charge 384b 

accounts  of  justices  384 

salary  of  justice  in  lieu  of  fees 384 

Cruelty,  Prevention  of,  Corporations  for— 

appropriation  of  money  by  boards  of  supervisors  to  aid 64,  65 

Crushed  Stone- 

purchase,  in  certain  towns 824 

D 

Deaf  and  Dumb — 

appointment  as  state  pupils  to  certain  schools 705 

list  to  be  furnished  to  commissioner  of  education 709 

indigent,  admission  to  institutions 709 

when  expense  chargeable  against  county 710 

admission  to  Western  New  York  Institution 710 

to  Northern  New  York  Institution  710 

clothing  dharge  upon  county 710 

Deaths— 

registration;  fees  a town  charge 448 

duties  of  certain  officers  as  to 462a 

Decoration  Day- 

town  board  may  vote  money  for 398 

additional  appropriations  for 399a 


1302 


INDEX. 


Delivery  of  Books  and  Papers — Page. 

by  outgoing  officers 356 

proceedings  to  compel 357 

Department  of  Highways— See  Highways , Department  of. 

Deputy  County  Clerks — 

appointment,  qualification,  term  129 

duties  # 130 

special,  to  attend  upon  courts 131 

Deputy  Sheriffs — 

appointment  of  157 

number  157 

powers  ; 158 

undertaking  157 

sheriff  to  notify  to  attend'  courts 159 

Diseases— See  Health. 

contagious  and  infectious,  duties  of  board  of  health 450 

report  of  cases,  fee 451 

vaccine  virus  to  be  supplied 452 

carriers,  quarantine;  expense  of  maintenance 452 

District  Attorney — See  County  Officers. 

election  137 

governor  to  fill  vacancy 137 

undertaking  138 

amount,  supervisors  to  fix 55 

report  of  moneys  received 139 

conduct  prosecutions  of  criminal  actions 138 

assistant,  board  of  supervisors  may  authorize  appointment 140 

powers  of  140 

appointment  in  Erie,  Monroe,  Onondaga,  Rensselaer,  Niagara  and 

Westchester  counties  140 

salaries  of  141 

employment  of  counsel 143 

special  appointment  by  court 143 

to  recover  moneys  in  hands  of  county  officers 143 

expense  of  transferred  trial  of  indictment 144 

of  prosecution  of  criminal  actions,  advance  payment 65a 

District  Superintendent  of  Highways — See  Highways,  District  or  County 
Superintendent  of. 

District  Superntendents  of  Schools— 

not  eligible  to  office  of  supervisor 300 

office  created  1017 

supervisory  districts  1017 

school  directors,  electors  of 1019 

to  elect  district  superintendent 1019 

vacancies,  how  filled  1021 


INDEX. 


1303 


District  Superintendents  of  Schools — Continued.  Page. 

salaries  1021 

expenses,  how  paid 1021 

supplies  and  furniture,  supervisors  may  purchase 65b 


Division  Engineers— 

appointed  by  state  commission  of  highways 797 

powers  and  duties 797 

Division  Fences— 

adjoining  owners  to  maintain 637 

owners  may  permit  lands  to  lie  open 638 

on  change  of  title  of  lands 639 

disagreement,  determination  by  fence  viewers 639 

disputes  between  owners 639 

proceedings  of  fence  viewers 639 

witnesses,  subpoena  and  examination 640 

fence  viewers,  fees  and  compensation 640 

damages  for  failure  to  erect  or  repair 640 

appraisal  by  fence  viewers 640 

destroyed  by  accident 641 

damages  by  animals,  where  not  properly  maintained 641 

where  person  fails  to  rebuild  or  repair 642 

use  of  barbed)  wire 643 

fence  viewers  to  prescribe  kind 643 


Dogs — 

licensing;  former  laws  repealed 651 

definitions;  owner;  kennel;  dog 652 

fees;  paid  to  town  clerk 652 

of  officers  and  magistrates 658 

disposition  by  town  clerk 662 

lists  of  dogs;  assessors  to  prepare 653 

licenses;  kennel  653 

issuance  by  town  clerk 654 

registry 654 

tags,  how  furnished  and  attached 654 

killing  unlicensed  dog 655 

dog  attacking  animals 656 

on  order  of  court  or  justice 658 

report  to  town  clerk 662 

running  at  large;  order 657 

when  to  be  killed 657 

damages  for  injuries  caused  by 659 

payment  and  assignment  of  claim 660 

disposition  of  amount  recovered 662 

actions  to  recover 663 

surplus  moneys;  apportionment 663 

pounds  and  dog  catchers 664 


1304 


INDEX. 


Dogs — Continued.  Page. 

registration,  town  clerk  to  compel 662 

penalties  for  failure;  collection 662 

special  provisions  for  Monroe  county 663 

seizure,  when  not  tagged 663 

disposition  of  fees  and  penalties 665 

unregistered  may  be  killed 665 

mad-,  persons  bitten  by,  to  be  sent  to  Pasteur  Institute 725 

Drains— 

right  of  town  superintendent  to  dig,  for  free  passage  of  water 829 

£ 

Election  Notices— 

designation  of  newspapers  to  publish 69 

Election  Officers — 

designation,  number,  qualifications 293 

compensation  in  certain  counties 354 

unless  different  rate  is  established 354a 

Elections — See  Town  Meetings. 

expenses  incurred  by  county  clerk,  a county  charge 43 

canvass  by  board  of  supervisors 84-93 

Electric  Light  Corporation — 

may  pay  tax  to  county  treasurer 590 

enforcement  of  tax,  sale  of  instruments 594 

Epileptics— 

support  at  Craig  Colony 701 

a state  expense 702 

payment  of  expense  of  clothing  by  county 702d 

Equalization  of  Assessments — See  Board  of  Supervisors ; Taxation. 

board'  of  supervisors  to  examine  assessment-rolls  for 558 

exclusion  of  parcels  purchased  by  county  at  tax  sale 559 

shares  of  stock  of  banks 559 

commissioners  appointed  by  board  of  supervisors 559 

eligibility  559 

appointment  of  county  judge  in  case  of  disagreement 559 

examination  of  assessment- rolls />60 

equalization  of  valuations 560 

report  of  equalized  valuations  to  board  of  supervisors 560 

statement  to  be  forwarded  to  comptroller  by  clerk  of  board 570 

appeals  from,  by  supervisor  to  state  board 578 

how  and  when  brought 578a 

petitions  for,  prescribed  by  state  board 578b 

rules  respecting  578b 

time  and  place  of  hearing 578b 

determination  of  state  board 578d 

costs  on,  to  be  fixed  by  state  board 578e 


INDEX. 


1305 


Escape — Page. 

of  civil  prisoner,  what  constitutes 196 

liability  of  sheriff 197 

actions  for 197 

Estimates  of  Expenditures — 

by  town  officers  in  certain  towns 358c 

(See  Town  Boards.) 

Executors  and  Administrators— 

assessment  of  personal  property  held  by 495,  496 

assessment  of,  generally 532 

Exemptions  from  Taxation- 

property  exempt 472 

rule  of  construction 472 

effect  as  to  assessments  for  local  improvements 473 

powers  of  assessors 474 

property  of  state  and  United  States 473,  474 

of  municipal  corporations 475 

lands  for  cemeteries 475 

in  Indian  reservation 476 

exempt  from  execution 476,  477 

acquired  by  soldier’s  pension 477 

application  for  exemption 478 

bonds,  state  and  municipal 478 

of  charitable,  etc.,  corporations 479 

what  corporations  entitled  to 479 

of  volunteer  firemen  482 

of  dwelling  houses  and  property  of  religious  corporations 482 

of  agricultural  society 483 

of  ministers  and  priests 483 

of  vessels  engaged  in  ocean  commerce 483 

securities  of  nonresidents 483,  484 

deposits  in  savings  banks 485 

liie  insurance  corporation,  accumulations 485 

co-operative,  moneys  collected 485 

mutual,  personal  property 486 

medical  societies  486 

pharmaceutical  societies  486 

household  furniture  and  personal  effects 486 

of  corporate  stock 486 

of  plank  road  and  turnpike  corporations 486 

of  soldiers  monument  association 487 

lands  planted  with  trees 488 

maintained  as  wood  lots 488b 

report  of  exempt  property  by  assessors 506 

of  mortgages  from  local  taxation 622 

from  mortgage  tax 622 


1306 


INDEX. 


F 

Fair  Grounds—  Page. 

exhibitions  on,  not  to  require  license 409 

Farm  Bureaus — 

appropriation  by  board  of  supervisors  for 65 

Farm  Produce — 

peddling,  no  license  required 403 

Farm  Schools— 

establishment  by  board  of  supervisors 1025a 

erection  and  management 1025b 

courses  of  instruction 1025c* 

state  aid;  admissions 1025d 

Federal  Aid- 

improvement  of  highways 899a 

Feeble-minded  Children — 

admission  and  support  at  Syracuse  institution 700 

commitments  to  Rome  Custodial  Asylum 701 

Craig  Colony  for  Epileptics 701 

Fees — 

in  criminal  proceedings,  when  town  or  county  charge 384 

of  officers  in  Ulster  county 386 

Fees  of  County  and  Town  Officers — 

assessors 1091 

auditors,  town  1092 

collectors 1092 

constables 1092-1094 

coroners 1095 

county  clerks  1095 

book  containing  receipts 128 

county  treasurer  1098 

court  criers  1099 

election  officers 1099 

fence  viewers 1100 

health  officer  1100 

jurors 1100 

jurors,  commissioners  of 1101 

justices  of  the  peace 1101-1104 

overseers  of  the  poor 1104 

physicians 1104 

pound  masters  1104 

printers 1105 

railroad  commissioner  1105 

sheriffs 1105-1107 

supervisors 1107 

superintendents  of  highways 110S 

town  clerks  1108 

United  States  loan  commissioners 1109 

Fences — See  Division  Fences. 

rules  as  to,  town  meeting  may  make 251 


INDEX. 


1307 


Fence  Viewers — Page. 

assessors  to  act  as 356 

duties  as  to  division  fences,  see  Division  Fences 037-643 

as  to  strayed  animals  doing  damage 644-650 

as  to  sheep  killed  or  injured  by  dogs 655 

Ferries— 

County  Court  to  license 958 

undertaking  of  licensee 959 

appendages  for  rope 959 

superintendent  of  public  works  may  lease  right  of  passage 959 

rates  to  be  posted 959 

Fines — 

remission  of 183 

prisoners  to  be  discharged  if  unable  to  pay 183 

received  by  county  officers,  reports  to  board  of  supervisors 224 

collected  by  justice,  payment 349  - 

Fire  Companies— 

real  property  exempt  from  taxation 482 

town  board  to  appoint  members - 411 

organization 412 

appropriations  by  vote  of  district 412 

in  incorporated  villages 414 

purchase  of  fire  apparatus ' 412 

assessments  of  expenses  for  maintaining 413 

contracts  with,  for  fire  protection 414a 

ordinances  of  water  commissioners 414a 

contracts  with  companies  outside  of  district 413 

Fire  Districts — 

establishment  of,  by  board  of  supervisors 74 

fire  commissioners,  election  of 75 

powers  and  duties 76 

expenditure  of  money  without  appropriation 76 

fire  department;  organization 76 

appropriation  of  money  for  fire  protection 77 

meetings  for,  how  conducted 77 

discontinuance  by  board  of  supervisors 78 

levy  of  tax  upon  inhabitants 78 

effect  of  incorporation  of  village  within  limits  of  fire  ditsrict 79,  80 

annexation  of  territory,  duties  of  board  of  supervisors 79 

town,  establishment  414b 

fire  commissioners,  appointment 414b 

powers  and  duties 414b 

fire  towns,  enumerated 1090g 

forest  rangers,  employment 1090g 

rebate  of  expenses 1090i 

Fire  Warden — 

supervisor  as  superintendent  of  fires 326 

compensation  a town  charge 325 


1308  index. 

Forest  Fires — Page. 

supervisor  to  act  as  superintendent  of  fires 325 

duties 324 

appointment  of  forest  rangers 324 

compensation,  town  charge 325 

compensation  of  forest  rangers  and  others  employed  at 325 

town  board  may  borrow  money  to  suppress 397 

regulations  for  prevention 1090j 

damages  on  account  of,  liability 1090m 

Forest  Lands — 

acquisition  and  development  by  town  or  county 438 

reforestation  by  town  or  county 1090f 

railroads,  restrictions 10901 

Forest  Preserve- 

assessment  of  state  lands  in 581 

state  lands,  tax  to  be  paid  by  state 601 

Forms — 

resolution  of  board  of  supervisors,  general  form 1111 

requesting  action  by  state  legislature 1111 

subpoena  by  board  of  supervisors 1112 

accounts  against  a county 1113 

contracts  with  penitentiaries 1113 

clerk  of  board,  oath  of  office 1115 

statement  of  county  and  town  accounts 1115 

of  county  clerk 1117 

district  attorney,  report  of 1118 

calendar  of  prisoners  confined  in  county  jail 1119 

alteration  of  town  boundaries,  application 1119 

resolution  dividing  a town  and  erecting  a new  town 1120 

resolution  providing  for  alteration  of  boundaries 1121 

town  meetings,  application  for  special 1123 

notice  of  special 1123 

application  for  submission  of  proposition  to  be  voted  upon  at 1123 

notice  of  submission  of  proposition 1124 

application  for  holding,  in  election  districts 1124 

justice  of  the  peace,  certificate  of  election 1125 

undertaking  of  supervisor,  general 1125 

of  justice  of  the  peace 1127 

of  superintendent  of  highways 1127 

of  overseer  of  the  poor 1128 

of  town  collector  1129 

of  constable 1129 

resignation  of  town  officers 1130 

appointment  to  fill  vacancy  in  town  office 1130 

notice  of  appointment  to  town  office 1131 

oath  of  town  officer  on  delivery  of  books 1131 

accounts  of  justices  against  town  in  criminal  matters 1132 

of  town  officers 1133 

certificate  of  examination  of 1134 


INDEX. 


1309 


Forms — Continued.  Page. 

affidavit  to  be  annexed  when  presented  for  audit 1135 

abstract  of  names  of  persons  wlio  have  presented 1135 

appointment  of  board  of  auditors  by  town  board 1136 

application  for  exemption  of  pension  from  taxation 1136 

report  of  bank  to  local  assessors 1137 

statement  of  levy  of  tax  by  board  of  supervisors  upon  bank  stock 1138 

warrant  to  county  treasurer  for  collecting  bank  tax 1138 

statement  of  individual  banker  to  assessors 1139 

notice  to  bank  of  assessment 1140 

statement  of  corporations  to  assessors 1140 

of  county  clerk  as  to  corporations 1141 

of  agent  of  nonresident  creditor 1142 

notice  of  completion  of  assessment-roll 1142 

affidavit  on  application  to  correct  assessment 1143 

notice  of  filing  completed  assessment-roll 1143 

apportionment  of  valuations  between  school  districts 1144  - 

certificate  of  neglect  of  one  of  assessors 1145 

correction  of  assessment-roll,  petition  of  town  assessors 1145 

collector’s  warrant  1147 

statement  of  taxes  upon  certain  corporations 1148 

abstract  of  tax  rolls 1149 

collector’s  notice  of  receipt  of  roll 1149 

notice  of  tax  sale  by  collector 1150 

collector’s  affidavit  attached  to  return  of  unpaid  taxes 1150 

extension  of  time  for  collection  of  tax,  application  of  supervisor 1151 

order  of  treasurer  granting 1151 

division  fences,  decision  of  fence  viewers  upon  transfer  of  title 1151 

notice  to  choose  fence  viewers 1152 

certificate  of  apportionment  of 1152 

subpoena  by  fence  viewers 1153 

appraisement  of  damages  for  neglect  to  build  or  repair 1154 

notice  to  build  or  repair 1154 

notice  to  build,  when  destroyed  by  accident 1155 

strayed  animals,  notice  to  be  filed  in  office  of  town  clerk 1155 

notice  to  owners 1156 

notice  of  sale  by  fence  viewers 1156 

notice  of  fence  viewers’  meeting 1157 

determination  of  fence  viewers  as  to  damages 1157 

Sheep  killed  or  injured  by  dogs,  application  to  fence  viewers 1158 

certificate  as  to  damages 1158 

poor  persons,  order  of  overseers  for  removal  to  alms-house 1158 

superintendent’s  order  to  pay  expenses  incurred  by  overseers 1159 

order  of  supervisor  1159 

sanction  of  county  superintendent  for  expenditure  of  more  than  ten 

dollars 1160 

order  for  supplies,  verification  of  accounts 1160 

overseers’  book  showing  statistics 1161 

books  of  accounts  of  overseers 1162 

accounts  of  overseers  to  be  rendered  to  town  boards 1163 

report  of  overseer  of  the  poor 1163 

report  of  supervisor  as  to  support  of 1164 


1310 


INDEX. 


Forms — Continued.  Page. 

notice  from  one  town  to  another  requiring  support  of 1165 

notice  to  appear  before  superintendent  in  contest  as  to  settlement.  . . 1165 

subpoena  in  case  of  dispute  concerning  settlement 1166 

decision  of  superintendent  concerning  settlement 1166 

notice  of  superintendent  as  to  relief  at  expense  of  town 1167 

decision  of  superintendent  upon  re-examination  as  to  settlement 1168 

notice  of  decision  as  to  settlement 1168 

notice  of  appeal  to  County  Court  from  decision  as  to  settlement 1169 

notice  of  improper  removal 1169 

notice  of  dneial  of  removal 1170 

bastards,  accounts  of  overseers  for  moneys  received 1170 

agreement  upon  compromise  of  putative  father 1171 

soldiers,  sailors  and  marines,  notice  of  commander  of  post  of  G.  A.  R.  as 

to  relief 1172 

requests  for  relief  of 1172 

highways,  inventory  of  machinery,  etc 1173 

notice  to  remove  obstructions 1174 

to  cut  weeds,  brush  and  briers 1174 

assessment  of  cost  of  removal 1175 

assessment  of  cost  1175 

permit  to  use,  application 1176 

form  and  contents 1177 

trees,  order  authorizing  planting 1178 

watering  trough,  certificate  of  authority 1179 

private  road,  statement  of  credit 1179 

guide-boards,  application  for  erection 1180 

unsafe  toll-bridge,  complaint 1180 

estimate  of  expenditures  118i 

additional  tax,  application  for  special  town  meeting 1182 

application  for  submission  of  proposition 1183 

town  certificates  of  indebtedness 1183 

authority  to  issue  bonds,  application 1184 

certified  proceedings  of  town  board 1185 

resolution  of  board  of  supervisors 1186 

statement  as  to  assessed  valuation 1188 

supervisor,  undertaking 1189 

report  as  to  moneys 1193 

agreement  for  expenditures  1191 

laying  out  or  altering  highways,  order  upon  consent  of  town  board 1198 

release  of  damages  by  owners  of  the  land 1199 

order,  on  release  from  owners 1198 

dedication  of  land  and  release  of  damages 1198 

consent  of  town  board 1199 

applications  by  taxpayers  1200 

application  for  appointment  of  commissioners 1201 

order  appointing  commissioners  1202 

notice  to  commissioners  of  their  appointment 1202 

notice  of  meeting  of  commissioners. : 1202 

affidavit  of  posting  and  service  of  notice 1203 

certificate  of  commissioners  in  favor  of  applicant 1203 

certificate  denying  application  1204 


INDEX. 


1311 


Torms — Continued.  Page. 

notice  of  motion  to  confirm,  vacate  or  modify  decision 1205 

order  confirming  decision  1205 

certificate  of  commissioners  as  to  laying  out  highway  through  orchard  1206 

order  of  County  Court 1206 

order  of  appellate  division 1207 

description  of  highway  abandoned 1208 

private  road,  application  for 1207 

statement  of  expenses  incurred  in  repair  of  bridges 1208 

notice  to  town  board  of  adjoining  towns  to  repair  bridge 1209 

consent  to  rebuild  or  repair  bridge 1209 

petition  of  freeholders  to  commissioners  of  adjoining  towns 1209 

notice  of  motion  for  order  compelling  construction  or  repair  of  bridge.  . . . 1210 

affidavit  on  motion  for  an  order  to  build  a bridge 1211 

order  of  court  to  rebuild  bridge 1211 

application  to  board  of  supervisors  for  laying  out  highway 1212 

notice 1212 

proof  of  service  of  application  and  notice 1213 

resolution  of  board  of  supervisors  laying  out  highway 1213 

bond  of  supervisors  on  account  of  school  moneys 1214 

report  of  school  moneys  on  hand 1215 

annual  report  of  town  indebtedness 1215 

G 

Garbage- 

collection  and  destruction 437 

ordinances  relating  to,  penalty  for  violating 437 

assessment  for  expense  of  disposition 437 

Gardens— 

laying  out  highways  through 921 

Gospel  and  School  Lots — 

supervisor  to  report  funds  to  commissioner  of  education 1011 

duties  of  1026,  1027 

apportionment  of  fund  among  school  districts 1027 

Grand  Army  of  Republic — 

appropriations  in  certain  counties  for  rooms  for  use 399 

lease  of  public  buildings  to 436 

relief  of  poor  veterans 767 

Grand  Jury — 

list  prepared  by  board  of  supervisors 1029,  1030 

number  of  jurors,  increase 1031 

inserting  new  names  in  box 1031 

Grape  Basket — 

standard,  prescribed  1090b 


1312 


INDEX. 


Grievance  Day — See  Assessors;  Taxation,  etc.  Page. 

meeting  of  assessors  to  hear  complaint 537 

complaints  to  file  statement 537 

sufficiency  of  statement 538 

examination  of  claimant 539 

failure  to  appear  and  testify 540 

Guide  Boards — 

erection  of,  by  town  superintendent 838 

application  for  838 

by  turnpike  companies  838 

what  to  indicate 838 

H 

Habeas  Corpus — 

suspension  of  during  term  of  court 182 

Hacks — 

town  board  may  license 405- 

rules  and  regulations  respecting 406 

Hawking  and  Peddling — 

town  board  may  prohibit,  without  a license 401 

licenses  issued  by  town  clerk 402 

indorsed  by  supervisor  402 

by  soldiers,  sailors  and  marines 402 

farm  produce,  no  license  required 403 

penalty  for,  without  license 404 

for  refusal  to  exhibit  license 404 

Health- 

local  board-,  town  board  as 442 

health  officer,  appointment 443 

term  of  office 443 

removal  for  cause 443 

compensation  and  allowances 443d,  444 

enforce  health  ordinances,  etc 445 

general  powers  and  duties 448 

orders  and  regulations 443d 

for  suppression  of  nuisances 445 

penalties  for  violation 446 

subpoenas  and  warrants 446 

sewers,  powers  and  duties  as  to 447 

health  nurses,  employment 450 

contagious  and  infectious  diseases 450 

report  to  health  officer 451 

of  cases  of  tuberculosis 451 

fee  for  each  case  reported 451 

vaccine  virus  to  be  supplied 452 

carrier  of  typhoid  bacilli,  quarantine 452 

maintenance  at  expense  of  municipality 452 


INDEX. 


1313 


Health — Continued.  Page. 

nuisances,  complaints  as  to 453 

powers  and  duties  as  to 453 

removal;  expense  paid  by  owner 454 

expense  of  abatement,  a lien 450 

•removal  of  accumulation  of  water  tending  to  breed  mosquitoes . . 457 

payment  of  expense 457 

jurisdiction  in  combined  sanitation  and  registration  districts 459 

expenses  incurred,  town  charge 460 

relief  of  indigent  Indians  in  case  of  epidemic 461 

consolidated  districts,  establishment 443 

local  board  of  health,  members 443a 

organization 443a 

abolishment  of  other  boards 443a 

expenses,  payment  and  assessment 443b 

estimate  system  may  be  adopted 443d 

mandamus  by  state  department 461 

diseases  affecting  animals,  duties  as  to 461- 

duties  as  to  vital  statistics 462a 

health  officer,  duty  as  to  insane 692,  693 

Highway  Commissioner — See  Highways , Town  Superintendent  of. 

office  abolished 812 

Highway  Law- 

pending  actions  or  proceedings  under 975 

saving  clause  975 

time  of  taking  effect 977 

laws  repealed 978 

Highways — 

town  may  borrow  money  for 396 

term  defined 788 

classification 789 

constructed  or  maintained  by  aid  of  state,  supervision  of  state  commission.  795 

rules  and  regulations,  relative  to 795 

plans  and  specifications,  commission  to  cause  to  be  prepared 795 

duties  of  district  or  county  superintendent 803 

town  superintendent,  duties  of  in  respect  to 815 

repair  and  maintenance 816 

employment  of  terms  and  implements 818 

loose  stones  to  be  removed 819 

noxious  weeds  to  be  cut  and  removed 819 

inspection  of  when  proposed  to  be  constructed  as  state  or  county  highway.  820 

stone  crushers,  power  rollers  and  traction  engines,  purchase  of 822 

road  machines,  purchase  of 822 

lease  of  stone  crushers  and  traction  engines 823 

gravel,  stone,  purchase  of 824 

obstructions,  what  constitute 824 

owner  or  occupant  to  remove 825 

removal  from  ditches,  culverts  and  waterways 827 

temporary,  when  allowed 827 

assessment  of  cost  against  owner  or  occupant 828 


1314 


INDEX. 


Highways — Continued.  Page. 

noxious  weeds  and  brush,  removal  by  owner  or  occupant 827 

assessment  of  cost  against  owner  or  occupant 828 

wire  fences  to  prevent  snow  blockades 829 

entry  upon  lands  by  town  superintendent 829 

damages  caused  thereby 830 

change  of  grade,  damages  for 830,831 

interest  on  award 832 

drainage,  sewer  and  water  pipes  in ; 832 

crossings  under  or  over 832 

trees  and  sidewalks 833 

expenditures  for  sidewalks 835 

shade  trees,  allowances  for 835 

custody  of 836 

watering  troughs,  construction  or  maintenance 836 

private  road,  credit  for  work  on 837 

.penalties,  neglect  of  town  superintendent  to  prosecute 837 

guideboards,  erection  of 838 

measurement  by  town  superintendent 839 

prisoner,  employment  of  on 839 

approaches  to  private  lands,  construction  and  repair.  . .' 839 

injuries  to,  actions  for 840 

defective,  liability  of  town  for 842 

action  against  superintendent 843 

audit  of  damages  for  injuries 844 

liability  of  county,  when  highway  maintained  by  county 6 

closing  for  repair  and  construction 844 

snow,  labor  system  adopted  for  removal 845 

assessment  of  labor 845 

lists  of  persons  assessed 846 

district  foreman;  un worked  tax 847 

appeals  by  nonresidents 847,  848 

tenant  may  deduct  assessment 848 

expenditures  for,  estimate  of  town  superintendent 853 

approval  or  modification  of 855 

presented  to  board  of  supervisors 856 

levy  of  taxes 856 

additional  tax,  when  authorized 856 

extraordinary  repairs,  raising  money  for 857-861 

limitation  of  amount  to  be  raised 861 

submission  of  proposition  at  town  meeting  to  authorize  tax 862 

borrowing  money  in  anticipation  of  tax 862,  863 

for  bridge  and  highway  purposes  generally 863 

in  certain  towns  in  Adirondack  park 865 

town  bonds,  issue  and  sale 865 

village  -property,  assessment 866 

state  aid,  statement  of  clerk  of  board  of  supervisors  to  secure 866 

amount  determined  867 

based  upon  mileage  and  assessed  valuation 867 

determination  as  to  mileage  and  assessed  valuation 868 

payment  and  distribution  of  money . 868 

supervisor  to  give  undertaking 868 

moneys,  custody  of 869 

undertaking  of  supervisor 869 


INDEX. 


1315 


Highways — Continued.  Page. 

expenditures  for  repair  and  improvemen 869 

agreement  between  town  board  and  town  superintendent 870 

order  of  town  superintendent  and  audit  of  town  board 870 

audit,  liow  made 871 

repair  of,  on  island 870 

reports  of  supervisors  as  to  highway  moneys 871,  872 

accounts,  forms  and  blanks,  commission  to  prescribe 873 

duty  of  town  clerk  to  furnish  names  of  town  officers 873 

compensation  of  town  clerk  and  supervisor 873 

convicts,  employment-  in  construction 885 

detours,  maintenance  899 

federal  aid  for  improvement 899a 

survey  for  the  laying  out  of 907 

dedication,  what  constitutes 908 

laying  out,  altering  or  discontinuing - 910 

legislature  may  authorize  supervisors  to  lay  out 11 

on  release  of  damages 911 

application 911 

for  appointment  of  commissioners 912 

appointment  of  commissioners  and  their  duties 915 

notice  of  meeting 917 

decision  of  commissioners  in  favor  of  application 917 

damages,  how  ascertained 919 

decision  denying  application 919 

motion  to  confirm,  vacate  or  modify 919 

through  orchards,  gardens,  vineyards,  enclosures,  etc 921 

procedure  921-923 

through  burying  grounds 924 

costs,  by  whom  paid 924 

damages  assessed  and  costs  to  be  audited 925 

differences  between  officers  of  adjoining  towns 925-927 

in  two  or  more  towns,  notice  to  be  served  upon  town  superintendent 

of  each  928 

upon  boundary  line  between  towns 929 

final  determination,  how  carried  out 929 

removal  of  fences. „ 930 

papers  filed  in  office  of  town  clerk 941 

costs  of  motion 942 

private  road,  laying  out,  etc,  see  Private  Road 931-935 

by  use  for  a period  of  twenty  years 930 

widening,  petition  for 930 

powers  and  duties  of  commissioners 937 

notice  of  decision  to  supervisors 937 

construction 938 

action  to  compel 938 

abandonment,  what  constitutes 938 

in  lands  acquired  by  United  States  for  fortification  purposes 940 

construction  or  improvement  by  county  or  town 961 

county  system,  construction  or  improvement 963,963a 

discontinuance  in  certain  towns 940,  941 

description  to  be  recorded 941 

damages  caused,  determination 941 


1316 


INDEX. 


Highways — Continued.  Page. 

intemperate  driver  not  to  be  engaged 963d 

when  to  be  discharged 963d 

leaving  horses  without  being  tied 963d 

owner’s  liability  for  acts  of  drivers 964 

carriages,  term  defined 964 

•bicycles,  entitled  to  free  use  of 964 

depositing  ashes,  stones,  etc.,  upon 965 

steam  traction  engines  on 965 

lights  on  vehicles 966 

injuries  to,  liability  for * 966 

weight  of  load,  when  town  not  liable  for  injuries 967 

law  of  road 967,968 

trees,  to  whom  they  belong 969 

fruit  or  shade  trees,  liability  for  injury 970 

penalty  for  falling  trees 970 

fallen  trees  to  be  removed 970,  971 

penalties,  how  recovered 971 

Albany  post  road,  railroad  tracks  on 973 

lighting  dangerous  portions 973 

county  maps  preserved 976 

railroad  crossings,  see  Railroads 991-1000 


Highways,  County — 

term  defined  789 

estimate  of  cost  of  maintenance 799 

rules  and  regulations  for  protection 799 

inspection  by  district  or  county  superintendent 806 

of  highways  to  be  constructed  as 820 

pipes  in  and  crossings  under  or  over 832 

construction  or  improvement 877 

apportionment  by  state  commission 877,878 

preliminary  resolution  by  board  of  supervisors 878 

examination  by  commission  ; approval  or  disapproval 878 

maps,  plans,  specifications  and  estimates 879 

submission  to  district  or  county  superintendent 880 

action  of  commission  in  respect  to 880 

final  resolution  of  board  of  supervisors 881 

order  of  construction 881 

contracts  for  construction  or  improvement 882 

award  to  board  of  supervisors  or  town  board 885 

suspension  of  work  under 887 

commissioner  of  highways,  responsibility  for  work 887 

reletting  in  case  of  suspension 887 

convicts,  use  of,  in  construction 886 

acceptance  by  commission 88S 

protest  of  board  of  supervisors 889 

entry  upon  adjacent  lands  for  drainage  purposes 889 

damages 890 

in  villages,  construction 890 

connecting  highways  through 892 

in  certain  second  and  third  class  cities 892 

additional  width  and  increased  cost  in  towns 894 


INDEX.  1317 

Highways,  County-Continued.  Page. 

resolution  of  board  to  provide  for  raising  money 894a 

modification  of  method,  of  payment 894a 

division  of  cost 894b 

payments  by  county  treasurer 894b 

alternative  method  of  apportioning  cost 894d 

issuance  of  county  bonds  for  payment 894d 

where  highway  extends  into  cities  of  second  or  third  classes 894g 

borrowing  of  money  for  payment  of  county  or  town’s  share 894f 

abolition  of  railroad  grade  crossings 894h 

street  surface  railroad  on,  restrictions 894i 

right  of  way,  acquisition  of  land  for 894k 

proceedings  to  acquire 894k-8941 

right  of  way,  payment  of  awards 896 

costs  and  commissioners’  fees 897 

application  of  provisions  of  labor  law 898 

on  Indian  reservations 898'  . 

detours  during  construction 899 

maintenance  and  repair,  commission  to  provide 900 

appropriations;  apportionment  of  moneys 901 

cost  to  town 902 

canal  bridge  approaches 902 

disbursement  of  funds 903 

reports  of  county  treasurer 903 

compensation  of  town  superintendents 904 

liability  of  state  for  damages 904 

in  villages,  portion  of  expense  paid  by  village 905 

state  to  share  expense  in  certain  cases 905 

sprinkling;  removal  of  filth  and  refuse 905 

improved  by  state  under  special  act 901 

certain  improved  roads,  by  state 901 

county  system,  establishment 962 

use  of  convicts  in  construction 963 

maps  of  former  highways  preserved 976 

board  of  supervisors  may  lay  out,  alter  or  discontinue 979 

Highways,  Department  of — See  Highways,  State  Commission  of. 

term  defined 788 

establishment 792 

Highways,  District  or  County  Superintendent  of — 

term  defined 788 

state  commission  to  aid 795 

appointment  of  county  superintendent 802 

of  district  superintendent 802 

removal  of  county  superintendent 802 

general  powers  and  duties 803 

general  charge  of  highways  and  bridges 804 

visit  and  inspect  highways 805 

establishment  of  grades 806 

public  meetings  to  be  called  by 806 

inspection  of  county  highway 806 

preliminary  maps,  plans,  etc.,  to  be  submitted  to 880 


1318 


INDEX. 


Highways,  State — Page. 

term  defined 781) 

estimate  of  cost  of  maintenance 79!) 

rules  and  regulations  for  protection 799 

inspection  of  highways  to  be  constructed  as 820 

pipes  in,  and  crossings  under  and  over 832 

construction  or  improvement 877 

apportionment  by  commission 877,  878 

maps,  plans,  specifications  and  estimates 879 

submission  to  district  or  county  superintendent 880 

commission  to  award  contract  upon  return 880 

contracts  for  construction  or  improvement 882 

award  to  board  of  supervisors  or  town  board 884 

reletting  in  case  of  failure 887 

suspension  of  work  under  contract 887 

acceptance,  when  completed 888 

entry  upon  adjacent  lands  for  drainage  purposes 889 

damages  for  890 

in  villages,  construction 890 

connecting  highways,  cost  of  additional  width 892 

in  certain  cities  of  second  and  third  classes 892 

additional  width,  etc.,  in  towns 894 

payment  of  cost  of 894h 

abolition  of  railroad  grade  crossings 894h 

street  railroads,  construction  restricted 894i 

right  of  way,  acquisition 894k 

purchase  of  lands  by  board  of  supervisors 894k 

proceedings  to  acquire 8941,895 

payment  of  awards 896 

costs  and  commissioners’  fees 897 

sale  of  lands  and  disposition  of  proceeds 897 

application  of  provisions  of  labor  law 898 

detours  during  construction,  maintenance 899 

maintenance  and  repair,  commission  to  provide 900 

appropriations;  apportionment  of  moneys 901 

canal  bridge  approaches,  state  to  provide 902 

cost  to  town 902 

disbursement  of  funds 903 

reports  of  county  treasurer 903 

compensation  of  town  superintendents 904 

liability  of  state  for  damages 904 

in  villages,  portion  to  be  paid  by  village 905 


Highway,  State  Commission  of — 

term  defined 788 

consists  of  a single  commissioner 792 

appointment  of  commissioner 792 

deputies,  secretary  and  employees 792 

commissioner,  oath  of  office 793 

undertaking  . 793 

salary 793 

principal  office;  seal;  stationery 793 

salaries  and  expenses  of  deputies  and  employees 793 


INDEX. 


1319 


Highway,  State  Commission  of— Continued.  Page. 

■deputy  commissioners,  secretary  and  chief  auditor 794 

salaries;  duties 794 

general  powers  and  duties 795 

rules  and  regulations 795 

annual  report  to  legislature 796 

statistics  relative  to  public  highways 796 

public  meetings  to  be  held 796 

division  of  state;  appointment  of  division  engineers ' 797 

duties  of  division  engineers 798 

appointment  of  officers,  clerks  and  employees 799 

blank  forms,  accounts,  etc.,  to  be  furnished 798 

condemnation  of  bridges 800 

examination  of  accounts  and  records 798 

cost  of  maintenance  of  state  and  county  highways,  estimate 800a 

rules  and  regulations  for  state  and  county  highways 800a 

patented  materials  or  articles,  use 800a 

federal  aid  for  improvement  of  highways;  duties 899a 

transfer  of  duties  of  state  commission  of 974 

of  records  of  employees 974 

Highways,  Town — See  Highways. 

term  defined 790 

contracts  for  construction  of 821 

approval  by  town  board 821 

award  by  town  superintendent 821 

damages  for  change  of  grade 830,831 

additional  expenditure  for  improvement  and  repair 874 


Highways,  Town  Superintendent  of — See  Highways. 

application  for  submission  of  proposition  at  town  meeting 255 

See  Town  Meetings. 

term  defined  788 

election 281,  289,  810 

appointment,  submission  of  proposition  for 290,  811 

term  of  office 290a,  812 

vacancies,  how  filled ...290a,  812 

deputy,  appointment  ....290b,  813 

undertaking 307 

compensation 353,  814 

of  deputy 814 

in  towns  in  certain  counties 814 

delivery  of  books  and  papers  to  successors. 356 

proceedings  to  compel 357 

removal  by  town  board 814 

on  appeal  to  County  Court 815 

powers  and  duties 815 

road  machinery,  tools  and  implements,  purchase 822 

contracts  approved  by  county  superintendent 823 

custody  and  control 823 

inventory 823 

leasing  machinery  824 

purchase  of  gravel  arid  stone 824a 


1320 


INDEX. 


Highways,  Town  Superintendent  of — Continued.  Page. 

obstructions,  removal  of  824b 

from  ditches  and  culverts 827 

temporary,  when  allowed 827 

snow,  removal  from  culverts  and  waterways 827 

obstructions  caused  by,  removal 827 

noxious  weeds  and  brush,  removal  of 827 

assessment  of  costs  of  removal  of  obstructions  and  noxious  weeds  and  brush  828 

wire  fences  to  be  purchased 829 

entry  upon  lands 829 

damages  caused  thereby 830 

pipes  in  highways  and  crossings  under  or  over 832 

trees  and  sidewalks,  duties  as  to 833 

expenditures  for  sidewalks  835 

shade  trees,  allowances  for 835 

custody 835 

watering  troughs,  authority  to  construct 836 

credit  of  tax  on  private  road boi 

neglect  or  refusal  to  prosecute  for  penalty 837 

guideboards,  erection  of 838 

measurement  of  highways  and  report 839 

prisoners,  application  for  services  of 839 

approaches  to  private  lands,  construction  or  repair 839 

unsafe  toll  bridge,  duties  as  to 840 

actions  for  injuries  to  highways 840 

negligence  of,  liability  of  town 842 

action  by  town  against 843 

closing  highways  for  repair  and  construction 844 

estimate  of  expenditures  for  highways  and  bridges 853 

additional  tax,  determination  as  to 856 

repair  of  highways  or  bridges  damaged  by  elements 857 

expenditures  for  highways  and  bridges 869 

determination  as  to  places 870 

payments  on  orders 871 

sidewalk  districts,  supervision  of  sidewalks 434 

Holidays  and  Half  Holidays — 

enumerated 132 

business  in  public  offices  on 132 

Home  Defense  Committees — 

board  of  supervisors  may  appropriate  money  for 63 

Hospital  Corporations — 

exemption  from  taxation 479 

Houses  of  Detention — 

board  of  supervisors  may  establish 183 

I 

Idiots— 

unteachable,  support  at  Rome  Custodial  Asylum 701 

duties  of  superintendents  of  poor 701 


INDEX. 


1321 


Indebtedness—  Page. 

of  county,  town  and  village,  statement  to  comptroller 97 

Indian  Poor  Persons— 

relief  of 776 

removal  to  alms-house 776 

contracts  for  support  777 

expenses  of  support  paid  by  state 777 

duties  of  superintendent  of  alien  poor 778 

relief  of  indigent  Indians  in  case  of  epidemic 461 

Indian  Reservation — 

highways  and  bridges,  supervision 898 

superintendent,  appointment  898 

moneys  for,  custody  and  expenditure 898,  899 

Indictment — 

trial  transferred  to  another  county,  expense 144 

Individual  Banker- 

taxation  of  505,  524 

Inquest,  Coroner’s— See  Coroner’s  Inquest 199 

Insane- 

commitment  689 

costs  a charge  on  county  or  town 690 

poor  and  indigent,  supported  by  state 691 

relatives  to  support 692 

proceedings  to  compel 756-760 

duties  of  poor  officers  as  to 692 

poor  officers  to  see  that  relief  is  granted 693 

health  officers,  duties  as  to  care 693 

hospitals  to  which  committed 694 

dangerous,  apprehension 965 

duties  of  poor  officers  and  health  officer 695,  696 

discharge  from  hospitals  698 

duties  of  superintendent  of  hospital 698 

state  poor,  removal  to  hospital 775 

Inspectors  of  Election — 

designation,  number,  qualifications 293 

term  of  office  293 

in  towns,  appointment 294 

Insurance  - 

of  town  or  county  property 1079 

Intemperate  Drivers — 

not  to  be  employed 963 

to  be  discharged  upon  notice 963 


INDEX. 


1.32? 

Islands— 

town  lines  intersecting 233 

repair  of  highways  on 870 

J 

Jails— 

erection,  alteration  and  lands  for 58 

sheriffs  to  hare  custody  of 174 

use  of 175 

number  of  rooms  178 

either  of  several  may  be  used 178 

duties  of  prison  commissioners  as  to 175-177 

commitments  to  181 

prisoners  in,  custody  and  control 178 

charged  with  crime,  support  or  county  charge 41 

civil,  to  be  kept  separate 178 

male  and  female  to  be  kept  separate 173 

woman  with  child;  disposition  of  child 170 

communications  with  179 

liability  of  sheriff  for  injury  to 180 

to  he  furnished  with  wholesome  food 180 

employment / 180 

to  be  furnished  with  reading  matter 181 

record  of  commitments  and  discharges 181 

of  United  States  to  be  received 182 

calendars  of  names  to  be  presented  to  court 182 

to  be  discharged  if  not  indicted 182 

if,  unable  to  pay  fine 183 

remission  of  fines 183 

communications  with,  prohibited  184 

sale  of  liquors  to 185 

service  of  papers  on  186 

removal  in  case  of  emergency 186 

who  may  visit 184 

physician  for,  board  of  supervisors  to  appoint 185 

designation  of  other  place  as 186 

modification  or  revocation  187 

effect  on  jail  liberties 187 

when  revoked  18S 

civil  prisoners,  see  Civil  Prisoners 189 

chamber  rent  in,  sheriff  not  to  charge  for 192 

prisoners  confined  for  contempt 19S 

Jail  Liberties- 

how  long  imprisoned  in 189 

in  certain  counties 193 

powers  of  board  of  supervisors  193 

boundaries,  how  designated 194 

effect  of  designation  of  another  place  as  jail *. 187 


INDEX 


1323 


Jail  Liberties — Continued.  Page. 

civil  prisoner,  when  entitled  to 194 

undertaking 194 

execution  and  justification  195 

effect 195 

when  insufficient  196 

surrender  by  sureties  196 

escape,  what  constitutes  196 

liability  of  sheriff 197 

actions  for 197 

Judgments — 

of  county  courts,  upon  division  of  county 5-7 

against  county,  a county  charge 46 

against  town  or  county,  payment 1076 

town  board  may  borrow  money  to  pay 398 

board  of  supervisors  may  authorize  town  to  borrow  money  to  pay 64 

Junk  Business — 

licenses ; how  regulated 407 

Jtirors— 

grand,  list  prepared  by  board  of  supervisors 1029,  1030 

trial,  list,  how  made 1032 

qualifications 1032,  1033 

fees 1041 

exemptions 1033,  1034 

duplicate  lists 1035 

proceedings,  where  lists  not  received 1035 

commissioners  of,  office  established 1036 

appointment 1036 

t£rm  of  office,  salary,  rooms 1037 

assistants  and  clerks  1038 

selection  of  jurors;  preparation  of  list 1038 

lists  to  be  filed 1039 

of  grand  jurors  1040 

drawing  grand  jurors 1041 

allowance  by  board  of  supervisors  to  grand  and  trial 1042 

Jury  Districts — 

establishment  of,  by  board  of  supervisors 59 


Justices  of  tbe  Peace — 

fees  of,  in  certain  criminal  cases,  a county  charge 43 

fines,  supervisors  may  direct  as  to  payment 63 

to  hold  inquest  on  dead  body,  when 203 

preside  at  town  meetings 258 

acts  ministerial  258 

election  of 281 

vacancies,  election  to  fill 282 

number  and  terms 286 

reduced,  in  Monroe  county 289 

ballots  for  full  term  and  vacancies 287 


1324 


INDEX. 


Justices  of  the  Peace — Continued.  Page. 

constitutional  provision  as  to 286 

power  of  legislature  as  to  office  of 287 

removal 288 

in  new  towns 288 

upon  alteration  of  town  boundaries 288 

certificate  of  election * 290 

special  constables,  appointment 292 

undertaking,  form  and  condition 305 

sufficiency  and  approval 306 

certificate  of  filing 306 

oath^f  office,  filing 306 

acts  legalized 306 

vacancy,  town  clerk  to  certify  to  county  clerk 336 

constitutional  provisions  346 

term  of  office 346 

vacancy,  how  filled 347 

removal  by  appellate  division 347 

deposit  of  books  with  town  clerk 348 

docket  book 348 

delivery  of  books  and  papers  to  successor 348 

buying  demands  a misdemeanor 348 

payment  of  fines  and  penalties 349 

police  justices  in  certain  towns 349 

jurisdiction  and  powers 349 

compnsation 352 

may  order  vicious  dog  to  be  killed 658 

accounts,  what  to  contain 383 

fees  in  criminal  proceedings,  when  town  or  county  charge 384b 

accounts,  what  to  contain 384 

salary  in  lieu  of  fees 384 

lease  of  buildings  for  use  of 437 

Juvenile  Delinquents — 

supervisors  to  fix  compensation  for  conveyance 63 

L 

Laboratories,  County — 

establishment  by  board  of  supervisors 81 

Legalization— 

by  board  of  supervisors  of  acts  of  town  meeting  or  village  election 66 

municipal  bonds,  precedure 1081 

Levy — See  Taxation;  Taxes,  etc. 

of  taxes  by  board  of  supervisors 567 

Licenses — See  Toicn  Board. 

issued  by  town  boards 401 

Life  Insurance  Corporations — 

accumulations  exempt  from  taxation 485 

on  assessment  plan,  moneys  collected  exempt  from  taxation 485 

mutual,  personal  property  exempt  from  taxation  486 


INDEX. 


1325 


Lights — Page. 

on  vehicles  using  highways 966 

Liquor  Tax — 

to  be  paid  to  and  distributed  by  county  treasurer 114 

fees  of  county  treasurer  for  collection  of 116 

Xiquor  Tax  Law — 

submission  of  propositions  under,  at  town  meeting 263 

effect  of  insufficient  notice  256 

sufficiency  of  application 257 

Loan  Associations — 

accumulations  exempt  from  taxation 485 

Loan  Commissioners— 

office  abolished 211 

reports  to  comptroller  211' 

audit  of  accounts  210 

Local  Improvements— 

in  towns;  assessment 369 

form  and  notice  of  assessment 369 

hearing  on  assessment  370 

commissioners;  appointment  370 

Lock-ups — 

town  meeting  may  direct  erection 361 

use;  detention  of  prisoners 362 


M 

Mandamus — 

to  compel  audit  of  county  claims 33 

audit  of  town  claims : 380 

gainst  local  board  of  health 461 


Marines — See  Soldiers,  Sailors  and  Marines. 


Marriage  Licenses — 

town  clerk  to  issue 342 

statements  of  parties ; oath 344 

form  and  contents  342 

duty  of  town  clerk  as  to  filing 343,  344 

fees  for  issue  and  filing 344 

false  statements  in  application 345 

records  to  be  kept 345 

fees  for  search  345 

Marriages — 

records  in  county  clerk’s  office 135 

transmission  of  papers  to  state  department  of  health 135 

registration;  fees  a town  charge 448 

duties  of  certain  officers  as  to 462a 


1326 


INDEX. 


Medical  Societies — PAGE. 

in  cities  of  first  class,  real  property  exempt  from  taxation 486 

Memorial  Day — 

town  board  may  vote  money  for 398 

additional  appropriations  for 399a 

Military  Equipment — 

for  local  military  organizations 437 

Militia- 

governor  may  order  out,  to  assist  sheriff 166 

Ministers— 

real  property  exempt  from  taxation 483 

Mobs  and  Riots— 

injuries,  liability  of  county 1076 

Monroe  County — 

reduction  of  number  of  justices;  election  of  town  trustees 289 

Mortgages,  Taxation  of — 

definitions 621 

exemption  from  local  taxation 622 

exemptions 623 

recording  tax 623 

optional,  on  prior  mortgage 624 

supplemental  mortgage 625 

indefinite  amounts;  contract  obligations 626 

payment  of  taxes  627 

effect  of  non-payment  of  taxes 627 

trust  mortgages  628 

apportionment  by  state  board  of  tax  commissioners 629 

computation  of  tax 631 

payment  over  and  distribution  of  taxes 633 

expenses  of  officers 634 

supervisory  power  of  state  board  of  tax  commissioners  and  state  comp- 
troller   634a 

tax  on  prior  advanced  mortgages 634b 

Mosquitoes — 

removal  of  accumulation  of  water  tending  to  breed 457 

payment  of  expense  457 


Municipal  Corporation — See  Bonds. 


defined 1 

county  declared  to  be 1 

effect 1 


N 

Nassau  County- 

board  of  supervisors,  constitutionality  of  special  act 10 

powers  and  duties  of  assessors 355 

compenation  of  assessors  353 


INDEX. 


1327 


New  York  and  Albany  Post  Road — Page. 

preservation 973 

Nonresidents — 

restriction  as  to  business  not  to  discriminate  against 408 

securities  exempt  from  taxation 484 

real  property  of,  designation  in  assessment-roll 527 

surveys  and  maps  to  be  made  by  supervisor 529 

of  United  States,  assessment  of  debts  owing  to 535 

real  property,  description  of,  board  of  supervisors,  may  change 561 

owners  of  rents  reserved  review  of  assessment  by  board  of  supervisors. . . 561 

notice  by  collector  of  receipt  of  tax  roll 584 

addresses  to  be  filed  in  office  of  town  clerk 584 

town  clerk  to  furnish  to  collector 584 

debts  due  to,  collector  to  return  unpaid  tax 596 

duties  of  county  treasurer 596 

warrant  to  sheriff  for  collection  of  tax 597 

Nuisances — 

orders  and  regulations  of  boards  of  health 445 

complaints  as  to 453 

suppression  by  board  of  health 454 

expense  paid  by  owner  of  property 456 

abatement 456 

expense  a lien  on  property 456 

O 

Official  Oaths— See  County  Officers ; Town  Officers. 

validation  of  official  acts  before  taking *,*-*-*  . 314 

Ontario  County — 

payment  for  supplies  in  advance  of  audit ©6 

Orchards— 

laying  out  highways  through 921 

Orleans  County — 

town  boards  may  rent  rooms  for  posts 398 

Overseers  of  the  Poor — See  Bastards ; Poor  Persons. 

applications  for  special  town  meeting 253 

election  of 281 

number,  determination 290b 

appointment  by  town  board,  when 291 

submission  of  question 291 

undertaking 291 

compensation 291 

in  certain  towns,  fixed  by  town  board 354 

not  to  hold  any  other  town  office 291 

undertaking,  when  elected  or  appointed 291,  307 

delivery  of  books  and  papers  to  successor 356 

proceedings  to  compel  357 

removal  of  poor  person  to  alms-house 714 

expense  to  be  paid  by  county  treasurer 719 


1328 


INDEX. 


Overseers  of  the  Poor — Continued.  Page. 

temporary  relief,  order  of  supervisor 717 

where  county  has  no  alms-house 718 

needs  of  poor  persons,  to  examine  monthly 710 

settlement  of  accounts  719 

books  and  accounts  720 

contents;  how  kept  720 

presentation  to  town  board  721 

statements  to  be  made  to  town  board 721 

estimate  of  expenditures 722 

abstract  of  accounts,  supervisor  to  present  to  board  of  supervisors 724 

duties  as  to  person  bit  by  mad  dog 725 

settlement  of  poor  persons,  duties  as  to  proceedings 734 

unlawful  removal  of  poor  persons,  duties 738-741 

to  notify  superintendent  of  cases  of  bastardy 747 

to  support  bastards,  until  cared  for  by  superintendent 747 

whether  chargeable  or  not 747 

application  of  money  received  from  father 748 

order  of  supervisor 751 

compel  relatives  to  support  poor  person 755 

seizure  of  property  of  absconding  parents 760,  761 

sale  of  property  seized 762 

distinction  between  town  and*  county  poor  abolished,  duties  as  to  town 

moneys 780 

reports  as  to  children  placed  in  family  homes 782 

compensation 352 

P 

Parks  and  Playgrounds — 

in  certain  towns,  establishment  and  maintenance 462q 

Pasteur  Institute- 

persons  bitten  by  mad  dogs,  sent  to 725 

Peace  Offices — 

in  towns  adjoining  cities  of  first  class 356 

Peddling— See  Hawking  and  Peddling. 

Penalties— 

received  by  county  officers,  reports  to  board  of  supervisors 224 

collected  by  justice,  payment 349 

Penitentiaries — 

board  of  supervisors  may  contract  with 57 

notice  of  contract  to  be  published 58 

Pension  Money- 

property  purchased,  exempt  from  taxation 477 

application  for  exemption 478 


INDEX. 


1329 


Personal  Property—  Page. 

includes  what,  for  purpose  of  taxation 469 

taxation  of 469 

liable  to  taxation 470 

assessment  of,  no  deduction  for  certain  indebtedness 488 

place  of  taxation 489 

of  agents,  trustees,  guardians,  executors,  or  administrators 492 

rents  reserved  493 

residence,  what  constitutes 493 

Physicians— 

for  jail,  board  of  supervisors  may  appoint 185 

town,  appointment  by  town  board 358a 

Pipe  Line  Corporations — 

apportionment  of  valuation  between  school  districts 544 

Plank  Road  Corporations — See  Turnpike  and  Plank  Road  Corporations. 

exemption  from  taxation 486 

acquisition  of  rights  by  supervisors 971 

borrowing  money  for 971 

Playgrounds— 

in  certain  towns,  creation  and  maintenance 462q 

Police  Justices— 

in  certain  towns,  election,  terms 349 

jurisdiction  and  powers 350 

creation  of  office 351 

Poll  Clerks — 

designation  number,  qualifications 293 

in  towns,  appointment 294 

Poor- 

support,  special  town  meeting  to  raise  money 252,253 

town  may  borrow  money  for 396 

Poor  House — See  Alms-House. 

acquisition  of  new  site 70 

change  of  location 71 

Poor  Persons — See  Overseer  of  Poor ; Superintendent  of  Poor. 

support,  at  alms-house,  accounts  with  towns 677 

county,  superintendent  may  direct  overseers  to  care  for 676 

estimate  for  support 679 

town,  statement  of  amount  expended 677 

annual  apportionment  to  towms 678 

rules  and  regulations  for  temporary  relief 680 

failure  to  make  reports  as  to 681 

children,  support  in  families  or  charitable  institutions 682 

alien,  not  to  be  admitted  to  certain  institutions 703 


looi) 


INDEX. 


Pooi*  Persons — Continued.  Page. 

when  relieved  in  alms-house 714 

care,  not  to  be  put  up  at  auction 710 

temporary  relief  prior  to  removal  to  alms-house 716 

board  of  supervisors  may  make  regulations  as  to  temporary  relief.  . . . 680 

when  cannot  be  removed  to  alms-house 717 

order  of  supervisor 717 

where  county  has  no  alms-house 718 

need®  of,  overseer  to  examine  monthly 719 

accounts,  form  and  settlement 719 

books  to  be  kept 720 

presentation  of  -bocks  to  town  board 720 

estimates  as  to  expenditures  for 722 

accounts  of  town  officers 724 

abstracts  of  overseer’s  accounts 724 

treatment  in  hospitals 725 

settlement , how  gained 729 

of  married  women 731 

when  cjetermined  by  that  of  parents 731 

of  children  730 

of  apprentices  731 

once  gained,  unlawful  removal 732 

settlement,  to  be  supported  at  place  of 732,  733 

proceedings  to  determine 734 

county  superintendents  to  conduct 734 

notice  to  appear  before 734 

hearing;  decision 734,  735 

decisions  to  be  entered  in  books 737 

appeals  from  decisions 737 

of  mother  of  bastard 746 

of  bastards,  disputes  concerning 750 

effect  of  failure  to  provide  support,  when  overseer  has  been  notified 735 

t>oard  of  supervisors  to  charge  support  to  proper  town 735 

county,  superintendent  to  determine  who  are 736 

support  in  counties  having  no  alms-house 736 

unlawful  removal,  a misdemeanor 738 

proceedings  in  case  of 738 

denial;  service  739 

support  a charge  on  town  or  county  from  which  removed,  unless 

denial  served  740,  741 

action  to  recover  for  support 741 

foreign,  penalty  for  bringing  into  state 742 

relatives  to  support 755 

liability 755 

insane  poor  756 

overseers  to  apply  to  court 756 

bearing;  order  of  court 756 

apportionment  among  relatives 757 

order  to  specify  time,  etc 758 

in  effect  a judgment 758 

costs  of  proceedings 758 

action  on  order 759 


INDEX. 


1331 


Poor  Persons — Continued. 

state , who  are 

relief  of,  duties  of  state  board,  of  charities 

location  of  alms-houses  for 

to  be  conveyed  to  state  alms-houses 

punishment  for  leaving  alms-house 

expenses  for  support 

duties  of  superintendent  of  state  and  alien  poor 

visitation  of  state  alms-houses 

transfer  to  other  states  or  counties 

insane,  removal  to  state  hospital 

children,  care  and  binding  out 

Indian,  relief  of 

relief  of,  in  case  of  epidemic 

town  and  county,  distinction  abolished  or  revived 

resolution  of  board  of  supervisors 

abolishing,  duties  of  overseers 

investment  of  town  poor  money 

owning  property,  action  to  recover  for  support 

support,  town  board  may  borrow  money  for 


Page. 


773 

773 

774 

774 
774,  776 

775 

776 
775 
775 

.776-778 
461 
779 
779 
780- 
. . 781 

781 
396 


Poundmasters— 

number,  town  meeting  to  determine 296 

election 296,  367 

to  care  for  pounds 296 

duties  and  fees,  as  to  strayed  animals 649 

fees 367 


Pounds — 

erection,  town  meeting  may  provide  for 250,  367 

under  control  of  poundmasters 296 

erection  and  discontinuance 367 


Priests— 

real  property  exempt  from  taxation 483 

Prisoners— See  Jails ; Civil  Prisoners ; Sheriffs. 

support  of,  in  jails,  a county  charge 41 

when  unable  to  support  themselves 48 

contracts  for  board  of 59 

in  jails 175,  178 

separation  of  178 

to  be  furnished  with  wholesome  food 180 

employment  of 180 

to  be  furnished  with  reading  matter 181 

record  of  commitments  and  discharges 181 

of  United  States  to  be  received 182 

calendars  or  names  of 182 

discharge  if  not  indicted 182 

if  unable  to  pay  fine 183 

communications  with,  prohibited 184 

sale  of  liquors  to 185 


1332 


INDEX. 


Prisoners — Continued.  Page. 

service  of  papers  on 186 

removal  in  case  of  an  emergency 186 

civil,  see  Civil  Prisoners 189 

Prisons,  State  Commission  of— 

duties  as  to  jails 175-177 

Private  Road — 

credit  for  work  on 837 

application  for  931 

copy  to  be  delivered  to  applicant 932 

service  of  copy,  on  owners  of  lands 932 

jury  to  determine  necessity ' 932 

list  of  jurors 932 

how  made  up 933 

place  of  meeting 933 

damages  ascertained  by 933 

to  be  paid  before  road  is  opened 933 

verdict 933 

to  be  filed 934 

motion  to  confirm,  vacate  or  modify 934 

fees  to  be  paid  by  applicant 934 

new  hearing,  costs 935 

for  what  purpose  to  be  used 935 

damages,  where  laid  out  along  division  line 936 

Propositions — 

submission  at  town  meetings,  see  Town  Meetings 255 

Public  Conveyances — 

intemperate  drivers  not  to  be  employed 963d 

horses  not  to  be  left  untied 963d 

owners  liable  for  acts  of  drivers 964 

Pnblic  Improvements  in  Towns — 

assessments,  how  made 369 

form  and  notice 369 

hearing 370 

appointment  of  commissioners 370 

Q 

Queens  County — 

designation  of  newspapers  for  publication  of  session  laws 67 

R 

Railroad  Commissioner — 

board  of  supervisors  may  abolish 1071 

supervisor  may  act  as 1071 

county  judge  may  appoint 1072 


INDEX. 


1333 


Railroad  Commissioner — Continued.  Page. 

oath  and  undertaking 1073 

sale  of  stock  and  bonds 1074 

disposition  of  proceeds 107 ^ 

manual  report  1074 

accounts  and  loans 1075 

Railroad  Corporations — 

apportionment  of  valuation  between  school  districts 544 

may  pay  tax  to  county  treasurer 590 

school  tax,  payment  to  county  treasurer 591 

payment  of  tax  to  county  treasurer,  where  town  was  bonded 592 

disposition  of  tax  paid 593 

Railroads— 

grade  crossings  on  state  and  county  highways 991 

street  surface,  on  state  or  county  highway,  restrictions 892 

crossing  highways,  not  to  be  at  grade 991 

manner,  commission  to  determine 991 

laying  out  new  highways 992 

crossing  highways,  changes  in  existing 994 

proceedings  before  public  service  commission 994,  995 

acquisition  of  land  by  town 996a 

powers  of  commission 760 

cost  of  repair  of  bridges1  and  subway 996b 

payment  of  cost  of  construction 996b-1000 

proceeding  to  compel  compliance  with  order  of  commission 1000a 

town  bonds  issued  for 1000a 


Real  Property — 

includes  what,  for  purpose  of  taxation,  see  Taxation ; Taxes 

rule  for  determining 

special  franchise  as 468, 

liable  to  taxation 

place  of  taxation 

when  owned  by  nonresident  or  unoccupied 

when  divided  by  line  of  tax  district 

of  non-residents,  designation  in  assessment-roll 

surveys  and  maps  to  be  made  by  supervisor 


467 

466 

469 

471 

496 

496 

497 
527 
529 


Re-assessment— 

of  unpaid  taxes 


608 


Recording  Tax  on  Mortgages — See  Mortgages,  Taxation  of 621-633 


Religious  Corporations— 

dwelling  houses  and  property  exempt  from  taxation 482 

Removal — 

of  county  officers  by  governor 229 

proceedings,  evidence  229 

order,  how  made,  where  filed 230 


INDEX. 


1334 

Removal— Continued.  Page. 

order  how  made,  where  filed 230 

costs,  a county  charge 45 

county  comptroller 119 

sheriff,  nonpayment  of  money 161 

of  public  officers,  for  seditious  or  treasonable  utterances 231 

of  town  officers 315 

application  to  appellate  division,,  notice 315 

of  justice  of  the  peace 315 

Rents  Reserved— 

owned  by  nonresidents,  review  of  assessment  by  board  of  supervisors 561 

taxes  on,  collector  may  levy 595 

Resignation— 

of  town  officers 315 

Richmond  County — 

designation  of  newspapers  for  publication  of  session  laws 67 

Riots— 

liability  of  county  for  damages 1076,  1077 

Road  Machine — 

purchase  by  town 822 

contract  for  822 

town  superintendent  to  make  inventory 823 

Rome  State  Custodial  Asylum — 

idiots  committed  to 700 

Rules — 

of  procedure  of  board  of  supervisors 13 

S 

Sailors— See  Soldiers , Sailors  and  Marines. 

Salaries — See  Compensation ; County  Officers;  Toum  Officers. 

Savings  Banks — 

deposits  exempt  from  taxation 485 

School  Directors — 

town,  election,  compensation,  etc 1019 

election  of  district  superintendent 1019 

School  Districts — See  Schools;  School  Moneys. 

apportionment  of  valuation  of  railroad,  telegraph  or  pipe  line  companies 

between 544 

apportionment  of  special  franchise  tax  among 551 

registion  and  erection,  duties  of  supervisor 1015 

supervisor  to  be  associated  with  district  superintendent 1015 


INDEX. 


1335 


School  Districts — Continued.  Page. 

dissolved,  duties  of  supervisor 1016 

in  two  or  more  towns,  equalization  of  taxes 1016 

School  Moneys — 

apportionment  by  commissioner  of  education 1002 

for  support  of  common  schools 1002 

conditions  under  which  to  be  made 1003 

academic  funds,  how  made 1004 

certificates  to  county  treasurer 1006,  1007 

annual  report  of  county  treasurer 1006 

moneys,  when  payable 1007 

duties  of  district  superintendent 1007 

when  district  not  entitled  to 1008 

supervisor  to  receive 1008 

undertaking  to  be  given 1008,  1009 

return  to  county  treasurer  of  balance . 1010,  1013. 

supervisor,  disbursements;  payments  to  collector  or  treasurer 1013 

library  moneys  1013 

union  free  schools 1013 

accounts,  how  kept  and  filed 1013 

payments  to  successors 1014 

ability  of  town  officers  for  loss  of 1025 

School  Taxes — 

payment  by  railroad,  telegraph,  telephone  and  electric  light  company  to 

county  treasurer 591 

unpaid,  collector  to  return 1022 

county  treasurer  to  pay  to  collector 1023 

accounts  of,  to  be  laid  before  supervisors 1024 

School  Trustee — 

not  to  be  supervisor 300 

Schools— 

apportionment  of  public  moneys 1002 

grant,  devise  or  bequest  to  town  for  benefit 1010 

fines  and  penalties  for  benefit,  disposition 101 1 

district  attorney  to  report  as  to 1012 

duties  of  town  clerk  in  respect  to 1021 

unpaid  taxes,  collector  to  return 1022 

county  treasurer  to  pay  amount  to  collector 1023 

account  of,  to  be  laid  before  supervisors 1024 

district  superintendents  of,  election,  salaries  and  expenses 1017-1019 

supplies,  etc.,  supervisors  may  furnish 65b 

(See  District  Superintendent  of  Schools.) 

Scraper  and  Plow- 

purchase  by  town  superintendent 822 

Sealer  of  Weights  and  Measures — 

county,  appointed  by  board  of  supervisors 10S9 

powers  and  duties 1089 


1336 


INDEX. 


Seals — Page. 

of  counties,  boards  of  supervisors,  county  treasurer 225 

how  impressed 225 

Search — 

of  records  by  county  clerk 129 

Seditious  or  Treasonable  Utterances— 

removal  of  public  officer 231 

Session  Laws — 

designation  of  newspapers  for  publication  of 66a 

method  of  selection;  votes  of  members  of  board 66a 

failure  to  make;  effect 66b 

clerk  of  board  of  supervisors  to  forward  name  and  address  of  newspapers 

to  secretary  of  state 66c 

of  a general  nature  published  at  expense  of  state 66d 

local,  at  expense  of  county 66,  68 

secretary  of  state  to  transmit  copies  to  county  treasurer  and  to  papers 

designated 66d 

slips  to  be  forwarded  to  newspapers 67 

Settlement — 

of  poor  persons,  see  Poor  Persons 729-735 

Sewerage — 

purification 438a 

contracts  for  disposal  in  municipalities 438b 


Sewer  System — 

town  board  may  establish 

petition ; contents ; signatures 

extension  of  district 

direction  to  construct  portions 

commissioners,  appointment  

oath  of  office  and  undertaking 

condemnation  of  real  property 

annual  statement 

map  and  plans 

construction  

portion  may  be  constructed' 

extension,  when  constructed 

assessment  of  expense 

levy,  for  cost  of  construction 

for  cost  of  maintenance 

water  and  sewer  commission  in  certain  towns 
in  municipalities  generally 

Sheep- 

killed  or  injured  by  dogs,  procedure,  see  Dogs. 

Shelter  for  Unprotected  Girls — 

commitment  of  girls  to 

Sheriff- 

See  County  Officers;  Jails ; Prisoners. 

fees  as  to  criminals,  county  charge 39 

for  summoning  constables  » 39 

contracts  with,  for  board  of  prisoners 59 

election  and  terms  154 


. . . 425f 

426 
426 

426 
. . . 426b 

. . . 427 

428 
. . . 431 

. . . 426a 

427 
426 

. . . 426a 

428 
. .428-430 

430 

431 

438b-438j 
..655,  656 
. . . 785 


INDEX. 


1337 


Sheriff — Continued.  Page. 

appointment  to  fill  vacancy  by  governor 154 

undertaking 154 

special  acts  making  office  salaried . 155 

under-sheriffs,  appointment  156 

duties 156 

deputies,  appointment  157 

appointment  to  be  in  writing 157 

number 157 

undertaking 157 

powers 158 

office,  where  kept  158 

notice  of,  to  be  filed  in  office  of  county  clerk 159 

hours  to  be  kept  open 160 

fees  for  services  for  the  state 160 

removal  for  non-payment  of  moneys 161 

coroner,  when  designated  as 161 

when  to  perform  duties  of 161' 

to  execute  duties  until  vacancy  is  filled 162,  163 

undertaking  required  162 

failure  to  give;  other  coroner  to  be  designated 162 

when  coroner  refuses  to  act,  county  judge  may  appoint 162 

mandates  and  process,  duties  in  respect  to  service  of 164 

to  deliver  copy  164 

execution  and  return 165 

liability  for  neglect  in  serving 165 

powers  in  case  of  resistance  to  service 166 

attendance  upon  terms  of  courts 167 

duties  in  respect  to  courts 167 

claim  of  title  to  property  seized,  trial 168 

certificate  of  new 169 

powers  of  former  sheriff  to*terminate  on  filing 169 

former,  to  deliver  books  and  papers  to  new 170 

duties  of  former,  upon  new  sheriff  taking  office 170,  171 

injury  to  records  172 

permitting  escapes  or  refusing  to  receive  prisoners 172 

jails,  custody  of.  See  Jails 174 

civil  prisoners,  duties  and  liabilities  as  to,  see  Civil  Prisoners 189 

escape,  liability  for 197 

indicted,  when  to  produce 198 

warrant  for  collection  of  taxes  on  debts  due  nonresidents 596 

neglect  to  return 596 

when  person  taxed  has  removed  from  county 597 

Shows — 

licenses  required;  regulations  405 

Sidepaths — 

expenditure  of  funds  for,  by  county  superintendent 65 

Sidewalk  District- 

establishment  by  town  board 431 

improvements;  construction  431 


1338 


INDEX. 


Sidewalk  District — Continued.  Page. 

contracts ; payments  432 

cost;  apportionment  by  town  board 433 

issue  and  sale  of  bonds  to  pay 433 

supervision  of  town  superintendent  of  highways 434 

removal  of  obstructions,  snow,  etc 434 

annual  estimate  of  cost 435 

construction  of  sidewalks  outside  of  district 435a 

Sidewalks— 

along  highways,  town  superintendent  may  authorize  construction 833 

expenditure  of  money,  town  board  may  allow 835 

Smallpox — 

duties  of  board  of  health . 450,  451 

Snow — 

town  superintendent  to  remove 816 

employment  of  teams  and  implements 818 

removal  from  culverts  and  waterways 827 

obstruction  caused  by 827 

sidewalks  in  sidewalk  districts 434 

labor  system  adopted  for  removal 845 

assessment  of  labor 845 

list  of  persons  assessed 846 

ditrict  foreman;  unworked  tax 847 

appeals  by  nonresidents  847,  848 

tenant  may  deduct  assessment 848 

Snow  Blockade — 

wire  fence  to  prevent,  expenditure  of  money 829 

how  constructed  829 

Soldiers— See  Soldiers,  Sailors  and  Marines. 

property  purchased  with  pension,  exemption  from  taxation 330,  331 

Soldiers’  Burial  Plots — 

town  board  may  purchase  365 

removal  of  remains 365,  366 

expense  of  maintenance  a town  charge 366 

Soldiers’  Monument — 

erection  of  by  town  or  county 80 

town  board  may  acquire  lands 436 

Soldiers’  Monument  Association — 

exemption  from  taxation 487 

Soldiers,  Sailors  and  Marines — 

not  to  be  sent  to  alms-houses 767 

relief  of,  duty  of  Grand  Army  of  Republic 767 

post  commander  to  file  notice 768 

to  give  undertaking 768 

when  county  charge 65c 


INDEX. 


1339 


Soldiers,  Sailors  and  Marines — Continued.  Page. 

to  be  sent  to  Soldiers’  Horae 770 

burial,  board  of  supervisors  to  designate  persons  to  conduct 770 

where  to  be  made 770 

headstones  to  be  provided 771 

may  peddle  without  license 402 

Special  Franchise — 

real  property  for  purpose  of  taxation 468 

what  taxed  as 469 

valuation  in  assessment-roll 516 

tax  commission  to  value 552 

report  of  corporation  or  owner 549 

affidavit  of  president  annexed  to 549 

penalty  for  failure  to  make 552 

assessment,  hearing  before  state  board 553 

determination  of  final  valuation 563 

certificate  of  valuation  to  be  filed  with  town  clerk 553 

notice  of  determination  to  owner 554 

certiorari  to  review 554a. 

defense  of  certiorari  proceedings 554b 

deduction  from  tax  for  local  purposes 554b 

tax  not  to  affect  other  tax 555 

State  Aid — 

for  construction  of  highways,  see  Highways 866-868 

State  Commission  of  Highways— See  Highways,  State  Commission. 

State  Highways — See  Highways,  State. 

State  Lands — 

in  forest  preserve,  tax  to  be  paid  by  state 601 

State  Poor — 

relief  of,  see  Poor  Persons 772-775 

Statement — 

to  comptroller,  of  county,  town  and  village  indebtedness 97 

of  taxes  upon  railroad,  telegraph,  telephone  and  electric  light  corporations,  97 
penalty  for  failure  to  make 98 

Steam  Traction  Engines — 

use  on  highway  regulated 965 

Stenographers — 

of  Supreme  Court,  salary  and  fees  a county  charge 48 

apportionment  among  counties 48 

of  county  court,  supervisors  may  provide  for 63 

on  coroner’s  inquest,  employment  authorized 164 


1340 


INDEX. 


Stone  Crusher — Page. 

purchase  of  822 

custody  and  use  of 822 

town  superintendent  may  hire 823 

borrowing  money  to  purchase 863,  864 

Street  Lighting  Districts — 

town  board  may  establish 423 

contracts  for  lighting 424 

Streets  and  Avenues— 

plans;  board  of  supervisors  may  adopt 65c 

title  to  lands  for,  in  certain  counties 65d 

Suffolk  County- 

tax  warrant  to  direct  payment  of  school  taxes  to  district  treasurers 570 

Superintendent  of  the  Poor — See  Alms-houses ; County  Officers;  Poor 
Persons. 

not  to  be  supervisor 300 

election  or  appointment 668 

number  of,  board  of  supervisors  to  determine 660 

term  of  office 670 

undertaking  671 

amount,  supervisors  to  fix 55 

powers  and  duties 671 

as  to  alms-houses 672 

to  decide  disputes  as  to  settlement  of  poor  person 678 

to  direct  prosecution  of  penalties  by  overseer 673 

to  draw  on  county  treasurer 673 

to  settle  accounts  of  overseers 673 

to  furnish  relief  to  county  poor 674 

to  account  to  board  of  supervisors 675 

to  administer  oaths,  etc 675 

pay  over  to  county  treasurer  moneys  received  by  him 675 

one  may  be  appointed  keeper  of  alms-house 675 

direct  overseer  to  take  charge  of  county  poor 670 

provide  for  support  of  idiots  and  lunatics 676 

removal  of  persons  from  alms-house  in  case  of  pestilence 677 

statement  of  amount  charged  to  towns 677 

amount  apportioned  against  towns 678 

to  be  added  to  tax  levy 678 

estimate  for  support  of  county  poor 679 

reports  to  state  board  of  charities 679 

failure  to  make  report,  punishment 681 

insane  poor,  duties  as  to 689-698 

idiots,  commitment  to  Rome  asylum 701 

epileptics,  admission  to  Craig  Colony 701 

proceedings  before,  to  determine  settlement 734,  735 

decisions  to  be  entered  and  filed 737 

appeals  from,  to  County  Court 737 

unlawful  removal  of  poor  persons,  duties 738-741 

to  provide  for  bastard  and  mother 747 

compromise  with  father  of  bastard 752 


INDEX. 


1341 


Supervisor—  Page. 

duties  as  to  seizure  of  property  of  person,  abandoning  wife  or  children. . . 763 

reports  as  to  children  placed  in  family  homes 782 

member  of  board  of  supervisors,  penalty  for  failure  to  perform  duty  as. . 17 

liability  for  neglect  of  duty 17 

compensation  18 

special  acts  relating  to 19 

attending  meetings  of  tax  commission 21 

allowance  for  copying  assessment-roll 20b 

application  for  special  town  meeting 253 

election  of  281 

term  of  office 282 

in  county  of  Erie 284 

special  constables,  appointment 292 

to  provide  badges  for > 292 

eligibility  300 

county  treasurer,  district  superintendent  of  schools  or  trustee  not 

eligible  300 

undertaking,  form  and  condition 304 

sufficiency  and  approval 304 

bond  of  surety  company  purchased  at  expense  of  town 305 

( See  Undertakings. ) 

general  duties  320 

as  to  town  moneys  321 

as  to  actions  for  penalties  323 

accounts  of  receipts  and  expenditures :....  323 

publication  in  newspapers 324 

to  account  to  town  board 323 

certificate  of  bank  to  be  attached  to  account 323 

to  receive  accounts  against  the  town 324 

to  attend  meetings  of  board  of  supervisors 324 

to  sell  town  property 324 

to  act  as  superintendent  of  fires 325 

to  appoint  forest  rangers  in  case  of  forest  fires 325 

to  cause  town  survey  to  be  made 325 

forest  fires,  to  act  as  superintendent  of  fires 325 

appointment  of  forest  rangers 324 

compensation  a town  charge 325 

delivery  of  books  and  papers  to  successor 35(5 

proceedings  to  compel 357 

incorporation  of  villages,  proceedings  for 331 

notice  of  hearing 332 

proceeding  on  hearing 332 

notice  of  appeal  from  decision 332 

hearing  and  decision  of  appeal 333 

compensation  334 

justice  to  pay  fines  and  penalties  to 349 

clerks  and  assistants  in  certain  towns 358 

duties  as  to  funds  in  certain  towns 358g 

surveys  and  maps  of  nonresident  real  property 529 

assessment- roll  to  be  delivered  to 544 

appeal  to  state  board  from  equalization  of  assessments 574 


1342 


INDEX. 


Supervisor-— Continued.  Page. 

surplus  on  tax  sale,  payment  to 588 

conflicting  claims,  settlement  589 

may  institute  supplementary  proceedings  for  collection  of  tax 598 

dismissal  of  suits  or  proceedings 599 

to  prosecute  collector’s  bond.  604 

duties  as  to  unpaid  taxes;  re-assessment 608 

duties  as  to  highways,  see  Highicays. 

town  board;  member  of 374 

preside  at  meetings  of 375 

special  meeting,  may  call 375 

compensation  as  town  officers 352 

while  attending  tax  meetings 21 

fees  on  money  disbursed 354b 

payment  of  salaries  monthly 354b 

for  services  in  respect  to  highways 873 

licenses  for  peddling,  endorsement 402 

for  transient  retail  business 405 

for  hacks,  vendors,  shows,  etc 405 

for  junk  business  407 

school  moneys,  apportionment 1008 

certificate,  to  be  filed  in  office  of  town  clerk 1008 

receipt  on  filing  undertaking 1008,  1009 

undertaking,  sufficiency  1008 

refusal  to  give,  a misdemeanor 1009 

gospel  and  school  funds,  report 1011 

return  to  county  treasurer  of  amount  on  hand M)10,  1013 

disbursement  1013 

payments  to  successor 1014 

erection  or  alteration  of  school  districts 1015 

dissolved  school  districts,  duties 1016 

duties  as  railroad  commissioner 1071 

report  to  board,  of  amount  of  town  bonds 1080 

duplicate  to  be  presented  to  town  meeting 1080 

removal  of  dead  bodies  from  one  cemetery  to  another 1087 

Supplementary  Proceedings — 

for  collection  of  unpaid  tax 598 

Surgeon — 

coroner  may  employ 164 

Surrogates — 

election  and  term  of 145 

governor  to  fill  vacancy 145 

constitutional  provisions  as  to 145 

clerk  of  146 

temporary,  who  to  act  as 146 

undertaking;  approval  and  filing 147 

board  of  supervisors  may  appoint  person  to  act  as 147 

may  create  office  in  certain  counties 146 


INDEX. 


1343 


Surrogates — Continued.  Page. 

report  of  fees  received  to  board  of  supervisors 148 

compensation  147-151 

how  paid 151 

Surveys,  Town — 

supervisor  to  make 325 

Syracuse  State  Institution  for  Feeble-Minded  Children — 

children  suported  and  received  at  700 

discharge  of  pupils 700a 

expense  of  clothing  pupils  charge  on  county 700a 

T 

Taxation — See  Assessment ; Assessment -roll ; Mortgages  ; Taxes. 

definitions 465 

tax  commission  465 

assessors  465 

tax  district  466 

county  treasurer  467 

land,  real  estate,  real  property 467 

rule  for  determining 466 

special  franchise  468,  460 

personal  estate 460 

property  liable  471 

exemptions,  see  Exemptions 472 

lands  sold  or  leased  by  the  state 488d 

personal  property,  deduction  for  indebtedness 488d 

no  deduction  permitted  because  of  purchase  of  non-taxable  property,  488d 

place  of,  of  property  of  nonresidents 480 

of  personal  property  of  nonresidents 400 

deduction  of  debts 401 

of  personal  property  of  residents 402 

residence  at  time  of  assessment 403,  405 

what  constitutes  residence 402 

real  property  406 

of  nonresident  and  unoccupied  lands 406 

divided  by  line  of  tax  district 407 

corporations 400 

of  corporate  stock  of  corporations 500 

capital  stock,  includes  what 500 

of  railroad  corporation 501 

market  value  ascertained 501 

deduction  on  account  of  real  property 503 

income  tax  on  manufacturing  and  mercantile  corporations 502a 

disposition  of  revenues 502a 

of  stockholders  of  bank 503 

of  individual  banker  505 

report  of  exempt  property  by  assessors 506 

of  banks  522a-524 

real  property,  subdivision  of  lots  may  be  abandoned 546 

false  statements  by  person  taxed 546 

special  franchise,  see  Special  Franchises 549-555 


1344 


INDEX. 


Tax  Commission,  State — Page. 

forms  to  be  prescribed  by 545 

assessment  of  special  franchise  by,  see  Special  Franchises 549-555 

appointment,  members,  term  of  office,  compensation.  . . . -. ' 572 

general  powers  and  duties 572 

to  visit  counties  and  meet  with  assessors 573 

compensation  of  assessors  and  supervisors 21 

tax  department,  created 572 

term  and  salaries 572 

general  powers  and  duties 573 

conduct  of  hearings.  . . 575 

eonferences  with  assessors 575 

counties  to  be  visited  576 

re-assessment  of  property 577 

equalization  of  valuations  of  counties.  578 

review  by  commission;  hearing 578c 

appeals  from  equalization  by  board  of  supervisors 578a 

how  brought  578a 

form  of  petition 578b 

time  and  place  of  hearing 578b 

determination  of  board 578d 

costs  to  be  fixed  by  board 578e 

Tax  District — 

defined 467 

assessors  may  divide 512 

tax  map  to  be  prepared 528 

Taxes — 

assessment,  see  Assessment ; Assessment-roll;  Assessors 512 

levy  by  board  of  supervisors 567 

warrant  of  collector  for  collection  of 568 

statement  of,  upon  certain  corporations  by  clerk  of  board  of  supervisors,  570 

collection,  notice  of  receipt  of  tax  roll 583 

notice  to  nonresidents 584 

town  clerk  to  file  address  of  nonresident 584 

to  furnish  transcript  to  collector 584 

fee  for  filing 584 

after  expiration  of  thirty  days 585 

sale  of  personal  property 585 

liability  of  collector 586 

notice  of  time  and  place 586 

disposition  of  proceeds 588 

claims  to  surplus,  settlement 589 

against  stock  in  banks 589 

railroad,  telegraph,  telephone  and  electric  light  corporations . . 590 

payment  of  school  taxes  to  county  treasurer 591 

payment  by  railroad  company,  where  town  was  bonded 592 

disposition  of  amount  paid 593 

against  telegraph,  etc.,  companies,  enforcement 594 

sale  of  instruments,  etc 594 

on  corporations,  sequestration  of  property 595 


INDEX.  1345 

Taxes — Continued,.  Page. 

on  rents  reserved ; levy  by  collector 595 

on  debts  due  nonresidents 59G 

collector  to  return  unpaid,  to  county  treasurer 596 

duties  of  county  treasurer 596 

warrant  to  sheriff  for  collection 596 

warrant  to  sheriff,  when  person  taxed  has  removed  from  county. . . . 597 

supplementary  proceedings  598 

dismissal  of  suits  or  proceedings 599 

cancellation  of  personal  tax  for  want  of  jurisdiction 600 

of  tenant,  amount  to  be  retained 600 

on  part  of  lot 600 

state  lands  in  forest  preserve 601 

fees  of  collector 601 

unpaid,  return  of  collector 601 

contents  of  return.  601 

injunction  to  stay,  effect 602 

pajunents  by  collector 603 

receipts  to  be  given  collector.  .<• 603 

failure  of  collector  to  make 604 

sheriff  to  levy  on  property  of  collector 604 

extension  of  time  by  county  treasurer 605 

new  bond  of  collector 605 

by  sheriff,  where  collector  fails  to  give  bond 606 

collector’s  bond,  satisfaction  of,  by  county  treasurer 607 

form  of  satisfaction;  filing 607 

collector  to  give  receipts 611 

obstructing  officer  in  collection 612 

unpaid,  reassessment  608 

county  treasurer  to  reassess,  when  property  imperfectly  described 608 

payments  by  county  treasurer 609 

state , payments  to  comptroller 609 

fees  of  county  treasurer 609 

accounts  of  county  treasurer 610 

proceedings,  where  amount  is  not  paid  over 610 

unpaid,  sales  of  real  property  by  county  treasurer 613-620 

in  counties  embracing  no  part  of  forest  preserve 614 

list  of  property  and  notice  to  be  published 615 

how  conducted  615 

new  certificate  on  setting  aside  sale 616 

redemption  616 

redemption  of  real  property  stricken  from  tax  rolls 617 

conveyance  to  purchaser 617 

effect  618 

purchase  money,  when  refunded 618 

list  of  lands  sold,  to  be  transmitted  to  comptroller 618 

expense  of  publishing  notice  to  redeem 619 

on  mortgages,  see  Mortgages 621 

Telegraph  Corporations— 

apportionment  of  valuation  between  school  districts 544 

may  pay  tax  to  county  treasurer 590 


1346 


INDEX. 


Telegraph  Corporations — Continued.  Page: 

enforcement  of  tax,  sale  of  instruments,  etc 594 

obstructions  in  highways 824 

Telephone  Corporations— 

apportionment  of  valuation  between  school  districts 544 

may  pay  tax  to  county  treasurer 590 

enforcement  of  tax,  sale  of  instruments,  etc 594 

poles  and  wires  in  highways 824 

Tenant- 

may  retain  amount  of  tax  paid 600 

Time  Table— 

for  town  and  county  officers 1217 

Toll  Bridge — 

unsafe,  duty  to  repair. 840 

abolition,  resolution  of  board  of  supervisors 954 

investigation  by  state  commission 955 

acquisition  by  attorney-general 955 

payment  of  expense 956 

by  state  commissioner,  when  part  of  state  route 957 

maintenance,  when  acquired  by  state 956 

use  by  public  service  corporation 957 

Toll  Roads  and  Bridges — 

acquisition  by  board  of  supervisors 971 

bonds  to  be  issued  for 971 

payment  of  bonds  and  interest 971 

roads  acquired  to  be  part  of  highway  system 972 

when  in  two  or  more  counties 972 

Town — 

a municipal  corporation 233 

powers  of,  as  corporation 234 

alteration  and  erection  235 

application  to  board  of  supervisors 235 

publication  236 

resolution  of  board  236 

proceedings  generally  236 

disposition  of  property 238 

debts  to  be  apportioned  239 

unpaid  taxes,  apportioned 239 

meetings  of  town  boards 240 

division  into  two  towns,  in  certain  counties. 236a 

submission  of  proposition  to  electors 236b 

new,  first  town  meeting 237 

disputed  lines,  establishment 237 

proceedings  therefor  237 

disposition  of  property  238 

debts  to  be  apportioned 239 

boundaries,  intersected  by  islands 238 

survey  of  boundaries ; expense 326 

bonds,  surplus  moneys  applied  in  payment 355 

public  improvements,  assessments  for.... 369 

form  and  notice  of  assessments 369 

hearing  on  assessments 370 

commissioners,  appointment  370 

action  by  and  against,  in  name  of 393 


INDEX. 


1347 


Town — Continued.  Page. 

contracts  in  name  of 393 

may  borrow  money  for  highway  purposes  and  support  of  poor 39 6 

to  pay  judgments 39S 

for  suppression  of  forest  fires  and  other  emergencies 397 

for  payment  of  claims  against  town 398 

parks  and  playgrounds  in  certain  towns 462q 

temporary  loans  1058 

power  to  borrow  money 1058 

funded  debt,  contracted  for  specific  purpose 1058 

new  bonds  for  retirement  of  old 1061 

bonds,  how  issued \ 1062 

surplus  money  applied  in  payment 355 

registration  1063 

eoupon  converted  into  registered 1064 

limitation  of  indebtedness 1065v 

resolutions  of  board  of  supervisors  authorizing 1069 

report  of  amount  outstanding 1080 

duplicate  to  be  presented  to  town  meeting 1080 

cancellation,  town  board  to  provide  for 1080 

credit  not  to  be  loaned 1066 

railroad  bonds,  payment 1074 

reissue  of  lost  or  destroyed 1075 

limitation  of  indebtedness 1080 


Town  Auditors-— See  Accounts ; Audit ; Bonds,  etc. 

when  to  be  elected 391 

number;  term  of  office 391 

audit  of  town  accounts 392 

temporary  appointment  by  town  board 392 

compensation  393 

vacancies,  supervisor  to  fill 393 

discontinuance 393 

Town  Board — See  Accounts;  Audit ; Bonds,  etc. 

• county  attorney  to  perform  services  for 144 

disposition  of  property  and  apportionment  of  debts  where  town  is  divided,  238 

appointment  of  overseer  of  the  poor 291 

appointment  to  fill  vacancies  in  town  offices 318 

clerks,  assistants  and  stenographers  to  officers  in  certain  towns 358a 

town  physician  in  certain  towns,  appointment 358a 

to  fill  vacancy  in  office  of  collector 606 

overseers  of  the  poor  to  present  books  and  accounts 721 

estimate  of  expenditures,  approval 722 

how  constituted  374 

meetings,  regular,  when  held 374 

supervisor  to  preside 375 

special,  .how  called  375 

as  governing  board  of  town 374 

special  powers  and  duties 375 

meetings  for  receiving  town  accounts 376 

accounts  of  town  officers 376 

statement  as  to 376 

for  audit  of  accounts 377 


13  ±8 


INDEX. 


Town  Board — Continued.  Page. 

audit  of  town  accounts,  see  Audit ; Accounts 377-382 

of  accounts  of  justices  of  the  peace  and  constables 383 

certificates  to  be  issued 382 

abstract,  town  clerk  to  prepare 382 

appeal  to  board  of  supervisors 382 

form  of  accounts 386 

verification 386 

town  charges  388 

traveling  fees  for  subpoenaing  witnesses 390 

abstract  of  names  of  claimants 390 

temporary  appointment  of  town  auditors 392 

borrow  money  for  higihway  purposes  and  support  of  poor 396 

statement  to  be  rendered,  to  board  of  supervisors 397 

for  suppression  of  fires 397 

for  other  emergencies  397 

for  payment  of  charges  or  claims  against  town 398 

judgments  against  town,  to  pay 398 

Orleans  county,  appropriation  for  rooms  for  posts 398 

memorial  day,  vote  of  money  for 398 

soldiers’  burial  plots,  purchase 365 

removal  of  remains 365 

expense  a town  charge 366 

hawking  and  peddling,  may  prohibit  without  license 401 

licenses  issued  by  town  clerk 402 

by  soldiers  and  sailors 402 

farm  produce  permitted 403 

penalties,  for  refusal  to  produce  license 404 

unlawful,  a misdemeanor 404 

hacks,  vendors,  shows,  etc.,  licenses  in  certain  towns 405 

rules  and  regulations  respecting 406 

licenes  required  406 

penalties  paid  to  supervisor 406 

offenders,  wihere  tried 406 

injunction  to  restrain  unlawful  business 407 

regulations  not  to  discriminate  against  nonresidents 408 

fire  companies,  appointment  of  members  411 

town  fire  districts,  establishment 414b 

water  supply  districts,  establishment 414c 

contract  with  wrater  works  corporation 414d 

purchase  of  wrater  works 415 

water  districts,  establishment 418 

petition;  map  and  plans 418 

commissioners  to  construct  works 418 

contracts  for  construction 419 

town  bonds,  issue  and  sale 420 

payment;  assessment  on  property 420 

control  of  water  works 421 

enlarging  district,  approval  of  town  board 423 

joint,  action  by  joint  town  boards 425 

contracts;  levy  of  taxes 425a 

street  lighting  districts , establishments 425b 

petition  425b 

notice  of  filing  425b 


INDEX. 


1349 


Town  Board— Continued.  Page. 

contract  for  lighting  425b 

consolidation  by  resolution 425d 

joint  contract  for  lighting  district  and  village 425e 

sewer  system , establishment 425f 

commissioners,  appointment  426b 

map  and  plan 426a 

construction  427 

assessment  of  expense 428 

on  property  benefited 430 

levy  by,  and  supervisors 428,  429 

sidewalk  districts,  establishment 432 

improvements  directed 432 

construction  of  improvements 433 

sidewalks  in  town  outside  of  district 435a 

soldiers’  monument,  may  acquire  lands  for 436 

Grand  Army  of  Republic,  lease  of  public  buildings  to 436 

justices  of  the  peace,  lease  of  buildings  for 437 

collection  of  garbage 437 

purification  of  water  and  sewerage 438 

appropriation  for  shade  tree  fund 438 

forest  lands,  acquisition 438 

levy  of  tax  for  purchase 438a 

as  local  board  of  health,  see  Health 442 

parks  and  playgrounds,  duties  as  to 462q 

cancellation  of  town  bonds 1080 

limitation  of  indebtedness 1080 

special  provisions  as  to  transaction  of  business  in  certain  towns 358b 

adoption  of  act  at  special  meeting 358b 

fiscal  year  358c 

estimates  of  expendtures  by  town  officers 358c 

annual  estimate,  adoption 358c 

hearing  on  proposed  expenditures 358d 

annual  appropriations;  surplus 358e 

tax  budget;  submission  to  board  of  supervisors 358f 

temporary  loans;  certificates  of  indebtedness 358f 

contracts  and  expenditures  beyond  amount  available 358f 

payment  of  claims  against  town 358h 

town  clerk  to  prepare  warrants,  etc 358 i 

supervisor,  duties  as  to  funds 358g 

Town  Charges — 

board  of  supervisors  to  direct  raising  money  to  pay 54 

bond  of  supervisor  purchased  of  surety  company 305 

what  are,  generally 388 

Town  Clerk — See  Town  Board ; Town  Officers,  etc. 

post  notice  of  special  town  meeting 255 

as  clerk  of  town  meeting „ 260 

notice  of  propositions 256 

election  of  281 

term  of  office 282 

delivery  of  books  and  papers  to  successor 356 

proceedings  to  compel 357 


1350 


1XDEX. 


Town  Clerk— Continued).  Pase. 

custody  of  books,  records  and  papers 336 

to  certify  to  county  clerk  names  of  town  officers 336 

to  notify  county  clerk  of  vacancy  in  office  of  justice 336 

to  deliver  to  supervisor  copies  of  entries  of  votes  for  raising  money 336 

furniture  and  blank  books 338 

sign  338 

deputy,  appointment  339 

qualifications  339 

filing  and  discharge  of  chattel  mortgages 339 

duties  in  respect  to  chattel  mortgages . 340 

fees  for  341 

other  liens  on  personal  property 341 

marriage  licenses,  issue  342 

statement  required  of  parties 343 

oaths  may  be  administered  by  town  clerk 344 

consent  of  parents  of  parties,  when  required 344 

fee  for  license 344 

duty  as  to  filing 345 

copies  of  papers  filed  in  office,  evidence 345 

in  certain  towns,  preparation  of  warrants,  etc 358i 

duty  as  to  data  furnished  iby  county  clerk  respecting  corporations 526 

duties  as  to  tax  notices  to  nonresidents 584 

registration  of  dogs,  duties  as  to 662 

names  of  town  officers  to  be  transmitted  to  highway  commission 873 

compensation  352 

in  certain  towns 354a 

for  attending  meetings  of  town  board  in  certain  towns 354b 

for  duties  in  respect  to  highways 873 

duties  in  respect  to  common  schools 1021 

expenses  a town  charge 1021 

neglect  to  return  names  of  constables 1087 

Town  Fire  Districs — See  Fire  Districts. 

establishment 414b 

Town  House- 

town  meeting  may  vote  money  for 359 

form  of  proposition 360 

special,  when  and  how  called 360 

issue  and  sale  of  bonds 360 

purchase  of  site 361 

erection  and  control 361 


Town  Lands — 

town  meeting  to  regulate  use 250 

actions  for  trespass  on 396 

Town  Meetings — 

legalization  of  informal  acts  of 66 

first,  in  new.  . 237 


INDEX. 


1351 


Town  Meetings— Continued. 

biennial,  time  and  place 

board  of  supervisors  may  fix  time 

on  general  election  day 

special  acts  relating  to 

town  may  vote  to  hold 

effect  of  change  on  terms  of  town  officers 

place,  electors  may  determine 

general  powers  

designate  number  of  constables 

election  of  officers 

prosecution  or  defense  of  actions 

noxious  weeds  and  animals 

establish  pounds  

abatement  of  nuisances 

town  lands  

fences,  rules  and  regulations 

support  of  poor 

sale  of  property 

public  records,  provide  for  recopying,  etc 

monuments,  appropriation  

special,  for  what  purposes  called 

application  therefor  

notices  to  be  posted 

submission  of  proposition  under  Liquor  Tax  Law 

presiding  officers  

maintenance  of  order 

town  clerk  as  clerk 

proclamation  of  opening  and  closing 

duration;  hours  during  which  to  be  kept  open 

adjournment 

qualification  of  electors,  when  held  at  time  of  general  election 

to  vote  on  propositions 

to  vote  on  proposition  for  site  of  town  house 

women  to  vote  on  propositions 

challenges  of  voters 

Election  Law  to  apply 

minutes  of  proceedings 

business  not  requiring  ballot 

submission  of  question 

how  voted) 

division  of  electors  present 

submission  of  result  to  canvassers 

when  held  in  separate  districts 

votes  by  ballot,  if  amount  exceed  $500 

elector  must  be  taxpayer 

women  may  cast 

propositions  determined  by  ballot 

application  for  submission 

by  town  officers 

notice  to  be  posted 

ballots  and  ballot  boxes 


Page. 

244 

245 
245 
247 
240 
284 
247 

247 

248 
248 

248 

249 

250 
250 

250 

251 

252 
252 
252 

252 

253 

253 

254 

263 
258 
258 
260 
261 
260 
260 
261 
261 
261 
262 

264 

265 
265 

263 

264 
264 
269 
269 
269 
262 
261 
262 

255 
255 

255 

256 
256 


1352 


INDEX. 


Town  Meetings — Continued.  Page. 

under  Liquor  Tax  Law 256 

notice  and  application 257 

qualification  of  electors 261 

to  vote  for  site  for  town  house 261 

electors  in  villages,  when  not  to  vote 263 

relating  to  highways,  separate  ballots 263 

canvass  of  votes 265 

result  to  be  read 266 

disposition  of  ballots 266 

application  of  Election  Law 266 

in  election  districts,  proposition  therefor 266 

canvass  of  votes 267 

vote  upon  propositions  not  requiring  ballot 267 

notice  of  submission 267,  268 

at  time  of  general  election,  how  conducted 269 

canvass  of  votes 269 

ballots 270 

ballot  boxes  271 

election  expenses  272 

filing  certificates  of  nominations 273 

time  of 273,  274 

form  of  ballots  for  questions  submitted 275 

number  of  ballots 276 

officers  providing  ballots 277 

sample  ballots;  public  inspection 278 

voting  machines,  use  of 278 

town  officers  elected  at 281 

vacancies  to  be  filled 282 

may  vote  money  for  town  house 359 

for  maintenance  of  lock-up 361 

trustees  of  town  burial  grounds 362 

minutes,  town  clerk  to  transcribe 336 

Town  Moneys — 

investigation  into  expenditure 1043 

Town  Officers— 

elected  at  biennial  town  meetings 281 

when  held  at  time  of  general  election 281 

term  of  office 282 

effect  of  change  of  time  of  holding  town  meeting 283 

extension,  by  act  of  legislature 283 

holding  over  after  expiration 284 

eligibility 299 

qualifications 301 

oaths  of  office 301 

form 302 

effect  of  failure  or  neglect  to  take 303 

filing,  deemed  acceptance  of  office 303 

who  may  administer 303 


INDEX. 


1353 


Town  Officers— Continued.  Page. 

undertaking,  form  and  liability  thereon  (see  titles  of  respective  town 

officers 311,  312 

expense  of,  a charge  against  town 313 

not  to  perform  duties  until  given 313 

resignation 315 

notice  of  315 

removal,  application  to  appellate  division 315 

notice 315 

vacancies,  how  created 31b 

by  neglect  to  file  official  oath 317 

appointments  to  fill 318 

election  to  fill 282 

omissions  to  transmit  returns  or  certificates,  county  clerk  to  report 318 

town  clerk  to  certify  names  of,  to  county  clerk 336 

compensation 352 

supervisors,  board  of,  may  fix  by  resolution 352  . 

in  certain  towns 354 

per  diem  allowance 352,  354b 

payment  of  salaries  monthly 354b 

expenditures  of  surplus  moneys 355 

delivery  of  books  and  papers  to  successors 356 

liability  for  loss  of  school  moneys 1025 

clerks,  stenographers  and  assistants  in  certain  towns 358a 

investigation  into  expenditure  of  town  moneys 1044 

nature  and  object  of  proceedings 1044 

action  to  prevent  illegal  acts 1045 

object  of  statute 1047 

when  maintained  1049 

to  restrain  award  of  contracts 1051 

audit  of  illegal  claim 1052 

to  prevent  waste 1048 

by  and  against,  in  official  capacities 1056 

for  malfeasance  in  executing  town  bonds 1053 

acting  without  having  qualified 1082 

bribery 1082 

prevention  from  performance  of  duties 1083 

taking  unlawful  fees 1083 

illegal  acts  as  to  appointments 1084 

wrongful  intrusion  into  office 1085 

neglect  to  perform  duties 1085 

misappropriation  and  falsification  of  accounts 1085 

not  to  be  interested  in  contracts 1086 


Town  Superintendent  of  Highways — See  Highways,  Town  Superintendent 

of. 


Tramp — 

defined 386 

Transfer  Tax — 

collection  by  county  treasurer 116 

treasurer  to  give  receipt 116 


1354 


INDEX. 


Transfer  Tax— Continued.  Page. 

fees  for  collection 116 

reports  to  comptroller  of  amount  received 116 

Transient  Retail  Business- 

license  for  405 

taxation  of  persons  engaged  in 405 

Trees — 

along  highways,  commissioner  may  authorize 833 

to  whom  belong 969 

penalty  for  injuring 970 

abatement  of  highway  tax 835 

appropriation  by  town  board  for  shade  tree  fund 438 

lands  planted  with,  exemption  from  taxation 488 

custody 836 

Trespass — 

on  town  lands,  actions  for .* 396 

Trustees — 

assessment  of  personal  property  held  by 495,  496 

assessment  of,  generally 532 

Tuberculosis — 

cases,  report  of,  to  health  officer 451 

Tuberculosis,  County  Hospital — 

establishment  by  board  of  supervisors 216 

by  vote  of  people  of  county 216 

board  of  supervisors,  purchase  of  site 217 

erection  of;  assessment;  bonds 217 

acceptance  of  gifts  and  trusts 217 

condemnation  of  land 217 

managers,  board  of,  appointment 217 

general  powers  and  duties 218 

employment  of  county  nurses 218 

compensation  of  officers  and  employees,  supervisors’  duties 54 

superintendent,  appointment  218a 

general  powers  and  duties 218b 

patients,  admission  220 

maintenance,  when  from  same  county 220 

when  from  another  county 221 

admission  from'  other  counties 221 

visitation  and  inspection 222 

establishment  at  alms-house. 222 

Turnpike  and  Plank  Road  Corporations — 

exemption  from  taxation 486 

acquisition  of  property  by  county 971 

borrowing  money  therefor  ; bonds 971 

payment  of  bonds 971 

roads  acquired  part  of  highway  system 972 

roads  in  twTo  or  more  counties 972 


INDEX. 


1355 


u 

Ulster  County — Page. 

fees  of  certain  officers 386 

Under-Sheriffs— 

duties  of 156 

powers  of  156 

Undertakers — 

board  of  supervisors  in  Erie  county  may  contract  with 65e 


U ndertaking — 

of  coun^,T  officers,  board  of  supervisors  to  sue 58 

amount  of,  for  county  clerk,  district  attorney  and  superintendent  of  poor, 

supervisors  to  fix 55 

of  county  treasurer 101 

of  deputy  county  treasurer 103 

of  county  clerk;  amount;  approval 126 

of  county  officers,  generally 227 

of  town  officers  generally  (see  titles  of  respective  town  officers) 311 

conditions  generally  of  official 312 

form  and  manner  of  executing;  justification 312 

liabilities  of  sureties 312 

expense  of,  a charge  against  town  or  county 313 

officers  not  to  perform  duties  until  given 313 

validation  of  official  acts  before  executing 314 

United  States  Deposit  Fund — 

what  constitutes  200 

loan  commissioners,  office  abolished 211 

comptroller  to  have  charge  of 206 

discharge  and  cancellation  of  mortgages 207 

bonds 207 

books  and  records 207 

supervision  of  existing  mortgages  by  comptroller 207 

comptroller  to  receive  principal  and  interest 207 

investment  by  comptroller 208 

release  of  part  of  mortgaged  premises 208 

comptroller  to  maintain  actions 209 

foreclosure;  redemption  209 

disposition  of  surplus  moneys 209 

supervision  of  mortgaged  lands 210 

comptroller  to  audit  accounts 210 

office  abolished  211 

certified  copy  of  mortgage 211 

Upon  Its  Borders— 

definition 990 


V 

Vacancies — 

in  office  of  county  treasurer;  governor  to  fill 101 

county  clerk;  governor  to  fill 126 

in  public  offices  generally,  how  created 316 


1356 


INDEX. 


Vacancies — Continued.  Page. 

for  refusal  to  file  oath  or  undertaking 317 

in  town  offices,  how  filled 318 

in  office  of  supervisor 319 

Vagrants — 

defined • 385 

Venders— 

licenses  required;  regulations 405 

Vessels— 

exemption  from  taxation.  483 

Village  Elections — 

legalization  of  informal  acts  of 66 

Villages — 

effect  of  incorporation  within  limits  of  fire  district 79,  80 

incorporation  of  331 

proceedings  before  supervisor 332 

notice  of  hearing 332 

proceeding  on  hearing 332 

decision  of  supervisor 332 

notice  of  appeal  from  decision 333 

•hearing  and  decision  of  appeal 333 

compensation  for  services  of  supervisors  and  town  clerks 334 

jurisdiction  of  town  board  of  health 459 

Vineyards — 

laying  out  highways  through 921 


Vital  Statistics — 

state  department  to  control  registration 462a 

registration  districts  462b 

registrar,  health  officer  as 462b 

appointment  in  certain  towns 462b 

still-born  children,  registration  of  birth 462d 

certificates  of  death 462e 

deaths,  without  medical  attention 462f 

births,  registration  462h 

certificates,  contents  462i 

physicians,  midwives  and*  undertakers 462j 


Voting  Machines — 

adoption  for  use  of  town 278 

who  to  provide 278 

payment  of  cost 279 

number  of  voters  in  election  district 279 


INDEX. 


1357 


w 

Warrant — Page. 

of  collector  for  collection  of  taxes *. 568 

Water- 

purification  438 

Water  and  Sewer  Commission — 

in  certain  towns,  created 431 

Water  Supply  Districts — 

in  towns,  establishment ..  414c,.  418 

petition:  maps  and  plans 418 

commissioners,  town  board  to  appoint 418 

construction  of  works 419 

issue  and  sale  of  town  bonds : 419 

acquisition  of  rights  of  water  works  company.  419 

refunding  indebtedness  420 

assessment  of  cost  on  property 421 

control  of  water  works 421 

enlarging  district  423 

use  of  water  outside  of  district 423 

joint,  town  boards  may  establish  424 

petition  and  map 425 

contract  for  water  supply 425a 

levy  of  taxes 425a 

Watering  Trough — 

abatement  of  highway  tax 836 

Water  Works  Corporation — 

contracts  with  town 414d 

town  may  acquire  works 415 

submission  of  proposition 415 

purchase;  issue  of  bonds 416 

consent  of  stockholders 417 

town  board  to  control 417 

water  district  may  acquire  rights  of 419 

Weeds,  Noxious — 

bounties  for  destruction  of,  a county  charge 43 

board  of  supervisors  may  make  regulations  as  to  destruction  of 56 

town  meeting  to  provide  for  destruction 249 

destruction  by  town  superintendent  of  highways 819 

in  highways,  owners  to  cut 827 

notice  to  owners 827 

duty  of  town  superintendents  as  to 828 

Weights  and  Measures — 

duties  of  state  superintendent 1087 

copies  of  standards 1088 

county  sealer,  appointment 1089 

to  be  sealed 1090 

Widening  Highways — 

narrowed  by  stream  or  river 936 

Wide  Tire- 

board  of  supervisors  may  regulate  use 990 


Wire  Fence — 

purchase,  to  prevent  snow  blockade 


829 


1358 


INDEX. 


Witnesses—  Page. 

examination  by  board  of  supervisors 22 

subpoena,  how  issued 22 

administering  oath 22 

powers  of  committees  of  board 23 

adjournment,  discharge,  when  arrested 23 

undertaking  upon  discharge 23 

fees  of,  criminal  cases,  a county  charge 41 

traveling  fees,  for  subpoenaing 390 

Women — 

vote  at  town  meeting  on  propositions  for  raising  money 262 

Woodlot — 

lands  maintained,  exemption  from  taxation.  .....' 488b 

Work  Houses — 

board  of  supervisors  may  establish  and  maintain 184 


(Total  number  of  pages,  1567.) 


■ 


